author: Mr. Justice Wolfe Mr. Justice Dove

text:
    Anna F. Stephens, Appellee, v. William Stephens, Appellant.
    Gen. No. 9,853.
    Opinion filed April 28, 1943.
    Rehearing denied June 23, 1943.
    Woolsey, Stickney & Lucas, of Galesburg, for appellant.
    Hardy, Hardy & Witherell, of Galesburg, for appellee ; E. D. Hardy, of Galesburg, of counsel.
   Mr. Justice Wolfe

delivered the opinion of the court.

On August 5, 1941, Anna F. Stephens filed a suit in the circuit court of Knox county, Illinois, seeking, a divorce from her husband, William Stephens. In her complaint, she states that she and William Stephens were lawfully married in Burlington, Iowa, on February 1, 1941. She alleges as a cause for a divorce that her husband, William Stephens, was guilty of extreme and repeated cruelty towards her. Her complaint was verified.

On August 30, 1941, the defendant, William Stephens, filed his answer to the complaint in which he admitted that he and the plaintiff were married at Burlington, Iowa, on February 1, 1941, but denied all the other material allegations of the plaintiff’s complaint. On October 7, 1941, leave was granted to the plaintiff to file an amended complaint. In her amended complaint, she charges that her marriage to the defendant at Burlington, Iowa, was null and void, because prior thereto, William Stephens had been lawfully married to one, Harriet Bea Stephens; that said Harriet Bea Stephens is still living and that the said William Stephens fraudulently procured a divorce from the said Harriet Bea Stephens in Las Vegas, Clark county, Nevada; that he practiced fraud and deceit upon the court in so procuring the divorce, and that he was not a bona fide resident of the State of Nevada at that time. This complaint was also verified by Anna F. Stephens. The defendant entered a motion to strike this complaint, which was overruled.

The defendant filed an answer to the plaintiff’s .amended complaint, and alleged that the marriage on February 1, 1941, was a legal and valid marriage. He denies that there was any fraud, or any misrepresentation or deceit in the procuring of the Nevada divorce, but alleges that the same is a valid and existing divorce.

In addition to the answer, the defendant, William Stephens, filed a counterclaim against the plaintiff for separate maintenance. This court is not concerned with this part of the litigation, so the substance of the counterclaim will not be noted. In the counterclaim also was a prayer for an accounting between the counterclaimant, and the plaintiff. Attached to the answer and to the counterclaim was a copy of the decree of divorce between William Stephens and Harriet Rea Stephens procured by William Stephens in the district court of the State of Nevada. The decree is as follows:

“In the Eighth Judicial District Court of the State of Nevada,
IN AND FOR THE COUNTY of Clark
William Stephens, Plaintiff
vs.
Harriet Rea Stephens, Defendant
No. 7992
Decree of Divorce

“This action coming on regularly for trial before the Court on this 29th day of January, 1938, Ham & Taylor appearing as attorneys for the plaintiff, the defendant having been duly served with summons and having failed to appear, plead or answer within the time provided by law and the default having been regularly entered against the said defendant, upon the complaint of the plaintiff and all the records and files herein, and the plaintiff introducing evidence in support of the allegations of his complaint, the defendant not introducing evidence, and the Court being fully advised in the premises,

The Court Finds :

1. That the plaintiff is now, and for more than six weeks last past, immediately preceding the filing of this action, has been a bona fide resident of the County of Clark, State of Nevada, and has continuously resided and been physically present and domiciled during all of said period in said County of Clark.

2. That the plaintiff and defendant intermarried at the City of Mt. Sterling, State of Illinois, on or about the 22nd day of June, 1898, and they ever since have been, and still are, husband and wife.

3. That there are no minor children the issue of said marriage.

4. That there is no community property of the parties hereto.

5. That the defendant has, since said marriage, been guilty of extreme cruelty toward the plaintiff; and that plaintiff’s health was and is thereby and therefrom impaired.

6. That all the allegations of plaintiff’s complaint are true.

“Now, therefore, by reason of the law in such cases made and provided, and the Court deeming this a proper case therefor, on motion of Ham & Taylor, Attorneys for plaintiff,

“It IS ORDERED, ADJUDGED AND DECREED that the bonds of matrimony now and heretofore existing between the plaintiff, William Stephens, and the defendant, Harriet Rea Stephens, be, and the same are hereby wholly dissolved, and a decree of absolute divorce is hereby granted plaintiff.

“Dated and Done in open court the 29th day of January, 1938.

Wm. E. Orr, District Judge.

Law Offices

Ham & Taylor

Las Vegas, Nevada.”

To the answer of the defendant to the amended complaint, the plaintiff filed her reply. The plaintiff entered a motion to strike the counterclaim. The motion was argued before the court, and sustained and the counterclaim of the defendant was stricken. The case was tried before the court on the amended complaint and answer, and the court held that the divorce of William Stephens which he procured in the State of Nevada, was null and void, and entered a decree annulling the marriage between the plaintiff and the defendant. It is from this decree that the defendant has perfected an appeal to this court.

It will be observed from an examination of the divorce decree that it recites that the defendant, Harriet Bea Stephens, had been duly served with summons to appear and plead, or answer to the complaint filed by William Stephens, as provided by the law of the State of Nevada; that a default was entered against the defendant, and then the plaintiff introduced evidence to sustain his complaint.

The court specifically found, that the plaintiff was then and for more than six weeks immediately preceding the filing of the action, had been a bona fide resident of the county of Clark in the State of Nevada, and had continuously so resided, and had been physically present and domiciled during all of said period in the said county of Clark. The decree recites that the court had jurisdiction of the parties and of the subject matter of the suit.

It becomes a question of whether or not the courts of the State of Illinois will give full faith and credit to a decree of divorce in the State of Nevada. This question has been finally adjudicated by the Supreme Court of the United States in the case of Williams v. State of North Carolina, 317 U. S. 287, 63 Sup. Ct. 207, also in L. Ed., vol..87 at Adv. op. page 189. On page 199 of the opinion, we find this language: “There is but one respect in which this court can, within its traditional authority and professional competence, contribute uniformity to the law of marriage and divorce, and that is to enforce respect for the judgment of a state by its sister states when the judgment was rendered in accordance with settled procedural standards. As the court’s opinion shows, it is clearly settled that if a judgment is binding in the state where it was rendered, it is equally binding in every other state. . This rule of law was not created by the federal courts. It comes from the Constitution and the Act of May 26, 1790, c. 11, 1 Stat. at L. 122, 28 USCA 687. Congress has not exercised its power under the Full Faith and Credit Clause to meet the special problems raised by divorce decrees. 0There will be time enough to consider the scope of its power in this regard when Congress chooses to exercise it.

“The duty of a state to respect the judgments of a sister state arises only where such judgments meet the tests of justice and fair dealing that are embodied in the historic phrase, ‘due process of law.’ But in this case all talk about due process is beside the mark. If the actions of the Nevada court had been taken ‘without due process of law,’ the. divorces which it purported to decree would have been without legal sanction in every state including Nevada. There would be no occasion to consider the applicability of the Full Faith and Credit Clause. It is precisely because the Nevada decrees do satisfy the requirements of the Due Process Clause and are binding in Nevada upon the absent spouses that we are called upon to decide whether these judgments, unassailable in' the state which rendered them, are, despite the commands of the Full Faith and Credit Clause, null and void elsewhere.”

Under the ruling in this case, it is now the law that a divorce decree that is valid in the State of Nevada is also valid in the State of Illinois. The decree of the circuit court of Knox county, Ulinóis, is hereby reversed and the cause remanded to that court.

Reversed and remanded.

Mr. Justice Dove

dissenting: The question which this court is called upon to determine upon this record is whether the finding of the chancellor to the effect that William Stephens was not a bona fide resident of Nevada when he procured a court of that State to grant him a divorce from Harriet Rea Stephens is sustained by the evidence. At that time Harriet Rea Stephens was a nonresident of Nevada. She was not personally served with process of summons. She was served by publication only pursuant to an order of the district court of Clark county, Nevada, made in accordance with the provisions of the statutes of that State. The decree in that case does not recite that she was personally served with process of summons but only that she had been duly served with summons and that she defaulted. ,

, Williams v. State of North Carolina, 317 U. S. 287, 87 L. Ed. —, 63 Sup. Ct. 207, does not, in my opinion, overrule Bell v. Bell, 181 U. S. 175. The validity of foreign divorces may be challenged in the courts of this State. And if it appears from the evidence that the domicile of the plaintiff in such a suit is fictitious, fraudulent and falsely alleged for the purpose of obtaining a divorce, our courts should so hold. The chancellor in the instant case so found and the evidence sustains his finding. The decree appealed from should be affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Burke

license: Public Domain

text:
    Benjamin B. Morris, Appellant, v. North Evanston Manor Building Corporation et al., Appellees.
    Gen. No. 42,490.

      Opinion filed May 5, 1943.
    Benjamin B. Morris, pro se.

    Shanesy & Hobbs, for certain appellee.
    Barre Blumenthal, for certain other appellees.
    Nicholas J. Madgey, for certain other appellees.
   Mr. Presiding Justice Burke

delivered the opinion of the court.

In 1926 Anna J. Molter and William H. Molter executed a trust deed securing a bond issue in the sum of $160,000, secured by the real estate 'located at the northwest corner of Central street and Eastwood avenue, Evanston, Illinois, improved with a three story brick apartment and store building containing 30 apartments and 4 stores. Mr. Benjamin B. Morris purchased bonds of this issue in the sum of $4,000 from the State Bank of Chicago. During 1933 default was made in the payment of interest and the Molters caused to be organized the North Evanston Manor Building Corporation, with a total of 1,385 shares of capital stock, and conveyed the property to that corporation. Thereafter, all except 120 shares of the stock were turned over to the bondholders in exchange for their bonds, and these 120 shares were turned over to the Molters for their equity of redemption. As a result of the exchange, Mr. Morris received 40 shares of stock. Five directors were elected, namely, Alf. Normann, August Torpe, Jr., John E. Nelson, J. H. Heissler and F. Gr. Reynolds. In 1936 Mr. Nelson died and Harry Anderson was elected to fill the vacancy. F. Gr. Reynolds became secretary and treasurer and August Torpe, Jr. became vice president. Mr. Reynolds received $50 a month for his services. During the period from 1933 to 1942 Mr. Torpe, an insurance broker, wrote fire insurance on the premises, the premiums on which amounted to $4,084.83.

Mr. Reynolds, the secretary, treasurer and a director of the corporation, and a licensed real estate broker, endeavored to sell the property, listing it with Quinlan & Tyson, Inc., real estate brokers. This corporation procured a purchaser at a price of $120,000. It was agreed between Reynolds and Quinlan & Tyson, Inc., that the regular real estate board rate of commission on the sale would be paid and that the commission would be divided equally between Reynolds and Quinlan & Tyson, Inc. A special meeting of the shareholders of the corporation was held on February 20, 1942, of which due notice was given. At this meeting the offer of purchase was submitted. Mr. Reynolds disclosed to the shareholders at this meeting that he would receive one half of the commission on the sale. Of the 1,385 shares of stock, the holders of 1,291 shares were present in person or by proxy; 1,251 shares voted in favor of the sale and 40 shares (owned by Mr. Morris) voted against the sale. On February 21, 1942 a real estate contract, embracing the terms of the sale and providing for the payment of the stipulated commission to Reynolds and Quinlan & Tyson, Inc., was executed. The property was sold and the transaction closed through an escrow, with the Chicago Title & Trust Company, as escrowee. The escrowee paid $2,300 to Mr. Reynolds and a like sum to Quinlan & Tyson, Inc., as commissions, out of the proceeds of the sale.

In an amended complaint in chancery filed in the superior court of Cook county by Benjamin B. Morris against the North Evanston Manor Building Corporation, Alf. Normann, F- Gr. Reynolds, August Torpe, Jr., J. H. Heissler, Harry Anderson, William H. Molter, Anna J. Molter and Quinlan & Tyson, Inc., a corporation, plaintiff prayed for an accounting of all transactions by Mr. Reynolds with the corporation, and all gains and profits received by him therein; that he be ordered to repay to the corporation the $2,300 received by him as commission; that Quinlan & Tyson, Inc., be ordered to repay to the corporation a like sum received by it as commission; that an accounting be had of all the transactions between August Torpe, Jr. with the corporation; that all profits received by him from such transactions be paid to the corporation; that the stock delivered to the Molters be canceled; that the North Evanston Manor Building Corporation, its directors, officers and agents be enjoined from paying any moneys to the Molters; and that the corporation, its directors, officers and agents be enjoined from taking any steps toward dissolving that corporation. Following the filing of answers and replies the case was referred to a master in chancery, who recommended the dismissal of the amended complaint for want of equity. Objections to the master’s report were overruled and permitted to stand as exceptions. These exceptions were in turn overruled by the court and a decree was entered dismissing the amended complaint for want of equity at plaintiff’s costs. Mr. Morris prosecutes this appeal.

Plaintiff called to the stand Jules F. Fisher, Frank Gr. Reynolds, August Torpe, Jr., and William H. Molter. He then rested, whereupon defendants, without introducing any testimony, severally moved for a dismissal of the complaint for want of equity. The master recommended that this motion be sustained, and it was.

The first criticism leveled at the decree is that plaintiff, having made out a prima facie case, the court was in error in sustaining the findings of the master. Defendants filed three briefs, one by Reynolds and Torpe, one by the Molters and one by Quinlan & Tyson, Inc. There is no dispute as to the facts. Mr. Reynolds maintains that he made a full disclosure to the shareholders and the board of directors that he was to receive one half of the real estate broker’s commission and that the board of directors and shareholders authorized the payment of the commission to him. The sale of the property was made by Mr. Reynolds through Jules F. Fisher, a salesman employed by Quinlan & Tyson, Inc. Mr. Fisher brought the purchasers to Mr. Reynolds. Mr. Fisher knew Mr. Reynolds was the secretary and treasurer and a director of the corporation. Mr. Reynolds was also a trustee for -the Boyce estate, with offices at 5 N. Dearborn street, Chicago. His office as secretary and treasurer was in the same quarters as his office as trustee for the Boyce estate. The Boyce estate was the owner of 50 shares of stock in the building corporation and Reynolds voted in favor of the sale on behalf of the Boyce estate, as owners of such stock, as well as on his own behalf and on behalf of such building corporation as a director thereof. The property was listed with the brokerage company by Reynolds in March 1941. In May 1941 Fisher approached those who became the ultimate purchasers with reference to buying the property. Later, he discussed the matter of commissions on the sale with Reynolds, at which time Reynolds knew that Fisher had a prospective purchaser. At the time Fisher told Beynolds that the commissions would be divided, Fisher knew that Beynolds was representing the corporation in the transaction. Plaintiff cites Dixmoor Golf Club, Inc. v. Evans, 325 Ill. 612; Long v. Wilson Stove & Manufacturing Co., 277 Ill. App. 57; Farwell v. Pyle-National Elec. Headlight Co., 289 Ill. 157; Smith v. Bunge, 272 Ill. App. 182; Fritze v. Equitable Building & Loan Society, 186 Ill. 183; Phelan v. Hilda Gravel Mining Co., 203 Cal. 264, 263 Pac. 520; Purchase v. Atlantic Safe Deposit dk Trust Co., 81 N. J. Eq. 344, to the effect that a director of a corporation, being a trustee of its business, cannot without a breach of trust, deal with the subject matter in such a manner as to make a profit for his own benefit, and insists that the commission paid to Beynolds violated this doctrine and should be returned to the corporation. The rule on the subject on dealings between a director or officer of a corporation and the corporation is well stated in Fletcher on Corporations, vol. 3, ch. 11, sec. 931:

“The great weight of authority is that in case of dealings between an interested director or other officer with his corporation, where the corporation is represented by other officers, the transaction is valid and cannot be set aside merely because of the relationship of the" parties, where the transaction is not unfair to the corporation and the officers have acted in good faith. But a contract between a corporation and its director, though made on its part by a majority of the board acting for its interests honestly and in good faith, may be set aside for bad faith or unfairness or undue advantage to himself on part of contracting director provided fraud in the making of the contract is sufficiently pleaded and proven.”

In Nowak v. National Car Coupler Co., 260 Ill. 260, the Supreme Court said (266):

“The question whether an officer or director of a corporation can deal with it, and if so, to what extent and under what conditions, has been before this court a number of times, and the general rule to be derived from the decisions is, that a director of a solvent corporation may trade with, borrow money from or loan money to the corporation or purchase its property, but in doing so he must act fairly and be free from all fraud and oppression and must impose no unfair or unreasonable terms.”

The record in this case shows that Reynolds made a full disclosure to the directors and shareholders. He advised them at-a special meeting held on February 20, 1942 that he had an offer of $120,000 for the property. The shareholders and directors had full knowledge prior to the acceptance of the offer that one half of the broker’s commission was to be paid to Reynolds. With this knowledge, proper resolutions were adopted by the shareholders and directors accepting the offer. There is nothing in the record tending to show that there was any unfairness, fraud, oppression or insufficiency of price. Plaintiff does not contend that the purchase price was insufficient and does not ask that the sale be set aside. We find that the record shows that Reynolds made a full disclosure to the directors and shareholders, that the parties acted in good faith, that there was no unfairness toward or undue advantage taken of the corporation, and that no fraud was committed. Reynolds received $50 per month for acting as secretary and treasurer and for the maintenance of an office for the corporation, which payment was duly authorized by the board of directors. We cannot find that there was anything improper in paying Reynolds this salary.

Turning to the case against August Torpe, Jr., plaintiff points out that this defendant, who was vice president and a director, at the request of the directors took charge of placing the insurance on the building, and that during the period from 1933 until sometime in 1942 he placed such insurance with his own company, August Torpe, Jr. & Company, a corporation, which corporation received $4,084.83 for premiums. Plaintiff did not seek to introduce any of the corporate records or other evidence to show what particular insurance coverage was placed on the property by Torpe. The master’s finding, approved by the court, that no showing was made that Torpe overinsured the property or received excess commissions, is sustained by the record. In Joy v. Ditto, Inc., 356 Ill. 348, the Supreme Court said (3-55):

“The rule that an officer or a director of a corporation cannot receive compensation unless such is provided by the by-laws or resolution of the board of directors before the services are rendered has an exception now as fully established as the rule (4 Flet-cher’s Ency. ‘Corporations’, sec. 2739), that where such officer or director has performed services clearly outside the scope of his duties as such officer or director, at the instance of someone of the corporation having general authority over its affairs and under a promise of payment for such services, he is entitled to receive pay therefor.”

Under the circumstances, there was no misconduct or fraud on the part of Torpe, and the chancellor was right in declining to require Torpe to account for profits received from the transactions. Plaintiff urges that he made a prima facie case against Quinlan & Tyson, Inc. We have held that the court ruled correctly in dismissing the complaint as to Reynolds. Our views as to the conduct of Reynolds apply with equal force as to the conduct of Quinlan & Tyson, Inc. The transaction whereby the real estate broker’s commission was split was fully disclosed to the stockholders and understood by them. We are of the opinion that the court acted properly in dismissing the complaint as to Quinlan & Tyson, Inc. It follows that the action of the court in dismissing the complaint as to the North Evanston Manor Building Corporation, was proper.

Regarding the Molters, the master found and the evidence shows that they conveyed the property to the corporation and received therefor 120 shares out of a total of 1,385 shares. This was for their equity of redemption. There can be no doubt that the transfer of the equity of redemption constituted good and valuable consideration for the deliverance to the Molters of 120 shares of stock. All of the parties recognized that the action of the Molters in conveying their equity in consideration of the 120 shares of stock, thereby avoiding the expense and delay of a foreclosure proceeding, was for the best interests of everyone concerned. We are satisfied that the action of the court in dismissing the complaint as to the Molters was in accordance with the principles of equity. Plaintiff also complains of the action of the master in sustaining objections to questions asked of Reynolds and Torpe. We are of the opinion that the master ruled correctly.

Plaintiff argues that the chancellor erred in denying his motion to set the hearing on the exceptions to the. master’s report on a day subsequent to the summer vacation recess. In support of his argument plaintiff calls attention to an order entered by the executive committee of the superior court on July 1, 1942. This order provides that the summer recess shall be from July 3, 1942 to September 8, 1942. The second paragraph of the order directs that during the recess period “motions for the entry of decrees . . . shall not be considered excepting where a showing is made satisfactory to the court hearing said matter.” The final paragraph of the order provides that three judges shall sit during the recess period, one to hear motions in chancery other than divorce cases, one to hear motions in divorce cases and one to hear motions in law cases. On the same day another order was entered by the executive committee assigning Judge Peter H. Schwaba to hear chancery cases for the period from July 6,1942 to July 18, 1942. The decree in the instant case was entered by Judge Schwaba on July 10, 1942, during the vacation recess. Before the chancellor considered the exceptions to the master’s report, plaintiff moved that hearing on such exceptions be postponed until after the summer vacation recess. 'This motion was overruled. Plaintiff contends that under the orders of the executive committee the chancellor exceeded his authority and erred in refusing to pass the case until September, and states that the chancellor denied the motion to postpone “without any hearing thereon and immediately signed the decree.” The decree recites that the matter came on to be heard on the pleadings, the motions of the defendants to dismiss, the evidence taken, the report and supplemental report of the master, the exceptions thereto, and that the decree was entered “after the arguments of the attorneys for the parties.” There is nothing in the record to indicate that the parties were not given an opportunity to argue; in fact, the record states that the decree was entered “after the arguments of the attorneys for the parties.” It will be observed that the executive committee order provides that motions for the entry of decrees shall not be considered “except where a showing is made satisfactory to the court.” It is clear from the fact that the chancellor entertained the motion for the entry of the decree, that he was satisfied a satisfactory showing had been made for the consideration of such motion at that time. Whether or not the chancellor should hear the" motion for the entry of the decree during the vacation recess, was a matter left to his discretion by the order of the executive committee, and the record does not show any abuse of that discretion.

The master in chancery certified that he was entitled to $25.20 for taking and certifying 168 folios of oral testimony at 15^ per folio, and $4.50 for certifying 30 folios of documentary evidence at 15^5 per folio. Under the heading “Fees to be fixed by court,” he asked

$100 for “obtaining files; examining order of reference; docketing cause; setting cause for hearing; attendance at conference and hearing; considering testimony and pleadings; preparing findings of fact and conclusions of law and drawing report.” Plaintiff excepted to the request for a- fee of $100 on the ground that it was unreasonable and excessive, and complains of the action of the court in allowing this fee. Section 38 of chapter 53, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 48.020], provides that masters in chancery “may receive for examining questions in issue referred to them, and reporting conclusions thereon, . . . such compensation as the court may deem just. ’ ’ In Fitchburg Steam Engine Co. v. Potter, 211 Ill. 138, the Supreme Court said (155):

‘ ‘ The partiés who are called upon to pay the master should not be required to defend against demands for amounts in gross, but have the right to know the specific service for which they are to be called upon to make payment. The claim of the master should be so itemizad as to distinctly show the service which he has rendered for which he claims the right to make a charge. . . . The statute, however, provides that . . . masters in chancery may receive for examining questions of law and fact and reporting conclusions thereon, such compensation as the court may deem just. The claim of the master should therefore show the time he was necessarily employed in the examination of questions of law and fact and in preparing his report of such findings and conclusions, and if the parties who are called upon to pay the demands of the master object to the claim as presented, the master should be required to support his claim with proof, as are other claimants in courts of justice. The proof so produced should show the court the services rendered, the time actually and necessarily devoted by the master to the work, and such other facts as will enable the court to intelligently determine the rights of the master and the proper obligations of the litigants.”

In Wirzbicky v. Dranicki, 235 Ill. 106, 114, where the claim for compensation was stated: ‘ * To hearing arguments and examining questions in issue and reporting conclusions thereon, $200,” the court said:

“No excuse is suggested for the failure on the part of the master to comply with the requirements of the law as they are indicated in thé opinion in that case. [Fitchburg Steam Engine Co. v. Potter, 211 Ill. 138.] That opinion was published more than three years ago. Presumably the master is familiar with it. The law as therein set forth should be enforced. In Gottschalk v. Noyes, 225 Ill. 94, will be found a statement of a master’s claim which was properly itemized. The statement should be so itemized in every case governed by the statute regulating the compensation of masters in counties of the third class. [Cook County.] Where, as in this case, a charge is made, by a master in a lump sum, and there is no statement made by the master from which we can ascertain the amount of time he claims was consumed in the performance of each of the duties covered by that charge, we will not in this court enter upon an independent examination of his report for the purpose of attempting to state correctly the items covered by the charge, the time given by the master to each service and the amount that should be allowed on account of each, in order that he may be decreed the sum that could properly have been allowed him had he complied with the law in reference to stating his claim. In such instance nothing will be allowed by us on account of services covered by the gross charge. The master’s report, in its length and the manner of its preparation, is properly subject to the same criticisms as was the master’s report in Manowski v. Stephan, 233 Ill. 409. Assurances, such as are found in the briefs for appellees, that the chan-, cellar regarded the charge as very reasonable, are without significance. It is to be presumed that the chancellor in every instance regards the amount allowed as reasonable, otherwise he would not decree the payment. The litigants are entitled to our judgment as to the reasonableness of the charge, and the chancellor’s conclusion is entitled to no more weight than it would be upon any other proposition of like character.”

In Clokey v. Wabash Ry. Co., 353 Ill. 349, the court said (370):

“It is the law that the fees of the master in chancery should be itemized, and if found proper by the cqurt it shall fix such allowance; also, that an allowance of the master in chancery’s fees should not be made in gross.”

It is apparent that the master’s certificate as to the fees to be fixed by the court in the instant case, falls within the quoted criticisms leveled at certificates of masters’ fees in comparable factual situations. While in the Wirzbicky case the Supreme Court disallowed the fees claimed by the master without remanding the case, we are of the opinion that the Supreme Court intended to leave a discretion in the reviewing court whether to remand or not. It is obvious from the report in the instant case that the master gave considerable time to the matter of examining the questions in issue and reporting his conclusions thereon and that he gave careful consideration to all the propositions raised. Holding these views, the decree' of the- superior court of Cook county is affirmed. On May 10,1943 appellant filed a motion asking that “an order be entered herein amending the opinion rendered herein on May 5, 1943 so that the same will affirm the entire decree appealed from without remanding the cause to the superior court of Cook county and the order of this court will be final and appealable.” Appellant’s motion is allowed and the last sentence of the opinion is amended to read: “Holding these views, the decree of the superior court of Cook county is affirmed. Decree affirmed.”

Decree affirmed.

Hebel and Kiley, JJ., concur.


author: Mr. Presiding Justice Riess

text:
    Susie F. Young, Appellee, v. Illinois Central Railroad Company, Appellant.
    Gen. No. 9,361.

      Opinion filed May 27, 1943.
    Stone & Taylor, of Bloomington, for appellant; Vernon W. Foster, Charles A. Helsell and J. W. Freels, all of Chicago, of counsel.
    Cassels, Potter & Bentley, of Chicago, for appellee; Ralph F. Potter, L. H. Vogel and Fred W. Gieseke, Jr., all of Chicago, of counsel.
   Mr. Presiding Justice Riess

delivered the opinion of the court.

The defendant, Illinois Central Railroad Company, has perfected an appeal to this court from a judgment in the sum of $2,500 which was entered in favor of plaintiff appellee, Susie F. Young and against the defendant company after trial and verdict by a jury in the circuit court of McLean county. Plaintiff alleged that she had sustained injuries and resultant damages by falling down two intervening steps between the floor levels of adjoining toilet and wash rooms, negligently constructed and maintained by the defendant company for public use in its railroad passenger depot in the city of Chicago. Motions for a directed verdict of not guilty were interposed by defendant and denied by the court at the close of plaintiff’s evidence and of all of the evidence. Motions by defendant for judgment notwithstanding the verdict and for judgment on special findings alleged' to be inconsistent with the general verdict were also denied. Subsequent motions to set aside the verdict and grant a new trial were filed by both parties and overruled by the court. Errors in adverse rulings on such motions and in entering judgment on the verdict were assigned by defendant and cross-errors were assigned by plaintiff, the latter contending that the amount of the verdict was inadequate and that the court erroneously gave or refused to give certain indicated instructions to the jury.

The complaint alleged in substance that while the plaintiff was waiting for her train in the Twelfth Street Passenger Station of defendant company in the city of Chicago, she “slipped, or tripped or fell” on the stairway in question and received serious and permanent injuries to her spine. Paragraph 5 of the complaint alleged specific negligence as follows: (a) negligence by defendant in failing to maintain a continuous floor, ramp or other safe device instead of stairsteps between the floor levels; (b) in permitting said stairs to become worn, slippery and unsafe for use; (c) in failing to provide handrails or other supports upon or at the side of the stairs or risers; (d) in not equipping said stairs with cleats, mats or other covering providing safe footholds thereon; (e) in failing to provide adequate and properly placed windows, lights or lighting fixtures for proper illumination of said stairs for the safety of persons using the same; (f) in otherwise so negligently and carelessly maintaining and operating said stairs or risers that plaintiff was caused to and did step or trip or fall as aforesaid; thereby proximately causing plaintiff’s fall and injuries while she was in the exercise of due care for her own safety. At the close of the evidence, the plaintiff dismissed the allegations of negligence set forth in the above subparagraphs (b) and (d).

Special interrogatories were submitted to the jury concerning the three remaining specific charges of negligence, in answer to which the jury found by their special verdicts that the defendant was not negligent (a) in constructing stairsteps instead of a continuous floor, ramp or other device; (e) that the defendant had not failed to provide proper illumination for the’ stairs, (f) To the interrogatory “Was the defendant negligent in failing to provide handrails or other supports upon or at the side of stairs or risers?”, the jury answered, “Tes.” A general verdict was also returned by the jury on February 7, 1942, as follows: “We, the jury, find the issues for the plaintiff herein and assess plaintiff’s damages in the sum of Twenty Five Hundred Dollars ($2500.00) ”, and upon that verdict, the judgment was entered.

It appears from the evidence that on October 18, 1939, the plaintiff drove in her own automobile from her home in Bloomington to Kankakee from where she rode with friends or relatives into Chicago. On October 20, after spending the day with a nephew in the Marshall Field store, the plaintiff went to defendant’s railway station at about 4 o’clock p. m., and purchased a passenger ticket to Kankakee, Illinois, after which she and her nephew went to the second floor waiting room. Shortly before 5 o’clock p. m., plaintiff went alone to the adjacent women’s rest rooms. The outer rest room is of dimensions of 15 by 17% feet and is designated as the wash room or “powder room.” It contains 6 wash basins and mirrors, of which 3 are located along the east wall on each side of the steps which lead upward from the floor level of the wash room for a height of 1 foot 4% inches to the floor level of the open doorway and floor of the adjoining toilet room; the latter having dimensions of 17% by 19% feet. The 2 intervening steps extend across and directly in front of said doorway and frame and between the ends of the wash basins and supporting upright legs thereof, which are located along and adjacent to the wall on each side of the steps and the white door frame as shown on plaintiff’s 3 photographs and defendant’s plat drawn to scale, all of which were admitted in evidence as exhibits without objection as portraying the stairway and surroundings shown thereon. Each step between the 2 floor levels rises 5% inches in height; the oak tread of the lower step being of a depth of 13 inches and the upper step tread being 12 inches in depth. The length of the steps are approximately 4 feet, extending entirely across and some inches wider than the door opening and partly across the width of the door frames on each side. From the center of the white painted ceilings in each of the 2 rooms, at a height of approximately 8 feet above the floor, 200 candle power electric light bulbs were suspended in and partially inclosed by inverted translucent glass bowls, each being 4% inches deep by 10 or 12 inches in diameter. Six light bulbs of 75 to 100-watts each were also suspended above the partitions between the 12 toilet booths or stalls which were 6 feet in height and fitted with the usual type of swinging doors. Six of the booths were located on each side of the toilet room. There was an open areaway between the booths extending from the entrance doorway and steps to the rear or east wall of the toilet room, in which outer wall 2 windows shown on the plat are located. There were also 3 window sections located along the north or outer Avail of the wash room.

Plaintiff, then aged 69 years, testified that “just a little before train time” she had gone to the dressing room and had walked up these steps from the wash room info the toilet room where she remained for a space of 7 to 10 minutes; that she then came out to go down and “I just stepped down like I was going to step doAvn and there was no step there. I just went head over heels.” Plaintiff further testified that she wore bifocal glasses at the time but that her eyesight was “as good as it is-now”; that the lower room was well lighted by light and Avindows but the upper room was dark and “as I walked to the doorway or to the entrance the light came right down this way on my face. I’ll tell you, I stepped off. I supposed I was going to step off and there was nothing there and I grabbed for the rail and that threw me — there was no rail there.” Question: “Had you observed that as you went up into the upper rooms?” “No, I never had observed going up, when I seen I was going to fall I grabbed for the rail but there was none there, I fell with my head toward the north, my face toward the east and on my left side, shoulder and arm.” She then described her alleged resultant injury and treatment to her spine and back following the alleged fall and injury. On cross-examination she said that “It seemed there was a window to the north, and then there was a flickering light some place above. I don’t know where. When I fell, I don’t know whether there was a light or not.” She didn’t have a sensation of “tripping or slipping.” That she just went on and missed the steps for some reason. “I guess I just went right off.” Plaintiff stated that when she was a girl she used to go into this station but not in recent years; that the wash room was lighted but when she went back into the lavatory it was not lighted; that she did not know how the wash room was lighted and didn’t notice where the lights were; “I walked up these stairs. The room into which I went was not well lighted. There was a globe something like that just in the middle, just one in the middle where the lavatories were.” She stated that she saw no window after she got up the step, if there was she didn’t notice it nor did she notice the row of lights along the booths; that she did know that she was going up the stairs. When asked as to whether she noticed anything the matter with the stairs as she went up, she stated that she didn’t even think of it; that when asked if she knew she was going to come down those stairs, she answered “Yes, but I stepped right off into the air”; that “I put my foot down but the step wasn’t there and then I reached for the handrail and it wasn’t there”; she then answered to the question that she discovered there was a step there, ‘ ‘I guesS there was, I didn’t think I took it with me, Mr. Stone.” To the further question as to whether she had not stepped in the right place and had missed the step, she answered, “Well, I’ll tell you. I went off just like this, Mr. Stone (indicating); clear up like that. I suppose there was a step down there, but I just walked right over that.” Asked if she was looking down at the steps — where she was going, she replied “Yes, I suppose I was. You know you don’t think of those things.”

From the evidence and exhibits, the presence of the white door frame clearly appears at the top of the shallow steps which plaintiff might, by the ordinary use of her faculties, have grasped or held with her hand before or when stepping outward and downward. It also appears that she did not grasp for any support until she had taken the step forward and was falling. Whether the presence of a rail or other support would then have availed her is a matter for conjecture only.

No other witness aside from the plaintiff testified as to what actually occurred at the time of her alleged fall down the steps in question or while she was in the 2 inner rooms. Several witnesses testified for the plaintiff as to what transpired before and subsequent to the occurrence and as to her physical condition, alleged injuries and disabilities, including the medical testimony in relation thereto.

For the defendant, Ida Broyles, aged 58, testified that she had been the matron in the 2 rooms since 1925 and was on duty from 3 to 11 o’clock of each day, including the afternoon of the alleged occurrence, but knew of no one falling and had heard of no one falling or being injured; that the steps were used by her and by many women every day and that she never knew or heard of anyone falling on those steps since they were built. In rebuttal thereto, the plaintiff and her nephew, who did not go into the rooms, testified that they saw no matron there on that day. On behalf of the defendant, witness Carter testified in substance that he was the division engineer of the Chicago Terminal Division of the defendant company, among whose duties were the maintenance and repair of the particular station and that he had been acquainted with the steps in question for 10 or 12 years; that they had been renewed or rebuilt in 1937; that the steps in question were constructed in the usual and ordinary manner for constructing steps of that character; that the carpentry thereof was of good practice, as well as the tread and construction of the steps and risers; that it was not the usual custom and practice to put railings on steps of that kind, type or size. We hold from detailed recitals of his knowledge and experience that sufficient foundation was laid as to witness ’ knowledge of usual customs and practices to justify the court in the exercise of its sound discretion in permitting the witness to answer such questions. The probative value of the answers were matters for the jury. Concerning the light, witness Carter testified to periodical readings and measurements of the amount of light and size of globes and bulbs used in the rooms; to the average number of people, shown by counts made at intervals, to have daily frequented the station and its use by people of all ages and stages of health, and that no previous accidents had occurred, to his knowledge. George M. Freeborn, employed in the engineer’s department of the defendant company prepared the scale map of the steps and surroundings which was exhibited in evidence. He testified as to the locations and conditions, height of the lights, globes, windows and concerning the steps in question. John C. Walsh, custodian of the station, also gave testimony in relation thereto and of regular daily inspections by him of the condition of the women’s rest rooms; that prior"to the accident, an average of at least 500 people used these steps each day; that he had never known or heard of any other person falling thereon or of any report thereof, and first heard of plaintiff’s claim about 2 weeks before the trial. George Hankey, carpenter foreman of defendant company for 15 years was in charge of the men who built the steps in 1937 under engineer Carter’s direction; he testified that the treads were built of oak and had replaced old steps- of the same size and dimensions, which were in the usual and customary manner of building similar steps; that it was not usual or customary to place handrails on steps of that size and dimension unless there was an opening on either side into which a person might fall. Kenneth Carney, claim agent of the defendant company, testified that he first learned of the alleged injuries through a letter from plaintiff’s attorney in February 1941; that no report of any alleged accident or injury incurred on these steps had been made since he became claim agent in 1926.

Upon the motion for a directed verdict in favor of the defendant and for a judgment notwithstanding the verdict, we can only consider the question of whether or not there is any evidence in the record which, with legitimate and reasonable inferences therefrom, when viewed in the light most favorable to the plaintiff, tends to prove the material allegations of plaintiff’s cause of action under any of the allegations of negligence. From the evidence, we are constrained to hold that a controverted question of fact arose as- to whether or not the defendant had provided adequate and proper lights and lighting fixtures, sufficiently illuminating the steps for the safety of persons using the same. While we believe from the evidence and the jury found by its special verdict, that the defendant had not failed to provide proper illumination for the stairs, we also hold that there was some evidence, which when viewed in the light most favorable to the plaintiff, with all reasonable inferences arising therefrom, tended to sustain plaintiff’s allegation concerning insufficient illumination of the stairs and the further allegation that such alleged failure tended to proximately cause plaintiff’s alleged fall and injury. With the above testimony in the record, we hold that the trial court properly denied defendant’s motion for a directed verdict of not guilty under subparagraph (e) charging such specific negligence and under sub-paragraph (f) of paragraph 5 charging general negligence.

Whether or not the testimony of the plaintiff that in view of the light conditions as detailed by her, combined with the absence of a handrail, and her evidence that she stepped out from the upper floor level and missed the step before grasping for a possible handrail which did not exist, constituted a prima facie showing of due care on her part, under the more or less confused, uncertain and contradictory statements and circumstances detailed by her, is a close question. Standing alone, we do not believe that plaintiff showed that the absence of the rail or of her first having fallen and then grasping for a rail, unaffected by the alleged light conditions, would constitute a prima facie showing of due care; yet, under a motion for judgment notwithstanding the verdict and a charge of general negligence, the court must view all of the evidence in the light most favorable to the plaintiff, and we therefore hold that the trial court properly denied a motion for judgment notwithstanding the verdict. The same rule of law prevails in passing upon motions for a judgment notwithstanding the verdict as applies to motions for directed verdicts interposed at the close of the evidehce.

Upon-the motions of both parties to set aside the verdict and grant a new trial, we are confronted with a different rule of law. Under the motion for a new trial, if the court finds that the verdict of the jury is contrary to the manifest weight of the evidence, it becomes the duty of the court to reverse and remand the cause for a new trial. In passing upon this motion, we find from the evidence that a general verdict of guilty based on a charge of insufficient illumination would be contrary to the manifest weight of the evidence and on this charge of negligence, the special finding of the jury also held against the plaintiff. The same is equally true of the charge that the defendant negligently failed to furnish a ramp or other safety device instead of the steps in question upon which a special verdict contrary to plaintiff’s - contention was likewise returned. On the above issues, the jury, by its special verdict, limits and controls any inconsistent general verdict based on such charges of negligence. Our statute "expressly provides and this court has held that upon an issue of negligence so submitted to the jury, the special verdict controls an inconsistent general verdict. Section 65, Civil Practice Act (sec. 189, ch. 110, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 104.065]); Goodman v. Chicago, B. & Q. R. Go., 289 Ill. App. 320, 7 N. E. (2d) 393. Two specific charges of negligence were withdrawn and dismissed' by the plaintiff at the close of the testimony, in which it had been charged in substance that the floors of the 2 rooms should have been constructed on a continuous and not on different levels and that the steps failed to have cleats and were slippery and dangerous in construction. No testimony tending to support those allegations of negligence appears in the record and they were properly withdrawn by the plaintiff. No general verdict based upon either of such allegations of negligence which were so withdrawn and which were not supported by the evidence could stand. The only other allegation upon which any evidence was heard by the jury, or which could be considered by the jury as a basis for their general verdict, would be the special allegation of negligence in failing to provide handrails or supports which proximately caused the plaintiff’s fall and resultant damages and we hold that a general verdict based thereon, even though the alleged lack of sufficient illumination against which the special verdict was found, were considered in connection therewith, would, if found in favor of the plaintiff, be contrary to the manifest weight of the evidence. The affirmative finding of a special verdict of negligence is not binding upon the trial court upon defendant’s motion to set it aside, if it is not supported by any evidence, or if, as here, it is contrary to the manifest weight of the evidence. Paul v. Garman, 310 Ill. App. 447, 34 N. E. (2d) 884, and citations therein. No other charge of general or specific negligence appears in the testimony. We therefore find and hold that the general verdict of the jury in favor of the plaintiff and against the defendant is contrary to the manifest weight of the evidence and that the assigned error based upon the denial of defendant’s motion for a new trial was well founded.

It is further assigned as reversible error by the defendant that the refusal of a tendered instruction holding that if the jury finds from the evidence that the plaintiff’s fall was accidental and occurred without any negligence on the part of the defendant, as the same is defined in the instructions, the jury should find the defendant not guilty. Respective parties have cited cases under varying circumstances wherein our courts of review have held the giving or refusal of this instruction to be proper or to be reversible error or harmless error, under different state of facts appearing in each case. Without analyzing the surrounding facts and circumstances of the cases so cited, we are constrained to hold that in view of the serious question as to whether or not any negligence by defendant was shown herein, the jury might well have found that no proof of negligence existed and that the injury alleged, if any, was solely due to accident. We hold that it was error for the court to refuse to give that instruction herein.

Defendant also contends as a ground for reversal that the amount of the verdict is excessive. Without setting forth the evidence of the nature and extent of plaintiff’s alleged injuries or analyzing the same at this time, we hold from the record that the amount of the verdict, if plaintiff is entitled to any verdict, was not excessive.

Plaintiff, in her motion for a new trial and assignment of cross-errors complains that the amount of the verdict was inadequate under proof of the nature and extent of plaintiff’s injuries, both temporary and permanent, and of other elements of damage upon which evidence was heard. While we deem the amount of the allowance to have been moderate, the probative value of the testimony of the respective parties in relation thereto and the amount of damages sustained, where the right of action and recovery is properly shown, is a matter to be determined by the jury, under the law and the evidence. Objection to defendant’s given instruction “0” requiring the verdict to be based upon the law and the evidence is without merit. A similar instruction was given and was approved by the Supreme Court in the case of People v. Cassin, 322 Ill. 276, 153 N. E. 381.

For the reasons hereinabove set forth, we find that reversible error appears in the record and the cause is therefore reversed and remanded to the circuit court of McLean county for retrial.

Reversed and remanded.


text:
    W. Q. O’Neall Company of Illinois, Appellant, v. Coon Run Drainage and Levee District of Counties of Morgan and Scott, Illinois, Appellee.
    Gen. No. 9,381.

      Opinion filed May 27, 1943.
    Epler C. Mills and Myron E. Mills, both of Virginia, Ill., for appellant.
    Hugh Green and Vaught, Foreman & Cleary, all of Jacksonville, for appellee.
   Mr. Presiding Justice Riess

delivered the opinion of the court.

The plaintiff company filed a suit at law in the circuit court of Morgan county against the defendant drainage and levee district, seeking recovery of the alleged contract price or market value of certain materials alleged to have been lawfully sold and delivered to the defendant district and used by it in the construction and repair of certain improvements in the nature of drains or sluiceways of alleged benefit to the defendant district and the lands located therein. Answer to the complaint as finally amended and praying legal or equitable relief was filed by the defendant district denying liability and pleading two special defenses, the first of which was a plea of res judicata, which was stricken by the court on plaintiff’s motion and reply. No evidence was offered - by either party. Plaintiff moved for judgment on the pleadings which motion was denied. Defendant also moved for judgment on the pleadings in bar of suit and for costs under its remaining defenses which motion was granted and judgment was so entered. The plaintiff company has perfected an appeal from the above rulings and judgment to this court and assigns error thereon.

The complaint, filed on December 27, 1940, charged in substance that plaintiff, the W. Q. O’Neall Company was an Illinois corporation; that defendant Coon Run Drainage and Levee District of Morgan and Scott counties, Illinois, is a public or municipal corporation organized in 1899 under certain cited levee and drainage acts approved May 29, 1879, as amended; (Drainage, ch. 42, Ill. Rev. Stat. [Jones Ill. Stats. Ann. 42.006 et seq.]) that on or about January 21, 1937, defendant district was about to construct certain improvements and make repairs pursuant to plans and profiles therefor, as prepared in connection with certain extensive improvements proposed to be made by the War Department of the United States and the Department of Public Works and Buildings of the State of Illinois; that on January 21, 1937, in order to carry out the work so specified, said district, by/its commissioners agreed in writing, signed by the chairman, to purchase from plaintiff certain materials and supplies at stipulated unit prices, which purported memorandum agreement or signed order was dated December 30, 1936, and is set forth verbatim in paragraph 4 of the complaint and in “Exhibit I” thereto; that said merchandise was to be delivered to defendant at Bluffs, Illinois, its officers to notify plaintiff from time to time what portion thereof to deliver; that at defendant’s request plaintiff sold and delivered the specified materials and items on the respective dates set forth in paragraph 5 of the complaint; that said material complied with said specifications, was received and is now being used by defendant as part of said works and improvements and was thereby ratified by the defendant, to the benefit of said drainage district and lands, of a total value, less materials returned, of $4,255.11, for which amount demand was made, defendant refused payment and judgment was prayed by plaintiff under its alleged executed contract or in quantum meruit.

Among the exhibits attached to the amended complaint were three delivery receipts and one final letter, all of different dates, covering delivery and certain return credits of items of such material or merchandise. A bill of particulars alleging certain “oral parts of agreement” with defendant’s commissioners was filed by the plaintiff. The second and third counts of the original complaint were dismissed without prejudice on plaintiff’s motion and the defendant commissioners who had been named and joined as individual defendants were dismissed from the suit.

Defendant’s motion to dismiss the original complaint averred in substance that the district and commissioners possessed only such limited powers and authority to enter into contracts, make improvements and levy assessments as were expressly conferred by statute or necessarily implied under the applicable sections of said Drainage Act; that the complaint wholly failed to allege and set forth that proper and necessary legal steps were taken to authorize and empower the commissioners of the district to enter into the alleged contract for purchase of materials and failed to show compliance with various provisions and requirements of section 36 of said act as specifically recited in the motion, which steps and proceedings were averred to be necessary to authorize such proposed improvement or any purported contract or additional assessment levy to pay the cost of same; or of the filing of a proper petition followed by due hearing and order of approval of such proposed improvement by the county court; or of advertising and letting of a contract therefor to the lowest responsible bidder as required by section 36 of said act; wherefore said purported contract and alleged demand was “ultra vires” and void. This motion was heard and granted by the court, and by leave, the complaint was then amended in substance to include allegations of the filing of a petition for special assessments, hearing thereon and order of approval thereof by the county court of Morgan county on August 5,1937, authorizing such proposed improvement pursuant to plans prepared by the War Department, and by also adding paragraph 9 to said count 1, which latter amendment, after repeating certain preceding paragraphs, recites that the defendant, at its request, received, used and retained said material, goods and merchandise, for its own benefit in the repair and protection of the work of the district as provided in section 37 of said Drainage Act and alleged that said material is now being so used as a part of said work and improvements to the increased benefit and protection of the district and the lands comprising the same, and prayed recovery under a “quantum meruit” claim for the value thereof. The complaint as amended, also prayed for equitable relief predicated upon the performance and acceptance of the benefits of the alleged contract and estoppel to deny liability therefor.

Defendant filed a motion to dismiss the amended complaint, which motion was withdrawn by leave of court, and its answer and special defenses were then filed. The answer denied the validity of the alleged contract and right of recovery thereunder or in quantum meruit, averring in substance the same grounds that were set forth in its first motion to dismiss. For special defenses, including new matter set forth therein, it was averred that a petition was filed by the Drainage Commissioners of said district on July 20, 1937, in the county court of Morgan county for an extensive system of new improvements to be paid for by additional special assessments against the lands of said district, according to certain plans, specifications, profiles and engineer’s estimates of cost thereof made by and in connection with the Federal and State governments as referred to in the amended complaint, involving an estimated expenditure by the Federal government of $187,000 and of $28,822 to be paid for by said district by special assessments against the real estate located therein, copies of which plans for such improvements under said purported contract between the district and said Federal and State governmental agencies are specifically set forth, together with copies of the petition, plans, specifications and estimates which were attached as exhibits to defendant’s special pleas. There was also averred, and set forth as exhibits to said pleas, copies of all orders and proceedings of the county court in relation thereto, including the hearing on said petition after due notice and order of court allowing said petition on August 5,1937. The said petition, specifications, estimates and order set forth in detail the said proposed improvements in six itemized “divisions” for which such special assessments were.sought, including “Division V,” which set forth the various specified materials consisting of corrugated metal pipes of specified size and construction, metal gates, fittings and attachments designated for use in “The construction of sluiceways at the location, as follows”: at unit prices therein recited, for use under a new levee to be built on lands to be acquired therefor, as set forth in other “Divisions” and integral parts of said proposed improvement, which were not therein listed as repairs or current aimual expenses for the protection of said district under section 37 of the Drainage and Levee Act. The petition also prayed for an additional annual assessment of $1,000 to he used for current repairs and protection of the works of said district, which current expenses, because of such additional' improvements, would be increased from $714 to $1,000 per annum and also set forth that the funds of said district had been exhausted.

It was further averred that subsequent to the entry of said order of court, no assessment roll was either filed or confirmed in said cause; that thereafter on October 23, 1937, upon petition of certain land owners of said district and due hearing thereon by said court alleging lack of jurisdiction of said court to enter the order of August 5, 1937 for reasons therein alleged, said petition was duly heard and allowed by the court on November 18, 1937, and that the order of August 5, 1937 was thereupon vacated and set aside, which order of November 18 remains in force and effect and has not been set aside nor appealed from; that some days prior to the entry thereof, notices calling for bids for such work and material were published, and on October 30, 1937, plaintiff submitted a bid for such material under said “Division V” of specifications which bid was not accepted nor approved by the court and that the only material furnished by the plaintiff was that sued for and furnished, long prior thereto under its purported contract without compliance with any order of court or with the mandatory requirements of the Drainage Act, wherefore the said purported contract or demand set forth in the complaint was ultra vires and void and that no recovery could be had thereunder, nor in quantum meruit for the alleged past indebtedness for materials and merchandise so furnished. The reply of plaintiff did not traverse the factual allegations concerning the county court proceedings and orders which were had and entered as set forth in the exhibits but disagreed with defendant’s legal conclusions in relation thereto and insisted that it was entitled to a judgment on the pleadings under its motion therefor, either on an executed contract or in quantum meruit for the value of materials furnished to defendant, or, in the alternative for the sum of $2,623.73 as the alleged value of material delivered after August 5, 1937, when the county court order approving the petition for such improvement was entered and before said order was vacated on November 18, 1937; wherefore, plaintiff alleged that the defendant had ratified and is estopped from denying such claim and that the trial court erred in not granting plaintiff’s motion for judgment in its favor on the pleadings.

In passing upon the respective motions for judgment on the pleadings, the court will consider only material facts and allegations well pleaded and will disregard all surplusage and mere conclusions of the pleader.

It appears from such pleadings, exhibits and the uncontroverted court orders and proceedings herein that during the months of October, November and December 1936, certain verbal negotiations were had between the plaintiff and the commissioners of the defendant district and between the defendant and certain Federal and State governmental agencies relative to a proposed plan of improvement materially and extensively altering the existing levee and drainage system of said district and adjacent territory; that on January 21, 1937 several months before filing in the county court of Morgan county a petition for special assessments, plans, specifications, estimates and profiles for such proposed improvements on July 20,1937, a purported memorandum agreement or order dated December 30, 1936, for certain materials consisting of corrugated metal pipes, metal gates, fittings and attachments to be furnished to defendant by plaintiff as recited in paragraph 4 of the complaint was subsequently signed by the plaintiff and by the chairman of the board of commissioners of the defendant district on January 21, 1937. .It further so appears from the pleadings and exhibits that the materials in question were so described and set forth in itemized form in “Division V” of the specifications prepared by the U. S. War Department, and subsequently filed with the petition and were also described in the purported written contract or order dated December 30, 1936, and that various items thereof were delivered in April, June, August and September 1937, by the plaintiff company and received by said commissioners and that said material was used by the defendant toward the installation of a portion of the proposed new improvements contemplated in the petition and described in “Division V” of the above plans and specifications filed with and approved by the county court on August 5, 1937, by an order which was subsequently vacated on November 18,1937. They were not and could not be construed under the factual recitals, exhibits, allegations and pleadings herein to be for current repairs authorized under section 37 of the Draináge and Levee Act. The petition referred to was filed under section 36 and from all the pleadings and exhibits, it clearly appears that the parties well .understood that these materials were and were intended to be a part of the contemplated improvement described and referred to in the petition in “Division V” and accompanying specifications. It also appears therefrom that they were no part of the expense of a preliminary survey or of attorney fees or other necessary preliminary expenses which could be collected in quantum meruit under authorities cited or otherwise than under a contract for the improvement lawfully entered into after an order of approval by the county court of said petition, plans and specifications on August 5, 1937, followed by a requisite notice, public competitive bids duly accepted and approved by the court as provided in section 36 of the Drainage Act. Rogne v. People ex rel. Goedtner, 224 Ill. 449, 79 N. E. 662.

Unless, thereafter the contract was made pursuant to statute after due notice and bids therefor as therein required, any attempt to enter into or ratify such alleged contract and thereby make the district or the land therein chargeable with the cost thereof for such past indebtedness not provided for in the petition for special assessment was ultra vires and beyond the powers of the commissioners and of said district and was void. The design of the provision for letting contracts after publication and notice is to have the work done at the lowest price. The provision is for the benefit of the property owner, and it cannot be denied that he is entitled to the protection which it affords. Rogne v. People, supra. The commissioners acted clearly in violation of the plain provisions of the statute when they undertook to enter into an oral or partly written and partly oral contract, on a private bid for an amount in excess of $500. People v. Scanlan, 265 Ill. 609, 107 N. E. 149. Any attempt to enter into such contract in disregard of or contrary to the provisions of the statute limiting the authority of the commissioners was invalid and the plaintiff was presumed to know the law in relation thereto.

The plaintiff has cited the case of Kreitzer v. Barnes, 331 Ill. 549, 163 N. E. 476, holding that a valid contract may be entered into with' a drainage district after the assessment roll has been filed and before it has been confirmed as being applicable herein. It need only be said concerning such contention that the fact appears from the pleadings and is not controverted that no assessment roll was filed nor confirmed and that after the court order of August 5, 1937, no contract was at any time entered into after advertisement and competitive bids and acceptance of and approval thereof by the court, in compliance with statutory requirements. Before the amendment of section 37 of the Drainage Act in 1909, no assessment could be levied for the payment of liabilities incurred before such-assessment was made. That amendment added to the purpose for which an assessment might be levied, the following words: “to pay obligations incurred for the current expenses of said district or in keeping in repair and protecting the work of such district.” After that amendment became effective it was held .by our Supreme Court that an assessment could be levied for obligations already incurred for current expenses and repairs made. McGee Greek Levee & Drainage Dist. Com’rs v. Sides, 336 Ill. 267, 274, 168 N. E. 283, and citations therein. As we have noted, in the instant case, the contract for the improvement provided for in the specifications and order of court and described in the alleged memorandum contract were not obligations incurred for current expenses of the district in keeping the work in repair, but were for improvements petitioned for under section 36 of the act, which could not be availed of to pay past ind ibtedness, and no such past indebtedness was provided for or contemplated in the order of court approving specifications for such proposed improvements or “Division V” thereof. It is said in Prange v. O’Meara, 368 Ill. 362, 14 N. E. (2d) 220, by the Supreme Court, at page 365, that “We have held that the action of drainage commissioners in entering into a contract which will fix a liability on the district must be approved by the court, and pr3liminary thereto, the land owners have a right to be heard. (Corcoran v. Mud Creek Drainage District, 336 Ill. 211.) ” It is not even contended that prior to the purported memorandum contract dated December 26, 1936, any hearing was had at which landowners were heard or that the same was ever authorized or approved by the commissioners as a corporate body in a formal meeting by a motion or resolution. In Prange v. O’Meara, supra, it is further said (page 366) that “Drainage and levee districts are public corporations, though not strictly speaking municipal corporations. (Hunt Drainage District v. Harness, 317 Ill. 292, 148 N. E. 44; People v. Niebruegge, 244 id. 82; Elmore v. Drainage Commissioners, 135 id. 269.) They have only such powers as the legislature has expressly conferred or those which are necessarily implied. (Lower Indian Creek Drainage District v. Vallery, 343 Ill. 49,174 N. E. 842; Corcoran v. Mud Creek Drainage District, supra.)”

The case most frequently cited by the courts of review of this State involving the right to recover against a drainage district upon an alleged executed contract or in quantum meruit, was that of Badger v. Inlet Drainage District, supra, cited in Corcoran v. Mud Creek Drainage District, supra, and numerous subsequent cases. In the Badger case, the drainage commissioners entered into a contract with Badger and Son whereby the latter agreed to remove a private dam and do certain other work for the district, for which the commissioners agreed to pay $1,700 and to levy an assessment against the landowners to pay the costs thereof. Badger and Son performed their part of the agreement by doing the work and removing the dam. The drainage commissioners then made an assessment, but its collection was enjoined by the landowners. Badger and Son then filed suit and sought recovery in quantum meruit for the work and materials furnished, contending that the district and commissioners had received the benefits of the executed contract and were estopped from denying the validity thereof. Judgment against the plaintiff and in favor of the district was entered and was affirmed by the Supreme Court on appeal. The court therein pointed out the limited authority of the commissioners under the act and that they could not, by their acts and conduct, enlarge their powers over the property resulting •in a judgment against the district, which could only be satisfied by a special assessment and that neither the commissioners nor landowners were estopped from defending such suit by showing that the alleged contract, although executed, was ultra vires and void. DeKam v. City of Streator, 316 Ill. 123, 137, 146 N. E. 550. In the recent case of Bituminous Casualty Corp. v. City of Virginia, 314 Ill. App. 238, 41 N. E. (2d) 342, wherein the statutory powers of a municipality were much broader than those possessed by the defendant district under the respective statutory provisions, we held that where a contract is executed by an officer of a city, and his authority to do so is later questioned, such authority must be shown; that plaintiff was presumed under the law of this State to know the procedure which the municipal corporation was required to follow in order to enter into a valid contract, citing Haas v. Lincoln Park Com’rs, 339 Ill. 491, 171 N. E. 526, wherein it is held that equity will enjoin public officers from spending public funds derived from taxation to carry out a contract in violation of law, and we are constrained to hold herein that no allegations entitling the plaintiff to equitable, relief are set forth in the pleadings. In the case of Bituminous Casualty Corp. v. City of Virginia, supra, we also held that the plaintiff is presumed to know that a city can only act through its city council and at a regular or called session thereof. That rule of law applies with equal force to the Board of Drainage Commissioners herein. Here, no factual controversy requiring the hearing of evidence arose, no evidence was offered by either party and this case was properly decided upon motions of the respective parties for a judgment on the pleadings.

We hold that the trial court did not err in denying the motion of the plaintiff for judgment on the pleadings nor in allowing the motion of defendant and entering judgment thereon in favor of the defendant in bar of suit and for costs. The judgment and orders of the circuit court of Morgan county are, therefore, affirmed.

Judgment affirmed.


author: Mr. Justice. Dady

text:
    Ray O’Hara, Appellee, v. Central Illinois Light Company, Appellant.
    Gen. No. 9,379.

      Opinion filed May 27, 1943.
    C. V. Frings, of Pekin, and J. J. Alloy and Emerson T. Anthony, both of Peoria, for appellant.
    William M. Coppel, of Havana, and. Velde & Prettyman, of Pekin, for appellee.
   Mr. Justice. Dady

delivered the opinion of the court.

Plaintiff recovered a judgment for $5,000 against defendant for personal injuries alleged to have been sustained as the result of an electric shock, claimed to have been received when he touched an electric clock which hung on the wall of the kitchen in a farm house. Defendant appeals.

On Sunday, February 11, 1940, plaintiff lived in the home of George Eidman, where he was employed as a farm hand. The house was lighted with electricity supplied by defendant. By means of poles and wires erected and maintained by defendant, electricity of about 2300 volts was conveyed over primary wires to a pole located about 75 feet from the farm house.

Electricity was conveyed from such pole to the house by secondary wires. On the pole defendant maintained an electric step-down transformer, which, if properly built and maintained, would reduce the voltage flowing from the primary wires to the secondary wires so that the voltage entering the house would be between 110 and 120 volts.

The kitchen was on the north side of the house. Immediately south of the kitchen was the dining room. The kitchen floor was of wood and was covered with linoleum. Between the floor and.the earth below the floor was an air space. '

On the south side of the kitchen, near the southwest corner, there was a cookstove. Close to the northwest corner was a cream separator, and close to the northeast corner was a wash stand which had no pipe connection. The clock in question hung about six feet from the floor, and on the north wall of the kitchen, by means of a nail. About two feet to the left of the clock was a wall socket with which the clock was connected by means of an extension cord and plug, the cord being about three feet in length.

Plaintiff testified that there was no metal on his person; that he was wearing shoes; that he walked from the dining room into the kitchen and was going to reset the clock which had stopped; that he was not touching any “.article of furniture”; that as he reached with his right hand and touched the clock that was “the last thing” he knew and he did not know what happened.

George Eidman testified that he was sitting in the dining room but could see the clock, which had stopped a few minutes after 12 noon; that plaintiff left the dining room saying he would start the clock, and reached with his hand to take the clock from the wall and was knocked back against the south wall of the kitchen; that plaintiff then or soonlhereafter entered the dining room and sat in a chair until Doctor Wright came, during which time plaintiff was “groggy”; that Mrs. Eidman at once ‘phoned Dr. Wright, but the doctor did not come until about 2 p. m.; that witness saw plaintiff’s right arm was burned.

Eidman further testified that after the plaintiff reentered the dining room Eidman pulled the connecting cord and then attempted to take the clock from the wall, but the clock was too hot to handle, so he waited until it had cooled and then removed it from the wall.

Mrs. Eidman, the only'other occupant of the house at the time in question, died before the trial.

Doctor Wright, a witness for plaintiff, testified that about 3 p. m. he arrived at the Eidman home; that plaintiff was sitting in a chair partially conscious and seemed to be in agony and pain; that he saw no burn on plaintiff’s clothing, but on removing the shirt of plaintiff saw that plaintiff had a third degree burned .area on the right forearm which extended from about one inch above the wrist to about one and one-half inches below the elbow, and a lesser burned area, not a severe bum, on the left arm; that the burn on the right arm was a third degree burn which would include some of the muscles; that he discovered the next day that the plaintiff had bums on each leg, anteriorly, about two inches above the ankle; that the burn on the right leg was about one and one-half or two inches long and one inch wide.

Doctor Jordan, a witness for plaintiff, testified to having had considerable experience with cases of electric shock and electric burns; that death might be caused by 110 volts, as in a bath tub where a person injured is well grounded; that injuries from voltages of 110 to 115 volts are of two types, either resulting in minor burns or in instant death, but not in third degree -burns; that third degree burns usually have to be.caused by over 1000 volts; that voltages of from 10Q0 to 4000 volts cause third degree bums; that when there is little or no current a house voltage of from 110 to 115 volts causes minor burns, but not third degree burns. He further testified that he first saw and examined the plaintiff on February 23, 1942; that plaintiff then had a scar on the right forearm about three inches long and one quarter inch wide, deep enough to involve the muscles, and on the same forearm there was a large area occupying almost two thirds of the flexor surfacé which was anesthetic or devoid of sensation; that the left arm had a scar on the flexor surface two inches in diameter; that the right leg, on the inner surface, had a scar 3x1% inches in length, and the left leg, on the inner surface, had a scar about two inches in diameter; that there was a definite permanent loss of strength in the right arm as a result of such injury, but there was no loss of muscular tissue of the left-arm or legs.

Plaintiff offered no evidence tending to show any specific negligence, but relied solely on the doctrine of res ipsa loquitur.

Whether or not the foregoing testimony was true was a question of fact for the jury. If true, then such evidence shows or tends to show that plaintiff, while in the exercise of reasonable care, was injured through receiving an excessive voltage of electricity of from 1000 to 2300 volts, which obviously must have come from the primary wires of the defendant. If such evidence was true, then, in our opinion, the doctrine of res ipsa loquitur is applicable. (See Feldman v. Chicago Rys. Co., 289 Ill. 25; Chicago Union Traction Co. v. Giese, 229 Ill. 260; Goddard v. Enzler, 123 Ill. App. 108; San Juan Light & Transit Co. v. Requena, 224 U. S. 89, 56 L. Ed. 680, and cases cited in note in 32 L. R. A. (N. S.) 848.)

The doctrine of res ipsa loquitur is that whenever a thing which produces an injury is shown to have been under the control and management of the defendant, and the occurrence is such as, in the ordinary course of events, does not happen if due care has been exercised, the fact of injury itself will be deemed to afford prima facie evidence to support a recovery in the absence of any explanation by the defendant tending to show that the injury was not due to his want of care. (Bollenbach v. Bloomenthal, 341 Ill. 539.)

The defendant contends that the complaint charges specific negligence and that for this reason the doctrine of res ipsa loquitur cannot apply. The complaint contains four counts. ■ Assuming, but not holding, that each of the first three counts charges specific negligence, the fourth count, in our opinion, merely charges negligence in general terms. Such count charges that the defendant negligently permitted its manufacturing plant and other machinery to become and remain out of repair so that surges of high voltage electricity were conducted in and through said wires in such a manner that a voltage greater than the customary voltage of 115 volts was allowed to enter in and through the wires of the farm house, and as a result thereof the plaintiff, while attempting to reset an electric clock, touched the clock, and received a shock and was injured. Under such count, plaintiff could rely on the doctrine of res ipsa loquitur to support the general allegations, even though the other counts did charge specific negligence. (See North Chicago St. Ry. Co. v. Cotton, 140 Ill. 486; Feldman v. Chicago Rys. Co., 289 Ill. 25.)

Applying the doctrine of res ipsa loquitur, after the plaintiff rested his case it devolved on defendant to introduce evidence, which, taken in connection with the evidence of the occurrence, conditions and circumstances, would overcome the inference .or presumption that the defendant had failed to exercise due and ordinary care. (Chicago Union Traction Co. v. Giese, supra; Bollenbach v. Bloomenthal, supra.) To meet such prima facie case the defendant introduced evidence which, if true, showed or tended to show that excessive voltage, if any, would have had to pass through the transformer in question from the primary wires to the secondary wires; that the transformer was of standard make, suitable for the purpose of- reducing voltage from 2300 volts to between 110 and 120 volts; that after the accident the transformer was tested and found to be in good working order and in no way defective; that at the time of such tests no excessive voltage was entering the house; that the primary wires, as well as the secondary wires, which connected the meter in the house, were properly installed and in no way defective; that the system was properly grounded, and the fuse boxes and the main fuse in the house were found normal; that if a current of electricity flowed from the clock there would be visible indications on such clock of such flow, but there were no such indications. Defendant also introduced evidence which, if true, showed or tended to show that dry wood is an excellent insulator against an electrical current, that if there were 2300 volts of electricity in such clock a man standing on a dry wooden floor, with an air space under the floor, could not receive an electric shock by touching the clock, provided he had no metal object about him and touched the clock with one hand, because such man was not grounded.

Defendant also produced medical testimony which tended to show that the burns received by plaintiff: . were not of the type caused by large electrical voltages. One of such witnesses testified that it would take more than 110 volts to get a very severe burn.

Defendant contends that having introduced such evidence, all presumptions of negligence vanished, and that under the authority of Bollenbach v. Bloomenthal, supra, it was error for the court to deny the defend.ant’s motion for a directed verdict at the conclusion of all the evidence.

We do not agree with this contention. We cannot say as a matter of law that in this case all presumptions of negligence vanished, but it is our opinion that the question of whether the defendant offered such ex? planation of the accident as to relieve itself of the presumption of negligence was a question of fact for the jury. (See Alton Railway & Illuminating Co. v. Foulds, 81 Ill. App. 322; Drake Standard Mach. Works v. Brossman, 135 Ill. A.pp. 209.) In Humphrey v. Twin State Gas & Electric Co., 100 Vt. 414,139 Atl. 440, 445, 56 A. L. R. 1011, the court said: “There was evidence, to be sure, tending to show that the defendant had discharged the duty of care which the law imposed upon it. But the current escaped. Whether the tie wire broke without defendant’s fault, or whether it broke through insufficiency in size and strength, through lack of guying, or through other causes for which the defendant was chargeable, was an open question, too plainly for the jury to merit discussion. Our attention is not called to a single case, within the range of the maxim (res ipsa loquitur), in which the proof was such that a defendant’s verdict was directed. Indeed, Chief Justice Marshall says in the Glowachi case, above cited, that no such case is to be found in the books.” (See also Orr v. Des Moines Elec. Light Co., 213 Ia. 127, 238 N. W. 604; Fox v. Keystone Tel. Co., 326 Pa. 420,192 Atl. 116; Peterson v. Minnesota Power & Light Co., 207 Minn. 387, 291 N. W. 705; Mares v. Netv Mexico Public Service Co., 42 N. M. 473, 82 P. (2d) 257.)

Defendant contends that it cannot be held liable because the evidence shows that it did not install and had no control of the wiring in the Eidman house, plaintiff having offered no evidence to show such wiring was properly installed or in good condition. It. is sufficient, to..say that there was no evidence-tending to show that the wiring in the Eidman house had anything to do with the production or escape onto the secondary wires of the alleged excessive voltage.

Defendant further contends that under the evidence it was scientifically impossible for the plaintiff to have received electrical burns on his arms and legs in the manner alleged by him because of his not being grounded. One factor to be considered in determining whether plaintiff was grounded was the condition of the floor at the time of the accident. Defendant insists that the evidence shows conclusively that the floor was dry and could not furnish a ground for the plaintiff. The only evidence on this subject was that of the plaintiff himself who testified that “there was no water on the floor.” Obviously this statement did not exclude the possibility of the floor being sufficiently damp to furnish a conduit or ground for electricity.

We think that the trial court properly denied the motion for a directed verdict made by the defendant both at the close of plaintiff’s case and at the close of all of the evidence.

We shall now discuss the alleged errors which defendant claims entitle it to a new trial.

Plaintiff’s ninth instruction was a mandatory instruction which did not correctly state the law in that it imposed on the defendant an absolute duty to control and regulate the voltage of electricity delivered so as not to endanger plaintiff’s life and limb. Defendant was under no such absolute duty but was only required to use reasonable care, commensurate with the known danger associated with the transmission of electricity. (Austin v. Public Service Co., 299 Ill. 112; Bissel v. Eastern Ill. Utility Co., 222 Ill. App. 408.) In the Bissel case, supra, plaintiff brought suit to recover damages resulting from the alleged failure of the defendant company to furnish electricity according to the terms of a certain ordinance. One- of the instructions given on behalf of the plaintiff informed the jury that “it became and was the duty of the defendant to furnish to plaintiff a continuous, constant and adequate supply of electricity for the lighting and use in a place of business.” In condemning this instruction the court said at page 415: “This instruction states the duty of appellant in stronger terms than is warranted under the law. It, in effect, makes appellant a guarantor of continuous, constant and adequate service. It was the duty of appellant to use all reasonable care to give adequate service and that is all the law requires.” We think the instruction here complained of is subject to the same criticism as the instruction in the Bissel case.

Ten instructions were given at the request of plaintiff, four of which in almost identical language advised the jury that they could consider the pain and suffering of plaintiff and his expenses, loss of health, etc., in assessing plaintiff’s damages. Although we recognize that some latitude should be allowed in giving sufficient instructions to cover every phase of a damage claim, we can see no justification in repeating practically identical instructions on the subject of damages. Such repetition has been held to be error in Kahl v. Chicago M. & St. P. Ry. Co., 125 Ill. App. 294; Meachem v. Henry Hahn & Co., 46 Ill. App. 144. Defendant complains of plaintiff’s given instructions five and six. Instruction five applies the doctrine of res ipsa loquitur to the facts of the present case. Instruction six contains an abstract statement of the res ipsa loquitur doctrine. We do not think that the giving of instruction five was error. We see no reason for repeating the res ipsa loquitur doctrine by the giving of instruction number six.

Defendant makes the further contention that the court should have given its instructions numbered four, five, six and eight. We think that defendant’s instructions four, five, and eight were properly refused. As to instruction number six defendant was not prejudiced by the refusal of the court to give such instruction inasmuch as the same subject matter was included in defendant’s given instructions eight and ten.

Plaintiff has made nq attempt to justify the action of the trial court in the giving and refusal of any of the foregoing instructions but relies solely on the rule that instructions should be considered as a series. We have considered all of the instructions given in this case and we are of the opinion that the damaging effect of plaintiff’s instruction number nine and the repetitious instructions on damages which we have already referred to was not lessened by the other instructions given in the case.

Defendant also complains of error in the action of the trial court in permitting plaintiff over defendant’s objection to roll up his sleeve and exhibit to the jury certain scars on his right arm. In Wagner v. Chicago R. I. & P. Ry. Co., 277 Ill. 114, the court said: “Whether one who is injured may exhibit an injured member to the jury is primarily in the discretion of the trial court, and it is properly exercised in any case where the personal view will aid the jury in understanding the evidence, and that may be so where there is no controversy concerning the .injury nor the extent of it, as was the fact in this case. . . . Where, however, the only purpose and effect of an exhibition of that kind is to excite feeling rather than .to enlighten the jury as to any fact or to aid in settling any disputed question of fact it should not be permitted. In this case there was not only no controversy concerning the injury nor the extent of it, as was stated at the time of the proposed exhibition, but the evident purpose was to excite in the minds of the jury pity and commiseration for the condition of the plaintiff and thereby to increase the damages. The exhibition for the purpose which the record shows was intended should not have been allowed, and if it now appeared that the damages allowed were excessive it would be necessary to reverse the judgment.” In the case at bar plaintiff’s arm contained scars not only from the alleged electrical burns but also from more recent burns caused by scalding. In our opinion the exhibition of the plaintiff’s arm did not tend to throw any light on any issue in this case and under the particular circumstances involved should not have been permitted.

Defendant contends that the trial court also erred in permitting the plaintiff to introduce further proofs after both sides had rested and after a motion by defendant for a directed verdict had been disposed of and the court had adjourned until the following morning. The evidence complained of will be available to plaintiff upon a retrial of the case and there is no possibility of this alleged error being repeated. Under these circumstances we do not deem it necessary to make any further comment on the action of the trial court in admitting such evidence.

It is our opinion that the errors indicated are sufficient to require a new trial. Therefore, the judgment of the trial court is reversed and the cause is remanded to such court for a new trial.

Reversed and remanded.