author: Mr. Justice Bristow

text:
    Fay Spence, Appellee, v. Washington National Insurance Company, Appellant.

      Opinion filed July 10, 1943.
    Rehearing denied August 3, 1943.
    Stone & Fowler, of Marion, for appellant.
    H. E. Skinner, of Marion, for appellee.
   Mr. Justice Bristow

delivered the opinion of the court.

Fay Spence, in a trial before the court without a jury, obtained a judgment for $1,000 against Washington National Insurance Company, defendant and appellant. The suit was by plaintiff as beneficiary under an accident policy issued by defendant to Willie Spence, husband of plaintiff. The husband was killed as a result of his Ford truck, in which he was riding, colliding with another car.

Willie Spence made application for membership in the Auto Club of Egypt. This was a nonprofit organization for motorists which furnished its members road service, towing and wrecking service, maps, guides, bail bond service and an accident policy. A part of each membership fee collected by the auto club was paid to the defendant as premiums for such accident policies. The defendant sent policies to the secretary of this auto club, printed, and ready for delivery to the member. The secretary of the auto club was authorized by defendant to, and did, insert the name of the member as the insured, the name of the beneficiary, and the date of the policy. The secretary of the auto club countersigned the policy as agent of defendant. Willie Spence, on February 11, 1939, signed a written application for membership in this auto club. In this application, after the word “car,” was written the word “Ford.” The word “truck” was not mentioned in the membership application to the club. The policy in question was then issued and delivered to Willie Spence with his membership card.

Across the front page of these policies in very large letters appear the words, “This is a limited policy. Eead it carefully.” Like large letters and notice appeared on the back of the policy. -Part one of the policy was in regard to Eailroad Accidents; part two in regard to Steamship, Interurban, Street Eailway, Subway and Elevated Accidents; and part three was in regard to weekly disability indemnity. The salient words of part four (a) which was the part upon which liability is here claimed reads as follows: “part four: Automobile, Taxi Cab, Burning Buildings and other specified Accidents, (a) By the wrecking or disabling of any private passenger type automobile of the exclusively pleasure type (motorcycles excepted) . . . within which the Insured is riding or driving as a passenger at the time of such wrecking or disabling.”

We will give consideration first to the propriety of the count’s rulings on questions pertaining to the pleadings.

Paragraph 5 of the original complaint alleged that, when the policy was delivered, defendant, by its agent, informed the insured that the policy was valid upon any kind or type of automobile insured might own or become owner of by exchange and was transferable to other automobiles he might afterwards desire, because the policy did not insure the automobile but insured against injury to the person and loss of life by accident and that the agent well knew the kind and type of automobile then being driven by the insured.

Motion was made to strike this paragraph five, and the motion was sustained. No error has been assigned to this action of the court.

The amended complaint then struck out said paragraph five and substituted in lieu thereof, paragraph 5a, which averred that Spence was driving and riding in a private passenger type of automobile of the exclusively pleasure type, which said automobile was totally wrecked by an accidental collision with another automobile. The answer of defendant to this allegation was that defendant denied these allegations, all and singular, of paragraph 5a of said complaint as amended. The answer admitted some of the paragraphs of the amended complaint and denied other paragraphs. In no part of this answer was any new matter of defense alleged nor was any claim of setoff averred.

Several months after this answer was filed, without notice or motion or leave of court, plaintiff filed a reply to this answer which contained no affirmative matter. This reply in substance averred that, although the motor vehicle in which Spence was riding at the time of the injuries was a motor vehicle of the class commonly known as Pick-Up Truck, it was, as to Spence, an exclusive pleasure type and used exclusively for pleasure and passenger purposes by him, which fact was known to defendant and its agent when soliciting the insurance; and that, thereby, defendant ought to he estopped to deny the truck was not covered by the policy. The defendant filed its motion to strike this reply, assigning many reasons. The trial court reserved its ruling on this motion until after the hearing, and then denied the motion. Error is assigned upon denial of this motion.

The purpose of a complaint under the Civil Practice Act, as well as under the former practice, is t'o state the theory of a cause of action upon which plaintiff bases his claim of liability. The function of a replication is to reply to any new matter set up in an answer or plea. A reply can not supply omissions in a complaint, add new grounds of action, or permit the taking of a position inconsistent with that alleged in the-complaint. Pressley v. Bloomington & Normal Railway & Light Co., 271 Ill. 622, 626; McConnel v. Kibbe, 29 Ill. 483; 49 C. J. 342.

The record does not show that this reply was filed in accordance with paragraphs 3 or 5 of rule 8 of the Supreme Court. Conour v. Zimmerly, 290 Ill. App. 546, 547, 548. Such reply, furthermore, has been held subject to demurrer. Pressley v. Bloomington & Normal Railway & Light Co., supra.

It has been held that waiver or estoppel must he pleaded in the initial pleading. Moore v. National Fire Ins. Co., 275 Ill. App. 1, 5 — 8; Feder v. Midland Casu alty Co., 316 Ill. 552, 559; Waxenberg v. J. J. Newberry Co., 302 Ill. App. 128, 141; Ryan v. Vanlandingham, 25 Ill. 128.

The Civil Practice Act, Ill. Rev. Stat. 1941, ch. 110, par. 156, sec. 32 [Jones Ill. Stats. Ann. 104.032] provides the circumstances when a reply is proper. By this statute, it is proper when new matter is pleaded in the answer by way of defense or counterclaim. In the case under consideration, no counterclaim was filed by defendant, and the answer of defendant did not plead any new matterwhatever. Every pleading shall contain an explicit admission or denial of each allegation of the pleading to which it relates. Illinois Civil Practice Act, sec. 40(1) [Jones Ill. Stats. Ann. 104.040].

We are of the opinion that the circuit court erred in not granting the motion to strike this reply.

The burden of proof of estoppel or waiver is upon him who claims it. The proof in this case fails to show waiver or estoppel against the defendant. In a case where such proof is proper, estoppel or waiver must be proven by clear, precise and unequivocal evidence. Coal Belt Elec. R. Co. v. Peabody Coal Co., 230 Ill. 164.

In this case, there is an attempt to increase the risks covered by the policy. In Niedringhaus v. Aetna Ins. Co., 235 Ill. App. 335 at page 337 this court said, “A contract of insurance which relates to one definite and distinct ¡subject cannot be turned into a contract for the insurance of another and different subject on proof that the agent of the company by mistake described the wrong property, that is, in an action at law.” This court further pointed out the well settled rule that, in the absence of ambiguity, parol evidence is inadmissible to show that other property not answering the description contained in a contract was included or intended to be included therein. In Rozgis v. Missouri State Life Ins. Co., 271 Ill. App. 155 at page 157, this court pointed out a number of authorities holding that an agent of an insurance company having authority only to solicit applications and forward same to the home office, is a soliciting agent and has no power to waive the provisions of a policy. It is further recited that parol evidence is not admissible to vary the terms of the written contract of insurance by showing what was said before or at the time of its execution, and that the insured is bound by the terms of the policy where he accepts and keeps it for a long period of time. Such rules apply to the insured in this case.

Appellant cited many cases of other jurisdictions supporting its contention that the coverage in a policy can not be increased by invoking the doctrine of waiver or estoppel. In Maryland Casualty Co. v. Adams, 159 Miss. 88, 131 So. 544, the policy provided that the automobile should not be used for towing a trailer. It was alleged the insurer’s agent knew the automobile was being used to tow a trailer'. The court denied the asserted claim of waiver, pointing out that such was not like a case which involved a forfeiture condition or the like, but that it was there sought by waiver to make a contract which the parties themselves have not made. A few of the cases cited by appellant which bear out this principle of law are 29 Am. Jur. 690, sec. 903; Keistler Co. v. Aetna Ins. Co., 124 S. C. 32, 117 S. E. 70; Home Ins. Co. of New York v. Campbell Motor Co., 227 Ala. 499, 150 So. 486; Carew, Shaw & Bernasconi v. General Casualty Co. of America, 189 Wash. 329, 65 P. (2d) 689.

The contention of plaintiff is that one McDaniel who solicited the membership of Willie Spence in this automobile club had knowledge that Spence owned a Ford truck and not a Ford car as stated in the written application for membership signed by Willie Spence; and that McDaniel, in substance, made the statements as above alleged in the replication. This policy, as above stated, gave very prominent notice that it was a limited policy, and that it should be read carefully. The same warning was on the hack of the policy. A sample policy had been issued to Spence for examination some time before he signed his application for membership in this automobile club. After Spence received his policy, a friend read it. and talked to. Spence about this policy for the friend was interested in insurance himself. It thus appears that Spence actually knew of the wording of the policy. He kept it for a long time without any complaint or offer to return it.

The evidence further shows that McDaniel was not an-agent of defendant; was not in the employ of defendant. Defendant paid him nothing. McDaniel did not make any reports or send any premiums to defendant. Defendant had no control over him. There is no evidence which showed that McDaniel was other than an ordinary soliciting agent. As pointed out above and as shown by many authorities of many courts, such an agent does not have the power to waive the provisions of a policy. Pardon v. Wasvary, 249 Ill. App. 327; Rozgis v. Missouri State Life Ins. Co., 271 Ill. App. 155, 157; Sommerio v. Prudential Ins. Co. of America, 289 Ill. App. 520. We find no evidence showing that Willie Spence was misled by any act of this insurance company, the defendant.

The remaining question for consideration is whether the Ford truck in which Willie Spence was riding at the time of the accident brought him within the terms of his contract of insurance with this company. We have quoted, above, the terms of part 4 of this policy. It seems clear to us that this Ford truck was not such a vehicle. It was the ordinary standard Model Half Ton Ford Pick-Up Truck. It had an enclosed cab with an express type body in the rear. Such trucks are built for light pick-up work, hauling of material, delivery of groceries and the like.

The contention of plaintiff in her argument is that she has proven that Willie Spence used this truck for hauling persons whom he picked up an the highway or at church and for transporting his family to church and other places; that he rode in it to and from work; that sometimes he put benches in the back part of the truck upon which persons sat; and that he only hauled coal and articles in it for his own family use. Plaintiff concludes that as to him, Spence, this truck was a passenger type automobile of the exclusively pleasure type.

But it seems to us that such is not the proper yardstick with which to measure this insurance contract. It is not a question whether this truck was a passenger-automobile “as to Spence.” Defendant had the right to prescribe the kind of vehicle and type of vehicle it desired to cover by its insurance policy. Whether accidents are more likely to occur to people riding in trucks or whether more serious injuries may result to people in truck accidents might be a reason why defendant was pleased to exclude such vehicle by the wording in its contract. But any reason defendant might have had for such exclusion is immaterial. This policy did not say that it covered a vehicle which might be used as a passenger car by the insured. If the construction urged by the plaintiff is recognized an insured might then ride in a tractor or tank or caterpillar vehicle, and call it, as to him, a passenger automobile.

The statutes of Illinois classify motor vehicle and designate one type as passenger cars and other types as those designed for carrying more than seven passengers or for the carrying of freight and commodities. Ill. Rev. Stat. 1941, ch. 95½, secs. 2, 8, 9 [Jones Ill. Stats. Ann. 85.002, 85,008, 85.009].

The Supreme Court of North Carolina in Lloyd v. Columbus Mut. Life Ins. Co., 200 N. C. 722, 158 S. E. 386, construed a policy which required the insured at the time of injury to be riding in a private automobile of the pleasure car type. The insured was riding in a Model A 1% ton Ford Truck, which had a cab like the truck in question. There, as here, the truck was used for hauling passengers. The court held that the Model A truck was not a private automobile of the pleasure type. In Dirst v. Aetna Life Ins. Co. (Iowa), 5 N. W. (2d) 185, the court likewise held that an insured riding in a Ford Pick-Up Truck was not riding in a passenger automobile of the pleasure car type. Liability was denied thereon a policy similar to the one in question !here.

For the reasons above stated, the judgment should be reversed and judgment entered here for the defendant. Same ordered.

Reversed.


source: Caselaw Access Project

author: Mr. Justice Stone

license: Public Domain

text:
    V. R. Jenisek, Appellee, v. Russell Riggs, Appellant.
    Opinion filed July 10, 1943.

      Leahy, Walther & Hecker, of St. Louis, Mo., and Warnock, Williamson & Burroughs, of Edwardsville, for appellant.
    Whitnel, Browning, Listman & Walker, of East St. Louis, for appellee.
   Mr. Justice Stone

delivered the opinion of the court.

This appeal is prosecuted to reverse a judgment of $5,000 rendered by the circuit court of Madison county, Illinois, in favor of appellee and against appellant. It is a personal injury suit. This is the second $5,000 verdict returned by a jury in this case. The first was set aside by the trial judge; the record gives no assignment of reasons for his action in setting it aside.

This appeal was taken direct to the Supreme Court upon the theory that a constitutional question was involved. That theory comes about by reason of the fact that some 10 days after the motion for new trial was heard and before decision thereon appellant asked leave of said court to amend his motion for new trial by alleging that par. (a) of sec. 148, ch. 95%, Ill. Rev. Stat., State Bar Association [Jones Ill. Stats. Ann. 85.180], is unconstitutional and void and violates Article 1 of Section 14 of the Constitution of the United States, and Section 2 of Article 2 of the Constitution of the State of Illinois, and said motion assigned numerous reasons why counsel say this section is unconstitutional. The trial court denied that right to amend. In denying this leave the trial court specifically pointed out that the proposed amendment attempted to present a new question as to the validity of the statute, not raised in the pleadings, not argued, not set forth in any instructions nor in the motion for new trial, and indeed not asserted at any time during the trial. The trial court also held that appellant had waived the validity of section 51-a and that his motion did not affect all counts of the amended complaint. We think the trial court was acting entirely in his lawful discretion in denying said motion. If we had any doubt about that, which we have not, such doubt would be disposed of by the language of the Supreme Court in transferring this case to us. On page 293 of 381 Ill., in discussing this question the Supreme Court said: “Again, the right to question the validity of a statute may be waived either by act or omission (citing' authorities). Defendant did not elect to challenge the validity of Section 51-a of the Motor Vehicle Act in his answer to plaintiff’s amended complaint, did not urge a constitutional question during the course of the trial, and did not assign the asserted invalidity of the statute as one of the numerous grounds supporting his motion for new trial. Instead of presenting and preserving the question of the validity of the statute at the earliest opportunity, defendant did not attempt to attack its constitutionality until after an adverse verdict had been rendered against him and a ruling on his motion for a new trial was imminent. The first time, and apparently as an afterthought, in an effort" to prosecute an appeal directly to this court, defendant sought to amend his motion for a new trial by adding a nineteenth reason, attacking the constitutionality of the statute. From the record it affirmatively appears that the constitutional validity of the statute involved in this cause was not presented for decision and was not passed upon by the trial court, and, further, was waived by defendant.”

The facts in the ease, stripped of all superfluous verbiage are about as follows: On the early morning of the date in question appellant’s truck was being driven by its agent on a return trip from East St. Louis to Roodhouse,-Illinois; the time was about 5:15 in the morning, and was near the hour of sunrise. Forrest Piper the agent of appellant was driving appellant’s truck on Route 159, a north and south highway between Wood River and Granite City, Illinois, near the small village of Roxana. Route 159 is a concrete slab, twenty-two feet wide, with a dark center line in tbe middle. Appellant’s driver had left Roodhouse about 1:30 in tbe morning and bad reached East St. Louis about three. He bad unloaded bis freight and was on tbe way. home in an empty truck. Tbe truck is about seven feet wide with tbe body on top of tbe platform, which is not solid, but is made up of strips, or what we call a semi-open body. Appellee came behind him. Tbe driver of tbe truck stopped tbe truck on tbe public highway, contrary to tbe statute, and got out to answer a call of nature. Then be started on and at tbe time of tbe collision was traveling, as be said, about six miles an hour. We regard tbe evidence as uncertain whether tbe truck was still standing or whether it was moving at tbe time of tbe impact which then and there occurred. Tbe truck was straddling tbe black line in tbe center; this-is not denied by tbe driver. Appellee says be did not see tbe truck until be was within 50 feet of it and assigned as reasons that tbe flare of tbe lights at tbe Shell Refinery at Wood River interfered with bis visibility and that tbe truck was of such a color that it was difficult to see, although be says bis lights were in perfect order and would show up a truck like this at a distance of 75 to 100 feet.

Appellee undertook to go around on tbe left side as usual, but saw that be did not have room and feared collision with someone who might be coming. He changed bis mind in that 50 feet and started to go to tbe right of tbe. truck and didn’t have room to get around apparently without leaving tbe slab; and so tbe impact, which did serious damage to tbe truck and very serious injuries to tbe appellee.

That tbe appellant through bis agent was guilty- of negligence we make no doubt on this record. There is but one question in tbe case, and that is a very serious one, namely, was tbe appellee at tbe time and place in question in tbe exercise of reasonable care for Ms own safety? Both of these parties had been up practically all night the record shows. The road is straight and the way was clear at least a half a mile back from where the collision occurred. We are confronted with the' question that when a case is as close as this where does the fact of contributory negligence leave off and the law of contributory negligence apply? Appellant has answered that question for us. by a familiar quotation. On page 44 of his brief he says this: ‘ ‘ Contributory negligence becomes, however, a question of law when it can be said that all reasonable minds would reach the conclusion under a particular factual situation that the facts did not establish due care and caution on the part of the person charged therewith.” Who and what segment of humamty answers to the description of “all reasonable minds?” Who speaks for “all reasonable minds?” One judge has set a verdict like this aside. Another judge has upheld it. Twenty-four men have found that the appellee was free from negligence which caused his injuries. May they not be said to represent a fair cross-section of “all reasonable minds” when it comes to a decision as close on the facts as this? We think they do. This ease was fairly submitted to the two juries and both juries have found that under all the facts and circumstances appellee was in the exercise of reasonable care for Ms own safety. One of the judges at least who heard the witnesses testify and was in a better position to judge, has upheld one of their verdicts. It is not for us to say that this record does not disclose what “all reasonable minds” would do under like circumstances and say for ourselves that they were wrong and that we are the ones who represent “all reasonable minds, ’ ’ and that we say that this appellee was guilty of contributory negligence as a matter of law.

Complaint is made of instruction No. 5 which tells the jury that they should not understand by anything the court has said during the progress of the trial or by anything contained in these instructions that the court has any opinion or has expressed any opinion concerning the facts in the case; the court instructs the jury that in reading the instructions to you the court does not intend to even intimate what in the judgment of the court your verdict should be. The exceptions leveled against the giving of this instruction merely undertake to constrain the English language to mean that which it does not mean. This instruction in substance has been given almost since the institution of the trial of civil suits. We think it was correctly given in this case.

We realize that this is a very close case on the facts, but we rest our judgment on the verdicts of two juries and the trial court. The judgment of the circuit court is affirmed.

Judgment affirmed.


text:
    James A. Little, Appellee, v. Illinois Terminal Railroad Company, Appellant.

      Opinion filed July 10, 1943.
    Rehearing denied August 11, 1943.
    Pope & Driemeyer, of East St. Louis, for appellant.
    Forth & Forth, of Granite City, for appellee.
   Mr. Justice Stone

delivered the opinion of the court.

James A. Little, plaintiff appellee, hereinafter called plaintiff, brought suit against Illinois Terminal Railroad Company, defendant appellant, hereinafter called defendant, to recover damages for injuries to Ms person and to Ms automobile, which resulted from a collision between his automobile and a streetcar of defendant. Upon a trial before a jury, a verdict of $5,000 was returned, and this appeal is taken from the judgment entered upon that verdict.

The record discloses that plaintiff sustained the injuries for wMch he sued, when on January 14, 1941, about 7:30 a. m. his automobile driven by him collided with a streetcar of defendant at the intersection of Nineteenth street and Madison avenue, in Granite City, Illinois. Madison avenue runs in a northerly and southerly direction and Nineteenth street runs in an easterly and westerly direction, beginning at Madison avenue and running west therefrom.

Opposite Nineteenth street, on the east side of Madison avenue is what is designated as a spray pond, maintained' on the property of the GraMte City Steel Company. The hot water used in the steel mill is sprayed about six feet upwards out of a number of jets, and is thus cooled for reuse. Clouds of vapor, variously described in the record as mist or steam are, at irregular intervals, carried by the wind over and across this intersection.

Madison avenue is an 80-foot public thoroughfare, with double car tracks in the center. Nineteenth street is an ordinary street about 60 feet wide, with a single pair of tracks which turn off at Madison avenue into Nineteenth street, so that cars going north on Madison avenue can make a left turn into Nineteenth street. On the day of the accident plaintiff picked up a passenger, John Walk, and started to drive to their mutual place of employment in Venice, Illinois. He was driving south on Madison avenue when he saw a cloud of steam from the spray pond completely enveloping the intersection ahead, at Nineteenth street. He entered this steam when about 100 feet from the intersection. He slowed down to about 15 miles an hour, continuing to drive through the steam, where for 50 feet, his vision was so completely 'obliterated that he could not see the front end of his automobile, and then collided with a streetcar of defendant, which had turned left off of Madison avenue into Nineteenth street, being operated, so the conductor testified at about two or three miles an hour. The automobile of plaintiff was demolished, and he sustained ‘ serious personal injuries.

Defendant assigns as error relied upon for reversal, the refusal of the trial court to direct a verdict in its favor and to allow its motion for judgment notwithstanding the verdict, and that the judgment appealed from is contrary to the law and the evidence.

The case was tried upon issues made by the complaint, which consisted of two counts and the answer thereto.

Count 1 alleged that on the date in question plaintiff in the exercise of due care for his own safety was driving his automobile in a southerly direction on Madison avenue and that defendant’s car made a left turn across Madison avenue to Nineteenth street and that the streetcar was so negligently and carelessly managed and controlled as to cause a collision with plaintiff’s automobile. .Count 2 added the averments that both plaintiff’s automobile and defendant’s streetcar, as they approached the intersection of Nineteenth street and Madison avenue, entered a large cloud of smoke, steam or mist, and that as plaintiff was cautiously and slowly proceeding •through such cloud, the streetcar attempted to make a left turn to Nineteenth street, and negligently and carelessly, without sounding any warning, bells, whistle or horn, collided with plaintiff’s automobile.

It is contended by counsel, for plaintiff that the servants of defendant drove its streetcar through the fog, knowing that there was heavy traffic on the street, and that in making a left turn that it would cross the line of traffic going south, and did so without having any light on the streetcar or sounding any warning whatever, and that therefore defendant is liable, and the judgment of the trial court should be affirmed.

The complaint contained no charge of wilful or wanton conduct on the part of defendant company. Plaintiff therefore had the burden of affirmatively showing that he was in the exercise of due care and caution. Crawford v. Cahalan, 259 Ill. App. 14; Hogrefe v. Johnson, 271 Ill. App. 469; Hand v. Great-house, 294 Ill. App. 383; Moore v. Illinois Power & Light Corp., 286 Ill. App. 445; Pollard v. Broadway Cent. Hotel Corp., 269 Ill. App. 77; Morgan v. Rockford, B. & J. Ry. Co., 251 Ill. App. 127; Dee v. City of Peru, 343 Ill. 36; Wilson v. Illinois Cent. R. Co., 210 Ill. 603.

When there is any evidence before the jury which, taken with its reasonable inferences in its aspect most favorable to plaintiff, tends to show the use of due care, the question of due care is for the jury. Whether there is any such evidence is a question of law. Pienta v. Chicago City Ry. Co., 284 Ill. 246; Dee v. City of Peru, supra. In determining such question this court can examine the record only to determine whether there is any evidence so tending to support the cause of action. Hinchliffe v. Wenig Teaming Co., 274 Ill. 417; Reiter v. Standard Scale & Supply Co., 237 Ill. 374. Applying this rule to the record before us, it seems clear from his own testimony, that plaintiff saw this steam 100 feet from the intersection. He had driven by this corner many times. He knew, so he stated, that cars had made left turns before, at that intersection. He knew that under existing conditions, he could not see a car, if there should happen to be one there, and that it was possible that there might be a streetcar turning left. In spite of this, he entered a known area of potential danger, and once in it, drove for 50 feet, under conditions, where he could not see the front of his own car. During this time, he did not switch on his lights, put on his brakes, sound his horn, or abate his speed of 15 miles an hour. He claims that it was negligence and relies for recovery upon the proposition that the defendant’s car entered this steam, and sounded no warning, yet, he, according to his own testimony was guilty of the same conduct.

The doctrine of comparative negligence has long been repudiated in Illinois. Calumet Iron & Steel Co. v. Martin, 115 Ill. 358; Chicago R. I. & P. R. Co. v. Hamler, 215 Ill. 525. The rule since the abandonment of that doctrine has been, that if the plaintiff has exercised due care and caution and defendant has failed to exercise due care, i. e. the care demanded under the circumstances — the rights of the parties are fixed and determined and where there is no wilful or intentional failure to perform a duty, the question of degree of care is of no importance. The one question for the determination of this court is, whether or not plaintiff exercised that care which a reasonably prudent person would- exercise to avoid injury under like circumstances.

It is the duty of a person approaching a place of danger to do so cautiously and with proper degree of care for his own safety, the degree required being determined by the danger to which the individual is knowingly exposed. Moore v. Illinois Power & Light Corp., supra. The law does not afford to one who exposes himself to danger the privilege of recovering damages for an injury arising from his actions, which injury might have been avoided by the use of reasonable care for his own safety. Dee v. City of Peru, supra. Plaintiff endeavors to justify the chance he took in entering this intersection where his vision was practically obliterated, by asserting that he was in a position of peril, in that an automobile behind might strike him. However, he recognized the danger of entering that zone of uncertainty, and blindness, and at a time when he could have stopped with practical safety to himself and his automobile. Disregarding the danger, he drove into the steam, and finding it getting thicker, continued to drive in it, at the same rate of speed, taking none of the precautions which a reasonably prudent person would have taken under the circumstances. Voluntarily he placed himself in a position where he was helpless to look out for himself.

We believe that the case of Illinois Cent. R. Co. v. Oswald, 338 Ill. 270 controls the case at bar. In that case plaintiff stopped at night on the upper deck of a bridge over the Mississippi Diver to allow a cloud of smoke, originating from one of defendant’s engines on the lower deck of the bridge, to pass. At that moment the wind shifted, enveloping plaintiff’s car in the smoke, and a following car struck the rear of plaintiff’s car. Plaintiff got out of her car onto a sidewalk. She knew that there were other cars travelling on the bridge, but stepped off the sidewalk between the two cars to ascertain the extent of the damage. At that moment a third car struck the second car, catching plaintiff between her car and the second car, and severely injuring her. There the Court said, “In the absence of wilful or wanton injury on the part of the defendant the. plaintiff cannot recover in an action for personal injuries unless it appears he was in the exercise of ordinary care for his safety, and in such case it is the duty of the court to direct a verdict for the defendant if there is no evidence tending to show affirmatively that the plaintiff was exercising due care or to raise a reasonable inference of such care. A party has no right to knowingly expose himself to danger and then recover damages for an injury which he might have avoided by the use of reasonable precaution. Although it is true that the question of contributory negligence is ordinarily a question of fact for the jury, yet when there is no conflict in the evidence and the court can clearly see that the injury was the result of the negligence of the party injured, it should not hesitate to instruct the jury to return a verdict for the defendant.”

In the instant case there is no conflict in the testimony. As in the Oswald case, plaintiff in the case at bar left a place of safety, outside the intersection, and drove into this area of steam, well knowing the danger of such course. The record is entirely devoid of any evidence showing or tending to show any act on the part of plaintiff which might prove or tend to.prove, any exercise of ordinary care or any attempt on his part to use such care for his own safety.

At the close of plaintiff’s testimony, and at the close of all the testimony, defendant asked the court to instruct the jury to find the defendant not guilty. We are constrained to hold that plaintiff failed to prove one of the essential elements of his case, i. e. that he was in the exercise of ordinary care for his own saftey, and therefore the court erred in not instructing the jury to find the defendant not guilty.

The judgment of the city court of Gfranite City is therefore reversed.

Reversed and judgment here in bar of action and against plaintiff for costs.


author: Mr. Presiding Justice Culbertson

text:
    Estelle Floyd, Appellee, v. Estate of Jacob T. Smith, Appellant.
    Opinion filed July 20, 1943.
    A. W. Stoltz and Best H. Towusend, both of Mt. Carmel, for appellant.

      Fred W. Gee, of Lawrenceville, for appellee.
   Mr. Presiding Justice Culbertson

delivered the opinion of the court.

This is an appeal from a judgment of $3,120, rendered in the circuit court of Wabash county, in favor of Estelle Floyd, claimant appellee (hereinafter called claimant), and against the Estate of Jacob T. Smith, defendant appellant (hereinafter called defendant).

This case was tried before the court, without the intervention of a jury, and the court entered judgment, in favor of claimant, for $3,120 and costs, and ordered same to be paid in due course of administration.

The errors relied upon for reversal of this judgment may be fairly summarized by saying that it is contended that the court committed error in not dismissing the claim of appellee, and that he erred in rendering judgment in favor of appellee for any amount whatsoever, and that the judgment of the court is not supported by the evidence, and is contrary to the law.

At the very inception of defendant’s contentions that this judgment should be reversed our attention is directed to the fact that claims against estates of deceased persons should be scrutinized with care and not be permitted to prevail except upon clear proof. We are aware of this provision of the law and recognize that before an allowance can be made of a claim for services to the decedent it is essential that either an express or an implied contract or obligation on the part, of the decedent be established by a preponderance of the evidence (McAuley v. O’Connor, 92 Ill. App. 592), and, under the law, the burden of proving a contract or obligation against the estate of decedent is upon the claimant (In re Estate of Teehan, 287 Ill. App. 58).

Having regard to the well-established law as heretofore set forth we now address ourselves to a consideration of the evidence as same was developed in support of and in opposition to the allowance of the claim that furnishes the basis for the judgment appealed from in this case. From the evidence in this case it appears that claimant was 20 years of age, and that the decedent, Jacob T. Smith, was 59 years of age. Mr. Smith was a man of considerable wealth, owning a number of farms, city properties, oil income, and much personal property. The claimant had no property. Prior to October 1934, Mr. Smith resided in Mt. Carmel, Illinois, and claimant resided in Marion, Illinois. The evidence discloses that claimant had a sister, Mrs. Lechner, who resided in Mt. Carmel, Illinois. In the summer of 1934, claimant became acquainted with Mr. Smith (who was then a divorced man), and he suggested to her that she come to Mt. Carmel and become his housekeeper, to cook his meals, do his washing, and care for him. The evidence shows that he stated to her at that time if she would take care of him during the remainder of his lifetime, he would see that she was well taken care of. The evidence shows Mr. Smith was afflicted with cancerous sores, which became increasingly worse until his death in July of 1940. In October of 1934 claimant came to Mt. Carmel and began to work for Mr. Smith, and continued to work for him until the time of his death. The evidence discloses she cooked his meals, did his washing, and administered to his health and comfort in alleviating, so far as she was able, the pain resulting from his cancers.

The evidence is clear and distinct concerning the work performed by claimant for the deceased. In fact, there is no dispute anywhere in the record concerning the fact that she did perform the services on his behalf, nor is there any dispute hut that such services were thoroughly satisfactory to the decedent, and that satisfaction found .expression by him on many occasions to several of his friends and acquaintances, to whom he indicated claimant had taken care of him just as well as if he had been in a hospital, and that she was a good cook. During the entire ■ time claimant kept house for Mr. Smith she kept these cancerous ulcers cleansed and dressed, according to the physician’s directions, and the evidence discloses that the changing of dressings was frequent, and as the cancers progressed they became larger and more numerous, secreting more discharge and therefore requiring more frequent cleansing and dressing. In later years they became very painful and it was necessary to dress them hourly with applications to relieve pain. The evidence shows that the discharge from these ulcers would get upon the bed clothing, which claimant kept washed and ironed. During the entire time she kept house for him no other person undertook such services. The attention rendered was constant.

The evidence further discloses that the claimant, in this case was not in any way related to Mr. Smith, and the evidence is quite clear and distinct that he promised her if she would 'take care of him during his lifetime he would take care of her, and on many occasions during the six years of her service he repeatedly told his friends that he intended to make ample provision for her upon the event of his death. When' claimant first came to Mt. Carmel she occupied an apartment on Main street where she performed the services for the, deceased, and this continued until sometime in 1937, when Mr. Smith purchased a five-room house at another place in Mt. Carmel. The deed to this property was made to Mr. Smith, and there is some evidence in the record that Mr. Smith told the claimant the property would belong to her after his death. There is also other evidence that he' told claimant he was arranging some other financial matters in a way that would be a pecuniary benefit to the claimant herein.

Various witnesses were called to give evidence, both for the claimant and for the estate, as to the fair, reasonable and customary compensation paid for services such as were rendered by the claimant to the decedent. It appears from the evidence that the decedent discussed with the claimant, in the presence of her married sister (Mrs. Lechner) her coming to Mt. Carmel to keep house for him, and that he stated at that time that he was sick, didn’t feel well, was tired of eating at restaurants, and wanted someone to keep house, cook his meals, do the washing, and look after him. He stated that at his death she would be well taken care of for it.

This is not a'suit in equity by the claimant to enforce specific performance of a promise, agreement, or contract, by a deceased person to vest such claimant with property by way of a gift to take effect at death. This is a claim against an estate for services rendered and stands upon an entirely different footing than a suit for specific performance of an agreement to make a gift of property in consideration of services. To have specific performance by such an action in equity a plaintiff must prove the services were rendered under an express contract and the contract must appear by clear and convincing proof. But where the plaintiff, or claimant, is of no kin to the deceased and is seeking to recover for services rendered by way of a claim filed against the estate, it is not necessary to prove the services were rendered under an express contract. Recovery may be had upon an implied contract (Moreen v. Estate of Carlson, 365 Ill. 482, 493).

It seems to us, and we so hold, that the claim in this ease is not based upon a promise to make a gift for the services rendered, and that same need not be proven by an express contract. It is a claim that can be established by an implied contract. Where no kin or family relationship exists between the parties, and one accepts and retains the beneficial results of another’s services, which were rendered at his own insistence and request and which he had no reason to suppose were gratuitous, the law will imply liability for such services in such an amount as they are reasonably worth. The evidence in this case discloses that the claimant is of no kin to Mr. Smith, and that they were not acquainted with each other prior to her visit to her sister in Mt. Carmel, and we do not believe the relationship of the parties would give rise to any implication that Mr. Smith would expect the claimant, a stranger, to come from Marion to Mt. Carmel and assume the duties, which she did, without the expectation of being paid therefor. There is nothing in this evidence that when fairly considered, would permit us to conclude therefrom that Mr. Smith did not intend to pay and the claimant, oh the other hand, did not expect to receive pay. Under such circumstances, the law implies an obligation to pay. The testimony of claimant’s sister, who was present at some of the discussions and conversations between claimant and Mr. Smith prior to claimant’s coming to work for Mr. Smith, tends to prove that Mr. Smith intended to pay for .such services, and this has further corroboration in the testimony of several disinterested witnesses with whom Mr. Smith discussed claimant being in his home, and that testimony, to our minds, discloses an intent on his part that claimant should be paid.

It is contended in this court the evidence discloses an ability of Mr. Smith to pay his bills and a promptness on his part in paying bills, and it is urged that we should adopt, in denying claimant’s claim, the view that claimant had been paid for her services. We find nothing in this record which indicates in any way that claimant had been paid, and while the decedent may have had a fine record and been abundantly able to discharge indebtedness incurred by him as same accrued, it does not appear that he paid claimant and that is the only matter with which we are concerned on this appeal.

Some stress is laid upon the fact that claimant’s small child was with her and that he was afforded a living in the home by the decedent. We are not disposed to defeat, or in any way reduce claimant’s judgment on that account, and if Mr. Smith in his lifetime, manifested some interest in this child and the child was the recipient of some financial assistance from Mr. Smith, we are not disposed in any way to reduce the amount due to the claimant in this case on that account.

A fair and candid consideration of all the evidence in this case brings us to the inescapable conclusion that the judgment in this case is just and proper and has abundant support in the evidence. This case was tried before the court, without a jury, and as a court of review, we will not substitute our findings of fact for the findings of fact of the trial court, unless the judgment is clearly against the manifest weight of the evidence (Chamblin v. New York Life Ins. Co., 292 Ill. App. 532); and as a reviewing court, we will accept the findings of the trial judge upon questions of fact, based upon the statements of witnesses whom he saw and heard testify, unless such findings are clearly and palpably erroneous (Kinnah v. Kinnah, 184 Ill. 284).

We find that the judgment of the court is not against the manifest weight of the evidence, and that his findings are not clearly and palpably erroneous, but that such findings of fact are in harmony with the weight of the evidence, and not in any way erroneous.

The judgment of the trial court, being correct, is hereby affirmed.

Judgment affirmed.


author: Justice Stone.

text:
    Henry Melton, Administrator of Estate of Fred James Melton, Deceased, Appellee, v. John Heaton and Charles Dooley, Appellants.
    opinion filed July 10, 1943.
    Leonard J. Dunn, for appellants; Johnson & Johnson, for appellee.
   Opinion by

Justice Stone.

Not to be published in full.


author: Presiding Justice Culbertson.

text:
    Myrtle Currie, Appellee, v. A. F. Currie, Appellant.
    opinion filed July 20, 1943.
    Sullivan, Schuman & Moran, for appellant;
    Fred P, Schuman, of counsel;
    Forth & Forth, for appellee.
   Opinion by

Presiding Justice Culbertson.

Not to be published in full.


author: Me. Presiding Justice Huffman

text:
    Lowell Hoit and Company, Appellant, v. Alvin Detig et al., Appellees.
    Gen. No. 9,893.
    Opinion filed July 8, 1943.
    Rehearing denied September 21, 1943.
    Charles M. Haft, of Chicago, for appellant.
    Williams & Dunn, of Rockford, and Steven Helfeb, of Rochelle, for certain appellees.
    Paul P. O’Neil, of Rochelle, for certain other appellee.
   Me. Presiding Justice Huffman

delivered the opinion of the court.

This is an action against appellees to recover for an alleged wilful conversion of grain belonging to appellant, and has to do with liability of corporate directors for corporate torts or acts of subordinate officers. Appellees were directors in a farmers co-operative grain company, which operated an elevator under the corporate name of Steward Co-operative Grain Company. The management, supervision and conduct of the elevator business was in charge of Claude Y. Herrmann, who was also a defendant in this suit. Appellees denied the conversion, alleging they had no knowledge of any arrangements by appellant with the manager of the elevator for the storing of oats, and had no knowledge of the action of the said Herrmann with respect to such oats. The case was heard by the court. Judgment was entered for plaintiff appellant against Claude V. Herrmann, for the amount claimed. Judgment was also entered in favor of defendant directors, and plaintiff brings this appeal.

It appears that in July 1939, appellant entered into what is termed a lease agreement with the Steward Co-operative Grain Company, a corporation, by and through its manager Herrmann, whereby appellant, for the sum of One Dollar and one half the net profits, became the lessee of certain bins in the elevator for storage of grain. It is charged in the complaint that appellant had 12,000 bushels of oats stored in the bins, pursuant to "the above agreement, that the elevator company shipped and sold 9,081 bushels of such oats without the knowledge or consent of appellant, and failed to account for the proceeds thereof. It also alleged that the market value of such oats was $2,724.06.

It appears the appellees had no knowledge of the agreement made by Herrmann with appellant, or that he had stored in the elevator any grain belonging to appellant. Herrmann sold the oats in question during the month of August 1939. The grain corporation was in financial straits. It had a. loan with a St. Louis bank. It appears that some time during the month of September, an effort was made to bring about a reorganization of the corporation, which effort was unsuccessful and the corporation was later liquidated.

It is charged by appellant that appellee directors and the manager of the elevator, Herrmann, wilfully and maliciously caused appellant’s oats to be taken from the bins it had' under lease, sold on the market, and no remittance made therefor. The evidence failed to show any knowledge on the part of appellees concerning the transaction in question. Appellant urges that appellees are liable upon their common law liability; that it was their legal duty to exercise such supervision as might be required of them in order that they know and have knowledge of what the agent of the corporation was doing in connection with the corporate business, and that because of their neglect of their duties in this respect, they are liable. Appellant also urges as a ground of liability against appellees that they, as directors of the corporation, by resolution made in September 1939, ordered and directed the manager Herrmann, to sell all grain on hands. However, the evidence discloses that the oats in question were sold in the previous month of August.

Appellees urge they are not liable for the torts of the corporation merely because they are directors, but that they are liable only for such torts in which they participated, or of which they had knowledge, authorized or directed. In this respect, they refer to C. J. S., vol. 19, p. 271 (Corp. — Torts, par. 845, et seq.).

Appellant insists that circumstances may arise where directors by their negligent inattention to business may render themselves liable for the wrongful acts of subordinate officers. And it may be considered that directors, although authorized and justified in committing the details of the conduct of the corporate business to subordinate officers, are not thereby justified in withdrawing their supervision and control of corporate affairs. They cannot thus divest themselves of the duty of general supervision and control by committing this duty to a subordinate officer. However, of necessity, it becomes proper that they entrust to subordinate and executive officers the discretionary powers which usually and ordinarily appertain to the immediate management of the particular business. Nothing appears in this case to indicate that appellees did not exercise care and prudence in their selection of the agent Herrmann. Neither does it appear that they sought to_ divest themselves of a general supervision of the conduct of the business. Further, nothing appears to indicate that they had any knowledge of, or had-acquiesced in a continuous or repeated course of conduct on the part of Herrmann such as committed in the present instance. Courts will treat directors with more leniency with respect to a single isolated act of fraud on the part of a subordinate officer or agent, than where the practice appears to have been so habitually and openly committed as to have been easily detected upon proper supervision. We do not consider the directors to be personally liable under the evidence in this case. Here we find a single act secreted by .the subordinate officer from the directors, with the contract locked up by him without their knowledge of its existence, and no corporate record to come before them reflecting such transaction. Under such circumstances, it can hardly be said that appellees in the exercise of ordinary and reasonable supervision could have detected the wrongdoing of their subordinate officer.

The question of liability of a director in a corporation for the acts or omissions of officers or agents, other than codirectors, admits of various conditions. Ordinarily, where such director can be held liable for the acts of subordinate officers, he must participate therein, be guilty of lack of ordinary and reasonable supervision, or be guilty of lack of ordinary care in the selection of such officer. The duties of a general manager of a corporation are usually more extensive than those of a mere director. -

The question often arises respecting the liability of a director for a tort committed by a corporation. Liability in such instance on the part of the director is generally considered to rest upon the question whether he actively participated in the wrongdoing, and it seems impossible to lay down any governing rule further than that the test is to be whether the director authorized or participated in the alleged wrongful act. The mere fact that a person is a director in a corporation does not necessarily render him liable for the torts of the corporation or its agents. In .other words, directors are not to be held liable for the negligence of the corporation merely because of their official relation to it. And the general rule would seem to be that he must participate in the wrongful act, or have such knowledge thereof as to give rise to liability. The foregoing observations, of course, are made in consideration of the circumstance that the director denies knowledge and participation, and hence excludes any theory of authorization or direction. The rule as announced in 19 C. J. S. 271, is supported in Fletcher —Corp. (vol. 4, par. 2536, p. 3772, ch. 42, on directors, officers and agents and participation in tort as essential to liability). Also see 13 Am. Jur. p. 1018, sec. 1086, et seq. This rule has recently been announced in the case of Kulesza v. Chicago Daily News, Inc., 311 Ill. App. 117, 126, where it is stated that to render an officer of a corporation liable for the negligence of the corporation, he must be a participant in the wrongful act. Further reference in support of the foregoing rule in other jurisdictions, may be had from the West Reporter System, where numerous cases will be found. (See Digest System — Corporations—key number 306.)

Motion of appellees to tax cost of additional abstract to appellant, granted, and same ordered so taxed.

The judgment of the trial court is affirmed.

Judgment affirmed.


author: Mr. Justice Dove

text:
    E. E. Alger, Appellant, v. Community Amusements Corporation, Appellee.
    Gen. No. 9,876.
    Opinion filed July 8, 1943.
    Opinion modified and rehearing denied September 21, 1943.
    SoNNENSCHEIN, BeRKSON, LauTMANN, LeVINSON & Morse, of Chicago, for appellant; Bernard Nath and Morton Lane, both of Chicago, of counsel.
    Fred E. Gardner, of Bochelle, for appellee.
   Mr. Justice Dove

delivered the opinion of the court.

Appellant, who was the lessee in a ten-year lease from appellee for certain theatre premises in the city of Bochelle, filed a complaint in the circuit court of Ogle county to compel the specific performance of an option in the lease for an additional term of five years after its expiration, and to restrain appellee from ousting him from possession. The chancellor upon a hearing entered a decree dismissing the complaint for want of equity, and continuing in force, upon the filing of an appeal bond in the sum of $3,500, a temporary injunction restraining appellee from ousting appellant pending final determination of the cause. This appeal followed.

The option in controversy reads as follows: “It is agreed by and between the parties that upon the expiration of this lease on the 9th day of October, A. D. 1941 that the said party of the second part (lessee) may elect to remain in possession and shall have the right to hold over and in possession for an additional period of five years under the same terms and conditions as set forth in this lease, and the party of the second part shall give notice in writing not less than 90 days prior to the day of October 9th, A. D. 1941 of his election whether it be that he elects to exercise his option for the additional five year period, or if he elects to vacate the premises on the 9th day of October, A. D. 1941.”

The rental was fixed at $6,000 per annum, payable $500 per month, plus 20 per cent of all gross receipts in excess of $40,000 per annum. The lease did not include two' rooms in the front of the building.

Appellant is engaged in operating theatres. His office is in the city of La Salle. Abner I. Klein, secretary for the enterprises operated by appellant, testified that on July 1, 1941, after a conversation with appellant, he dictated a letter to the office stenographer, addressed to appellee, the substance of which is: “This is to notify you that I am exercising option for additional Five (5) years from October 9, 1941 to October 9, 1946 on my lease covering Hub Theatre, Bochelle, Illinois. Will you kindly acknowledge the above”; that appellant signed the letter in his presence, and that the witness placed' it in an envelope directed to appellee at Bochelle, Illinois, sealed and stamped the envelope, and dropped it in the inside mail box of the La Salle post office between 5:30 and 6 o’clock in the afternoon of that day and that the Letter was never returned. Appellant and the stenographer corroborated his testimony as to the dictation and signing of the letter. A carbon copy, introduced in evidence, bore in pencil the initials of the secretary, appellant, and the general manager, each of whom testified the copy was initialed a couple of days after its date, pursuant to office routine.

Mr. Klein also testified that on August 4, 1941, he dictated, signed and mailed another letter to appellee, reading: “Up to date we haven’t received a reply to E. E. Alger’s letter of July 1st, 1941, extending lease on Hub Theatre for the five-year option period. This letter, addressed to the Community Amusements Corporation, was as follows: (Here follows copy of the first letter). Will you kindly look into the matter and see that we are furnished with the proper acknowledgment.” A copy of this letter, initialed the same as the other letter, was introduced in evidence.

Appellee admits receiving the letter of August 4, 1941, but denies ever having received the letter of July 1, 1941. On August 5, 1941, appellee’s secretary treasurer wrote appellant, acknowledging receipt of the' letter of August 4th, and advising him that as to the letter of July 1st, “no such letter was received by us and that, therefore, according to the lease, you have forfeited your right to exercise the five year option, and we shall expect possession of the theatre at the close of business October 9, 1941.” Appellee’s president testified that he does not receive any letters with relation to the corporation, but all correspondence is taken care of by the secretary treasurer; that the witness had never seen the letter of July 1, 1941; and that he did not receive any letter or verbal communication prior to October 9, 1941 to the effect that appellant desired to exercise his option. The secretary treasurer corroborated tbe president as to Ms duties, and testified he never received the letter of July 1, 1941, and that prior to July 11th he did not receive any notification that plaintiff intended to exercise his option.

Subsequent to July 9, 1941, appellee entered into a written lease of the theatre premises, including the two front rooms of the building, with another tenant for a ten-year period, beginning October 10,1941, at a rental of $9,600 per annum. The lease is dated August 2, 1941, with notarial acknowledgments of that date, and appellee’s secretary treasurer testified it was executed on that date and is still in effect. One of the notaries was appellee’s counsel in this case.

Beginning on August 6, 1941, the record shows that the parties had some negotiations with respect to continued relations between them. Appellant claims that appellee’s secretary treasurer mentioned terms of $2,000 a year additional rent for the five-year period and an additional five years, without saying anything about the new lease to the other party. Appellee’s secretary treasurer testified that on August 6, 1941, he told appellant of the new lease, and that nothing could be done unless it was acceptable to the new lessees, but if any arrangement could be made with them, he would submit it to the board of directors; and that at a meeting on October 2, 1941, appellant offered to pay $1,000 additional per year, but asked that appellee pay half the cost of a new canopy. Two letters from appellee to appellant in August and September 1941, concern proposed meetings of appellant and appellee. The negotiations did not culminate in any agreement, and on October 3, 1941, appellee wrote appellant: “This is to advise you that we shall expect possession of the theater at the close of business October 9,1941. ’ ’ This suit was instituted on the latter date. '

Testimony as to the amount of money expended by appellant when he purchased from appellee the original equipment in the theatre and other amounts expended by him for the purchase of new equipment and in making repairs and improvements and in advertising during the ten-year period covered by the lease, was introduced in evidence as showing damages which appellant would sustain in the event of his losing his lease. The amount so expended was substantial but the provisions of the lease required appellant to make inside repairs and the original equipment and additional equipment were all purchased by him with the knowledge that the lease provided that such equipment should not be removed at the termination of the lease.

Appellant urges that a court of equity should grant specific performance of an option to extend a lease, notwithstanding the lessee’s failure to give proper notice of the exercise of the option, if such failure was not due to wilful negligence, if the delay was slight, the loss to the lessor small, and the corresponding hardship on the lessee great. He argues that as the amendment to appellee’s answer, setting up the new lease to others, was not filed until September 10, 1942, during the trial, and as such a lease was not mentioned in any of appellee’s letters, and because of appellant’s testimony that appellee’s secretary treasurer did not mention any such lease in. their negotiations, and as none of the parties to the lease except appellee’s secretary treasurer testified in regard thereto, and because it contains a provision that the lessor shall not be liable if unsuccessful in ejecting appellant, that these things indicate that the lease was not executed on the date it bears; that appellee would suffer no substantial loss by a decree for specific performance, and that the lease represents no more than an opportunity to obtain an increased rental.

Appellant did not cross-examine appellee’s secretary treasurer on his testimony that the new lease was executed on August 2, 1941, and made no effort to discredit the acknowledgments of the two notaries as to its execution, nor to introduce any testimony to the contrary. We agree with the holdings of the trial court that the new lease was executed on August 2, 1941, and that appellee would suffer a substantial loss by a decree for specific performance, as well as that appellant will suffer such a loss by a denial of such a decree. The testimony shows that over the ten-year period of the lease appellant paid appellee an average annual rent of $6,669.54, which is considerably smaller than an annual rent of $9,600, and appellant made no effort to show that the two front rooms included in the new lease would account for any considerable part of the increased rent. In our opinion the provision for nonliability in case of failure to deliver possession shows merely a caution justified by the attitude of appellant.

Cordell v. Solomon, 234 Ill. App. 430, relied upon by appellant, is distinguishable from the case at bar. In that case, premises leased with an option for extension were afterwards sold. The lessee filed a bill to enjoin the purchaser from taking possession and prosecuting a forcible detainer suit, alleging mailing to the purchaser before the prescribed date therefor, of a notice of election to exercise the option and an oral agreement with the former owner for such extension, prior to the sale of the premises, as a waiver of notice; large expenditure of money by the lessee in reliance thereon and oral notice to the purchaser that the option would be exercised. The purchaser objected to the motion of the complainant for the issuance of a temporary injunction, and in effect demurred to the' amended bill. The action of the trial court in granting a temporary .injunction was affirmed on the grounds that the mailing of the notice was prima facie evidence that it was received, and that the hill alleged an oral agreement for extension amounting to a waiver of notice. There was no showing in that case that the owner of the premises would suffer any substantial loss if the lessee remained in possession, as was also the case in Fountain Co. v. Stein, 97 Conn. 619, 118 Atl. 47; Xanthakey v. Hayes, 107 Conn. 459, 140 Atl. 808; Galvin v. Simons, 128 Conn. 616, 25 A. (2d) 64, and Monihon v. Wakelin, 6 Ariz. 225, 56 Pac. 735, also relied upon by appellant. None of them are persuasive here.

Tbe evidence does not show that appellant’s delay was slight in exercising his option. After the letter of July 1, 1941 was mailed, specifically asking for an acknowledgment, and knowing that his option must be exercised by notice on or before July 9th, appellant waited more than a month after writing the letter and almost a month after the expiration of the time within which he knew he must exercise the option, before taking any step to ascertain whether the notice had been received by appellee. The evidence shows the rent checks were customarily delivered personally to appellee by appellant’s agent. Presumably appellant knew the law that a notice to be effective must be delivered to or received by appellee.

While mailing of the notice, properly stamped and addressed, would, in the absence of evidence to the contrary, raise a presumption that it was received (Bickerdike v. Allen, 157 Ill. 95, 103; Keogh v. Peck, 316 Ill. 318, 323; Cordell v. Solomon, 234 Ill. App. 430), the presumption was overcome by the positive testimony of the witnesses for appellee that it was not received. (Meyer v. Krohn, 114 Ill. 574, 585, 586.) There is nothing in the record which tends to discredit their testimony, and we agree with the finding of the trial court that the notice of July 1, 1941, was never received by appellee.

In seeking specific performance of the contract it was incumbent upon appellant to show that he had performed all the terms and conditions thereof on his part, or that he was prevented from doing so by the act of appellee. Not having complied with either of these requirements, he is not entitled to relief. (Johnson v. Crouch, 325 Ill. 559, 569.) The chancellor correctly dismissed the complaint for want of equity, and that decree is affirmed.

Decree affirmed.


text:
    City of Watseka, Appellee, v. Simon Blatt, Appellant.
    Gen. No. 9,879.

      Opinion filed July 8, 1943.
    Rehearing denied September 21, 1943.
    Shapiro & Lauridsen, for appellant’.
    David E. Oram, of Watseka, for appellee.
   Mr. Justice Dove

delivered the opinion of the court.

On a trial before a justice of the peace, under a complaint charging appellant with violating a zoning ordinance of the City of Watseka, “by unlawfully extending and operating a junk yard on premises within the business district” of the city, he was found guilty and fined $25 and costs. On appeal to the circuit court of Iroquois county there was a like result, after a trial by the court without a jury. On his appeal to the Supreme Court the cause was transferred to this court because there was no certificate of the trial judge that the public interests required a direct appeal to the Supreme Court, as required by section 75 of the Civil Practice Act (Ill. Rev. Stat. 1941, ch. 110, par. 199 [Jones Ill. Stats. Ann. 104.075]), and because the statement of errors relied upon for reversal did not specifically or sufficiently present any constitutional question so as to give the Supreme Court jurisdiction of a direct appeal. City of Watseka v. Blatt, 381 Ill. 276.

Sections 9 and 10 of the zoning ordinance in controversy provide:

“Section 9. Junk yards. — No junk yard shall be-established or operated in the City of Watseka, Illinois, except in an Industrial District, and shall not be established or operated in an Industrial District unless consent is obtained in writing of seventy-five per cent of the property owners within a radius of Five Hundred (500) feet of the location of said proposed junk yard, and subject to the specific approval of the Board of Zoning Appeals ‘both as to location and as to arrangement.
“Section 10. ' Definition of junk yard. — A junk yard shall be defined as a plot of ground, which may be covered with buildings; partly covered with buildings, or without any buildings, which plot is used for the buying, selling, storing, and trading of old iron, rags, hides, furs, old furniture, rubber, wool, used cars, used car parts, old metals, bottles and the like commonly called junk.”

The ordinance became effective on August 6, 1939. The facts hereinafter recited appear by stipulation of the parties: Walnut street runs east and west, crossing the C. and E. I. railroad at a right angle. A short distance west of the railroad the street turns to the northwest. At and prior to the passage of the zoning ordinance, appellant conducted a junk yard and a used auto parts business on a lot designated in the record as Lot A. This lot is located on West Walnut street, the southeast corner of which was 97 feet northwest of the point where Walnut street turns to the northwest. It has 100 feet frontage on Walnut street. After the passage of the zoning ordinance, he purchased two other lots on the north side of the street which will be called Lots B and C. Lot B adjoins the easterly-line of Lot A, with a frontage on Walnut street of 51 feet and its lines roughly- parallel the lines of Lot A. Lot 0 is about triangular in shape, with the apex to the north; its west line adjoins Lot B and its southerly-line extends along the north side of Walnut street for a frontage of 96 feet. By the terms of the zoning ordinance the westerly line of Lot A is the boundary line between two zones, the land east of the line being zoned as a business district, and the land west of the line being zoned as an industrial district. The main business section of the city is located on both sides of Walnut street, and extends east four blocks from the railroad.

Appellant purchased Lots B and C with full knowledge of the zoning ordinance and its provisions relating to the operating of junk yards and used auto parts business. Thereafter, contrary to the provisions of section 9, he extended his nonconforming use onto the newly purchased lots in the area known as a business district under the ordinance. It is not claimed that he violated the terms of the ordinance by conducting his business on Lot A, such nonconforming use being in existence when the ordinance was passed and being exempted by section 1 of the zoning statute (Ill. Rev. Stat. 1939, ch. 24, par. 66).

On the lot immediately east of Lot C there is a dwelling house. On the lot east of the dwelling there is a wholesale and retail poultry and produce business, and the next two lots east are improved by dwellings. All these premises are on the north side of Walnut street west of the railroad. Going west and starting from the railroad on the south side of Walnut street there are three dwellings, at the west one of which there is an unused oil station. On the lot next west there is a State garage, used for storage, maintenance and repair of State automobiles and trucks used by the road district in which the city is located. Immediately west of the garage there is a restaurant and the lot next west 'is vacant. There is a dwelling on the next lot west, across the street from Lots B and C. Then comes Yount avenue which dead ends into Walnut street, and across Yount avenue on the south side of Walnut street is Yount Park extending west and northwest one block. At the rear of appellant’s newly acquired property there is a dwelling on a lot which fronts north on Oak street. It is the only one of the properties mentioned which is in a residential zone. Appellant placed on the rear half of Lot B an eight foot wooden fence, painted white, and work done or goods placed behind the fence cannot be seen by a passerby or from the street in front of the premises. Prior to appellant’s purchase of Lots B and C they were used for residential purposes.

It was further stipulated “that there is a relatively large area as set out by the said Zoning Ordinance in which the defendant could operate his junk yard and used auto parts business without violating any provision thereof, by complying with Section 9 of said Ordinance”; that either party might present any additional proper evidence, and that the term “newly acquired property” as used therein refers to Lot B.

The only testimony as to the stipulated extension of the nonconforming use is that appellant’s business was expanding, and that since he bought Lots B and 0, he has stored about 40 to 50 used cars and trucks on the rear end of Lot B, took used parts from some of them over to the junk yard on Lot A, dismantled or wrecked two old cars behind the fence, and sold eight or ten of the other cars to be used again. Nothing was stored on Lot C, and other than the activities mentioned, no business was conducted on Lot B or C. Witnesses for appellee testified there was an offensive odor from the smoke of articles burned in the junk yard, but none of them testified there was any odor from Lots B or C, and appellant testified the only material burned was wood from old car bodies, which was burned only on Lot A. Appellee’s witnesses mentioned seeing rats, but none of them testified the rats came from any part of appellant’s premises, and one of them mentioned the nearby location of the poultry and produce business, and said there were rats before appellant acquired Lots B and C. From this testimony it does not appear that the business was conducted in such a way as to be a nuisance per se.

Appellant invokes the terms of section 95 of article 5 of the Cities and Villages Act (Ill. Rev. Stat. 1939, ch. 24, par. 65.94) as amended in 1935, and as in force when the zoning ordinance was passed and when the alleged violation of the ordinance took place, as being the governing statute. That section, as then in force, gave municipalities the power “to tax, license, regulate and direct the location of all places of business of purchasers, traders and dealers in junk, rags and any second hand article whatsoever.” Appellant claims that it does not, by the term “regulate,” authorize the city to prohibit the location of such places as junk yards. People v. Busse, 240 Ill. 338, and Nahser v. City of Chicago, 271 Ill. 288, relied upon by appellant, hold that the power to “regulate” does not include the power to “prohibit.” The Busse case was decided in 1909 while the powers delegated by that section were only “To tax, license and regulate second hand and junk stores and yards.” (J. & A. Anno. Stat., ch. 24, par. 1334(95) without any mention of power to direct location. That power was added in 1911. (L. 1911, p. 173; Smolensky v. City of Chicago, 282 Ill. 131, 1935.) The Nahser case, decided in 1915, held that under clause 41 of the same section, delegating power “to license, tax, regulate and prohibit . . . theatrical and other exhibitions, shows and amusements,” the city had power to enact an ordinance prohibiting a moving picture show within 200 feet of a Church. Neither of those cases support appellant’s contention, and it is further to be noticed that they were decided prior to the enactment of the zoning law in 1921 (Ill. Rev. Stat. 1939, ch. 24, par. 66 et seq.), the pertinent portion of section 1 of which provides :

“In addition to existing powers . . . the city council in each city . . . shall have the following powers: ... to classify, regulate and restrict the location of trades and industries and the location of buildings designed for specified industrial, business, residential and other uses; to divide the entire city . . . into districts of such number, shape, area and of such different classes (according to the use of the land and buildings) ... as may be deemed best suited to carry out the purposes of this Act; . . . to prohibit uses, buildings and structures incompatible with the character of such districts respectively; "

The power to restrict locations and prohibit uses is thus expressly delegated by this section, and we find nothing in section 95, relied upon by appellant, that is incompatible with the provisions of the zoning statute.

Brown v. Board of Appeals of Springfield, 327 Ill. 644, decided after the passage of the Zoning Act is also relied upon by appellant. The opinion in that case cites the Busse case, supra, as to the interpretation of the word “regulate,” but the point decided is that the provision in section 1 of the Zoning Act, authorizing cities “to regulate and limit the height and bulk of building’s,” does not authorize the enactment of an ordinance requiring buildings thereafter constructed in a certain district to be at least 40 feet high, as the word “limit” means to restrict, and not to compel the erection of a building of a certain height. That case has no application here.

The power to prohibit the location or operation of a junk yard, or any other business, institution'or building in a prescribed area is. not an arbitrary power tó be exercised at the mere pleasure or whim of municipal authorities. The purpose of granting additional powers by the Zoning Act is by the terms of section 1 expressed to be “to the end that adequate light, pure air and safety from fire and other dangers may be secured, that the taxable value of land and buildings throughout the city, village or incorporated town may be conserved, that congestion in the public streets may be lessened or avoided, and that the public health, safety, comfort, morals and welfare may otherwise be promoted.”

While it has been held that all uses of property or courses of conduct which are injurious to the health, comfort, safety, morals and welfare of society may be prohibited under the sovereign power of the State, though the exercise of such power result in inconvenience or loss to individuals, that power must find basis in the doctrine of overruling necessity or bear substantial relation to the public ¿ood and may not be based alone on aesthetic considerations. (Forbes v. Hubbard, 348 Ill. 166, and cases cited.) ' It is primarily the province of the municipal body to which the zoning function is committed, to draw the line of demarcation as to the use and purpose to which property shall be assigned or placed, and it is neither the province nor duty of courts to interfere with the discretion with which such bodies are vested, in the absence of a clear showing of an abuse of discretion, or when the question of whether the ordinance is unreasonable, arbitrary, or an unequal exercise of power is fairly debatable. (Morgan v. City of Chicago, 370 Ill. 347; Thomas Cusack Co. v. City of Chicago, 267 Ill. 344.) Ordinances duly enacted lie behind the bulwark of presumptive validity and the burden is upon the one assailing them to overcome that presumption. (Rothschild v. Hussey, 364 Ill. 557). But neither the study and investigation of zoning commissioners (stipulated in this case) nor the presumptive validity of the ordinance is the controlling test whether the ordinance is a reasonable exercise of the police power. That matter is to be decided by the courts from all the facts and circumstances shown. While the opinions of experts or of laymen that a certain restriction which has found its way into an ordinance governing the use of property is in the interest of the public good, if fairly debatable, will not be disturbed by the courts, yet they are not final, but such restriction must face the test whether it is, in fact, in the interest of the public welfare. In thus considering that question each case is to be determined on its own facts and circumstances. (State Bank & Trust Co. v. Village of Wilmette, 358 Ill. 311; Village of La Grange v. Leitch, 377 Ill. 99.) If the means employed have no real, substantial relation to public objects within the power of the State, or if these means are arbitrary and unreasonable, courts will disregard mere forms and interfere for the protection of the rights injuriously affected by such illegal action. The owner of property has the right to make any use of it he desires, so long as he does not endanger or threaten the safety, health, comfort or general welfare of the people. (Kennedy v. City of Evanston, 348 Ill. 426, 428; People v. Village of Oak Park, 331 Ill. 406, 412; People v. Norvell, 368 Ill. 325, 327.) Nor does the fact that appellant purchased the property in controversy after the passage of the zoning ordinance estop him from attacking its validity. (Forbes v. Hubbard, 348 Ill. 166.)

A real estate agent testified that before the junk yard was located on Lot A, the property adjoining Lot C on the east could have been sold for $3,000, and that since then its value is $1,800. He testified that the extension of the junk yard onto the next lot would tend to further depreqiate its value, but did not qualify his statement that it is still worth $1,800. The owner of the property fronting on Oak street north of appellant’s premises testified he still gets the same rent for his premises as he did before appellant bought Lots. B and C. Under this testimony there is no convincing evidence in the record that the extension of the nonconforming use has or will depreciate the value of property ,in the vicinity. Nor is there any testimony that tends to show that the extension of the nonconforming use contravenes or conflicts with any of the other objects or purposes of the Zoning Act as expressed in section 1 thereof.

The requirement of section 9 of the zomng ordinance that the location or operation of a junk yard in an industrial district shall be subject to the specific approval of the board of zoning appeals delegates to that board a power which the Zoning Act expressly and exclusively commits to the city council. Where a power is expressly delegated to the city council, the power must be exercised by it as such a body, and cannot be exercised by any other body, or be delegated to others. (City of Sullivan v. Cloe, 277 Ill. 56; City of Kinmundy v. Mahan, 72 Ill. 462.) The requirement is further invalid because it specifies no terms or conditions for such approval, but leaves it to the caprice of the board of zoning appeals. (People v. Norvell, 368 Ill. 325.)

Although a requirement for frontage consents in residential districts has been generally sanctioned by the courts, it was held in Koos v. Saunders, 349 Ill. 442, that an ordinance requiring the written consent of a majority of the property owners, according to frontage, on both sides of the streets immediately surrounding the block, and of the owners of a majority of the property abutting on the street in question within 200 feet, before one could erect a gasoline filling station on his property, is unreasonable and oppressive where the lot on which the station was to be erected was in a district zoned for local business purposes and was surrounded by property devoted to business purposes, even though two thirds of the improved property, according to frontage, on both sides of the streets surrounding the block, was used for residence purposes, as provided by the ordinance. In our opinion this holding is directly applicable here as to the requirement in section 9 of the ordinance for obtaining radial consents in an industrial district, and, considering the fact that Lots B and C, and all the dwellings in the vicinity, except one, are in a district zoned for business purposes, it cannot be said that the decisions in cases where the property was zoned for residence purposes have any application here. By reason of the increase of appellant’s business necessitating additional room, he is directly affected by these provisions of the ordinance.

The stipulation as to the availability of other locations by complying with the provisions of the ordinance, does not validate such provisions or abridge appellant’s rights to question their validity.

Furthermore, the definition of a junk yard in section 10 of the ordinance cannot be sustained. If, as contended by appellee, the word “and,” as used therein, is to be interpreted as “or,” it is obvious that dealing in either hides, furs, rubber, wool, used cars or used ear parts, does not, without some other specification or qualification, constitute dealing in junk or make the place of any such business a junk yard. The ordinance does not comply with any accepted definition of the junk business. "Webster’s definition of “junk” is: “Old iron, or other metal, glass, paper, cordage, or other waste or discarded material which may be treated or prepared so as to be used again in some form.” Dealing in used cars and used car parts carries with it the idea of their being used again for their original purpose, without reprocessing. Junk, as the term is ordinarily understood, means articles that have outlived their usefulness in their original form, and are commonly gathered np and sold to be converted into another product, either of the same or a different kind by some manufacturing process.

In our opinion the above-mentioned provision of section 9 and the definition of a junk yard in section 10 of the ordinance are not in accord with the provisions delegated by the Zoning Act, and are so arbitrary and unreasonable as to render those sections void. We are further of the opinion that even if otherwise valid, the ordinance, as applied to .appellant’s newly acquired property, is clearly arbitrary and unreasonable, and therefore void as to such property. (Village of La Grange v. Leitch, 377 Ill. 99.)

The judgment of the circuit court is reversed and the cause is remanded with directions to find the defendant not guilty.

Reversed and remanded with directions.