author: Per Curiam.

text:
    Second National Bank of Robinson, Robinson, Illinois, Appellant, v. Charles E. Jones et al., Appellees.

      Opinion filed March 1, 1941.
    Vaumore Parker and J. C. Eagueton, both of Robinson, for appellant.
    Chas. E. Jones, of Robinson, for certain appellees.
   Rehearing Opinion.

Per Curiam.

This is an appeal from a decree of the circuit court of Crawford county, dismissing the second count of appellant’s complaint, and a supplemental complaint, for want of equity, and rendering judgment against appellant for costs.

The complaints were filed by the appellant, Robinson State Bank, for the purpose of setting aside certain conveyances and that certain properties be made subject to sale on an execution on a judgment held by appellant against appellee Charles E. Jones.

Appellees filed a motion to dismiss the appeal, setting forth a number of grounds, including the specific contention that the transcript of proceedings was not properly certified by the presiding judge as required by sec. 198, subsec. 2, ch. 110, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 104.074]. We do not deem it pertinent to discuss other grounds stated in such motion.

The order signed by the trial judge, appended to the transcript of proceedings, was as follows: “And for-asmuch as the matters and things hereinbefore set forth do not otherwise appear of record, the plaintiff tenders this, its Record of Proceedings, and prays that the same may be signed and sealed by the Judge of this court, pursuant to'the statute in such case made and provided; which is accordingly done this 16 day of September, A. D. 1939. Roy E. Pearce, Judge. (seal.) ”

Considerable confusion has been evident as to the effect of a certification of a transcript of proceedings under the Civil Practice Act, and this court must concede that by the case of Suttles v. Zimmerman, 287 Ill. App. 316, this court may have added to the misunderstanding in interpretation of the section referred to and the requisites as to certification of a transcript of proceedings under the Practice Act. While it is true that in the Suttles case the certificate read: “Presented for signature this 13th day of March, A. D. 1934.” which was signed by the trial judge, and that there was another certificate to the effect that the transcript was a true, full and complete record of the proceedings, which was not signed by the trial judge, to attempt a distinction on the ground that the certificate signed in such case had less dignity, or was intended to be any less conclusive than the certification in the instant case because of the practice of courts to certify such transcripts twice, once with an informal and later with a formal certificate, does not, in the opinion of this court, furnish a logical basis of distinction.

We had at first felt that the Suttles case had established a precedent which should not be departed from, but upon reconsideration of the problem involved, we feel that the principle enunciated in that case and the principle which would be required to be stated in this case if we were to follow the precedent in the Suttles case, would furnish an undesirable precedent, and might defeat the objects and purposes of the Civil Practice Act and the sections relating to certification of transcripts of proceedings.

Section 4 of the Civil Practice Act contains a provision to the effect that the act shall be liberally construed to the end that controversies between the parties may be speedily and finally determined according to substantive rights. It has been directed to the attention of this court that certificates substantially of the character involved in the instant case have been sustained as sufficient in all respects under our former Practice Act (People ex rel. Vaughan v. Scanlan, 265 Ill. 609; People ex rel. Sprague v. Clark, 298 Ill. 170; Sanders v. Grand Lodge A. O. U. W., 153 Ill. App. 7; Grand Lodge A. O. U. W. v. Ehlman, 246 Ill. 555). As we have previously observed, unless required to hold to a more technical or precise rule by statutory enactment, we should endeavor to be at least as progressive and liberal in construction of the Civil Practice Act as was true of interpretations of the Practice Act of 1907.

Under section 4 of rule 1 of this court (which is identical with section 4, rule 36 of the Supreme Court Rules) it is provided that a claim that the trial court record actually before the court on appeal is not properly authenticated, may be raised only by motion, supported by affidavit, showing not only that the matter complained of is not properly authenticated, but that it is, in fact, incorrect and that injury will result to the objecting party because of its inclusion. It is further provided that unless such motion is made, the record is deemed to be correct.

In view of such rule, it is the conclusion of this court that no precise or technical form of certification is required, and that the test should always be whether the transcript has, in fact, been certified by the court, irrespective of the form of such certificate. We do not desire, however, that this opinion carry with it the implication that appellant is relieved of the necessity of obtaining a certificate by the trial judge of such correctness and completeness. A certificate which specifically recites that the transcript is true, correct, and complete, is obviously sufficient. In the instant case, the fact that the transcript as presented, demonstrated on its face that it was complete and that no objection was made that the transcript was incorrect, and that counsel, .in writing, admitted that the transcript was correct, have all been considered by the court and have aided in moving the court to the conclusion herein stated. Anything in the case of Suttles v. Zimmerman, supra, inconsistent with the conclusion of the court herein stated, is herewith expressly overruled. Motion of appellees for dismissal of appeal is herewith denied, and we shall proceed to a consideration of this cause on its merits.

As heretofore stated, the complaint consisted of two counts. On the portion of the complaint not appealed from, the relief requested by the appellant in count 1 had been granted in the trial court, and the collateral security therein sought to be subjected to execution was decreed to be sold, and the net proceeds applied toward payment of the judgment against appellee Charles E. Jones. Appellant apparently has accepted the benefits of the portion of the decree not appealed from and seeks to have reversed the action of the trial court in dismissing the second count of the original complaint and the supplemental complaint, for want of equity as hereinbefore stated.

The second count of the complaint alleged in substance that the father of appellees, Charles E. Jones, and Ramon Jones, died leaving them, equally, a certain 160 acre farm, certain city property, and an oil and gas lease on the farm land calling for delivery of a one-sixth (%) interest of oil and gas recovered on such land. It was alleged that on' December 1, 1931, appellee Charles E. Jones became indebted to appellant on a certain promissory note, upon which he thereafter defaulted, and that on December 9, 1935, a judgment was rendered on such note against such appellee, Charles E. Jones. On June 22, 1936, an execution was issued on the judgment and it was stated that no property was found in Crawford county on which the sheriff' could make a levy. Such count alleges that Charles E. Jones entered upon a plan to hinder and delay appellant in collecting the amount due it from said Charles E. Jones by entering into certain transactions specified in the complaint. It is specifically charged that on April 10,1931 (which was prior to the creation of any indebtedness), said Charles E. Jones, and his wife, executed a quit claim deed of all his interest in the farm land and city property to his brother, Ramon Jones, which deed was filed for record on April 13, 1931. At the same time (April 10, 1931) Ramon Jones, and his wife, executed a quitclaim deed to Charles Jones for a half interest in the 160 acres and the city property referred to, which was not recorded until June of 1933. On January 1, 1932, Charles E. Jones, and his wife, for a stated consideration of ten dollars ($10) and other valuable consideration, executed a deed to defendant Claude C. Pearson for said one-half interest in the 160 acres and all interest in the city property and such deed was not recorded until August, 1932.

In verified answers appellees deny that appellant was a creditor at the time of the making of any of the conveyances attacked for the reason that the original transfers were in April of 1931, and the note was not signed until December 1, 1931, and for the further reason that there had been a transfer and sale of the note to the Second national Bank of Bobinson, Illinois. It was alleged in the sworn answers of Charles E. Jones and his wife that, the reason for not recording the Pearson deed was that negotiations were not completed until August, 1932, and at that time the deeds were delivered between the parties and recorded. It was also alleged that the transfer of deeds between the appellees, Charles E. Jones and Bamon Jones, in addition to being based on transfers on the exchange of dollars, was made in consideration of the transfer of certain other lands of which their father died seized. It was stated that the reason for not recording the deed from Bamon Jones to Charles E. Jones was simply to permit Bamon Jones to sell the properties, if possible (Charles E. Jones having taken up residence in Florida during such time). It was also stated in such answers that the transfer to Claude C. Pearson was made in consideration of certain oil, gas, mineral rights and royalties in a mineral deed from said Pearson to Charles E. Jones, in addition to the ten dollar ($10) consideration.

In the supplemental complaint appellant seeks to set aside certain tax deeds of the 160 acre tract of which appellee Bush B. Bankston became purchaser on October 1,1934, and received tax deeds on October 5,1936. It was alleged that on April 12, 1937, said Bankston executed a quitclaim deed to the wives of Charles E. Jones and Bamon Jones. It is sought to subject such lands and the oil and gas interests therein to the satisfaction of the judgment against appellee Charles E. Jones.

In view of the fact that the tax deed to Sadie C. Jones, wife of Charles E. Jones, was apparently paid for from the proceeds of the sale of royalty oil which accumulated between the time of the tax sale and the date of the quitclaim deed from Bankston, our conclusions will be the same with reference to the interest acquired under the tax deed. No consideration has apparently been paid for the land, or for such oil interest.

Creditor’s suits, as determined in the cases decided in this State, fall into general classifications designated as “Fraud in Law” cases, and “Fraud in Fact” cases. The distinction between such classes of cases is as to whether or not there is any consideration for the transfer under attack. In the “Fraud in Law” cases where the transfers are made without consideration and are deemed to be voluntary, and where it appears that such transfers directly tend to or do impair the rights of creditors, the question of actual fraud, or fraud in fact, or fraudulent intent or motive of the parties is immaterial and plaintiff is not required in such cases to show a fraudulent intent on part of the grantor, or participation in such fraud by a grantee (Birney v. Solomon, 348 Ill. 410; Kennard v. Curran, 239 Ill. 122). The rule in such cases is predicated on the principle that “one must be just before he is generous.” An actual insolvency need not be shown to render a voluntary conveyance void where the conveyance is between husband and wife. The test of the validity of such voluntary conveyance, as against creditors, is whether or not it directly tended to or did impair the rights of creditors (Birney v. Solomon, supra).

The burden of dispelling the implication of fraud as against pre-existing creditors where a grantor is found to be insolvent, after having made a voluntary conveyance to his wife, is upon such grantee (Birney v. Solomon, supra; Dillman v. Nadelhoffer, 162 Ill. 625).

The other class of creditor’s actions, which are designated as “Fraud in Fact” cases, all involve transfers in which an actual consideration is passed. In such cases, even though a full and adequate consideration may have been given for the transfers, yet if the transfers are not made in good faith, but for the fraudulent purpose of defeating creditors, such transfers may be set aside. In such cases, however, it is necessary for a plaintiff to show that there was fraud in fact on the part of the debtor, and participation in such fraud on the part of the grantee (Luthy & Co. v. Paradis, 299 Ill. 380; Beidler v. Crane, 135 Ill. 92).

As we have indicated herein, it is the presence or absence of a consideration for the transfer which determines into which class such transfer falls, but if the consideration which is paid for the transfer is very small in comparison to the value of the property, and where the circumstances attending the transfer are extremely unfavorable to the fairness of the transaction (though not sufficient to establish absolute fraud), the conveyance is regarded as a voluntary one to the extent of the difference between the actual consideration and the real value of the property, and to that extent is treated as fraudulent and void as to existing creditors (Snyder v. Partridge, 138 Ill. 173.)

In the instant case no evidence was introduced showing that the assignment of the oil and gas lease to Sadie C. Jones was based upon any consideration, and such conveyance being voluntary, the burden was upon the defendants, Charles E. Jones and Sadie C. Jones, to show that said Charles E. Jones retained sufficient property, after the transfer, to satisfy his obligations. There is a statement in the record by the said Charles E. Jones that he owned a 160 acre farm in Franklin county, but the record is silent as to the value of such farm. The burden is on the defendants to show that the said Charles E. Jones was solvent after making the transfers under consideration, and the mere statements as to the ownership of the 160 acre farm falls short of discharging such burden.

The transfer to Pearson, which is alleged in the answer to have been made in consideration of securing a mineral deed to Texas land, likewise, under the record in this case, cannot be sustained under the precedents hereinbefore referred to. The mineral deed to which reference was made was not introduced in evidence by the defendant, and the fact that the said Charles E. Jones withheld recording his deed from his brother Eamon, after he had incurred the obligations to the Bank, and after he had made the conveyance to Pearson; the circumstance that the said Charles E. Jones, by an undisclosed agreement, reserved the oil rights for the benefit of his wife (although the deed to Pearson was an absolute conveyance by warranty deed), together with the fact that Pearson, after receiving his deed, conveyed a part of the lands to pay a debt of the said Charles E. Jones, coupled with the further fact that Charles E. Jones is now living on the city property conveyed to Pearson, and that Pearson has defaulted in this case; all tend to show a lack of good faith in the conveyance to Pearson (Beidler v. Crane, supra).

It would, therefore, seem from the evidence that the assignment of the oil and gas lease to Sadie C. Jones was voluntary, and being voluntary, the intent or motive of the said Charles E. Jones, or his wife, whether fraudulent or not, would be immaterial since the said Charles E. Jones was in failing circumstances and the effect of the transfer was to hinder his creditors. The burden, as we have indicated, was upon the wife to dispel the implication of fraud from such transfer, and she was required to show that the property remaining in the hands of the said Charles E. Jones, after the transfer to her, was more than equal to the amount of his indebtedness. In the present state of the record no attempt was made by either Charles E. Jones, or his wife, to prove that after such transfer, sufficient property was retained by him to satisfy his debts and discharge his liability to the Bank.

The transfer to Pearson apparently lacks the element of good faith required by the cases in view of the facts that secret reservations were made by Jones, and his wife, and that Charles E. Jones now lives in part of the premises conveyed, and that Pearson has defaulted.

We have given this case careful consideration and now feel that the decree of the trial court as to the second count and supplemental complaint cannot be sustained by the evidence, and that the interest of the parties, in view of the fact that certain matters in evidence to sustain the position of the defendants are too vague and not clearly shown, requires that this cause be remanded for further hearing, giving to the defendants Charles E. Jones and Sadie C. Jones, his wife, the opportunity to submit further evidence, if they are able so to do, to show that the assignment of the oil and gas lease to the said Sadie C. Jones was based on a full and adequate consideration and made in good faith, and, if such fact cannot be shown, that although such transfer was voluntary, the said Charles E. Jones retained sufficient property after such transfer to fully pay off his obligations to the plaintiff. In default of such proof such transfer should be set aside. As to the transfer to Pearson, the defendants should, likewise, be given an opportunity to introduce such evidence as they may desire to show that the conveyance to Pearson was made for a full and adequate consideration, and in good faith, and, in default of such proof, the conveyance to Pearson should be set aside as fraudulent.

The portion of the decree of the circuit court of Crawford county which has been appealed from, is, therefore, reversed, and this cause is remanded to such court for the limited purposes as stated in this opinion.

Reversed and remanded with directions.


source: Caselaw Access Project

license: Public Domain

text:
    Melissa Hellwig, Administratrix of Estate of Frank Hellwig, Deceased, Appellee, v. Lawrence Lomelino and Frank Jackson, Appellants.

      Opinion filed March 1, 1941.
    Mark O. Egberts and Hugh J. Graham, Jr., both of Springfield, for appellants.
    Whitnel, Browning, Listeman & Walker and Louis Klingel, both of East St. Lonis, for appellee.
   Per Curiam.

This is a motor vehicle accident case in which plaintiff’s husband, Frank Hellwig, was killed on December 18, 1939, about 11:30 p. m. Plaintiff obtained a judgment of $6,500 on a verdict of a jury, from which judgment defendants bring this appeal.

The deceased was driving his automobile easterly from St. Louis, Missouri, where he was employed, toward his home in Illinois, over a bridge across the Mississippi river. No one was with him. The defendant Frank Jackson, as agent for the defendant Lome-lino, was driving westerly on such bridge a truck loaded with shelled corn, and the 2 vehicles collided with each other. The lights on both vehicles were lighted.

That portion of the bridge used for vehicle traffic was about 30 feet in width. There was no mark to indicate the center of the roadway. On each side of the bridge there was a sidewalk. On the inner side of each sidewalk, that is the side toward the center of the bridge, there was a curb. From 200 to 400 feet west of the place of the accident there was a curve in the road, but easterly from the place of the accident the road was straight for quite some distance.

The only other vehicle traffic consisted of a large trailer truck proceeding westerly, which trailer truck the defendant Frank Jackson passed shortly before the collision; also one other truck following Frank Jackson, which other truck was being driven behind the trailer truck by Ealph Jackson, as agent for Lomelino. Frank and Ealph Jackson were brothers.

No occupant of the trailer truck testified and the absence of any such witness was not accounted for by either side.

The widow of the deceased testified that she and the deceased lived on the Illinois side of the river; that the deceased was aged 46; that his health was in perfect condition; that he was steadily employed as chief yard clerk by a railroad and had been so employed for 22 years; that his earnings were around $180 a month; that he began work at nine in the morning and quit when he was finished in the evening; that he was a very industrious man and lived with his family; that he had six children, the youngest being aged 11 and the oldest being aged 25, and that he always provided for his family and was always at home when he was not at work. No objection to, or motion to strike, this testimony was made.

Benjamin Phillips, the only eyewitness who testified for the plaintiff, testified that he was walking easterly on the south sidewalk of the bridge and was about 75 feet away when he heard a loud crash and saw the truck and the automobile come together; that “the seeing was after the hearing”; that when the 2 cars came together the automobile was on the “right hand side, the south side . . . and the truck was close to the south side, more on the south side than the north side”; that as soon as the truck hit the auto the rear end of the auto swung around against the south curb; that after the collision the truck stood still a few seconds and was then driven about 100 feet westerly and to the north curb.

Two police officers, as witnesses for the plaintiff, testified that they arrived at the scene of the accident about 11 or 11:20 p. m., after the deceased had been taken away; that the automobile was then facing north, one stating that the rear end of the automobile was on the south sidewalk, the other that the rear end of the automobile was backed into the south curb; one stating the truck was about 100 feet west of the automobile with its front wheels about 6 feet and its back end about 12 feet from the north curb, the other that the truck was about 150 or 250 feet west of the automobile and 2 or 3 or 4 feet from the north curb, and that the truck was parallel with such curb, but that he could not tell whether the front and rear wheels were the same distance from the curb.

For the defense eight witnesses testified, only three of whom were eyewitnesses. The defendant Frank Jackson, who was the driver of the truck which took part in the collision, being incompetent under the statute, was not permitted to testify.

K. Ennis testified that he was riding in the cab with and on the right side of Frank Jackson; that they passed a trailer truck, a semitrailer truck with a large body, about 200 or 300 feet from the place of the accident, and were going about 20 miles per hour; that after passing the trailer Frank Jackson pulled into his own lane of traffic and was driving about 2 or 3 feet from the north curb; that he first noticed the deceased’s car 300 or 400 feet away when it came around the curve to the west; that such car leaned a good deal as it came around the curve and came down the center of the road, about in the center of the road, at a speed of about 50 miles per hour; that he “didn’t actually see the car hit;” that “I never paid any attention to this car after it got up to us until after it hit us; we stopped and I didn’t know at the time or didn’t think about him hitting ns; I knew something had happened for the shelled corn was running out”; that after the impact he next saw the automobile when it was about 50 or 60 feet east of the truck and on the south side of the road, the rear end being against the curb; that the truck did not move more than 10 or 15 feet after the impact; that in so doing it went straight ahead and stopped 2 or 3 feet from the north curb, and was not thereafter moved. He further testified on direct examination that “the corn was spilled between the car and the truck, mostly out in the center of the road at the place of impact, where the car was with the truck.”

Ealph Jackson, a brother of Frank Jackson, testified that he was driving the second truck; that the trailer truck was ' ‘ just in front, ’ ’ about 100 feet ahead, of his truck when he noticed the car of the deceased coming around the curve; that in so doing such car leaned over and was traveling 50 or 60 miles an hour down the center of the pavement and hit the corner of the Frank Jackson truck at a time when such truck was between 2 and 3 feet from and parallel to the north curb and traveling about 20 or 25 miles per hour; that he had pulled out so he could see past the trailer; that the Ealph Jackson truck was about 100 feet behind the trailer and 6 feet from the right-hand side of the road, and the Frank Jackson truck was about 100 feet ahead of the trailer when the accident happened, and the trailer did not obstruct Ealph Jackson’s view of the Frank Jackson truck; that after the impact the Frank Jackson truck kept moving for about 10 feet, when it came to a final stop and was not thereafter moved; that he tried to move such truck and it wouldn’t move; that there were rubber marks where the dual wheels of the Frank Jackson truck had slid, which marks were “straight up the road west”; and 2 or 3 feet from the north curb and about 5 feet in length; that he had a view of the accident even though 100 feet back from the trailer and 6 feet farther to the left than the trailer.

K. Clark testified that he was riding with Ealph Jackson; that after Frank Jackson passed the trailer he could not see at all and did not see the collision; that the deceased’s car was about 10 feet behind Ealph’s truck when Ealph stopped; that the Frank Jackson truck was then standing about 2 or 3 feet from the north curb; that Ealph tried to move the Frank Jackson truck, but such truck would not move under its own power and such truck was not moved after the accident.

A. Maiher testified that he arrived at the scene about 12 or 12: 30 at which time the Frank Jackson truck was parked between 2 and 3 feet from the north curb, the wheels being about the same distance from such curb.

E. House testified he arrived at the scene about 12 o’clock and towed away the Frank Jackson truck with a tow truck; that when he so arrived the Frank Jackson truck was parked parallel with and 2 or 3 feet from the north curb.

H. Blumberg testified that he worked on the Frank Jackson truck as a mechanic and it would not have been possible to move such truck on its own power, because the rear wheel was locked.

C. Enloe testified that he left the scene before the deceased was taken to the hospital; that at that time the front and rear wheels of the truck were about a foot from the north curb.

The testimony of the witness A. Williams is not material to the issue.

The foregoing is a fair statement of all the material facts.

The defendants contend that the trial court erred in denying defendants’ motion to direct a verdict of not guilty at the conclusion of all of the evidence, on the ground that the plaintiff did not make out a prima facie case of actionable negligence on the part of the defendants, or a prima facie case of due care on the part of the deceased.

In reviewing such action of the trial court we cannot weigh the evidence, but must assume as true that evidence which is most favorable to the plaintiff. Our function is limited strictly to determining whether there is or is not evidence legally tending to prove a prima facie case of negligence and due care. (Ziraldo v. W. J. Lynch Co., 365 Ill. 197.) The effect of all modifying or countervailing evidence must be left out of view. (Fraser v. Howe, 106 Ill. 563.) Whether a plaintiff was exercising reasonable care or guilty of contributory negligence is ordinarily a question of fact for a jury. It becomes a question of law only when the evidence is so clearly insufficient to establish due care that all reasonable minds would reach the conclusion that there was contributory negligence. (Ziraldo v. W. J. Lynch Co., supra.) Contributory negligence cannot be defined in exact terms and unless it can be said that the action of a person is clearly and palpably negligent, it is not within the province of the court to substitute its judgment for that of a jury. (Blumb v. Getz, 366 Ill. 273.) Due care may be proven by circumstantial as well as by direct evidence. (Chicago, B. & Q. R. Co. v. Gregory, 58 Ill. 272.)

Assuming as true the evidence most favorable to the plaintiff, then such evidence in our opinion reasonably and fairly tends to prove that at the time of the collision the automobile of the decedent was being driven on the southerly half of the roadway, where normally and in the exercise of reasonable care the deceased had the right to drive such automobile, and fairly and reasonably tends to prove that a substantial portion of the truck was also being driven on the southerly half of such roadway in the path of the deceased’s automobile, a position where normally and in the absence of explanation such truck could not be properly driven. Defendants do not attempt to justify or explain such position of the truck, but contend that the truck was within a few feet of the north curb. It therefore follows that if the truck was on the south half of the roadway in the path of the automobile it was improperly in such position. We believe this makes a prima facie case of negligence on the part of the defendants, the question as to the truth of the testimony being one of fact for the jury.

On the question of due care on the part of the defendants, the evidence shows, or reasonably and fairly tends to show, that the decedent was in good health, steadily employed and of good habits, and that he was driving toward his home from his work on that part of the roadway where normally he had the right to be. The law only requires the highest proof of which a case is susceptible or that can reasonably be made. (Chicago, B. & Q. R. Co. v. Gregory, 58 Ill. 272.) In Illinois Cent. R. Co. v. Nowicki, 148 Ill. 29, 34, the court said, “The argument on behalf of appellant proceeds upon the theory, that inasmuch as the burden of proof is upon the plaintiff to show due care on the part of deceased, there must be testimony tending to prove that he did certain things usually done by one about to cross a railroad track, and which generally should be done, as, looking and listening for approaching trains. If such proof were necessary in cases of this kind, a recovery could seldom, if ever, be had, however inexcusable the negligence of the defendant.' The law is not so unreasonable.”

It is our opinion that the plaintiff made out a prima facie case of due care on the part of the deceased.

Defendants next contend that the verdict is manifestly and palpably against the weight of the evidence. Where there is a contrariety of evidence and the testimony by a fair and reasonable intendment will authorize a verdict, even though it may be supported by a lesser number of witnesses, a court of review will not set it aside (Carney v. Sheedy, 295 Ill. 78). After a careful review and consideration of all of the evidence we cannot say that the verdict is manifestly and palpably contrary to the weight of the evidence.

Complaint is made of the giving of plaintiff’s instruction number 4, the only objection being that such instruction contains verbatim a portion of sections 1 and 2 of the Injuries Act, and in so doing uses the words “company or corporation.” In our opinion there was no error in this instruction. (Deming v. City of Chicago, 321 Ill. 341.)

Defendants next complain that they were prevented on cross-examination from showing that the witness Phillips took approximately $50 from the pocket of the deceased while taking the deceased to the hospital. There was no error in such ruling of the court. (People v. Green, 292 Ill. 351; Addison v. People, 193 Ill. 405.)

The judgment of the circuit court is affirmed.

Affirmed.


author: Mr. Presiding Justice O’Connor

text:
    Elmer E. Schmoldt, Appellee, v. Chicago Stone Setting Company et al., Appellants.
    Gen. No. 41,370.

      Opinion filed March 31, 1941.
    Lawrence E. Fleischman and Irving Goodman, both of Chicago, for appellants.
    Perry B. Brelin, of Chicago, for appellee.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

July 18, 1939, plaintiff brought an action against defendants as maker and the endorsers of a promissory note. The defense interposed was that .plaintiff was not a holder in due course, having acquired the note long after maturity; that he knew all about the facts and circumstances in connection with the execution of the note. There was a trial before the court without a jury, a finding and judgment in plaintiff’s favor for $2,755 against all defendants, $200 additional against the maker of the note for attorney’s fees, and defendants appeal.

The note is for $2,500 dated January 2, 1938, executed by defendant, Chicago Stone Setting Company, by its president, J. F. Stefan, payable on demand to the order of Joseph R. Schulz, with interest at 7% per annum after date. It bears the endorsement of defendants, J. F. Stefan and Ole Jensen and of the payee, Joseph B. Schulz, “without recourse.” It provided that a judgment by confession might be entered for the amount due, together with $400 attorney’s fees.

On the trial plaintiff offered the promissory note in evidence and rested. Counsel for defendants there contended and in this court contend that plaintiff had not made out a prima facie case — that he was not a holder in due course. There is no merit in the contention. The production of the note by plaintiff was prima facie evidence of his ownership and that it was unpaid. Albers v. Dressel, 307 Ill. App. 470; Henderson v. Davisson, 157 Ill. 379; Dillon v. Elmore, 361 Ill. 356; Kazunas v. Wright, 286 Ill. App. 554.

Plaintiff in his complaint described the note made by defendant corporation payable to Joseph B. Schulz and by the latter endorsed without recourse and delivered to plaintiff; that he had made demand on the maker for payment and had given notice to defendants, Stefan and Jensen, the endorsers, but no payment had been made. A copy of the note was attached to and made a part of the complaint. The payee, Schulz, was not sued.

Defendants, the maker and the two endorsers, Stefan and Jensen, in their answer denied plaintiff was “an innocent holder in due course for value”; averred plaintiff had not paid anything of value for the note but was merely acting as agent of the payee, Schulz, and that he acquired the note after it was overdue ; that about April 15, 1939, the payee, Schulz, agreed with Stefan, president of the defendant corporation,, the maker of the note, that he would take a note of defendant company and predate it as of the date it bears, January 2, 1938; that the note would be used merely as evidence of a bad debt “to be charged as a loss in the income tax return” of Schulz; that Schulz would not transfer the note or sue upon it and in accordance with this agreement the note was executed by the corporation, the note being signed by Stefan, the president, and by him endorsed; that afterward Schulz requested defendant Jensen to sign certain papers, among which was the note in question, as vice president of defendant corporation, merely to identify the note and that Jensen was not requested to and did not endorse the note; that Schulz agreed with Stefan and Jensen that the note did not represent any indebtedness of any of the defendants and that there was no agreement to pay attorney’s fee of $400, or any amount.

Plaintiff Sehmoldt, called by defendants under § 60 of the Civil Practice Act (ch. 110, § 60, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 104.060]) for cross-examination testified he purchased the note May 25, 1939, from Schulz paying $500 for it; that he had no conversation with Schulz before he bought the note; that Schulz approached him and said he was in need of ready cash and asked if he would consider buying a note; that afterward he advised Schulz he would buy the note; that he paid for the note by cashier’s check which he purchased at the Continental Bank; that he had no checldng account or savings account at the time but kept his money in a safety box at home.

Defendant Jensen testified he knew Schulz well and was then asked by his counsel if he remembered when he signed any document for Mr. Schulz. Objection of plaintiff was sustained. He was also asked if he had any conversation with Schulz about making the note, to which objection was sustained. Stefan was called and was asked if he had had any conversation with Schulz at the time of the making of the note and upon objection this was sustained. He then testified he had one conversation with plaintiff; that he had a conversation with Mr. Schulz, the payee, when plaintiff Sehmoldt was present. Counsel for plaintiff then stated; “It was my understanding that this note was never to be delivered to anybody by Mr. Schulz and Schmoldt never should have gotten that note, and he knew it.” On objection the court held this could not be gone into. Counsel for defendant was endeavoring to show there was no consideration for the note; it was not to be negotiated or presented for payment and that plaintiff,.Schmoldt, knew of these facts. If such facts were shown, obviously plaintiff would not be a bona fide holder and no recovery could be had. Moreover, the note was not negotiated until about May 25,1939, when Schmoldt said he purchased it and it was dated January 2,1938, when it was more than 16 months overdue. In these circumstances plaintiff would not be a bona fide holder in due course so as to cut off equities and the same defense could be made against him as could be made against Schulz, the payee, in case he were seeking to recover on the note. Section 58, ch. 98, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 89.078]; Nagle v. J. L. Hanson Co., 262 Ill. App. 160.

There was no warrant for the allowance of $200 attorney’s fees for which judgment was entered against defendant, Chicago Stone Setting Company. The provision in the note for the allowance of attorney’s fees only applied in case judgment was entered by confession. We might add that no court ought to allow $400 or $200 for confessing judgment on a $2,500 note.

For the reasons stated the judgment of the superior court of Cook county is reversed and the cause remanded.

Reversed, and Remanded.

Matchett and McSurely, JJ., concur.


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    People of the State of Illinois, Defendant in Error, v. Steve Wojdas, Plaintiff in Error.
    Gen. No. 41,393.
    Opinion filed March 31, 1941.
    Rehearing denied April 4, 1941.
    Smietanka, Conlon & Nowak, of Chicago, for plaintiff in error.
    Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, John T. Gallagher and Melvin S. Eembe, Assistant State’s Attorneys, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

March 11, 1940, Margaret Quire, by leave of court, filed an information charging Steve Wojdas with the crime of pandering, i.e., that March 1, 1940, he took 50 cents from her as part of her earnings from the practice by her of prostitution. The day the petition was filed defendant was taken into custody and an order entered which discloses that pending the hearing his bail was fixed at $1,000 with sureties or a cash bond of $250. Continuing, the order recites that the matter came on for hearing, the People being represented by the State’s Attorney and defendant by his counsel; that he was arraigned and entered a plea of not guilty; that he was advised by the court of his right to trial by jury but he elected to waive such right. The case was continued from time to time and finally heard May 17, 1940. Defendant was found guilty as charged. Thereupon he applied for release on probation. That matter was continued from time to time until June 5 when the application was denied and defendant sentenced to six months in the County Jail and a fine of $300 imposed. June 13 defendant, by new counsel, filed a motion under § 72 of the Civil Practice Act (Ill. Rev. Stat. 1939, ch. 110, § 72 [Jones Ill. Stats. Ann. 104.072]), praying that the conviction be set aside and he be given a new trial. On the same day the State’s Attorney filed a motion to dismiss the petition and on the next day the motion was allowed, the petition dismissed and defendant prosecutes this writ of error.

Defendant in his petition swore he is a naturalized citizen and lives at 8534 Green Bay avenue, which has been his residence for 21 years; that previously he had lived for 14 years on 88th street, Chicago; that he is a widower with a family of 4 grown children; that he owns the property where he lives subject to a mortgage of $2,700; that at times he was employed as a laborer by the Illinois Steel Company and at other times conducted a tavern in Chicago; that he has never been convicted of any offense and he believes he has a good reputation in the community in which he lives; that upon the charge being made against him he employed counsel to whom he disclosed all the facts in reference to the claimed offense; that he paid counsel the retainer asked and appeared in court a number of times when the case was set for trial but was continued although he was ready; that upon three of these occasions all of his witnesses were present but on the day the case was tried all of his witnesses were not in court; that at the time of the trial his counsel indicated he was ill and not in full possession of his faculties; at times he was unable to talk; was forgetful of names; that defendant was unacquainted with the law and did not know what to do; that the case went to trial, that upon the hearing Margaret Quire (who swore to the information) and Betty Holmes, who were reputedly married women, testified that they participated in the “alleged transgression” as set forth in the information; that he did not know he had waived a jury; that he had, at all times, asserted he was not guilty of the offense charged; that at the time of the trial there were other attorneys present in court who observed the conduct of his counsel and immediately after the trial he learned for the first time his counsel had suffered a stroke of paralysis which seriously affected his body and mind; that the two women above mentioned were arrested in defendant’s place of business March 8, 1940, and three days afterward one of them filed the complaint against him; that a number of other persons were in defendant’s place of business who, if called, would have given testimony favorable to him. Among such persons were Michael Stanko and Josephine Klasek, who had been in court on three different occasions to testify in his behalf but who had not been informed to be in court at the time the case was heard; that he could have produced a number of witnesses who would have testified as to his good character, and as a law-abiding citizen.

There seems to be considerable misunderstanding as to the proper method to be pursued where a motion is filed under § 72 of the Civil Practice Act. If the motion is allowed defendant is given a new trial and not discharged. The proper proceeding has been many times pointed out by this court and by the Supreme Court. People v. Miles, 292 Ill. App. 430; People v. Crooks, 326 Ill. 266.

In the Crooks case, where a motion similar to the one before us was made under § 89 of the Practice Act (now § 72) the court said: “The sufficiency of the motion, which is regarded as a declaration in . . . a motion under the statute, must be raised by demurrer, ... by motion to dismiss, ... or by making an issue of fact by traversing the declaration. . . . In this State the issue of fact may be made, and is generally made, by affidavits in support of the motion and by counter-affidavits denying the facts set up in the motion and affidavits in support thereof, in which case the burden of proof is upon the party making the motion to prove his facts alleged by a preponderance of the evidence.”

We think the facts alleged in support of defendant’s motion made a prima facie showing that defendant was prevented without fault on his part from having his case fairly presented through the illness of his counsel and the People should have been required to traverse the allegations. People v. Crooks, 326 Ill. 266.

The court erred in denying defendant’s motion and • in dismissing his petition. The judgment of the municipal court of Chicago is reversed and the matter remanded for further proceedings not inconsistent with the views herein expressed.

Reversed and remanded.

Matchett and McSurely, JJ., concur.


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    Grace Turner Seggebruch, Appellee, v. Michael Stosor, Appellant.
    Gen. No. 41,400.

      Opinion filed March 31, 1941.
    Lee W. Carrier, of Chicago, for appellant.
    John Owen and Thurston R. Lundeberg, both of Chicago, for appellee.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

June 29, 1939, plaintiff filed a forcible detainer suit against defendant to recover possession of certain premises in Chicago Heights which were, improved with a brick building used as a gasoline station. In the complaint it is alleged defendant was to pay 1% cents for each gallon of gasoline sold as rental for the premises; that defendant had performed all the covenants of the lease, paid the monthly rent which was approximately $140 a month up to May 1, 1939; that shortly prior to that date defendant acquired an adjoining lot and erected another gasoline station thereon which he continued to operate from May 1, and abandoned the operation of the gas station on plaintiff’s premises, except occasionally defendant sold a few gallons of gasoline. Plaintiff claimed $1,000 was due under the terms of the lease.

Defendant filed his answer in which he set up the lease entered into between the parties June 24, 1937, covering a period from July 1, 1937, to June 30, 1942; denied he had ceased operating the gasoline station; admitted he operated a gasoline station on the adjoining premises bnt denied that in doing so he had breached any of covenants of the lease; averred he had maintained a full time attendant every day who operated the gasoline station on plaintiff’s premises from 7:30 o ’clock in the morning to 7:30 o ’clock in the evening ; denied plaintiff was entitled to possession of the premises or that plaintiff was entitled to recover any damages.

March 6, 1940, plaintiff filed a “Separate Action in Chancery” in which, among other things, she alleged that a short time prior to May 1, 1939, defendant, intending to cheat and defraud plaintiff, acquired adjoining real estate and erected a gasoline station thereon; that since May 1, 1939, defendant had refused to have an attendant at the gasoline station located on plaintiff’s premises, except that he sold about 200 gallons of gasoline a month from that station while prior to May 1, he had sold approximately 12,000 gallons a month; that defendant was financially insolvent and plaintiff was without an adequate remedy at law; that she was entitled to recover the reasonable rental of the premises which was $150 a month; that the lease be canceled and plaintiff be given a decree for the amount found due.

Defendant filed his answer in which he alleged he kept an attendant who operated the gasoline station on plaintiff’s premises every day, substantially as alleged in his answer to the forcible detainer suit; admitted he sold approximately 12,000 gallons “of gasoline per month prior to May 1, 1939; alleged he had asked plaintiff to “enclose the grease and oil rack so that he could more completely service his customers,” which plaintiff refused to do, and thereupon he was compelled to erect a gasoline station on the adjoining premises; denied he was insolvent; denied that the reasonable rental value of the premises was $150 per month, and denied that plaintiff was entitled to recover damages.

April 23, 1940, the case was heard before the court without a jury and a decree entered which found the equities in favor of plaintiff; that defendant had maliciously failed and refused to operate the gasoline station on plaintiff’s premises for the purpose of defrauding her; that there was due and owing plaintiff $147.50 a month from May 1, 1939, to the date of the entry of the decree. The decree further found the court had theretofore entered judgment at law in the forcible detainer case in plaintiff’s favor and against defendant that she recover possession of the premises and it was decreed that plaintiff recover from defendant $1,696.25. Defendant appeals from that part of the decree awarding plaintiff $1,696.25. No appeal was taken from the judgment entered in the forcible detainer case.

Defendant contends he had a right to construct and conduct a station on the adjoining premises because, as stated by counsel, “No minimum rental is fixed and there is no agreement that the defendant will not conduct the same business at any other address” — that since the lease contained no provision on this question defendant was at liberty to conduct the gasoline station on the adjoining premises.

In deciding the case the chancellor said: “The parties hereto entered into a written lease for the premises and as a rental it is provided” that defendant would pay plaintiff 1% cents for each gallon of gasoline “sold from the premises each month during the term . . . During the term created by the lease the Defendant built another station immediately adjoining this particular station and began to operate the new place.

“The pleadings admit that prior to his occupation of the new station there was sold an average of 12,000 gallons of gas at the station operated under the lease and that immediately after the new station began to be operated the sale of gas in the old place dropped to some 200 gallons a month. The Defendant on the witness stand admits there was no change in the volume of sale at the place so that since the operation of the new station the sales in the two places have reached about the same as the sales in the old place when it was operated alone.

“In an undertaking such as we have here the lessee undertakes to operate the premises in such a way as to reasonably produce the rental contemplated by the parties at the time the contract was entered into, and that he will not by his own act deprive the Plaintiff of her share of the bargain to which she would be reasonably entitled if the premises continued in the condition in which it was rented without hinderance on the part of the Defendant.

“Here the Defendant willfully and deliberately and purely with the intention of injuring the Plaintiff built himself a station right next door and transferred to the new place. Now he stands before the Court and says there is nothing in my contract that I will not cheat the Plaintiff by building my own station next door thereby depriving her of income under the lease. Of course, there is not. Certainly the Plaintiff could not foresee such a possibility and the law will not stand by and allow such an evident wrong to be committed without finding some remedy. The law will treat the income from the new place as belonging to the old, especially since the evidence clearly shows there was no change in the volume.”

We agree with the statement of the chancellor and while there was no express covenant in the lease, it was clearly implied that defendant would use reasonable diligence in operating the gas station on plaintiff’s premises.

In Thebest Laundry & Cleaning Co. v. Dufy, 293 Ill. App. 252, in passing on a contract we said: “In Grossman v. Schenker, 206 N. Y. 466, the court said (p. 469): ' A contract includes not only what the parties said but also what is necessarily to be implied from what they said. (Milliken v. Western Union Tel. Co., 110 N. Y. 403, 408.) Thus the words “cash on delivery” with no other promise to pay “imply a promise and create an obligation” to make payment upon delivery. (Justice v. Lang, supra.) So the word “sold” in a written agreement implies not only a contract to sell but also a contract to buy (Butler v. Thomson, 92 U. S. 412, 414); and a contract to buy with no express promise to sell implies the latter obligation. (Hudson Canal Co. v. Pennsylvania Coal Co., 75 U. S. (8 Wall.) 276, 289.) “What is implied in an express contract is as much a part of it as what is expressed” (Bishop on Contracts (2d ed.), sec. 241); for “the law is a silent factor in every contract.” (Long v. Straus, 107 Ind. 94,95.)’”

And our Supreme Court many years ago announced the law as above stated. Daughetee v. Ohio Oil Co., 263 Ill. 518; Stoddard v. Illinois Imp. Co., 275 Ill. 199.

In the Daughetee case, the court construed an oil and gas lease, by which the lessee was given the exclusive right to explore plaintiff’s land for gas and oil, to mean that the lessee was required to use reasonable diligence to develop oil and gas on the lands. And in the Stoddard case where lands were leased for a stone quarry it was held that the lessee should quarry stone with reasonable diligence for a term covered by the lease if the stone could be found and quarried at a profit, and that if the lessee retained possession of the property but quarried no stone he was liable in damages for the amount of stone at the price fixed in the lease which could by reasonable diligence have been quarried and sold at a profit.

The decree of the circuit court of Cook county is affirmed.

Decree affirmed.

Hatchett and HcSueely, JJ., concur.


text:
    Arnold Moran, Jr., Minor, by His Next Friend and Father, Arnold Moran, Appellee, v. The Borden Company, Appellant.
    Gen. No. 41,487.
    Opinion filed March 31, 1941.
    Philip S. Campbell, of Chicago, for appellant.
    Earl J. Walker, of Chicago, for appellee.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

Plaintiff brought an action against defendant to recover for personal injuries for the claimed negligence of defendant occasioned by defendant leaving one of its electric delivery trucks standing in an alley unattended and without removing the key, in violatioof par. 189, § 92, ch. 95%, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 85.221]. There was a verdict and judgment in plaintiff’s favor for $5,000 and defendant appeals.

The record discloses Walter Jacklin was employed by defendant delivering milk and other dairy products in a residential section of Oak Park. He had been employed by defendant for about 9 years. In performing his work he drove one of defendant’s electric trucks. The territory he served was about half a mile square between Harrison street on the north, Roosevelt road on the south, Austin avenue on the east, and Ridge-land avenue on the west.

September 3, 1937, he completed his route about 1 P. M. his last stop being at Ridgeland avenue and Roosevelt road which was the southwest corner of his territory. Defendant’s West Surburban plant, out of which Jacklin operated and to which he was to return, was located at 7301 Harrison street, Forest Park, Illinois, about a mile west of the northwest corner of Jacklin’s territory. The shortest route to return from the last delivery made by Jacklin to the plant would be to travel west on Roosevelt road to Harlem avenue which is 7200 west, then north some 5 or 6 blocks to Harrison street and then 2 blocks west to the plant. Jacklin did not return to the plant after he made his last delivery but went home for lunch. He lived at 1309 S. Clarence avenue, Berwyn, a distance of 5 or 6 blocks southwest from the place of his last delivery. He drove the truck in the alley and stopped it in the rear of his home facing south; he did not remove the plug or key from the truck. At the time he stopped the truck his two sons, Leroy, 15, and John, 11, were in the alley. Jacklin went into his home and waited for his wife to prepare lunch. He sat down and was about ready to make out a report of the business he had done that day. The boys were in the yard behind the house. He asked Leroy to go out to the truck and get his route book. After Leroy went to the truck, John came into the house and asked for some chocolate milk and Jacklin told him to go to the truck and get a bottle of it. When John got to the truck Leroy was on the running board, he had the route book in his hand. While John was in the truck, plaintiff, a neighbor boy who lived at 1325 S. Clarence avenue, rode north in the alley on his bicycle on the east side of the truck. John got the chocolate milk and the two Jacklin boys began to move various controls on the truck to see which operated the lights; John pressed a button and the horn blew. The boys asked plaintiff to look to see if the lights went on; he first went to the front of the truck, then to the rear on his bicycle and was about two feet back of the truck to see if the rear lights went on. About that time John pressed a button “located in a rib in the roof of the truck. Nothing happened.” He then pressed simultaneously both buttons in the roof and as he did so the truck started in reverse, backed up, struck plaintiff and injured him severely.

After the accident, on the same day, Walter Jacklin was discharged by the defendant company.

Par. 189, § 92, ch. 95%, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 85.221], provides: “No person driving or in charge of a motor vehicle shall permit it to stand unattended without first stopping the engine, locking the ignition and removing the key.” The key mentioned in the statute is an instrument by means of which the electric current is turned on or off. When it is removed there is no possibility of the power being applied so as to move the truck. It is undisputed that the key or plug was not removed by Jacklin when he stopped the truck in the alley and went into his home.

Defendant contends it is not liable because, (1) the failure to remove the key from the truck was not the proximate cause of plaintiff’s injuries, (2) Jacklin was acting outside of the scope of his employment, and (3) plaintiff was guilty of contributory negligence.

(1) Defendant contends the “immediate cause of the accident was the tampering with the controls of a truck by two boys who had been sent to the truck by their father” and not the failure of the father to remove the key or plug when he stopped the truck in the alley; that the violation of the statute by defendant’s employee Jacklin in his failure to remove the key as required by the statute merely furnished a condition by which the injury was made possible by the subsequent act of third persons and therefore defendant was not liable, citing Seith v. Commonwealth Electric Co., 241 Ill. 252. A number of other authorities are discussed, analyzed and applied. We think the question whether the violation of the statute contributed to cause plaintiff’s injury was for the jury. Wintersteen v. National Cooperage Co., 361 Ill. 95.

In that case the court in discussing “proximate cause” said: “It is difficult to write a general rule by reason of the complex and diversified circumstances arising daily in the modern industrial and business world defining a situation in which the causal connection is broken so as to release the party guilty of negligence in the first instance from liability for the injury suffered by another. It may be stated as a general rule that in order to render the party liable fdr his negligent act such act must be so related to the injury as to be the proximate cause thereof. The intervention of independent, concurrent or intervening forces will not break the causal connection if the intervention of such independent force was itself probable and foreseeable. (Sullivan v. Ohlhaver Co. 291 Ill. 359; Miller v. Kelly Coal Co. 239 id. 626.) . . . Such issue was a question for the jury. (Illinois Southern Railway Co. v. Hamill, 226 Ill. 88.)”

In the instant case there is evidence to the effect that the driver of the truck knew there were often children in the alley where he parked the truck; he knew defendant’s instructions were to remove the key and put the control levers in neutral position when leaving a truck. This was some evidence from which the jury might find that defendant knew children might meddle with the mechanism of trucks resulting in injury. We think the legislature had this situation in mind when they enacted § 92 above quoted. Stine v. Union Elec. Co., 305 Ill. App. 37. In that case defendant had parked his car within 20 feet of a crosswalk at an intersection contrary to the provisions of par. 187, § 90, ch. 95%, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 85.219], of which the section involved in the instant case is a part of the, same chapter. In that case Stine was struck by an automobile driven by a third person whom plaintiff could not see approaching due to defendant’s parked car. Par. 187 provides: “No person shall stop, stand, or park a vehicle, ... in any of the following places: . . . within 20 feet of a crosswalk at an intersection.” Defendant contended that the parking of its truck was not the proximate cause of plaintiff’s injury but resulted from the act of a third party in driving the automobile which struck and injured plaintiff. But the Appellate Court overruled this contention and said: “The statute in question prescribed a duty for the protection and safety of persons and property, — the safety of pedestrians and those riding in vehicles. The accident that happened was one of the very things from which the imposition of this duty was designed to protect plaintiff and other persons.” See also Elgin A. & S. Tr. Co. v. Wilson, 217 Ill. 47; Maggiore v. Laundry & Dry Cleaning Service (La. App.), 150. So. 394.

(2) Was Jacklin acting outside of the scope of his employment at the time he parked the car and went to his home for lunch as above stated? We think the question was clearly one for the jury. Wagner v. Chicago Motor Coach Co., 288 Ill. App. 402; Kavale v. Morton Salt Co., 242 Ill. App. 205; Bloodgood v. Whitney, 235 N. Y. 110; Moore v. Rosenmond, 238 N. Y. 356; Radatz v. Tribune Co. 293, Ill. App. 315. Jacklin finished his deliveries about 1 P. M. and was given an hour for lunch; there was no restaurant within the territory he served; it was only a few blocks from where he made his last delivery to his home and while it was not on a direct route we are clear that in any view of the law it cannot be said he had deviated so far from his work as to render his employer not liable for any negligence he may have committed. He went to his home for lunch, told his older son to go to the truck parked in the rear of his home to get the route book so he could make up the daily report while at lunch as was his custom.

(3) Was plaintiff guilty of contributory negligence? Plaintiff was a few months more than 14 years old at the time of the accident and lived in the neighborhood. He knew the Jacklin boys; rode his bicycle in the alley and talked to the boys who were in the truck manipulating some of the buttons to see which controlled the lights. At their request he went in front of the truck, then rode around to the back to see if the rear lights went on when the boys touched certain buttons. We think the question whether he was in the exercise of due care for his own safety, under the circumstances, was clearly for the jury.

The judgment of the circuit court of Cook county is affirmed.

Judgment affirmed.

Hatchett and HcSurely, JJ., concur.


text:
    Devota V. James, Also Known as Peggy Ouellette, Appellant, v. Louis Wicker et al., Appellees.
    Gen. No. 41,497.
    Opinion filed March 31, 1941.
    Jerome B. Bead and Bichard CL Finn, both of Chicago, for appellant; Jerome B. Bead and Bichard GL Finn, of counsel.
    Lord, Bissell & Kadyk, of Chicago, for appellees; Gordon B. Close and Herbert C. Brook, both of Chicago, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

Plaintiff brought an action against the tavern keeper and the owner of the property in which the tavern was being conducted to recover damages for personal injuries claiming that defendants were liable under the provisions of § 14 of the Dram Shop Act. [Ill. Rev. Stat. 1939, ch. 43, par. 135, § 14; Jones Ill. Stats. Ann. 68.042.] There was a jury trial and a verdict and judgment in plaintiff’s favor for $15,000. Afterward defendants’ motion to vacate the judgment and for judgment notwithstanding the verdict was allowed and plaintiff appeals.

The record discloses that at about 10 o ’clock at night of August 21, 1937, plaintiff, Peggy Ouellette and her friend, Phyllis .Steponaitis, who were both employed as- masseuses at the Viking Health Institute, located in the Loop on North State street, in Chicago, went in an automobile with their friends, Emmet Laughlin and Mr. Dwyer (whom they had met on prior occasions), to defendant Wicker’s tavern located at 2204 S. Pulaski road — at the intersection of Ogden avenue, S. Pulaski road and Cermak road, in Chicago — where they remained until about 2:30 o’clock in the morning drinking and dancing. It was raining at the time and plaintiff and Laughlin went to the automobile which was parked nearby, drove in front of the tavern, picked up the other couple and then started up Ogden avenue in a northeasterly direction toward plaintiff’s home. When they had proceeded about 300 yards, the automobile ran head-on into an iron post which was located in the street intersection and plaintiff was severely injured — in fact each of the four was injured and taken to nearby hospitals. The post was quite high and was used to support wires in connection with the operation of street cars on Ogden avenue and Cermak road.

The two women gave testimony to the effect that while they and their escorts were at the tavern each drank considerable intoxicating liquor; that Laughlin, the driver of the automobile, became so intoxicated that he was unable to dance properly and stuttered although he did not do so when sober. Neither of the two men testified and a police officer, called by defendants, testified he had read in a newspaper that Laugh-lin, who was also a police officer, died about six months before the trial, Why the other man, Dwyer, was not called does not appear and no mention is made of this fact in the record or the briefs.

Plaintiff testified that at the time of the trial, February, 1940, she was 24 years old and had been a masseuse about three and one-half years; that she had been employed at the Viking Institute about seven or eight months before the accident and was in charge of the place at the time; that shortly before the night in question she had been in an hospital where she was operated on for appendicitis and had been back at her work about one and a half weeks; that she and her friend, Phyllis Steponaitis had known the two men for a short time and had been out with them before the evening in question; that while they were at the tavern they danced and had several drinks of intoxicating liquor and at times the men went to another table in the tavern “and I know they had a shot glass in front of them”; that during the evening she had “five or six [drinks — ‘Scotch and soda,’ ‘Tom Collins’ and ‘sloe gin’] maybe more or less, I don’t know”; that shortly before they left the tavern “With the drinks I had and not feeling well it made me quite groggy and sleepy. ... I tried to dance with Mr. Laughlin and could not. He seemed to be on my feet more than on his own and he also stuttered . . ■ . and either Phyllis or myself would have to finish his sentences”; ■that at the time they left the tavern “I was feeling a little bit lit and sleepy.”

Phyllis Steponaitis, called by plaintiff, testified she was a masseuse and had been working at the Viking Health Institute six or seven months before the accident. As to what took place at the Tavern she testified she knew the master of ceremonies there; that when she and the others got to the tavern they had drinks at the table; “I drank Scotch and soda and the boys had ale”; that from time to time they got np to dance; that during the course of the evening “I don’t know how many drinks I had, hut I would say about ten”; that sometimes the two men went to other tables. “All I know is that they had shot glasses and I do not know if it was ginger ale or gin or what it was”; that the men had two or three drinks at other tables; that as the evening went on ‘ the men were intoxicated. . . . Laughlin was boisterous. . . . He stuttered terribly. He stutters when he gets drunk. ... I felt pretty happy myself, and Peggy did too”; that when they left the tavern Laughlin was intoxicated. On cross-examination she testified she would not say that Peggy and herself were intoxicated but the drinks they had ‘' just makes you forget all your troubles. In other words, we had a pleasant glow at that point.”

Plaintiff in her complaint alleged she was at all times in the exercise of due care and caution for her own safety. This was denied by defendants in their answers. At plaintiff’s request the court instructed the jury that the expression “proximate cause” means “the negligent act or omission” which produced the injury hut need not he the sole cause nor the last nor the nearest cause; that to make the negligent act the proximate cause of the injury it was not necessary that the particular injury could reasonably have been foreseen; that it was sufficient that “the wrongdoer might, by the exercise of ordinary care, have foreseen that some injury might result as a natural and probable consequence of his negligence, if any such negligence-is shown by a preponderance of the evidence.” Another instruction given at plaintiff’s request told the jury if they found from a preponderance of the evidence that plaintiff was injured as a.result of the intoxication of Laughlin, (if they believed he became intoxicated by reason of liquor sold to him by defendant, Wicker, and the intoxication was the proximate cause of plaintiff’s injuries) the fact that plaintiff may also have been intoxicated at the time would not be a defense unless the jury believed that her intoxication proximately contributed to bring about the accident in question.

At defendants ’ request the jury were told that if they found from a preponderance of the evidence the intoxication, if any, of Laughlin, was not the proximate cause of the accident but that the sole cause was the unfavorable weather condition and visibility or that the street car company was negligent in maintaining the post in the street, their verdict should be for defendants. And in two other instructions given at defendants’ request, the jury were told that if plaintiff failed to exercise due care and caution for her own safety when she entered the automobile knowing Laughlin was intoxicated, they should find defendants not guilty and that if the jury found from a preponderance of the evidence that plaintiff was intoxicated and that her intoxication proximately contributed to her injury, she could not recover. Another instruction was to the effect that plaintiff could not recover unless she was in the exercise of due care and caution for her own safety. Therefore, it is clear that the case was submitted to the jury on the theory that plaintiff could not recover unless she were in the exercise of due care and caution for her own safety.

In this court counsel for plaintiff say: “The facts in the case at bar raise squarely for the first time in an injury case in Illinois the question of contributory negligence as a defense” to an action to recover civil damages under Section 14 of the Dram Shop Act and contend that contributory negligence is not a defense to such an action.

"From the complaint and the instructions it is clear that the case was tried on the theory that contributory negligence was a defense, yet we think the legal question was squarely raised on defendants’ motion for judgment notwithstanding the verdict. In some situations, when technically considered, contributory negligence is no defense to an action brought to recover civil damages under the Dram Shop Act because the question of negligence of the dram shop keeper or the owner of the premises is in no way involved. But it does not follow that plaintiff can recover in such an action where her own conduct contributed to bring about her injuries for which she sues.

It was not a tort at common law to sell or give away intoxicating liquor to one who was strong and able-bodied. The action to recover civil damages is purely statutory. Cruse v. Aden, 127 Ill. 231; Meidel v. Anthis, 71 Ill. 241; Hyba v. C. A. Horneman, Inc., 302 Ill. App. 143. But we think it is also the law that one cannot recover under § 14 of the Dram Shop Act for injuries sustained unless he is innocent. Morton v. Both, 189 Mich. 198; Reget v. Bell, 77 Ill. 593; People v. Linch, 71 Ill. App. 358; Buntin v. Hutton, 206 Ill. App. 194.

Section 14 provides: “Every husband, wife, child, parent, guardian, employer or other person, who shall be injured, in person ... by any intoxicated person or in consequence of the intoxication, ... of any person, shall have a right of action . . . against any person or persons who shall, by selling or giving alcoholic liquor, have caused the intoxication, in whole or in part, of such person; and any person owning, renting, leasing . . . any building . . . and having knowledge that alcoholic liquors are to be sold therein, that have caused, in whole or in part, the intoxication of any person, shall be liable, . . . ■with the person . . . selling or giving alcoholic liquors . . . for all damages sustained.”

In the Morton case [189 Mich. 198], where an action was brought for civil damages under a statute substantially the same as § 14, it was held the statute created a remedy against the saloon keeper for the benefit of innocent third persons. In that case Morton sued the saloon keeper Both to recover for personal injuries received by him when he was riding in an automobile driven by a minor to whom Both had sold intoxicating liquor and it was held no recovery could be had. There the evidence tended to show that plaintiff, who was 22 years old, met McMahon a young man acquaintance 18 years old. They visited several saloons in Muskegon, Michigan, and had a number of drinks. Afterward “they took an automobile which they found upon the street, and, with McMahon driving, enjoyed a ride.” They were both intoxicated. McMahon mismanaged the automobile and it was wrecked, severely injuring plaintiff. There was a directed verdict for defendant which the Supreme Court sustained. The court there said: “A few, and only a few, cases under the statute have reached this court in which the plaintiff was other than an innocent third person injured by an intoxicated person, or by reason of the intoxication of some person, or by reason of the unlawful selling of intoxicating liquor to some person. In Brooks v. Cook, 44 Mich. 617 [7 N. W. 216, 38 Am. Rep. 282], the plaintiff had his pocket picked while he was intoxicated. He was refused relief.” The court then refers to the case of Heikkala v. Isaacson, 178 Mich. 176, where plaintiff, while driving with another and while somewhat intoxicated, was struck and injured by an intoxicated person, and it was held plaintiff could recover although he had aggravated the person who assaulted him. And continuing the court said: “But in Rosecrants v. Shoemaker, 60 Mich. 4 [26 N. W. 794], where a wife brought her action under the statute for furnishing liquor to her husband, there was testimony tending to prove that she authorized defendants to furnish liquor to her husband, and that she herself procured it for him.” In that case the court sustained a directed verdict for defendant, and quoted the following from the Rosecrcmts case: “As the wife sues solely in her own behalf, it is evident that she cannot complain of any evil which she has herself caused, and that, if she encouraged or requested the sale of liquor to her husband, she does not stand on the footing of an innocent injured party. . . . And continuing said: “The courts of other States have recognized the same principle. Reget v. Bell, 77 Ill. 593. . . .

“In the case at bar, there was no act of McMahon— no affirmative act, like a blow or other trespass — which caused plaintiff’s injury. And plaintiff himself participated in furnishing liquor to McMahon, a minor. . . . He was guilty of furnishing liquor to a minor and to an intoxicated minor. . . . But plaintiff is seeking to recoup himself, in a pecuniary way, for consequences for which he was directly and actively responsible. In my opinion, he is not an ‘other person’ within the meaning of the statute sued upon, and the ruling and direction complained about were right.”

In the Beget case [77 Ill. 593], suit was brought by a widow to recover for the death of her husband which she claimed resulted through defendant’s selling the husband intoxicating liquor. The judgment in favor of plaintiff was reversed. Recovery was sought under the Dram Shop Act. In that case defendant kept a wholesale liquor store and sold a jug of whiskey to the husband who took it home. He went to bed placing the jug which was nearly full by his bedside. The next morning it was nearly empty. “He never left the bed alive.” There was no proof that he was a habitual drunkard but was a hard-working, industrious man and kind to his family, but occasionally he would indulge “in a ‘spree’ of the hardest kind.” The court said: “It seems very plain, from the testimony, the plaintiff, now his widow, could have deprived him of the use of this whiskey, had she been so inclined, by breaking the jug, . . .

“We are bound to consider she was a willing party to the conduct of her husband, and instrumental in bringing the loss upon herself.” The judgment in plaintiff’s favor was reversed.

In the Linck case [71 Ill. App. 358], it was held that one who was active and willing agent in procuring his own intoxication could not recover on the saloon keeper’s bond for injuries which resulted from his intoxication. The court speaking by Mr. Presiding Justice Barker said: “We do not think the statute was intended to cover any such case, but rather those cases where parties have been innocently injured by the wrongful act of the principal in the bond.

“The party complaining and seeking damages must be free from complicity in procuring the intoxication. ”

In the Buntin case [206 Ill. App. 194], suit was brought against defendant for procuring alcoholic liquors for plaintiff which she drank as a result of which she became intoxicated and disabled in body and mind, and it was charged that defendant well knew she was in the habit of getting drunk. A general demurrer was sustained to the declaration, the suit was dismissed and an appeal followed. The court discussed a number of Illinois cases and the statute and said: “neither the common law nor the dramshop statute gives to a person a right of action against the seller or against any one procuring liquors for the person suing, where the person suing voluntarily and with full knowledge purchases the same or procures the person sued to procure them. To hold that one could recover . . . would savor too much of allowing a person to benefit by his or her own wrongful act.”

In the instant case we think the evidence shows plaintiff, Laughlin, and the other two persons were more or less under the influence of liquor when they left the tavern and while obviously plaintiff did not purchase any of the liquor, we think she was a “willing party” not free from “complicity” but on the contrary was a participant in what was done in that regard at the tavern and not an innocent person, who alone, is entitled to recover under the statute.

It appearing to the court from a written motion made by plaintiff that defendant, Newton Grey, individually and as one of the trustees of the estate of Charles F. Grey, deceased, died January 21, 1941, it is ordered that the judgment of the circuit court of Cook county appealed from be and the same is hereby affirmed nunc pro tunc as of January 20, 1941.

Judgment affirmed.

Hatchett and HoSurely, JJ., concur.


author: Mr. Justice Matchett

text:
    Eagle Indemnity Company, Appellee, v. Otto C. Haaker, Appellant.
    Gen. No. 40,582.

      Opinion filed March 31, 1941.
    Rehearing denied April 14, 1941.
    Francis M. Lowes, of Chicago, for appellant.
    Heth, Lister & Flynn, of Chicago, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.

The appeal is by defendant from a judgment for $14,000 entered in favor of plaintiff in a summary proceeding under section 57 of the Civil Practice Act. (Smith-Hurd Ann. Stats., ch. 110, par. 181, p. 485 [Jones Ill. Stats. Ann. 104.057]; Supreme Court Buies 259.15, 259.16.) The suit was brought to enforce defendant’s constitutional and statutory liability as a stockholder of the Ashland-63rd State Bank. (Art. XI, section 6 of the Constitution of the State of Illinois; Smith-Hurd Ann. Stats., ch. 16%, § 6, p. 323 [Jones Ill. Stats. Ann. 10.06].)

The facts averred in the complaint as amended are that Henry I. Green, assignee, sued the bank on a written contract made between it and Andrew Bussel on October 13, 1925, when the bank received from Bussel for deposit to the credit of the Grant Park State Bank $25,000 in Liberty bonds, which it agreed to. return at any time within 7 months on demand of Bussel or his assignee; that October 15, 1925, Bussel assigned this contract to Henry I. Green, who April 26, 1926, demanded the bank return the bonds to him which it refused to do. Whereupon, Green sued the bank in the superior court of Cook county, and October 23,1929, recovered judgment for $29,326.40, which was reversed by this court (Green v. Ashland Sixty-third State Bank, 259 Ill. App. 662 (Abst.) ) but affirmed by the Supreme Court. (Green v. Ashland Sixty-Third State Bank, 346 Ill. 174.) The complaint averred that when the contract was made (October 13, 1925) defendant Haaker and other defendants were stockholders of record of the Ashland-63rd State Bank, which on January 29, 1930, transferred all its assets to the West Englewood Trust & Savings Bank, which suspended business June 9, 1931; was put into the hands of a receiver for liquidation and became wholly insolvent, and that the judgment remains wholly unsatisfied.

Defendant filed a verified answer of 20 paragraphs to which no replication was filed. Plaintiff made a motion for summary judgment. In support of the motion affidavits of Green, E. A. Curtis, John J. Flynn and A. D. Weaver (for 9 years manager of the Chicago office of plaintiff company) were filed. In opposition defendant filed his own and the affidavit of John Kohlmann, who on October 13, 1925, was a director and the cashier of the Ashland-63rd State Bank. Judgment was entered and this appeal followed.

The facts alleged in the complaint as above recited were proved by these affidavits and not denied. Defendant says the judgment should be reversed.

First, it is said section 57 of the Civil Practice Act is not applicable to a suit of this kind. He says the section is applicable only where the suit is on a judgment for the payment of money, and that the contract between Russel and the bank was not for the payment of money but of bailment. This construction of the section is a clear misinterpretation of its language. The suits to which the statute is applicable are suits on contracts, express or implied, and judgments “for the payment of money.” Defendant cites Ambler v. Whipple, 139 Ill. 311, and similar cases which are not at all in point. The liability of stockholders of a bank to the bank’s creditors created by the Constitution and statute of Illinois is contractual in its nature. Bell v. Farwell, 176 Ill. 489; Golden v. Cervenka, 278 Ill. 409; Gahagen v. Whitney, 359 Ill. 419. We hold section 57 of the Civil Practice Act is applicable to a suit of this kind.

Second, defendant contends since no replication was filed to the verified answer the answer must be taken as true. Watt v. Cecil, 368 Ill. 510, is cited. It holds in substance that where a replication has not been filed to new matter set out in an answer the new matter is to be taken as true. The same case also holds where the parties offer evidence on the issues, the replication will be regarded as waived. Rule 15 of the Supreme Court provides the affidavit of a defendant resisting entry of summary judgment “shall not consist of conclusions but of such facts as would be admissible in evidence and shall affirmatively show that the affiant, if sworn as a witness, can testify competently thereto. ’ ’ The proceeding for summary judgment is an inquisition to determine whether there is any issue of fact to be tried. The pleadings should of course be considered, but the question to be determined is of fact to be ascertained by the evidence. The submission of affidavits by the parties waives the replication.

Defendant says the assignment of the Green judgment to plaintiff did not carry with it any right of action against Haaker as a stockholder of the bank. He says the right of action of creditors against a stockholder is primary, separate and apart from the right of action. of creditors against the bank, and cites Golden v. Cervenka, 278 Ill. 409. He says his liability as a stockholder of the bank was primary and not secondary; that the stockholders are liable as partners, etc. He argues this case is different from a case where deposits in money have been made in a bank in that by such deposit the relation of debtor and creditor arises while here only the relation of bailor and bailee was created. He says the transaction of October 13, 1925, was wholly without the contemplation of any stockholder of the bank and, therefore, wholly without the provisions of the Constitution and statute declaring stockholders liable to creditors. Fuller v. Ledden, 87 Ill. 310; Wincock v. Turpin, 96 Ill. 135; Golden v. Cervenka, 278 Ill. 409; and Brownsville v. Logue, 129 U. S. 493, are cited. These cases do not so hold. The general rule in Illinois is-that the assignee of an assignable judgment takes the judgment and incidental or collateral rights, remedies and advantages which existed at the time of the assignment. It was so held in Lasher v. Carey, 182 Ill. App. 147, a case where an assignee of a tort judgment was allowed to take out a capias for the debtor; in Moore v. United States One Stave Barrel Co., 238 Ill. 544, where upon a bill in equity to enforce the liability of stockholders of a corporation it was held that the assignee of the creditor could maintain the suit; in Dimond v. Rogers, 203 Ill. 464, where the assignee of a judgment was allowed to maintain a hill in his own name to reach property said to have been concealed by the judgment debtor.

In his reply brief defendant cites Assets Realization Co. v. Howard, 211 N. Y. 430,105 N. E. 680, and Buttner v. Adams, 236 Fed. 105, to the point that a stockholder is not concluded by a judgment against the corporation where he was not a party to the suit. Brownsville v. Logue, 129 U. S. 493, and Ward v. Joslin, 186 U. S. 142, are cited and relied on. The Assets Realisation Co. case construed the New York Statute, the Buttner case the California statute, both of which differ materially from the constitutional and statutory provisions of Illinois. These cases are also distinguishable on the facts.

The affidavits in support of the motion show judgments in the aggregate amount of $59,600 have been recovered by plaintiff against other stockholders in this suit and these judgments have been released and satisfied. Haaker says the effect of this is to release, him from liability to plaintiff. This is not the case. The affidavits show clearly plaintiff has not been paid the amount actually due to it on its judgment. The releases, receipts, satisfactions, etc. are all subject to explanation. The rule applicable is well stated in 34 Corpus Juris 732: “However, as the entry of satisfaction is only in the nature of a receipt, it may be explained, qualified, or even contradicted by parol evidence, at least where the entry is by act of the parties rather than by order of court. ’ ’

The affidavits of Mr. Weaver (manager of the plaintiff corporation) clearly state such explanation and qualification of these transactions and definitely show that the entire amount received by plaintiff fr;om satisfaction of these judgments leaves still due and unpaid to plaintiff more than the amount for which judgment was rendered. The affidavits were not denied. Defendant says this will have the effect of cutting off his right of contribution against other stockholders also liable. This is not necessarily true. No case so holding is cited. '

The question of contribution is not in this case. We shall not decide that question until it arises.

It is urged the contract of October 13, 1925, did not constitute either Eussel or Green creditors of the bank within the meaning of the Constitution and banking statute; that since the relation was that of bailor and bailee the relationship of debtor and creditor did not exist and that the statute, therefore, is not applicable. The relationship has been settled by the judgment of the superior court. We hold defendant is bound thereby. Every defense defendant now seeks to urge against this liability was presented to the Supreme Court and the superior court in the original suit. We hold in view of the relationship existing between the corporation and the stockholder in the absence of fraud (not here alleged) the judgment against the bank is binding and conclusive on defendant. Stoll v. Gottlieb, 305 U. S. 165.

It is insisted defendant was' not a stockholder at the time this liability was created to the extent for which he is held. The affidavits show without contradiction that he was a stockholder of record for 150 shares of the par value of $100. Golden v. Cervenka, 278 Ill. 409; Rosenfeld v. Horwich, 221 Ill. App. 304, are conclusive against defendant on this point.

The affidavits and the pleadings in this case (all of which were verified) conclusively showed that there , was no defense to this action. The statute as to summary judgments was applicable and the court properly entered judgment summarily. The judgment will be affirmed.

Judgment affirmed.

O’Connor, P. J., and McSurely, J., concur.