author: Mr. Presiding Justice Culbertson

text:
    Roberta Palmer and Robert L. Palmer, Appellees, v. George Miller, Appellant.

      Opinion filed May 26, 1944.
    Opinion modified and rehearing denied September 18, 1944.
    Stone & Fowler, of Marion, and Roy R. Helm, of Metropolis, for appellant.
    Alfred Roy Hulbert, of Chicago, and Grover E. Holmes, of Metropolis, for appellees.
   Mr. Presiding Justice Culbertson

delivered the opinion of the court.

This cause again comes up on appeal from two judgments of the circuit court of Massac county, against appellant, George Miller (hereinafter called defendant), and in favor of Boberta Palmer and her husband, Bobert L. Palmer, appellees (hereinafter called plaintiffs), in the respective sums of $25,097.22 and $7,529.16. The judgments were rendered on verdicts in the respective sums of $25,000 and $7,500, which verdicts were returned in an action for personal injuries sustained by the plaintiff, Roberta Palmer.

We have considered this cause on a previous appeal (Palmer v. Miller, 310 Ill. App. 582), and it was, likewise, considered on appeal by our Supreme Court (Palmer v. Miller, 380 Ill. 256). As a result of the Supreme Court opinion this cause had been remanded for a new trial for the stated reason that the case be tried again with proper pleadings and instructions. The pleadings to which the Supreme Court referred had predicated recovery (in the pleadings) against the defendant (who was a minor just under the age of 21 years at the time of the accident, but who had since attained his majority), on the theory that the car was being driven by another, as his agent or servant, and the jury was, likewise, instructed on that theory of the case. In the opinion of the Supreme Court, however, it was directly concluded that the basis of the action could properly be against the defendant as possessor or owner of the automobile while he was riding in it, and that he was thereby under a duty to control the driver. The basis of the action against such owner or possessor, it was stated by the Supreme Court, is that the owner himself is guilty of negligence in failing to control the driving of the car, or is in a joint enterprise with the driver. It was upon the absence of a pleading in the previous case, charging such negligence, that the case was remanded for a new trial.

Upon remandment, the pleadings were revised. The amended complaint upon which the case was retried included an allegation that the defendant had possession of the automobile and was seated beside the driver on the trip during which the accident had happened, and the complaint also alleged that the driver negligently drove the automobile, and specifically charged that the defendant negligently failed to keep the automobile under control; negligently failed to properly control the driver; negligently failed to require the driver to reduce the speed of the automobile on approaching and entering a curve on the highway; negligently failed to exercise ordinary care in supervising and directing the driver; negligently permitted the driver to operate the car at a high and dangerous rate of speed. There were, thus, direct and specific allegations alleging negligence on part of the defendant, precisely in line with the opinion of the Supreme Court and with the cases referred to in such opinion.

The defendant’s answer, in addition to the specific denial, recited eleven additional defenses which we will not detail in this opinion other than to refer to the matters therein contained as they may become pertinent to a consideration of material issues in the course of this opinion.

The facts, as developed on the second trial of this case, from which the appeal was taken, did not differ materially from those developed on the first trial, and indicate that the defendant had obtained permission to use his mother’s automobile for the purpose of going to a dance at a country club located near Metropolis, and had taken Dan Park, and four others with him to the dance. While the defendant was at the club, he cut his wrist severely and was seen to be bleeding profusely. Dan Park and other persons determined that defendant needed medical care and assisted him from the club to the automobile which defendant had driven to the party. The defendant gave the car keys to Dan Park. At the insistence of Park, the plaintiff, Mrs. Palmer, who was a registered nurse, agreed that she would accompany defendant and Dan Park and assist in caring for defendant. Before entering the automobile, she testified that, defendant who was sitting in the front seat, asked if she would go with him and help him and that she agreed to do so. The automobile was driven by Park, who also sat in the front seat with defendant and plaintiff, Mrs. Palmer. Other persons occupied the rear seat. Park drove at a very-high rate of speed and slid along the gravel on a curve in the road, crashed into a tree, and the car turned over. The injuries to plaintiff, Mrs. Palmer, were very-extensive and painful and have required extremely painful surgical operations. She never lost consciousness after the injury. As was stated in the previous opinion, and as is true at present, the evidence of pain, disfigurement and surgery make it apparent that the damages were not, in fact, excessive, in view of the injuries sustained by plaintiff, and the contention that the verdict in this case is excessive cannot be sustained under the facts. It would serve no useful purpose to repeat again the details of evidence in this case, which were summarized by both this court and the Supreme Court in previous opinions.

At the time this case was set for trial on the second trial Dan Park was in the United States Army Air Corps. The record shows that the cause was re-docketed in December of 1942, and that one week before the time of the trial, when it had been set after having-been previously postponed, a motion for a continuance was filed on behalf of defendant, based upon the absence of Dan Park. The motion was denied when plaintiffs admitted the affidavit, and that if the missing witness were present he would testify as stated in the affidavit. In accordance with Pule 14 of the Supreme Court Pules, on review of the entire record, we do not believe that the trial court abused its discretion in denying defendant’s motion for a continuance. It appears that defense counsel knew in December 1942, that the cause was to be retried, and that Dan Park was out of the jurisdiction of the court, but no attempt was made to take his deposition until just before trial.

Appellant has filed in this court a brief of 146 pages and there are 19 errors assigned, and 51 points set forth specifically in the brief. To treat all of these matters separately would unduly extend this opinion. The issues in this case, following its retrial and second appeal to this court, at least to this court, do not appear to be involved or complicated, and a less voluminous brief might have made the work of this court in this case less burdensome. We have not attempted to censure counsel for the extensive character and length of their brief because we know too well the difficulties sometimes involved in preparation of involved cases on appeal. At the same time we feel that counsel, in submitting a case for the consideration of this court should be equally considerate of the burden of analysis and consideration which is imposed upon this court through lengthy briefs involving matters which might be summarized or treated more succinctly.

The Supreme Court, in the previous decision in this case (which is the law of the case and which, we believe, accurately expresses the law relating to this subject), has determined that the defendant had the right and the duty to control the driver, Dan Park, and that a question of fact was submitted to the jury as to whether or not the defendant was guilty of negligence in failing to exercise such control. The conclusion of the jury that there was such negligence is, in our judgment, conclusive in the case. The verdict, under the facts, is obviously not against the manifest weight of the evidence, and will not justify a reversal on the basis of the facts in the case. Similarly, we find no error in the giving of plaintiffs’ instructions, or in the refusing of defendant’s instructions, nor do we find that the cause of action pleaded in the second amended complaint was barred by the statute of limitations. The specific plea setting up such defense was properly stricken by the court below. As stated by the Illinois Supreme Court in Graves v. Needham, 379 Ill. 25, 27, “It is not necessary that the original pleading technically state a cause of action, nor that a cause of action be specifically the same as any cause of action stated in the original pleading.” Under section 46 of the Civil Practice Act [Jones Ill. Stats. Ann. 104.046] amendments may be permitted which add new causes of action and the cause of action set up in an amended pleading is not barred by lapse of time if the one set out in the amended pleading grew out of the same transaction or occurrence set up in the original pleading, even though the original pleading was defective in ■that it failed to allege performance of some act, or existence of some fact or matter, which was a necessary condition precedent to a right of recovery. Under the facts the amendment was proper and the defense of the statute of limitations was properly stricken (Metropolitan Trust Co. v. Bowman Dairy Co., 369 Ill. 222).

Another defense, which had been stricken by the court below, was to the effect that the plaintiff, Roberta Palmer, had assumed the ordinary risks of the transportation. This was not a proper defense since the doctrine of assumption of risk refers to known risks and danger, and is clearly not applicable to a tortiousact which might be committed in the future (Chicago, R. I. & P. Ry. Co. v. Benson, 352 Ill. 195; Chicago Hair & Bristle Co. v. Mueller, 203 Ill. 558).

We do not believe any useful purpose would be served by discussing the remainder of the specific defenses raised by defendant in his pleading. Similarly, it is unnecessary to discuss at length the contention of the defendant that the minority of the defendant at the time of the accident is a defense on the theory that he had first to make a contract with the driver before he had a right to control him. As indicated in the opinion of the Supreme Court herein referred to, the right and duty of control arises from the possession of the automobile by the defendant present therein while it was driven by another person with his consent. The liability of a minor for his tort, arising from a negligent failure to exercise a right of control which existed in him under the facts as shown in this case, has been clearly established in the previous Supreme Court opinion on the first trial of this case.

Among other things, a contention is made by the defendant that the court erred in refusing to submit an interrogatory which had been presented by defendant. The defendant submitted eight interrogatories, of which six were given. Some of the interrogatories were not proper and could properly have been refused by- the court, but were given, and the answers were consistent with the verdict. The interrogatories refused related to the questions, (1) Whether the defendant Miller, at the time of and immediately prior to the collision, had the right to control Dan Park; and (2) Whether the automobile was in the joint possession of and under the joint control of Dan Park and plaintiff, Roberta Palmer. The refusal of such interrogatories by the court below was clearly proper. The right of control was a question of law which had been determined by the Supreme Court in its previous opinion, and there was no evidence of any joint control by plaintiff, Roberta Palmer, and Dan Park.

We must conclude, upon a consideration of the entire record in this case, and of the many points raised by appellant, that we find no basis for reversal. The judgments of the circuit court of Massac county will, therefore, be affirmed.

Judgments affirmed.


source: Caselaw Access Project

author: Mr. Justice Lupe

license: Public Domain

text:
    People ex rel. Barney Yarmulnick, Appellee, v. Vera Hoff, Appellant.
    Gen. No. 42,749.

      Opinion filed June 30, 1944.
    Rehearing denied September 14, 1944.
    Bernard M. Feldman and George A. Gordon, of Chicago, for appellant; George A. Gordon, of Chicago, of counsel.
    Oscar M. Nudelman, of Chicago, for appellee.
   Mr. Justice Lupe

delivered the opinion of the court.

Petitioner, Barney Yarmulnick, filed his petition for a writ of habeas corpus against respondent Vera Hoff, a sister of his deceased wife, to obtain custody of his daughter Lena. Respondent filed her return and asked that the writ be quashed and the petition dismissed. The cause was tried by the court without a jury, and an order was entered awarding the custody of Lena to the petitioner, from which order the appeal is taken.

Respondent contends that petitioner’s right to custody of his child is not absolute; that the best interest and welfare of the child, considering all the circumstances, demand that her custody remain with respondent; and that the judgment of the trial court is contrary to the evidence.

Petitioner urges the court was correct in its ruling; that he as her father is entitled to and has the natural right to the custody of his child, and is a fit and proper person to be entrusted therewith.

It is alleged in respondent’s return that she had taken care of the child since its birth, as one of her own children; that neither petitioner nor his present wife are fit persons to have the care and custody of the child; nor is it for the best interest of the child that custody be turned over to them; that the sole motivating cause of petitioner’s desire to secure the custody of his child is to avail himself of a deferment claim under the Selective Service Act.

As the custody of a child is involved, it becomes necessary to resort to the evidence to ascertain what should be done for her best interest.

Lena was born February 4, 1933 and at the time of her birth her mother died. After the birth of Lena, petitioner with his child rented an apartment with his mother-in-law, sister-in-law (Mrs. Trevis) and her husband, at 1509 Ridgway avenue, Chicago, where they resided for a period of about two and a half years when, because of some disagreement, the petitioner moved, leaving the child with his in-laws, with the understanding that he was to contribute toward her support,“furnish clothing, medical and other expenses, and when he had a home and was able to care for Lena she would be given to him. He went to live with his mother and father and two brothers. The evidence shows he contributed toward the support of his child. There is, however, some question as to the extent of payments made by him. In 1936 or 1937 Mrs. Hoff, who had always helped in taking care, of the child up to that time, took the child in her home where the child remained to the time of the filing of these proceedings. Petitioner testified he had had the same understanding with respondent as was previously had with Mrs. Trevis that if and when he was able to take the child she would be given to him, and he agreed with Mrs. Hoff to pay toward the support of the child and take care of her clothing, medical and other expenses. This he did, as is shown by the record and the exhibits introduced in evidence.

In 1937 or the early part of 1938 petitioner entered into his second marriage, which was short-lived, and about seven months thereafter a decree of divorce was entered. Up to the time of his second marriage he was unable to take the child because of lack of room in the home where he resided with his parents, and during the seven months of his second marriage he and his wife occupied one room and therefore he contends the accommodations for a child such as Lena were inadequate. After the divorce he returned to his parents and remained with them until he married his present wife on February 21, 1942. His present wife is a divorcee with one child and he now resides with her and the child at 1434 South Central Park avenue, Chicago, in a four-room steam-heated apartment. He is now and has been for the past two and a half years in the employ of Hart, Schaffner & Marx and his present salary averages about $35 to $40 per week.

During the entire time from the child’s birth to the present time the record shows that petitioner had visited the child regularly, had taken her with him on week-ends, and on one occasion she was with him for the period of a week; he has paid toward the support of the child regularly excepting for a short space of time, and has contributed toward her other expenses, and the record shows he tried to comply to the best of his ability with his responsibilities as a father. Many pictures of petitioner and the child are in evidence which were taken at various times during the period since she was six months old to nine years of age, demonstrating the affection that he had for her. Petitioner had taken out on his life a policy of insurance wherein he had made his daughter the sole beneficiary, thereby attempting to protect her future in the event of his death, and had performed other acts which tend to show his parental love for her.

The child visited with his present wife at their home. Before suing out the writ petitioner requested of respondent the custody of his child, informing her of his marriage, that he had a steady job and a nice home, and advised her that she could see the child at any time she wished, and that the child could be with her at times and that the door to his home was always open to her. She refused to turn the child over to him.

The evidence showed that respondent kept and maintained a fine home; that the child’s training was good, and that respondent had always shown toward the child genuine motherly love; that the members of respondent’s family were devoted to the child, and that she in turn was devoted to all of them; that she was a bright girl, well mannered, well kept, and that a love existed between her and respondent as that of mother and daughter.

Lena expressed her desire of remaining • with respondent.

Petitioner’s present wife testified that she loved Lena and that she desired her to live in their home. Other witnesses testified as to the good character of petitioner and his present wife.

Chapter 3, Article XI, section 284 of the Illinois Revised Statutes [Jones Ill. Stats. Ann. 110.381] provides :

“Parental right to custody.) When both parents of a minor are living and are competent to transact their own business and are fit persons, they are entitled to the custody of the person of the minor and the direction of his education; and, if one parent is dead and the surviving parent is competent to transact his own business and is a fit person, he is similarly entitled. . . . ”

In controversies of this character three matters are to be regarded: the rights of the parent, the right and interest of the person or persons to whom the care and custody of the infant child had been given by the parent, and the welfare of the child, and of these three the last-mentioned is the matter of primary and paramount importance. (Sullivan v. People, 224 Ill. 468.)

The law presumes the interest and welfare of the child to be best served in the custody of its father (Wilson v. Mitchell, 48 Colo. 454) and that the right of a parent to the custody of his child is superior to that of any other person when he is fit and can provide the necessities of life, and where both contestants are equally proper persons, such as in this case, the father will be awarded the preference. (Carmack v. Marshall, 211 Ill. 519.)

The court is only warranted in depriving a father of the custody of a child when the evidence discloses that the child on his account is destitute, abandoned or dependent ; that he is living an immoral life or in vicious or disreputable circumstances; that he has neglected and treated his child unkindly or cruelly, or that he may so treat the child; that he is wanting in good principles, or that he is illy adapted to the care of the child on account of defects in his mental or physical qualities which prevent him from being a kind and affectionate father. (Wohlford v. Burckhardt, 141 Ill. App. 321.)

It is intimated that the home of respondent is a place where the child would receive better care and attention and that she was better able financially to provide for her welfare. It may be that the father’s home is not as elaborate as her present home, or that he may not be able to provide her with all of the things she has been accustomed to have, but he should not be deprived of her custody if he is so circumstanced that he can provide the necessaries of life and the proper maintenance and education of his daughter. (Sullivan v. People, 224 Ill. 468.)

It is not a question of relative ability of a parent but the sole question is whether the father is able and will give the child good care and treatment. (Carmack v. Marshall, 211 Ill. 519.)

We have also considered with the evidence in this case the desire of the child to remain with respondent. However, we feel her interests will be best served in the home of her parent the petitioner.

The record fails to substantiate the intimation that the petitioner was addicted to intoxicating liquor, or the charges he is unfit to have the care, custody and control of his child, and that his present home is not a proper place for her. The burden of proving unfitness of petitioner was on respondent. This she failed to sustain. The law is that unless such unfitness is established by clear evidence fitness will be presumed, and the custody of the child will be awarded to the parent. (People v. Hoxie, 175 Ill. App. 563.)

Petitioner’s wife is willing to share the responsibility with her husband in the future in raising and caring for Lena, and there is nothing in the record that would indicate that she would not be a fit and proper person, with her husband, to safeguard the future welfare of the child.

Respondent relies upon the cases of People v. Weeks, 228 Ill. App. 262, People v. Porter, 23 Ill. App. 196, People v. Nelson, 235 Ill. App. 410 and Chapsky v. Wood, 26 Kan. 650, to sustain her contention that the child should remain with her. We have examined each of these authorities and, in each, the father had relinquished or abandoned the right of custody of his child either by agreement (which in itself is not binding), or by his conduct, or neglect of duty to his child. On the facts in those cases we agree with the law as therein enunciated, but they do not apply to the case before us. .

In the case of Kulan v. Anderson, 300 Ill. App. 267, a well-reasoned opinion in this class of cases, after reviewing the holdings in this and other States pertaining to the question of custody of children, the court said (p. 277): •

“It must be borne in mind that the controversy.in the instant case is between the father and an aunt, and that the right' of the State to take a child from the parent, or parents, under certain circumstances is not here involved. In our opinion, the father, under the law of this State and the admitted facts, had the right to the sole custody of the child. . . . The rule that a parent has the right to the custody of his child against all the world, unless he has forfeited that right, was born of the natural desire of mankind to create and maintain a home; and, as has been often said, the home is the foundation of society and civilization. Deprive worthy parents of their natural right to the custody of their children, where they have not forfeited that right, and you undermine the home.”

Despondent next contends that there was want of good faith on behalf of petitioner in the filing of his application for the custody of the child and that it was done solely for the purpose of securing deferment under the Selective Service Act. With this we cannot agree. The 'Selective Service Act, section 622.31 [50 App. USCA § 305 (m)] provides in substance that any registrant who with his child or children maintained a bona fide relationship in their home prior to December 8, 1941 shall be deferred. Petitioner of course could not hope to be deferred on this theory, since the child was not living with him in his home on or prior to December 8,1941.

This matter was heard by a trial judge of many years experience who saw and heard the witnesses and was better able than we to judge of the credibility of each. His findings will not be disturbed unless it can be said that they are clearly and palpably erroneous. (Ehrich v. Brunshwiler, 241 Ill. 592.)

We appreciate the feelings of Mrs. Hoff toward the child and realize the love she bears for her, and it may seem a hardship to deprive her of the custody of the child, but the legal right of a father and his love and affection for his own daughter should also he considered, and after weighing all of the evidence in this case we feel that the judgment entered herein was a just and correct one, and it is therefore affirmed.

Judgment affirmed.

Burke, P. J., and Kiley, J., concur.


text:
    Serge Novosk and Fred Zachman, Appellants, v. Max Reznick, Trading as Central West Motor Stages, not Incorporated and Central West Motor Stages, Incorporated, Appellees.
    Gen. No. 42,788.

      Opinion filed June 30, 1944.
    Rehearing denied September 14, 1944.
    Lionel G. Thorsness, of Chicago, for appellants; Charles G. Culver, of Chicago, of counsel.
    Wyatt Jacobs and Walter A. Christopher, of Chicago, for appellees.
   Mr. Justice Lupe

delivered the opinion of the court.

Plaintiffs as operators of defendants’ motor buses sued for the difference between what they received from the defendants and the amount which the defendants contracted in writing with the Works Progress Administration to pay operators, under contracts entered into between the defendants • and the Works Progress Administration. The cause was tried before a jury. The court, at the close of plaintiffs’ evidence, directed a verdict in favor of the defendants. This appeal followed.

Defendants were engaged in the business of operating motor buses in the city of Chicag.o. They entered into certain written contracts with the Works Progress Administration to carry workers to various projects located in Chicago during the years 1936 to 1939. Plaintiffs contend that the contracts sued upon were entered into by defendants with the Works Progress Administration for the benefit of plaintiffs and as third party beneficiaries they were entitled to receive from the defendants the difference between the amount actually received by them for services rendered from defendants (in operating motor buses) and the amount which defendants agreed to pay such operators under the contracts of defendants with Works Progress Administration.

Defendants contend that plaintiffs are not entitled to sue (under the contracts) as they are not third party beneficiaries; and that even if the plaintiffs are entitled to maintain their suit as third party beneficiaries, the plaintiff Serge Novosk could not recover because his claim is barred by section 16 (five year) of the limitation act; and further that plaintiffs failed in their proof to establish a prima facie case. The claim of plaintiff E. E. Nelson is not involved in this appeal, since he was dismissed by stipulation.

At the time of the trial the parties to this proceeding entered into a stipulation that plaintiff Serge Novosk worked for Max Eezniek doing business as the Central West Motor Stages, not incorporated, for 294% days from June 22, 1936 to July 10, 1937 as a bus driver engaged in carrying WPA workers to WPA projects, and that he received as compensation for said services the sum of $726.25; Fred Zachman worked for the defendant Central West Motor Stages, incorporated, for 228 days from May 1,1938 to May 15, 1939 (in the same kind of work with the same'duties as was Novosk), and that he received $694 as compensation for said services.

The contracts between defendants and the Works Progress Administration relied on by plaintiffs and marked plaintiffs’ exhibits 2 to 12 inclusive (except plaintiffs’ exhibit 4) were admitted in evidence, but later stricken by order of court. All of said exhibits (excepting exhibits numbered 9 and 10) contained a provision wherein defendants agreed to pay bus drivers ‘ ‘ not less than the prevailing wage rate in the particular locality in which the work performed is located. Reference may be made to the Works Progress Administration for information concerning such prevailing wage rate.” Exhibits 9 and 10' contain the provision last hereinabove mentioned and in addition thereto the following: “Such prevailing wage rate as established by the Works Progress Administration is $1 per hour.”

It is insisted by plaintiffs that they are third party beneficiaries under the contracts between defendants and the United States Treasury, State Procurement Office (exhibits 2 to 12 inclusive) and argue that in the year 1929 a national economic crisis existed in the United States; that Congress had passed the Emergency Public Works and Construction Projects Act, and that section 401, chapter 8, title 40 USCA establishing such emergency act empowered the President of the United States to create a Federal Emergency Administration of Public Works, to effectuate the purpose of said act. By section 406 thereof, restrictions were imposed upon contracts entered into to carry out the administration of public works under the act. In section 406 we find the following language: “All contracts let for construction projects and all loans and grants pursuant to this title shall contain such provisions as are necessary to insure . . . (3) that all employees shall be paid just and reasonable wages which shall be compensation sufficient to provide for the hours of labor as limited, a standard of living in decency and comfort . . . (5) that the maximum of human labor shall be used in lieu of machinery whenever practicable and consistent with sound economy and public advantage.”

The prime purpose of the passage of the act was to create employment for destitute citizens and to provide a wage that would secure a standard of living in decency and comfort and to relieve chaos and bring about stabilization of business.

The record in this case discloses that at the time money was paid under said contracts to the defendants by the Works Progress Administration the defendants certified that the provisions of said contracts had been complied with by them.

In the case of Montana State Federation of Labor v. School Dist. No. 1, Helena, 7 F. Supp. 82, at page 83, the court said:

“The grant is to benefit labor as the principal thing, benefit to the school district merely an incidental thing. Its object is (1) to employ labor, and (2) at wages which will afford it a decent and comfortable standard of living, not one but both.”

It is not necessary that a person to be benefited by a contract be named therein if he is otherwise sufficiently described or designated, or he may be even one of a class of persons if the class is sufficiently described or designated. 17 C. J. S. 519, subparagraph (d); Hearn v. Ralph Sollitt & Sons Const. Co. (Tex. Civ. App.), 93 S. W. (2d) 551.

In considering the purpose and intent of the Emergency Public Works and Construction Projects Act, the requirements to insure the amount of wages the employee was to receive while working for employers who had entered into contracts such as has been sued upon in this cause; the manner in which the wage scale was to be determined; the certificate which was necessary by the employer, certifying to the Works Progress Administration of his compliance with the provisions of the contract, lead us to conclude that the contracts herein sued upon were for plaintiffs’ benefit, and as third party beneficiaries they were entitled to maintain their suit.

Chapter 83 of the Illinois Revised Statutes, sec. 17 [Jones Ill. Stats. Ann. 107.276] (limitations) provides in substance that all actions on written instruments or other evidence of indebtedness in writing shall be commenced in 10 years next after the cause of action accrues. Section 16 of the limitation act limits the time in which actions must be commenced to five years, and has reference to unwritten contracts, awards, etc. Plaintiffs argue that in view of the fact that they are proper parties plaintiff and have a right to maintain their suit as third party beneficiaries under said contracts, the 10-year statute of limitations applies, whereas defendants contend that the 5-year statute is applicable for the reason that it was necessary for plaintiffs to introduce parol evidence to show the existence of a contractual relationship between the plaintiffs and the defendants.

Plaintiffs in support of their contention rely upon the case of Marianna Lime Products Co. v. McKay, 109 Fla. 275, 147 So. 264; Carson, Pirie, Scott & Co. v. Parrett, 346 Ill. 252; Montana State Federation of Labor v. School Dist. No. 1, Helena, 7 F. Supp. 82; and Economy Fuse & Manufacturing Co. v. Raymond Concrete Pile Co., 111 F. (2d) 875.

All of the cases above cited with the exception of the Economy Fuse & Manufacturing Co. v. Raymond Concrete Pile Co., supra, deal with third party beneficiaries, and the statute of limitations was not involved. In Economy Fuse & Manufacturing Co. v. Raymond Concrete Pile Co., supra, the court, at page 878, says:

“It is not the law of Illinois that a cause of action upon a written contract is taken out of that class by reliance upon evidence of surrounding circumstances. On the contrary in this jurisdiction it is recognized that in determining whether the written provision of a contract imports a warranty implied by law the court may and must admit such evidence of the surrounding circumstances as will aid the court in arriving at the true meaning of the parties. The proposition in no way violates the parol evidence rule and in nowise militates against characterization of the cause of action as one arising upon a written contract. ’ ’ (Citing cases.)

And then the court goes on to say, at page 879:

“The conclusions to which we find ourselves impelled are not in conflict with the authorities relied upon by defendant. In each of those citations, parol evidence was necessary to show existence of a contractual relationship between the parties. Such is not the case here. . . . Likewise, in Railway Passenger & Freight Conductors’ Mutual Aid & Benefit Ass’n v. Loomis, 142 Ill. 560, 32 N. E. 424, the written instrument relied on disclosed no" cause of action in plaintiff.”

This case is of little aid to plaintiffs, as it follows the holding of Railway Passenger & Freight Conductors’ Mut. Aid & Benefit Ass’n v. Loomis, 142 Ill. 560, 32 N. E. 424, which is the leading case in this State and has been repeatedly cited and followed. The court in that case lays down the rule and says, at page 567:

“A contract cannot be said to be in writing, unless the parties thereto, as well as the terms and provisions thereof, can be ascertained from the instrument itself. If a party to a written contract is not named therein, the contract is defective as containing only a part of the agreement. In such cáse, the agreement is only partly reduced to writing, because parol proof must be resorted to, in order to show with whom the bargain was made.”

And on page 568 the court said':

“But the constitution and by-laws merely designate in a general way certain classes of persons, who will be entitled to the benefit fund upon the death of a member; and parol evidence must be introduced to show that the plaintiff belongs to one of the designated classes.”

In the case of Mowatt v. City of Chicago, 292 Ill. 578, where the application of the 10-year statute of limitations was involved, the court said at page 582:

“If parol evidence must be introduced to sustain the action the contract is not in writing under this statute. (Conductors’ Benefit Ass’n v. Loomis, 142 Ill. 560.) The following authorities support same conclusion: 25 Cyc. 1042; 1 Wood on Limitations, (4th ed.) sec. 57f, and cases cited; Bishop on Contracts, secs. 197-203, inch; 3 Page on Law of Contracts, (2d ed.) sec. 1500, and authorities cited; Dodd v. Board of Education, 122 Cal. 106.”

We are therefore impelled to hold that as parol testimony must be resorted to, to show the existence of a contractual relationship between the plaintiffs and the "defendants, plaintiff Novosk’s action was barred' by the 5-year statute of limitations, not having been commenced within five years from July 10, 1937.

Plaintiffs offered a witness who was state employment officer of the WPA to prove that the Works Progress Administration determined the hourly rate for bus drivers in Cook county during the years of 1936, 1937 and 1938 to be $1 per hour. An objection was made and sustained. Preliminary to this ruling by the court the witness was asked to describe the method employed by the Works Progress Administration for determining what the hourly rate in Cook county was during 1936 to 1939. This question was propounded to the witness: “Q. In your official capacity, Mr. Clark, have you made an inquiry in your locality, Cook county, to determine prevailing wage rates with reference to truck drivers and bus drivers'?” An objection to this question was sustained. Plaintiffs then made the following offer of proof:

“I have determined the prevailing wage rate for truck drivers and bus drivers in Cook county; this is determined by the submission of each sponsor of a WPA project of a certified statement to the WPA Administrator stating the wages which it had been its custom to pay to persons employed at given classifications; that sponsor limited the certification to classifications that were to be used on his project; this certification of his customary wages was then submitted to our District Manager governing the area in which the project was to operate; the District Manager reviewed the certification with his Wage Bate Com-mittee composed of various Division Heads in the District Office; this was not a wage establishing committee; it was not our job to establish wages but rather to determine those in existence; it therefore was a fact finding committee that made that review; any other evidence in the way of contacts such as with employers of the community, with organized labor, were made to check against the certification of the sponsor and as a result of all these things a recommendation of approval came from our District Manager. We have had some seven District Managers in some seven Districts of the State come to the State Office for this purpose; these wages were then reviewed by the Wage Bate Committee and after reviewing all of the evidence presented to us and the sponsors certification, the District Manager’s recommendation which came with it, from all this evidence we were able to determine what was the prevailing wage rate.
“If we felt that the certifications that came to ns and the facts attendant were insufficient to establish prevailing wage rates we would make outside independent investigations.”

The case of G. A. Boeckling Co. v. Schwer, 122 Ohio St. 40, was a suit by a taxpayer against the taxing officials, wherein it was alleged that the amount of valuations placed upon certain property were grossly excessive, and, second, that the valuations were not made as required by law and therefore were wholly illegal. Under the general code of the State of Ohio provision was made with reference to the determination of the value of property for taxation by the county auditor and the section authorizes said official to employ experts and other clerks to aid him in this work of appraising property for taxation. The pertinent part of this section is as follows:

“Such experts . . . shall perform such services as the county auditor may direct in ascertaining such facts, description, location, character, dimensions of buildings and improvements, and such other circumstances reflecting upon the value of such real estate, as will aid the county auditor in fixing its true value in money. ’ ’

At page 42 the court said:

“The clerks and subordinates of the appraising company did the actual work of appraising, and made reports of their work, from time to time, to Cleminshaw. None of the appraising was actually done by Cleminshaw himself, except in this way. He assumed the facts stated in these reports of his subordinates to be true, and from these reports alone he prepared a statement of valuations for the auditor, and the auditor adopted the statements so made as true and correct and entered the valuations so fixed on the tax duplicate accordingly. There is no conflict in the evidence as to how these things were done.
“The subordinates who examined the property and made the reports were not called as witnesses to support the correctness of the valuations so fixed and placed on the tax duplicate. Cleminshaw was called as 'a witness, and over the objections of the owner was permitted to testify to the correctness of the appraisement. His testimony was wholly hearsay, and was clearly incompetent.”

In McCoy v. Union Elevated R. Co., 271 Ill. 490, at page 498, the court said:

“It is urged that the court erroneously excluded evidence offered by plaintiff by which it was sought to show certain elements which after the construction of the elevated railroad entered into the increase in the market value of the premises, viz., increase in population of the city, increase in bank deposits, increase in wholesale trade and manufacturers and increase in street car travel in the city of Chicago. The only attempt to prove these matters was by a witness who stated that his testimony would he based upon data contained in certain reports made by others and as to the correctness of which the witness had no personal knowledge. The court did not err in rejecting his evidence, as it was hearsay.”

We are therefore of the opinion that the offer of proof by plaintiffs clearly is based on hearsay testimony and inadmissible. It is clear that the conclusion of the witness was arrived at after considering many submissions, reports, certifications, recommendations and independent investigations, with the exception of his own independent investigation, which of course he could have testified to. The court correctly ruled that said offer of proof was based upon hearsay.

After a careful examination of the law and the evidence and the rulings of the trial court, we have concluded that the court did not err and did properly direct a verdict at the close of the plaintiffs ’ case.

For the reasons hereinabove given, the judgment is accordingly affirmed.

Judgment affirmed.

Burke, P. J., and Kiley, J., concur.


author: Mr. Justice Stone

text:
    Rosa Silberman, Plaintiff, v. Washington National Insurance Company, Defendant.
    Opinion filed August 22, 1944.
    Whitnel, Browning, Listeman & Walker, of East St. Louis, for appellants.
    Kramer, Campbell, Costello & Wiechert; Jones, Hocker, Gladney & Grand and James C. Jones, Jr., all of East St. Louis, for appellees.
   Mr. Justice Stone

delivered the opinion of the court.

This was an action in the circuit court of St. Clair county, by Rosa Silbeiman to recover on a policy of life insurance for $10,000 issued by the National Life Insurance Company (liability thereunder assumed by defendant company) on the life of Emanuel Silberman, who died on July 5, 1942, in which plaintiff was the beneficiary. In defense of this action it was alleged that the policy had lapsed for the nonpayment of a quarterly premium of $109.80 due thereunder on June 30, 1941, that while the policy ostensibly had a cash value which, after deduction of an outstanding-loan or indebtedness, was sufficient to continue it in force as extended insurance in the sum of $7,825.58 from June 30, 1941 to a date beyond July 5, 1942, nevertheless, so it is alleged, the insured had misrepresented his age in his application for said policy; that instead of being born on January 1, 1879, and being- 51 years of age when he applied for the policy on June 25,1930, as he had represented in his application, he was in fact, born on September 19, 1874 and was 56 years of age, when he applied for the policy, and that as a result of this difference in age, the policy did not have a sufficient net cash value on June 30, 1941, to continue it in force as extended insurance to July 5,1942, the date of insured’s death.

The case was tried by a jury and the issues were determined in favor of the plaintiff and her damages were assessed at $7,566.11. The jury also, in response to a special interrogatory submitted at the request of the defendant, found that the insured was born January 1, 1876. Plaintiff filed a motion for judgment on the verdict and defendant filed a motion for judgment notwithstanding- the verdict and for a new trial. On March 7, 1944 the court denied all motions, except defendant’s motion for new trial, which motion was sustained, and the verdict of the jury set aside. Plaintiff, in this court, seeks an appeal from the order of court, granting the new trial.

An examination of this record does not disclose to us that abuse of discretion in the trial court which must obtain in order to warrant an appeal from an order granting a new trial. Lawson v. Fisk, 316 Ill. App. 591; Couch v. Southern Ry. Co., 294 Ill. App. 490.

Inasmuch as this cause is to be retried and may be brought to this. court on another appeal, we refrain from discussing the merits at this time.

The petition for leave to appeal is denied.

Petition denied.


author: Per Curiam.

text:
    Elmer J. Humbert, Administrator of Estate of John Elmer Humbert, Deceased, Appellee, v. Frank O. Lowden et al., Appellants.
    Gen. No. 9,810.
    opinion filed July 20, 1944;
    opinion modified and rehearing denied October 3, 1944.
    Milton V. Thompson, Eaton Adams, Henry Waterman and Carl A. Melin, for appellants; Joseph L. Shaw and Ogden H. Chamberlain, for appellee.
   Per Curiam.

Not to be published in full.


author: Mr. Justice Wolfe

text:
    William F. Salem, Appellant, v. John J. Hogan et al., Appellees.
    Gen. No. 9,951.
    Opinion filed July 20, 1944.
    Rehearing denied October 3, 1944.
    George S. McGaughey, of Waukegan, for appellant.
    Harry A. Hall, State’s Attorney of Lake County, Bernard M. Decker and Paul D. Doolen, both of Waukegan, for appellees.
   Mr. Justice Wolfe

delivered the opinion of the court.

On Novémber 13, 1941, William F. Salem filed a petition in the circuit court of Lake county for a writ of certiorari directed to John J. Hogan et al., the board of supervisors of Lake county zoning board, and the Lake county board of appeals. In his petition he recites that he is the owner and possessed of certain lands in Lake county, Illinois, consisting of approximately 110 acres on which there are improvements consisting of various buildings; that shortly after he came into possession of the premises, various groups of people held picnics on his property between 1933 and 1939; that on April 25,1939, the Lake county board of supervisors adopted a zoning ordinance for Lake county on all land located outside cities, villages, and incorporated towns; that the land in question is in “F” district; that paragraph 5 of section 7, of said zoning ordinance is the. only applicable one in question, and is as follows: “Picnic grounds' but not including any regular business or cabin camp development therein.” The petition further alleges that at the time the zoning ordinance was passed, the petitioner was using his farm for general farming purposes and a fox farm. He further alleges: “Relator thereupon, without making any structural changes, converted the upper portion of the barn into a room which could be used for general picnic purposes, including dancing, converted a portion of the first floor into a room in which food and refreshments could be served, provided toilet facilities in the poultry house, placed certain kitchen facilities in a portion of the poultry house, converted the tool shed into a general purpose recreation room and built a large number of picnic tables and benches for outdoor use. That he inserted an ad’ in the classified telephone directory under the classification of picnic groves, and caused certain pamphlets to be distributed and solicited the rental thereof for picnic purposes. That he invested between $5,000 and $6,000 in so improving his premises and in obtaining and building chattels to be used in conjunction therewith for picnic purposes, and in his advertising.

“That during the years 1940 and 1941, various organizations rented said premises and the facilities for picnic purposes and held picnics thereon. That relator did not engage in any activity upon said premises other than the rental thereof for picnic purposes and in assisting the various organizations in managing and operating their said picnics. That he does not operate a regular business or cabin camp development on said premises. That he does in fact rent said premises and the various facilities thereon for picnic purposes or as a picnic grove.

“That on or about the 22nd day of July, 1941, the then Enforcement Officer and Chairman of the Zoning Enforcement and Plats Committee of the Lake County Board of Supervisors notified relator by mail to cease operating upon said premises a picnic grove, a copy of which notice is attached and marked Exhibit ‘A.’

“That relator appealed from said order issued by said Zoning Enforcement Officer to the Zoning Board of Appeals of Lake County. That on or about the 24th day of October, 1941, the Zoning Board of Appeals filed in its office its decision upon said appeal, affirming the order theretofore issued to the Zoning Enforcement Officer, a copy of which said order is marked Exhibit ‘B,’ and attached.”

The petition alleges that the decision of the zoning board of appeals is illegal and void, and asks that the court issue a writ of certiorari directing the Lake county zoning board of appeals to produce in court the documents, records, etc., pertaining to the order heretofore entered. The court so ordered and the Lake county board of appeals complied with the said order. Evidence was heard, at the close of, which the court found in favor of the respondents, but modified the order entered by said board. The order entered by the trial court is, “That William F. Salem shall cease and desist in the operation of his picnic grove as a regular business development. ” It is from this order that William F. Salem has perfected an appeal to this court.

No question is here raised as to the validity of the zoning ordinance, nor was the same raised before the trial court. It is only a question of interpretation to be applied to that part of the ordinance which permits the use of his property as a picnic grove, but excludes any business development therein. There is very little, if any, dispute in regard to the material facts in the case. It is conceded that the Salem property falls within section 7, “F” district (Farming). — Since the relator has remodeled his premises, he has had numerous picnic parties on the premises ranging in size from 50 to 5,000 persons. According to Mr. Salem’s testimony, he can accommodate 10,000 persons on his premises. The question for this court to decide is whether the evidence shows that Mr. Salem is operating a picnic grove, or whether it is a business enterprise in connection with the picnic grove. On examination of the petition filed in this case, there is no mention that the grove was used for picnic purposes after the zoning ordinance in question was passed. In Mr. Salem’s testimony, relative to the picnics that were held on his premises, there is no mention made of the use of the grove for picnic purposes by any of the various organizations, but he describes the other activities outside the grove. The only mention of the use of the grove in Mr. Salem’s testimony is that some of the tables are placed in the grove.

The trial court in giving his reasons for his decision, uses this language: “The court believes the words ‘picnic grove’ imply simplicity and visualize woods or woods and waters, in or close to a state of nature, as distinguished from artificial and elaborate surroundings and conveniences and as distinguished from commercial settings. The court believes that instead of this being a picnic grove, it is in fact a well developed and extensively patronized amusement park.

“It will be noted that the words ‘picnic grove’ as used in the ordinance are further qualified by the words ‘but not including any regular business . . . development therein. ’ Without question, the use and exclusive use since 1940 has been that of a highly developed and regular business during the seasonable parts of the year.”

In Webster’s Home and Office Dictionary we find the word, “grove,” to mean “a small shady wood.” Certainly the hoard of supervisors of Lake county, in passing this zoning ordinance, used the words “picnic grove,” in the ordinary sense that those words are used, and while there are many kinds of picnics, it seems the purpose and intent of the ordinance was to confine the main activities of picnics to picnic groves; that is, to wooded or shady areas on the premises.

In the pamphlet advertising the “Salem Farm” for picnic purposes, there are 13 special reasons given why picnics should be held on the picnic grounds, but there is nothing mentioned about a grove or shade. It is conceded in the argument that on the premises of Mr. Salem, there is a grove of approximately three or four acres, but the abstract does not disclose there is any such grove on these premises.

From an examination of the record, we think the trial court was correct when he said, that without question, the exclusive use since 1940, has been a highly developed regular business during the seasonable parts of the year. Such use is a clear violation of the zoning ordinance.

The judgment of the trial court is hereby affirmed.

Judgment affirmed.


author: Mr. Presiding Justice Niemeyer

text:
    Walter Osinski, Appellee, v. Nell Benson and Ernest Janson, Appellants.
    Gen. No. 43,003.

      Opinion filed September 11, 1944.
    Burt A. Crowe, of Chicago, for certain appellant.
    Kirkland, Fleming, Green, Martin & Ellis, of Chicago, for certain other appellant; Joseph A. Bailey and William H. Symmes, both of Chicago, of counsel.

      Andrew J. Farrell, Marshall I. McMahon and Finn & Fitzpatrick, all of Chicago, for appellee.
   Mr. Presiding Justice Niemeyer

delivered the opinion of the court.

Defendants separately appeal from a judgment for $11,000 entered against them in an action for personal injuries sustained by plaintiff while riding his bicycle in a southerly direction on Asbury avenue, in Evans-ton, at or near the intersection of that street with Cleveland avenue, on a dry, clear summer day about midafternoon.

Plaintiff testified that he entered Asbury at Main street, several blocks north of the scene of the accident, intending to turn east at Cleveland avenue; when about 50 feet north of Cleveland avenue he turned from near the west curb to the center of the street; he saw a south bound car 100 or 200 feet to the north; about 15 to 25 feet from the intersection he put out his left hand to indicate his intention to turn to the left and then placed it back on the handlebar and proceeded straight; that the right front side of the car hit him from the ,rear on the left side, turning his front wheel to the right so that he made a complete turn and was facing north; that when he was falling to the street he saw another car coming from the north toward him; this second automobile may have been 200 feet away; it struck him; that he had a feeling that something was pushing him or going over him, and that is all he remembered; the first automobile was going pretty fast and the second very fast.

Defendant Janson, the driver of the first car, testified that he entered Asbury avenue from Davis street, 15 or 20 blocks north of Cleveland; that he was traveling about 20 or 25 miles an hour and was at all times on the right hand side of the street; that he saw no traffic except plaintiff on a bicycle just north of Cleveland; that plaintiff was going straight south, and he, Janson, passed him about the intersection of Asbury and Cleveland, plaintiff being about 2 or 3 feet to the -right; that when he passed plaintiff, “through the corner of my eye it seemed like he was turning his wheel;” that he, Janson, noticed or sensed a slight brush on the right rear fender of his car when the front end of the car was 2 or 3 feet north of the south curb of Cleveland avenue ; that he looked in the rear-view mirror and saw plaintiff on the bicycle dashing east across Asbury right in front of the car of his codefendant, Mrs. Benson, which was back of him about 30 feet or so; the bumper of the Benson car struck the bicycle and plaintiff fell to the street; the Benson car stopped; he, Janson, pulled to the right curb and when he got out of his car saw the plaintiff right in front of the Benson car and under the front bumper; the body was lying on the bicycle and “pushed headlong into the street;” part of the bicycle was under the front bumper; there were skid marks on the street at the intersection of Asbury avenue leading up to the Benson car; Mrs. Benson moved her car back; he did not see plaintiff give any signal that he was going to make a left turn and does not recall whether before the impact with his car he, Janson, turned suddenly to the left.

Mrs. Benson, defendant and driver of the second car, testified that she had three ladies with her; that she started south on Asbury from Dempster, about 10 blocks from Cleveland, following Janson’s car at a speed not exceeding 20 to 25 miles an hour; she was 2 or 3 feet to the right of the center of Asbury and was about 25 or 35 feet north of Cleveland avenue when she saw plaintiff on the bicycle; he was then at the right rear bumper of the car ahead; he bumped into the right rear fender of that car, wabbled east and then north in the path of her car; she put on her brakes as fast and as hard as she could; her car skidded and came to a stop about the middle of the intersection of Cleveland avenue; she did not run against, upon or over plaintiff at all; she did not leave her car but waited until the police came and told her she could go; before seeing plaintiff she noticed the car in front make a sudden swing to the left, swerving several feet to the inside over the center line; she did not see plaintiff extend his hand indicating' he was going to turn; at no time that she followed Janson’s car was his car on the east or left hand side of Asbury; from where she was sitting in her car when it came to a stop she could not see plaintiff.

Mrs. Van Kirk, who was riding in front with Mrs. Benson, noticed nothing until Mrs. Benson came to a very sudden stop about the center of Cleveland avenue, half way across; she got out of the car and went to the front; she saw the bumper of the automobile over the bicycle and plaintiff was stretched out north and south in front of the car; the car did not go over the bicycle or over or across plaintiff; Mrs. Benson did not get out of her car or move it forward or backward until the police came.

The Evanston police officer who arrived at the scene was in the army at the time of the trial and his testimony was given by deposition. He testified that when he arrived the Benson car was stopped in the south half of the intersection, a little north of the south curb of Cleveland avenue; the bicycle was directly in front lying crosswise, approximately touching the car, and 10 to 12 feet south was a man lying on his back injured; the Janson car was parked at the west curb of Asbury, 25 to 35 feet south of Cleveland; the only evidence on Janson’s car of any collision was that the dust on the right rear fender had been scraped off as if it had been done when the bicycle tire came in contact with it; this mark was on the right rear fender about a foot above the lower edge and back of the rear wheel; at the intersection, starting at about the north curb of Cleveland avenue, there were skid marks about 24 feet long leading up to the rear wheels of the Benson car.

The negligence of the defendants was a question of fact for the jury, and their verdict, not being against the manifest weight of the evidence, cannot be disturbed by us. By this verdict negligence of each of the defendants is established. Defendants earnestly insist that upon the record there were two distinct and separate acts and circumstances on the part of each defendant ; that it cannot be argued that they united in causing a single injury, and, as said by defendant Benson, “defendants in this case were acting independently of each other, that there was no concert or unity of design between them and that each was liable for his own tort and -damage caused and no more.” It is conceded by the parties that the courts of this state have not definitely passed upon situations exactly like the case at bar. Cases from other states decided upon factual situations similar to the situation before us have been cited.

Defendants rely upon Young v. Dille, 127 Wash. 398; La Bella v. Brown, 103 N. J. L. 491, and Leishman v. Brady, 39 Del. (9 W. W. Harr.) 559, 3 A. (2d) 118, involving automobiles. In Young v. Dille, most frequently cited, plaintiff brought suit against the owners and drivers of two automobiles but filed separate counts alleging distinct acts of negligence against each defendant; the jury returned a verdict against the owners and operators of each car, assessing damages against Dille, the owner and driver of the first car which struck plaintiff, at $400, and against the owner and driver of the second car striking plaintiff, at $3,600; there was no showing of a segregation of damages ; on motion for a new trial plaintiff dismissed the action as to Dille and the court awarded a new trial as to the other defendants, “being of opinion that the segregation of damages by the jury in its verdict made said verdict improper and illegal.” On appeal the granting of a new trial was affirmed, the court saying (404): “The cause seems to have been tried in the court below on the theory that the defendants Dille and Harris were joint tortfeasors. But it seems to us manifest that they were not such, either if the facts be considered from the allegations of the complaint or by the proofs shown at the trial. To be joint tortfeasors, the parties must either act together in committing the wrong, or their acts, if independent of each other, must unite in causing a single injury. Neither of these conditions were here present.”

The cases cited by defendants were commented upon in Gibson v. Bodley, 156 Kan. 338, in language which we adopt, as follows (347): “From these decisions it will be observed that if the test of joinder is that the injury must be single, then there could never be a joinder of actions against joint tortfeasors where the several negligent acts were successive although each negligent act, without any independent force or intervening efficient cause to break the connection between the successive acts, contributed directly and substantially to produce the final and complete result. Under such a rule it necessarily follows the tortious acts would need to occur absolutely simultaneously in order to constitute a single injury. Assuming the tortious acts were absolutely simultaneous, how could it even then be determined with any reasonable degree of accuracy what injury, or injuries, were caused by each separate wrongful act? Under such a rule it also is held to be immaterial that the injuries resulting from the successive acts are indivisible and that it is impossible to apportion the assessment of damages. (La Bella v. Brown, and Young v. Dille, both supra.) Such is not the rule in this State. In due deference to courts which adhere to it wé do not desire to follow it. It does not conform to the weight of authority nor to what we conceive to be the more practical and the sounder doctrine.” The court also said (346): “The subject of concurrent or successive negligent acts of joint tortfeasors in automobile cases, under cireumstances substantially the same as those in the instant case, has received the critical attention and analysis of courts in various jurisdictions. It is true there is not complete harmony in the decisions. The great weight of authority, however, permits the joinder of causes of action under the same or similar circumstances as those here pleaded. (Floun v. Birger (Mo. App.), 296 S. W. 203; Mason v. Reynolds, 135 Neb. 773, 284 N. W. 257; Berryman v. Motorbus Co., 228 Mo. App. 1032.) ” In Alden v. Watson, 106 Colo. 103, where defendants were held liable for successive impacts with plaintiff’s automobile, the general rule of liability was asserted, and Young v. Dille distinguished, as follows (111): “The case of Young v. Dille, 127 Wash. 398, 220 Pac. 782, strongly relied upon by defendants as supporting their position is not in point here, since the complaint in that case, differently from the one before us, pleaded separate injuries due to separate negligent acts and reversal was ordered because of the lack of evidence to sustain the separate assessments of damage. That the Washington courts are in accord with the general rule clearly appears from the cases of Hellan v. Supply Laundry Co., 94 Wash. 683, 163 Pac. 9; Graves v. Flesher, 176 Wash. 130, 28 P. (2d) 297, and Thornton v. Eneroth, 177 Wash. 1, 30 P. (2d) 951.” in Thornton v. Eneroth, 177 Wash. 1, a conclusion similar to that reached in the present case was affirmed. . There Thornton brought suit against the drivers of several cars for injuries sustained through successive impacts with the cars of the respective defendants; Eneroth, the driver of the first automobile, stopped his car upon the pavement upon his own side of the road because his windshield wiper failed to work effectively and ice formed on the windshield, obscuring his vision; his car was run into from the rear by a motortruck driven by Spencer, and immediately thereafter the plaintiff, Thornton, ran into Spencer’s truck; Thornton was standing near the open door of his automobile when it was run into by a car driven by Baker, causing an impact of the door of Thornton’s car with him, knocking him down but not seriously injuring him; Thornton arose and went around his own car to observe whether any additional damage had been suffered; at this point, which was some minutes after the Thornton car collided with the Spencer car, another car, driven by defendant Mrs. Halverson, collided with the rear of the Thornton car, catching Thornton in such a way as to break the bones of his leg; he instantly dropped to the pavement and, while in a sitting position, another car, driven by Doris Brown, struck the Halverson car from the rear and Thornton was caught between the two cars and suffered severe injuries to his chest and ribs; Mrs. Brown was not made a party defendant. After holding that the questions of negligence of the various defendants was a question for the jury, the court said (9): “The next question is as to whether or not Eneroth and Mrs. Halverson, if guilty of negligence, are each chargeable with the total damages suffered from the two injuries, for certainly there were two separate and distinct injuries. It will be recalled that Mrs. Halverson’s collision directly inflicted the leg injury and Mrs. Brown’s collision directly inflicted the torso injury. ’ ’ The court held that it was for the jury to determine whether Eneroth was negligent and whether his negligence started a chain of events which was not completed before the final collision of the Brown car, and that negligence of Mrs. Halverson and Mrs. Brown would not as .a matter of law release him of liability, and said (10-11): “Going a step farther, it is equally well-established that, where the negligence of two or more persons, even though acting independently of each other, united in causing an injury, they are joint tortfeasors, and are jointly and severally liable for the resulting damages. Hellan v. Supply Laundry Co., supra; Young v. Dille, 127 Wash. 398, 220 Pac. 782; Lindsey v. Elkins, supra. Applying the principles of law announced, we conclude that Eneroth and Mrs. Halverson may be found responsible as joint tortfeasors for both injuries. Nor is this out of harmoüy with the case of Young v. Dille, supra, where it was held that a second tortfeasor was not liable for damages occurring before his own acts of negligence. Whether Mrs. Halverson was negligent and whether her negligence was a proximate cause of the later chest injury, directly caused by Mrs. Brown, are questions for the jury, especially when the facts show that Mrs. Halverson’s collision not only broke respondent’s leg but placed him in such a position that the later collision resulted in the chest injury. And while Mrs. Brown may have been negligent, still Mrs. Halverson cannot escape liability for the second injury if her negligence was found to have been the proximate cause thereof.” The court did not have before it and did not pass upon the liability of Mrs. Brown, who, like Mrs. Benson in the present case, was the last person to contribute to the plaintiff’s injuries. Under circumstances like those before us, the last as well as the first and intermediate tortfeasors are liable for all tort damages sustained by the plaintiff. Gibson v. Bodley, and Alden v. Watson, heretofore discussed; Berryman v. People’s Motorbus Co. of St. Louis, 228 Mo. App. 1032; Lewis v. Hunter, 212 N. C. 504; and Mason v. Reynolds, 135 Neb. 773. This liability is independent of any showing of the actual damages inflicted by the respective tortfeasors. The record here shows that all or practically all of plaintiff’s injuries resulted from the impact of Mrs. Benson’s car with plaintiff and his bicycle, Janson’s negligence putting plaintiff in the path of the Benson car, by which he was struck, before he could right or control the bicycle. If the damages could or should be apportioned between the defendants, Mrs. Benson is in no position to complain. The trial court did not err in submitting a verdict finding the defendants jointly liable.

For the same reasons there was no error in giving plaintiff’s instruction No. 3, which authorized the jury on finding the issues for plaintiff, to return a verdict for all damages sustained by him. Defendant Benson contends that this instruction is in conflict with instruction No. 14 given on her behalf, which limited her damages to the injuries, if any, sustained by the impact of her automobile with plaintiff and his bicycle. The court erred in giving the latter instruction, but it was an error committed on behalf and at the request of the defendant Benson, and she cannot complain.

Complaint is made of the giving of plaintiff’s instructions 4, 6 and 10, which defined in different terms the care required of the plaintiff, as tending to overemphasize this matter. As usual, in these cases, each party tendered, and the court gave, more instructions than were necessary to properly inform the jury of the issues involved, and each party was guilty of overemphasizing questions which to him appeared most vital.

Objection is also made to the giving of plaintiff’s instruction No. 8, which is as follows: “The court instructs the jury that if you believe, from a preponderance of the evidence and under the instructions of the court, that the accident in question was due to the joint negligence of both of the defendants, and that as a direct and proximate result of the joint negligence of both of the defendants, if you believe they were negligent, the plaintiff was injured, while he was in the exercise of ordinary care for his own safety, then you are instructed that you may find both of the defendants guilty; and, you are further instructed that if you should so find from such preponderance of the evidence that both of the defendants were guilty of the negligence charged, then you are instructed that it would be no defense for one of such defendants to show that the other defendant was also guilty of negligence, or was guilty of a greater degree of negligence.” Defendants contend that this instruction, in the first place fails to limit the negligence of the defendants to that charged in the complaint and that this omission is not cured by reference in the latter part of the instruction to the “negligence charged,” because nowhere was the jury told of the allegations of the complaint. Examination of instructions given on behalf of each defendant shows the giving of instructions directing the attention of the jury to the “negligence charged,” and of other instructions in which there is reference to negligence without restricting such negligence to that charged in the complaint. Instructions directing the jury’s attention to charges of a declaration or complaint, where the jury is not advised as to the contents of the pleading, are generally condemned, but as said in Krieger v. Aurora, E. & C. R. Co., 242 Ill. 544, cited by defendant Benson: “Substantially the same instruction has been before this court in many cases, and the giving of it has generally been held not ground for reversing a judgment. ’ ’ Upon the record in the case we do not believe there is much merit in defendants ’ contention that the failure of this instruction, in the first part thereof, to limit the negligence to that charged in the complaint and thereby permitting the jury to consider any negligence of the defendants, operated to the disadvantage of defendants. The question was raised as to whether or not the defendants could be held jointly liable, and the instruction appears to have been given primarily to direct the jury’s attention to the liability of both defendants for joint negligence. Other instructions required plaintiff to prove by a preponderance of the evidence the negligence charged against each defendant. The complaint contains a general charge of negligence in the operation of the defendants’ automobiles. There is no evidence tending to show any other negligence on the part of either defendant. We cannot conceive how defendants have or could have been injured by the instruction.

The jury assessed plaintiff’s damages at $11,000. The evidence shows total medical and hospital expense of $3,400, and loss of wages approximating $2,600, or a total pecuniary loss of $6,000. Complaint is made that the plaintiff was a gardener and the court must assume or take judicial notice that his employment covered only the summer months of the year. We cannot know judicially whether or not plaintiff was employed as a gardener only during certain periods of the year, and there is no evidence in the record relating to the subject. The evidence further shows that the plaintiff was in the hospital nine months; he had a multitude of abrasions all over his body and legs, a complete dislocation of the ankle joint, dislocation of the tibia and fibula from the astragalus; a fracture of the tibia, double fracture of the long bone, a transverse fracture of the humerus with overriding of the bones, and a fracture of the collar bone near the shoulder joint; good results were obtained as to the fractures and dislocations, but there is inability to get the arm up completely over his head as a result of the fracture of the clavicle and adhesions in the shoulder; there is a mild limitation of motion in his left ankle, and the plaintiff feels pain when he walks; he has no grasping power in Ms hand; he has headaches. At the time of the trial he was working as a night watchman and earning only $2 per night, or less than half Ms wages as a gardener. For the pain and suffering endured, limitations in the movement of the arms, the weakness of the hand and the pain when walking, some of which may reasonably be expected from the evidence to be permanent or at least to continue for some time, the jury allowed $5,000. We cannot say that this award is excessive.

The judgment of the trial court is affirmed.

Affirmed.

Hatchett and O’Connor, JJ., concur.


text:
    H. J. Margolis, Appellant, v. Uptown National Bank of Chicago et al., Defendants. Uptown National Bank of Chicago, Appellee.
    Gen. No. 43,013.
    Opinion filed September 11, 1944.
    Rehearing denied September 25, 1944.
    Ratner, Miller & Levenson, of Chicago, for appellant; David J. Ratner and George J. Miller, both of Chicago, of counsel.
    Ernest A. Eklund, of Chicago, for appellee; John N. Thornburn, of Chicago, of counsel.
   Mr. Presiding Justice Niemeyer

delivered the opinion of the court.

Plaintiff appeals from a judgment against Mm and in favor of the defendant Uptown National Bank of Chicago, a national banking corporation, entered upon its motion to strike plaintiff’s second amended complaint for the recovery of commissions due plaintiff as a real estate broker in the sale of certain real estate.

The second amended complaint alleged that defendant bank was the owner of a substantial portion of the beneficial interests in each of various trusts (commonly called liquidating trusts) owning a parcel of improved real estate; each trust had been formed for the purpose of reorganizing the issue of mortgage bonds secured by a trust deed on the parcel of real estate held by the trust; the bank had acquired its portion of the beneficial interests in each trust in exchange for defaulted bonds theretofore held as assets of the bank; each reorganization had been carried out under the direction and control of the bank and, while in each case certain individual trustees were named and title to the particular real estate involved was taken in the names of the trustees, the bank actually kept and maintained the records and books of the trust, supervised and otherwise controlled or participated in the administration of the trusts; the president of the bank was and is one of the trustees in each trust, and the other trustees in each case were nominated or designated either directly or indirectly by the bank or by its officers, directors or employees; the defendant Ernest C. Dose, not involved in this appeal, was and is a vice president of the bank; his duties as such officer included, among other things, the administration of the trusts and the liquidation thereof, and the liquidation of the beneficial interests held by the bank in each trust; on or about January 2, 1941 the defendant Dose submitted to plaintiff a list of the various parcels of real estate owned by the liquidating trusts in which the bank had an interest and agreed on behalf of the bank to pay plaintiff full brokerage commission if he procured a purchaser for any of said parcels; thereafter plaintiff presented to defendant as a prospective purchaser Lena B. Nelson, who, after examining several of the properties-in the presence and with the co-operation of Dose, purchased the Teich Apartments held by one of the trusts at a price of $48,500; that the bank owned 213 units of the 715 beneficial interests in the trust then outstanding. Judgment for $2,425 — five per cent of the purchase price, was asked.

The defendant bank moved to strike the complaint upon the ground that the contract was ultra vires its powers as a national bank, a violation of section (paragraph) 64 of chapter 38 (Criminal Code) of the Illinois Revised Statutes of 1941 [Jones Ill. Stats. Ann. 10.53], and against public policy. Plaintiff contends that since the bank had a substantial interest in the trust which held the real estate in question and in the prospective" proceeds and avails in the liquidation thereof, it had authority under the incidental powers granted the national banks by the federal code to make the agreement.

The complaint shows that the bank, as the holder of a substantial interest in each of the trusts, had assumed the direction and administration of each trust, including the sale of the respective properties held by the trusts. The interest of the bank was acquired in the regular course of business and it was therefore empowered to take all reasonable steps to liquidate this interest. In the present case, sale of the properties held by the respective trusts was not only a customary but a necessary means in reducing the bank’s interests in the various trusts to cash. Others were interested in each of the properties, but this did not preclude the bank from acting on behalf of all, if such action was deemed necessary or advisable for the preservation of the bank’s interests. Wylie v. Northampton Bank, 119 U. S. 361; Morris v. Third Nat. Bank of Springfield, 142 Fed. 25. The case of Dolan v. Morensky, 294 Ill. App. 615 (Abst.), decided by this court, involved the questions raised by the defendant bank’s motion in this case in an analogous situation. There the West Side Trust & Savings Bank held defaulted mortgage bonds secured by various trust deeds; bondholders’ protective committees were organized for the protection of the interests of the holders of bonds under each issue; officers or employees of the bank were on each committee; the bank contracted that certain items of expense, including fees and expenses of agents, appraisers and attorneys in connection with the sale, foreclosure or other liquidation of the bond issue should be “paid or provided for” by the bank; in a proceeding involving the agreements creating the committees and defining their powers and duties, objections similar to those raised by defendant bank were made against the foregoing provision; each objection was overruled, and the court said: “In the instant case the bank was the owner of a large portion of the bonds secured by these trust deeds. It was vitally important (default having been made in payment thereof) that these bondholders should act together for the conservation of their interests. If that object could not be attained, then dissipation of these assets was almost a certainty. It was not ultra vires the powers of the Bank to make any reasonable agreement looking toward the protection and preservation of its property. Zollman, Banks and Banking, vol. 1, p. 153, sec. 197. The distinction between the obligations here incurred and those assumed in the Knass case is vital and controlling. The suit there was in substance one for the specific performance of a particular contract which was held to be illegal and void as against public policy. This contract on the contrary is not illegal, is not contrary to any public policy and is not immoral. There are well defined limits to the doctrine of ultra vires which must be kept in mind if justice is to prevail, otherwise the application of the doctrine might become a license for commercial piracy.”

The judgment is reversed and the cause remanded with directions to overrule and deny the motion of the defendant bank.

Judgment reversed and cause remanded with directions.

Hatchett and O’Connor, JJ., concur.


author: Mr. Justice Matchett

text:
    Esther Kinney, Administratrix de bonis non, of Estate of John W. Marsh, Deceased et al., Appellants, v. Hazel O’Flaherty, Appellee.
    Gen. No. 43,029.
    Opinion filed September 11, 1944.
    Rehearing denied September 25, 1944.
    Alfred Roy Hulbert, of Chicago, for appellants.
    Lester E. Williams, of Chicago, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.

These cases were here on a former appeal, when we reversed judgment in favor of defendant, Hazel O’Flaherty, and remanded the causes for trial. Marsh v. O’Flaherty, 319 Ill. App. 250. On the second trial at the close of evidence for plaintiffs, motions by defendant, Hazel 0 ’Flaherty, for a verdict in her favor were granted, the verdicts returned and judgments entered. These appeals are by plaintiffs from these judgments.

It is contended the court erred in instructing the verdicts; that Hazel 0 ’Flaherty was guilty, as a matter of law, and that by making a motion for a directed verdict at the close of the evidence for plaintiffs the facts stand confessed; that the cause should be reversed and remanded, only for the assessment of damages.

The former opinion was abstracted.

The consolidated suits arose out of an occurrence on June 16, 1938, at the intersection of Golf road and Milwaukee avenue in Cook county. The evidence shows without' conflict that on the afternoon of that day Gehrke and Marsh were riding in a truck, driven northward on Milwaukee avenue at its intersection with Golf road. At that time a V-8 Ford automobile, owned by Frank 0 ’Flaherty and occupied by defendant, Hazel 0 ’Flaherty, and Paul Eittis, was driven east on Golf road at a speed of more than 50 miles an hour; that passing other vehicles ahead of it and disregarding “Stop” signs at the intersection, it crossed the intersection and struck the truck, inflicting injuries on Gehrke and Marsh from which they died and severely injuring the occupants of the V-8 automobile.

The suit in each case was by the administratrix of the deceased against Hazel 0 ’Flaherty, Paul Eittis and Frank O’Flaherty. It was dismissed before judgment as to Frank. There was a judgment in favor of each of the plaintiffs against Paul Eittis, who, the evidence tended to show, was actually driving the .Ford automobile at the time it struck the truck. On the former trial Mrs. O’Flaherty was allowed to testify in her own behalf, over objection. We held this was error and reversed the judgment in each case, remanding the cause. After reversal, Mrs. Marsh, the administratrix of her husband’s estate, passed away. Esther Kinney was appointed administratrix de bonis non and substituted .as plaintiff.

Counterclaims were filed by Hazel 0 ’Flaherty against both plaintiffs before the first trial. In each of these she averred that at the time of the occurrence decedents were operating a motor truck; that she was a passenger in an automobile going eastward along Golf road at the intersection and in the exercise of ordinary care; that each deceased in operating the truck was negligent; that as a result the truck struck the automobile with force and violence, injuring her. On the former trial in each case there was a verdict of guilty as to Paul Rittis, with damages in favor of each administratrix assessed at- $10,000, on which judgment was entered. The verdicts on the counterclaims were not guilty. Motions for a new trial were made and denied and judgment entered according to the verdict in each case.

On the second trial Mrs. O’Flaherty did not testify in her own behalf. On the first trial plaintiffs introduced the evidence of a witness Thomas J. Zakos. He was an eyewitness to the occurrence. On the second trial he could not be found. Plaintiffs asked leave to submit this evidence on the second trial. Defendant objected and the court ruled it was not admissible.

Mrs. 0 ’Flaherty was called as a witness by plaintiffs under section 60 of the Civil Practice Act [Ill. Rev. Stat. 1943, ch. 110, par. 184; Jones Ill. Stats. Ann. 104.060]. She testified that she was married to Frank O ’Flaherty; her address was 710 McBride street, Elgin, Illinois, and that Frank owned a Ford sedan on J une 16,1938. She did not remember whether she or her husband drove the automobile to his work on the morning of June 16. He came home to luncheon. Whether she drove him home from the factory she did not remember, but one or the other of them drove. She may have been the one. She drove him to the factory after luncheon, then drove the car back to their home in Elgin. He went to work at 1 o’clock. She drove the same automobile downtown that afternoon, went home and did some work, dressed up a bit, went back downtown, again driving the automobile. She did not drive any other automobile that entire day or any other Ford sedan that afternoon. Her attorney asked whether she drove the automobile outside of Elgin on the day of the accident. Plaintiffs objected but the court ruled that her answer “No, sir” might stand.

On the former appeal, after holding it was reversible error to admit the testimony of Mrs. O’Flaherty in her own behalf, we said:

“We are also of the opinion the verdict is against the weight of the evidence. The accident (as already stated) occurred at about 3:00 P. M. at the intersection of Milwaukee Avenue and Golf Boad. Milwaukee Avenue runs in a southeasterly and northwesterly direction and intersects Golf Boad, which runs east and west. Both roads are four lane roads, paved with concrete. The occurrence witnesses (if we exclude the testimony of Mrs. O’Flaherty) practically agree that the truck was going northwest on Milwaukee Avenue at a speed of about fifteen miles per hour, while the auto was coming east on Golf Boad at a speed of fifty or more miles per hour; that the truck was first in the intersection and had the right-of-way; that the auto (a Ford) nevertheless proceeded across the intersection without diminishing its speed, disregarding signs which warned it to ‘stop’ and ‘slow down,’ passed an auto just ahead of it, and when in the middle of the intersection struck the cab of the truck with such force as to turn it over and demolish both vehicles. The evidence indicates that if Mrs. O’Flaherty was not driving, she was nevertheless by authority of her husband in control of the machine. On any theory,' she chose the driver Bittis and was by his side when he drove. Empty bottles were found in the car after the collision. She denied this. If it were not true, the car was certainly driven with recklessness tending to corroborate this testimony. The law applicable is quite clear. Can one charged with the responsibility of caring for an automobile choose a driver who thus drives, watch him doing it without a word of protest, warning or direction then avoid liability on the theory she is not liable because the one she chose to drive was actually driving instead of herself? An automobile is a dangerous instrument. Those in control of it ought to recognize that fact and act with appropriate care and caution. Mrs. O’Flaherty was not a novice. She was an experienced driver. As a case of first impression we would be inclined to hold her liable on the theory that control of such an instrument brings responsibility. Whatever the law may have been, it is certainly now moving in this direction. We are inclined to the view that under the law of this state the negligence of the driver Eittis would be imputed to Mrs. O’Flaherty.”

The evidence given on this and the former trial is substantially as above recited with the exception that there is no evidence here as to the finding of the empty bottles or denial thereof. There is also no evidence tending to negative the responsibility of Mrs. O’Flaherty for the actions of the driver of the car, as there was on the former trial. We hold the burden was on her to produce such evidence, and in the absence of it the question of her liability was for the jury.

On the former appeal after analyzing a large number of cases, which we shall not here repeat, we discussed the case of Palmer v. Miller, 310 Ill. App. 582, and the same case in 380 Ill. 256, reversed on the theory that a defendant owner in that case was a minor. After quoting from the Supreme Court we said:

“The opinion of the Supreme Court went on to say that it was argued that although the minor was incompetent to make a contract of agency he was present in the car driven for his benefit, and that the law would impute the negligence of the driver to him. The court said it could not agree to this; that it was fundamental in the law of imputed negligence that to impute the negligence of one person to another, such persons must stand in the relation of privity and that there was no such things as imputable negligence except in cases where such a privity as master and servant or principal and agent existed; that infants were responsible for their own negligence only, citing Smithers v. Henriquez, 368 Ill. 588, and Nonn v. Chicago City Railway Co., 232 Ill. 378. The cause was remanded for another trial. ’ ’

We added:

“Defendant O’Flaherty is not a minor. She is married, but the law has emancipated her. She was in control of this automobile. The man she chose to drive drove.it. She sat beside him and watched him drive. The jury could reasonably find her responsible for the negligence of Eittis on the theory that his negligence was imputable to her, or that the rule of respondeat superior was applicable, or that Eittis and Mrs. O’Flaherty were on a joint adventure where each was liable for the negligence of either.”

It was error to direct a verdict for defendant, Mrs. O’Flaherty at the close of plaintiff’s evidence.

For this reason the judgment will be reversed and the cause remanded for another trial. '

Reversed and remanded.

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