text:
    Harry Swirsky, Appellee, v. Rose Horwich, etc., Appellant.
    Gen. No. 42,686.

      Opinion filed November 17, 1943.
    Rehearing denied December 27, 1943.
    I. Archer Levin, of Chicago, for appellant.
    Spitz & Adcock, of Chicago, for appellee; Edward Blackman, of Chicago, of counsel.
   Mr. Justice Burke

delivered the opinion of the court.

On February 26, 1938 Harry Swirsky and Irwin Horwieh, by oral agreement, formed a partnership for the purpose of dealing in new and used automobile and truck parts, tires and waste materials. Pursuant to the oral agreement, on March 1,1938, the partners purchased from J. E. Kramer the going business, including assets and good will, known as the Englewood Auto Parts, located at 6514-30 S. State street, Chicago. The purchase price was $17,500. The partners paid Mr. Kramer $4,000 in cash, each contributing $2,000. The balance of the purchase price, namely, $13,500 was to be paid by the partners in instalments of $1,000 within 30 days and $100 per month thereafter, with interest at 5 per cent per annum, the indebtedness being secured by a chattel mortgage. They agreed that each would devote his full time to the business, contribute equal investments and that the profits and losses would be divided equally.- Harry Swirsky was married to Estelle Swirsky and Irwin Horwieh was married to Rose Horwieh. The partners continued to conduct the business thus acquired under the trade name of Englewood Auto Parts and at the same location, namely 6514-30 S. State street, Chicago, which premises were occupied under a leasehold. On March 15,1939, they purchased the real estate located at 6546-48 S. State street, situated a short distance south of the premises where the business was being conducted. The purchase price was $3,000, ,of which $500 was paid by the partners. The balance of $2,500 was borrowed from Nathan Benditzson. Title was taken in the name of Isadore Benditzson in order to secure Nathan Benditzson for the amount advanced. Irving Greenfield, an attorney, who represented the copartners in the •transaction, collected the rents and made distribution of the surplus, including payments to Nathan Benditzson on account of the $2,500 so borrowed from him. Irwin Horwich died on November 22, 1940, and his widow Bose was appointed administratrix of his estate.

On January 17, 1941, Harry Swirsky filed a verified complaint in chancery in the superior court of Cook county against Bose Horwich, individually and as administratrix of the estate of Irwin Horwich, deceased, Isadore Benditzson, .Irving Greenfield, Mutual Life Insurance Company of New York, Metropolitan Life Insurance Company, Equitable Life Assurance Society of the United States and New York Life Insurance Company. Paragraphs 7, 8, 9 and 10 of the complaint read:

“Par. 7. That on or about the 27th day of December, 1938 said co-partners agreed to and did purchase $20,000.00 worth of life insurance with the Mutual Life Insurance Company of New York; that each individual partner was the insured of $10,000.00 of said life insurance and each individual partner designated the beneficiary of said policy; that at said time the said co-partners agreed that in the event of the death of either co-partner the sum of $10,000.00 or whatever other sum would be payable to the deceased partner’s' beneficiary upon said insurance policy would be credited to the co-partnership and that thereafter said co-partnership’s net assets including the credit of said $10,000 or any other sum so credited for insurance would be divided equally between the surviving partner and the deceased partner’s heirs or beneficiaries, and that the proceeds of any additional insurance thereafter purchased by said co-partnership would likewise upon the death of either partner be credited to said co-partnership business as aforesaid.
“Par. 8. That on or about July 19, 1940 said co-partners agreed to and did purchase additional insurance hereinafter mentioned; on said date the total life insurance of which each partner was the insured was as follows:
Irwin Horwich
Name of Insurance Co. No. of Pol. Amt. of Ins. Amt. of Prem.
New York Life Insurance Company 12146571 $2,000.00 $44.98
Metropolitan Life Insurance Company 11432997 2.500.00 57.50
Mutual Life Insurance Co. of New York 5447992 10,000.00 281.30
Equitable Life Assur. Society of U. S. 11175479 2.500.00 95.28
$17,000.00 $479.06
Harry Swirsky
No. of Amt. of Amt. of Name of Insurance Co. Pol. Ins. Prem.
Metropolitan Life Insurance Company 6561794 $1,000.00 $16.95
Metropolitan Life Insurance Company 11919570 1,825.00 60.00
Mutual Life Insurance Co. of New York 5447632 10,000.00 259.10
Equitable Life Assur. Society of U. S. 11175487 4,000.00 151.16
$16,825.00 $487.21
that said partners further agreed at said time that in the event of the death of either partner that the insurance proceeds payable to the deceased partner’s beneficiary as designated in this paragraph would be in full payment of the interest of the deceased or his heirs or beneficiary in and to the said co-partnership business and assets, the surviving partner assuming and agreeing to pay all liabilities of said co-partnership ; that said agreement further provided that the legal representative of said deceased partner would execute a Bill of Sale or some other document to convey to the surviving partner all interest in said co-partnership; that said agreement of the co-partners superseded the agreement described in paragraph 7 herein; that after the death of said Irwin Horwich on November 22, 1940 this plaintiff, who is the surviving co-partner, requested Rose Horwich, his legal representative, to execute a Bill of Sale to the plaintiff in accordance with the agreement described aforesaid, but she refused to do so and still refuses so to do.
“Par. 9. That on or about the 15th of March, 1939 the said co-partnership purchased the following described real estate, to-wit: The South 50 feet of the North 52 feet of Lot Four (4) in Block Eleven (11) in Skinner and Judd’s Subdivision of the Northeast Quarter of Section Twenty one (21), Township Thirty eight (38) North, Range Fourteen (14), East of the Third Principal Meridian, Cook County, Illinois, also known as and described as 6546-48 South State Street, Chicago, Illinois; that the property was taken in the name of Isadore Benditzson, one of the defendants herein; that upon the death of said Irwin Horwich on the 22nd day of November, 1940 title to said real estate immediately vested in and belonged to the plaintiff in accordance with the agreement heretofore described in paragraph 8; that said real estate was purchased for the sum of $3,000.00, $500.00 thereof was paid on account by said co-partnership business and the balance of the purchase price was borrowed from Nathan Benditzson; that payments were made on account of said monies due and owing to said Nathan Benditzson from time to time out of the net proceeds of the operation of said property, the exact payments of which are unknown to this plaintiff; that request has been made of said Isadore Benditzson to convey said real estate to this plaintiff but up to date he has refused so to do.
“Par. 10. That Irving Greenfield, an attorney at law, represented said co-partnership business in con-' nection with the purchase of the real estate described in paragraph 9 hereof; that since the purchase of said real estate the said Irving Greenfield has been collecting the rents and making distribution for expenses in connection therewith and also making payments due to Nathan Benditzson; that plaintiff has requested an accounting from the said Irving Greenfield in connection with the operation of said property but up to date he has refused to render this plaintiff an accounting of his acts and doings from the date of the purchase of said property to the present date hereof. ’ ’

Plaintiff prayed that the court enter a decree finding that upon the death of Irwin Horwieh he (plaintiff) became the sole owner of all of the partnership business known as Englewood Auto Parts; that the rights of plaintiff in and to the insurance proceeds payable to Mrs. Horwieh be adjudicated; that she in her individual capacity and as administratrix be directed to execute a bill of sale conveying to him (plaintiff) all of the assets and good will of the business and that upon her failure so to do the court direct a master in chancery to do so; that Isadore Benditzson be directed to execute and deliver to him (plaintiff) a deed conveying the real estate described in paragraph 9; that upon his failure so to do that a master in chancery be directed to do so; and that Irving Greenfield be required to account to plaintiff for all income and disbursements made in connection with the real estate. Plaintiff made an affidavit that he had read the complaint by him subscribed, knew the contents and that “the same is true in substance and in fact.”

Rose Horwich, individually and as administratrix, Isadore Benditzson and Irving Greenfield filed a motion to strike and dismiss the complaint. The chancellor, after hearing arguments, entered an order that the complaint, and particularly paragraphs 7 and 8 thereof (setting forth the alleged oral agreements between the parties as to the insurance) did not set up a cause of action affecting the right of Mrs. Horwich to receive the proceeds from all of the life insurance policies issued on the life of her deceased husband, in which policies Mrs. Horwich was named as beneficiary; that Mrs. Horwich was entitled to the proceeds of the policies without compromising, releasing or waiving any of her rights as the widow and heir-at-law of Irwin Horwich, and unaffected by the alleged oral agreements pleaded in paragraphs 7 and 8 of the complaint. The order struck the complaint so far as it attempted to set forth a claim in favor of plaintiff (the surviving partner) against the proceeds of the life insurance policies on the life of Irwin Horwich described in paragraph 8 of the complaint, in which Mrs. Horwich ivas named as beneficiary, and so far as it was proposed to charge or affect the proceeds of such policies and the rights of Mrs. Horwich as beneficiary therein. The defendants were required to answer within 10 days. The clerk was directed to pay to Mrs. Horwich the proceeds of the insurance policies on the life of her deceased husband, which sums had theretofore, pursuant to order of court, been deposited with him. This was done and the insurance companies were dismissed from the case. The answer of Mrs. Horwich, individually and as administratrix, admitted the allegations of the complaint relating to the formation of the partnership, the purchase of the partnership business, the terms of the purchase, the death of her husband and her appointment as administratrix. The answer further admitted the purchase by Irwin Horwich of the $10,000 life insurance policy on his life on or about December 27, 1938, in which she was named as beneficiary, and also admitted the purchase of all other policies mentioned in the complaint on the dates the respective policies bore, by Irwin Horwich, in which she was also named as beneficiary, and stated she had no information as to the policies alleged to have been purchased by plaintiff. She admitted the purchase of the real estate by the partners and the terms of the purchase, and denied the allegations relating to any and all oral agreements alleged to have been entered into between plaintiff and Irwin Horwich affecting the proceeds of any and all insurance policies on the life of Irwin Horwich, and his interest in the partnership business and assets at his death, and denied that plaintiff was entitled to the relief prayed. She also asked that the complaint be dismissed for want of equity and for failure to set forth a cause of action as more specifically set forth in the motion to strike.

The answer of Isadore Benditzson admitted he held title to the real estate for the two partners to secure the balance of the purchase price due to Nathan Benditzson, and stated there was a balance due of $873.20 on the original loan of $2,500. The answer of Irving Greenfield admitted that he collected the rents from the real estate and stated that from such rents he had been paying the necessary expenses in connection with the operation and maintenance of the real estate, and the sum of $1,626.80 on account of the loan from Nathan Benditzson. The cause was referred to a master in chancery, who, after hearing the evidence made his report finding the equities in favor of plaintiff and recommending the entry of a decree granting the relief prayed. Following the filing of objections to the report, the master filed a supplemental report. The master then overruled all objections to the report and supplemental report. The chancellor allowed the objections to stand as exceptions. He entered a decree sustaining the master’s findings and recommendations. This decree, among other things, found that an oral agreement existed between Harry Swirsky and Irwin Horwieh as partners relating to the insurance; that the agreement was made on or about December 27, 1938, when $10,000 in life insurance was procured on the life of each partner; that the oral agreement provided that upon the death of either partner the life insurance of such partner would be paid to the deceased partner’s heirs or beneficiary and that the surviving partner would take the partnership business and assets free from any claim of the deceased partner’s heirs, but subject to the partnership debts; that on or about July 22, 1940 additional insurance was purchased under the same oral agreement and that the insurance on the life of each of the partners which they had prior to entering into the partnership was also brought into the agreement. The decree further found that oral agreements of partnership or between the partners are not within the statute of frauds; that there was ample consideration for the agreement; that the oral agreement did not amount to a testamentary disposition of the interest of the deceased partner in the partnership business and was not void for failure to comply with the statute of frauds; that the agreement amounted to an executory agreement to be performed upon the death of one of the partners and determined the rights of the parties in and to the partnership property and was founded on good consideration. The decree further found that Irving Greenfield managed the property at 6546-48 S. State street, Chicago; that he filed his account showing the receipts and disbursements for the period ending December 15, 1941; that no objections were filed to the account; that the account showed receipts of $2,341.26 after payment of all operating expenses, that $1,500 had been paid upon the principal balance of $2,500 due to Nathan Benditzson, and that interest in the amount of $372 was also paid; that there was then due to Nathan Benditzson, on account of moneys advanced to the partnership for the purchase of the property, the sum of $1,000, together with interest; that Irving Greenfield had on hand a balance of $469.26, which should be paid to Nathan Benditzson in further reduction of the amount due to him. The decree overruled the exceptions to the report and found the issues in favor of plaintiff and directed that the partnership business, including all of the assets, belonged to the surviving partner Harry Swirsky as of November 22, 1940, the date of the death of Irwin Horwich, subject to the payment of all partnership liabilities and free from any claim on the -part of Mrs. Horwich, as administratrix, and the heirs of Irwin Horwich, deceased. Mrs. Horwich, as administratrix, was directed to convey all her interest in and to the partnership property to plaintiff. The decree further found that the real estate purchased by the partners became the property of the surviving partner on November 22, 1940, and defendant Irving Greenfield was ordered to pay the sum of $469.26, together with any other sum collected by him in the management of the property since December 15, 1941, to Nathan Benditzson, to 'apply on the balance of $1,000 due the latter. The court retained jurisdiction of Bose Horwich, as administratrix, Irving Greenfield and Isadore Benditzson for the purpose of enforcing the decree. Bose Horwich, as administratrix of the estate of Irwin Horwich, deceased, appealed to the Supreme Court. That court decided that a freehold was not involved and transferred the case. (Swirsky v. Horwich, 382 Ill. 468.)

Defendant urges that plaintiff did not prove the alleged oral agreement between himself and Irwin Horwich relating to their insurance and to the disposition of a deceased partner’s interest in the partnership business and assets as found by the decree. Plaintiff asserts that there was an oral agreement between the partners which provided that in the event of the death of either partner the deceased beneficiaries or heirs would get the insurance and the surviving partner would get the business. Plaintiff, being a party in interest, was not permitted to testify in his own behalf with respect to the alleged oral agreement relating to insurance. In paragraph 7 of the sworn complaint, however, plaintiff states that on or about December 27, 1938 “said co-partners agreed that in the event of the death of either partner the sum of $10,000.00 or whatever other sum would be payable to the deceased partner’s beneficiary upon said insurance policy would be credited to the co-partnership and that thereafter the said co-partnership ’s net assets including the credit of said $10,000.00 or any other sum so credited for insurance would be divided equally between the surviving partner and the deceased partner’s heirs or beneficiaries, and that the proceeds of any additional insurance thereafter purchased by said co-partnership would likewise upon the death of either partner be credited to said co-partnership business as aforesaid.” It will be observed that the master found that the agreement of December 27, 1938 provided that upon the death of either partner the life insurance of such partner would be paid to his heirs or beneficiaries and the surviving partner would take the partnership business and assets free from any claim of the deceased partner’s heirs, but subject to partnership debts. The finding of the master is not consistent with the allegations of the verified complaint. The master also found that on or about July 22,1940 additional insurance was purchased under the same agreement. It appears that the master’s report and the decree do not have in view the oral agreement of December 27, 1938, stated in paragraph 7 of the complaint as superseded by the alleged oral agreement of July 19, 1940, which it was alleged “superseded the agreement described in paragraph 7.” We agree with defendant that the sworn statements in the nature of admission contained in the complaint, should be given "due weight in determining the equities. It was not necessary that these statements be introduced into evidence. They are a part of the pleadings. The plaintiff swore that he read the complaint, knew the contents and that “the same is true in substance and in fact.” The evidence offered by plaintiff to prove the oral agreement consisted of the testimony of a number of witnesses as to statements and declarations alleged to have been made to them at different times by Irwin Horwich. None of these witnesses was present at the time the alleged oral agreement was made and no one heard the conversation between the partners in which the terms and conditions of the agreement were stated or discussed. We agree with the assertion of defendant that the declarations and statements alleged to have been made to these witnesses by the deceased partner do not fix the time, place, terms or conditions of the alleged agreement, either as set forth in the complaint or as found by the decree, and do not refer to the existence of such an agreement except by innuendo or by recollections on the part of such witnesses. We also agree that the statements by these witnesses are vague, indefinite and incomplete, and taken either severally or as a whole, do not establish the existence of the oral agreement as found by the decree. All of the policies were written on the individual lives of the respective partners, each named his benficiaries in his respective policies and each policy is payable to such beneficiaries unconditionally and without reference to any partnership business. The testimony of Ralph Brusslan and Cecil Alexander,- insurance brokers, tended to support the alleged agreement on which plaintiff now relies. It is significant that both of these witnesses testified that the partners had each of them write up a form of agreement relating to the insurance. Brusslan testified that he delivered this form to the partners and that they told him they would take it up with their attorney. Cecil Alexander stated that he delivered the form drawn up by his own attorney to the deceased partner and that the latter told him he wanted to show it to the “company’s attorney.” Irving Greenfield, attorney for the partnership, testified that both forms of agreement were submitted to him by Irwin Horwich; that he examined each of them and advised Mr. Horwich not to sign either of them and that he (Horwich) told witness that he would not sign them. The partners undoubtedly discussed taking out some kind of partnership or business insurance, or transferring the insurance they had to that form of insurance. The fact that the forms of agreement providing for partnership insurance were not signed, particularly after attorney Greenfield was consulted, supports defendant’s position that the minds of the parties did not meet on the terms of an oral agreement as to the disposition of the partnership assets and the insurance on the death of either partner. The premiums on the insurance policies, though paid for by partnership checks, were charged to the individual partners, the same as their drawing or expense accounts. This tends to support defendant’s contention. W. E. Brown, the bookkeeper of the partnership, testified as to a credit statement dated September 16, 1939, received in evidence as plaintiff’s Exhibit 10, given to the Chicago City Bank & Trust Company. He prepared the statement at the request of both partners on the date it bears. In the blank space relating to life insurance he filled in “$20,000” and showed the Englewood Auto Parts as beneficiary. He testified that he obtained this information from both partners; that between January and March 1939, he had a discussion with both partners with respect to charges on their books for insurance premiums on this “particular policy”; that he was asked by both partners to charge it as business expense; that at that time he did not know how to handle it and called the Internal Revenue Bureau in the presence of the partners for its suggestion as to the disposition of the matter, and was told that it could not be deducted for income tax as it was life insurance; that the Internal Revenue office asked if the policies were on the lives of the individual partners and witness stated they were; that he then asked “in regard to the insurance on the lives of the partners, whereby the business was charged with the partnership premiums, ’ ’ and was told that as it was not business insurance he could not deduct it for tax purposes. He charged it to the partners’ drawing accounts and that was the way it was carried on the books of the partnership. The balance sheet of the partnership business as of November 22,1940, the date of the death of Irwin Horwich, does not mention any partnership life insurance or life insurance on the lives of the individual partners, or the real estate as partnership assets. Mr. Brown also testified that the books kept by him for the partners from the time he began working for them did not disclose any partnership insurance. Exhibit 10 is the strongest bit of evidence supporting plaintiff’s contention. The fact remains, however, that while this exhibit refers to insurance of $20,000, with the Englewood Auto Parts as beneficiary, there was not at any time a policy of life insurance payable to the Englewood Auto Parts, as beneficiary, or in the sum of $20,000.

In appraising the testimony of the witnesses it is timely to bear in mind the rule that a court of equity will not decree the specific performance of a contract which depends upon oral testimony for its existence unless the proof is clear and explicit that such contract was made, and the contract itself must be certain and all of its terms clearly proven, and it must be founded upon a valuable consideration. We are satisfied that plaintiff has not proven the alleged oral agreement between himself and Irwin Horwich relating to their insurance and to the disposition of a deceased partner’s interest in the partnership business and assets. The evidence submitted falls far short of proving the alleged oral agreement with the certainty required to entitle him to specific performance as prayed. The Su7 preme Court found that the real estate was partnership property and that the interest of each partner in the partnership property, including lands, is the balance found to be due to him after the payment of all partnership debts and the adjustment of the partnership accounts between himself and the copartner.

Because of the' views expressed the decree of the superior court of Cook county is reversed and the cause remanded with directions to dismiss the complaint for want of equity at plaintiff’s costs.

Reversed and remanded with directions.

Kiley, J., concurs.

Hebel, P. J., took no part.


source: Caselaw Access Project

author: Mr. Justice Kiley

license: Public Domain

text:
    Farm Food Stores, Inc., Appellee, v. Emma Gianeschi and Eva Prendergast et al. Appeal of Louis Crotty, Appellant.
    Gen. No. 42,197.

      Opinion filed November 17, 1943.
    Mesirow, Kopald & Lorenz, of Chicago, for appellant; Benjamin S. Mesirow, of Chicago, of counsel.
    Joseph Lusteield, of Chicago, for appellee; Ode L. Rankin, of Chicago, of counsel.
   On Rehearing.

Mr. Justice Kiley

delivered the opinion of the court.

Defendant Crotty appeals from a decree entered November 3,1941, which made permanent a temporary injunction issued June 27, 1941, restraining the defendant Emma Gianeschi (called lessor herein) from renting, leasing, or permitting Crotty or any other person any part of her premises on Cicero avenue in Stickney, Illinois, for the sale of fireworks or any other merchandise considered competition to plaintiff during the period of its lease of part of the premises; and restraining Crotty or any other person from selling, etc., fireworks from the premises during the same period.

July 1, 1938, plaintiff, Farm Food Stores, Inc. entered into a lease for 10 years at $130 per month with lessor and her husband, for the north 68 feet of the property owned by them on the west side of the 6500 block south on Cicero avenue. The lease consisted of a printed form signed by Emma and Joseph Gianeschi and a typewritten sheet signed Joseph Gianeschi by Eva Prendergast fastened by clips demising to plaintiff (second party) the premises described as “6520 South Cicero Avenue, Clearing, Stickney, Illinois, being the North Sixty Eight (68) feet on Cicero Avenue,” of lessor’s property now used and occupied by plaintiff. Tbe lease in the printed form limited the use to the sale of dairy products, groceries, eggs, poultry and all food products. Clauses on the typewritten rider provide, among other things, that “second party shall be permitted to sell fireworks in the front of the premises herein described when, and if, the laws of the State of Illinois permit the same to be done,” and that lessors “will not rent or lease any of the premises now owned by them in the block adjoining the premises herein described for the sale of merchandise which shall be considered competition to the party of the second part. ’ ’

May 27, 1941, plaintiff wrote lessor, surviving joint tenant, that it was informed that she had leased, or was about to lease, the space in front of her premises to Crotty in violation of the lease, and saying it intended to take court action, if necessary, to protect itself. June 27, 1941, the complaint was filed setting out the letter, lease and plaintiff’s investment in good will in the fireworks business and lessor’s refusal to re-rent the premises in front of her home to plaintiff according to custom; its information May 26, 1941, that through Eva Prendergast, the daughter, Crotty was given a lease to those premises; its sending of a copy of the May 27th letter to Cro,tty and his occupation, preparations, and business on the premises nevertheless ; its investment in stands and probable irreparable loss; and its loss of profits to result from violation of the lease unless the injunction issued. The temporary injunction issued, Crotty’s motion to dissolve was denied, and no appeal taken.

Crotty’s sworn answer claims the rider provision relied on by plaintiff is unenforceable, being uncertain and refers to plaintiff’s exclusive business not to fireworks; that through Eva Prendergast he negotiated for the operation of a fireworks stand on premises adjoining plaintiff’s for tbe period from June 27 to July 4, 1941 at $500; that such proposed lease did not violate any claim or right of plaintiff’s; that he had made preparations to engage in the business; denies plaintiff’s irreparable damage, saying its remedy is at law; alleges the court’s lack of jurisdiction to issue the injunction; and prays that the complaint be dismissed. The answer of lessor and Eva Prendergast filed July 21, 1941, admits refusal to rent plaintiff the disputed premises; denies any violation of plaintiff’s lease and asks for a dissolution of the injunction.

Plaintiff says its claim against Crotty does not rest upon the lease but on latter’s invasion of its good will and profits. .We point out, however, that the latter presupposes a right in plaintiff and that right must arise, if at all, out of the lease. We must, accordingly, construe the lease to determine whether any right of plaintiff was threatened or invaded. Defendant points out that for plaintiff’s principal business a grant is made while the sale of fireworks is only permissive; and that the restraint on lessor in the lease applies only to the grant, for it rests on whether the sale of merchandise is “considered competition” and no consideration is needed for the plain term “fireworks.” He relies on Postal Telegraph Co. v. Western Union, 155 Ill. 335, where the policy of this State is announced as unfavorable to restrictions on the powers of alienation of property which should be strictly construed and, as a general rule, all doubts be resolved in favor of free use.

The temporary injunction issued June 27, 1941, “as prayed in said complaint.” The complaint prayed for the injunctive relief given in the decree. Although the complaint alleges 15 years of building of good will by plaintiff, the basis of the injunction was obviously the terms of the lease. The court construed the lease as prohibiting lessors from renting the lessees any of the premises owned by them in the block adjoining the premises therein demised for the sale of fireworks.

The vital issue is whether fireworks constitute merchandise coming within the protection of the prohibition against leasing any. premises of the lessors for the sale of merchandise which shall be considered competition to plaintiff. If they do, the prohibition protects plaintiff’s fireworks business.

The premises authorized for use in sale of fireworks are included in the premises demised. The provision limiting the use of the demised premises in the beginning of the lease is modified by the later fireworks provision and the two must be considered together to decide the question presented. Considered together, the premises are to be used exclusively for the sale of dairy products, groceries, eggs, poultry, all food products and fireworks when, and if, Illinois permits fireworks sold. The fireworks provision does not affect the quality of the demise, but only the limitation of use. We think it extended the use to include the sale of fireworks. According to the decree, the trial court heard evidence offered by plaintiff and since defendant has not preserved the evidence in the record, we must assume that the evidence supported the decree entered and that the trial court had the advantage of testimony to further clarify the intention of the parties. Since there is no doubt about the extent of the restraint on the alienation of the property, the principle in Postal Telegraph Co. v. Western Union, 155 Ill. 335 is not applicable.

The fact that plaintiff might have a remedy at law does not prevent the court’s issuance of the injunction. Southern Fire Brick & Clay Co. v. Garden City Sand Co., 223 Ill. 616. Crotty raises the interesting point that the court had no jurisdiction to enjoin him since he was not in privity with plaintiff and cites as authority University Club v. Deakin, 265 Ill. 257 and First Trust & Savings Bank v. Economical Drug Co., 250 Ill. App. 112. The first was a law case. The second an equitable action with facts different than here, contains dicta, supporting Crotty’s contention, which is misleading. We have been unable to find a case reported in this State with facts like those before us. In Frye v. Partridge, 82 Ill. 267, leading case, an injunction issued on a restrictive use agreement in favor of the devisee of one parcel of land against a subsequent purchaser of a different parcel from a common grantor. That case reviews the principles of leading cases of other jurisdictions and later Illinois cases— principally building restrictions — restate the principles with approval. Wiegman v. Kusel, 270 Ill. 520; Truney v. Shriver, 269 Ill. 164; Van Sant v. Rose, 260 Ill. 401; and O’Neill v. Wolf, 338 Ill. 508. The Frye case relied on a rule in Parker v. Nightingale, 6 Allen 341 (88 Mass. 341) that agreements restricting the use of real estate were enforceable in equity, regardless of their effect in law or whether there was privity between the parties; and held that a vendee with notice of, is bound by, a restrictive use agreement. We believe that what is true of restrictive clauses in deeds applies with equal force to a restrictive clause in a lease, where a subsequent lessee, of a common lessor, of other property has notice; and that plaintiff’s right may be enforced against Grotty if he had notice of it (Halloway v. Hill, 2 Chancery [Eng. Law Rept.] 621), on the principle that a party with knowledge of the just rights of another should not be permitted to defeat them. Rosen v. Wolff, 152 Ga. 578. For an opposite view see Taylor v. Owen, 2 Blackford’s Reports (Ind.) 301. Crotty’s notice being a question of fact, we must assume for reasons given hereinbefore that there was sufficient evidence on which the trial court could find that.Grotty had notice.

We have not considered any points related to the order for the temporary injunction since it was merged in the decree. It is our opinion that the decree should be affirmed.

Decree affirmed,

Burke, J., concurs.

Hebel, P. J., took no part.


text:
    Gottfried O. Mayer, Appellee, v. Ruth Mayer, Appellant.
    Gen. No. 42,221.
    Opinion filed November 17, 1943.
    Rehearing denied December 8, 1943.
    Zimmerman & Norman, of Chicago, for appellant; Edward A. Zimmerman, of Chicago, of counsel.
    Frederick C. Jonas, of Chicago, for appellee.
   Mr. Justice Kiley

delivered the opinion of the court.

This is a divorce action by a husband with a counterclaim for separate maintenance. The trial court found that the parties had been reconciled since the filing of the suits, and of its own motion dismissed the wife’s cross-complaint, and on the husband’s motion dismissed the complaint. The appeal is prosecuted on behalf of the wife. Her counsel made a motion to vacate the decree and incorporated in the motion by reference a verified petition of defendant, in which she admitted resumption of marital relations since the suits were filed. The petition claimed that the complaint should not have been dismissed except with findings that plaintiff’s charges were unfounded, and counsel argued that point in the trial court and does so here.

The questions raised are whether the court erred in dismissing plaintiff’s action without cross-complainant’s consent; whether it should have done so without finding that the charges were unfounded; and whether it should have set aside the decree to hear the question of the wife’s attorneys’ fees and expenses.

After the main pleadings were filed, plaintiff filed a petition asking the court to determine the question of custody and alimony. Defendant answered the petition asking for custody of the children, support and attorneys’ fees. Subsequently, plaintiff dismissed his petition and thereafter made a motion to dismiss both actions, in support of which he filed his affidavit stating that the parties had reconciled. The verified petition of defendant, filed at the time of the hearing on plaintiff’s motion, asserted the reconciliation was not in good faith and stated that she had resumed marital relations on the strength of plaintiff’s broken promises that he would dismiss his action “with prejudice” and pay her attorneys’ fees and expenses; that she had received only $250 for attorneys ’ fees on a preliminary custody issue, which sum had been used for her personal expenses; that she had withdrawn from their home; and asked for denial of the dismissal motion, except with findings that the charges were unfounded, and for attorneys’ fees, expenses and a restraining order.

At the final hearing on the dismissal motion, defendant denied the parties were living together, hut the record indicates that the court heard otherwise from the parties on the previous day, and we have read defendant’s admission in her verified petition. The court found the parties were reconciled up to the time of the hearing, living together with their children and holding themselves out as husband and wife.

Counsel for defendant and cross-plaintiff argue that under ch. 110, par. 176, Ill. Rev. Stat. [Jones Ill. Stats, Ann. 104.052], the court erred in dismissing plaintiff’s complaint without the former’s consent. Under the circumstances here the point has no merit, for the wife’s cross-action fell with the reconciliation. Counsel says the record does not sustain a finding of reconciliation. We believe there is ample basis for such a finding. He argues that the reconciliation was conditional. Every one is. He argues that equity, good conscience, public policy and good morals, require dismissal of the complaint only on a finding that the charges are unfounded, thus restoring defendant’s good name and saving her from a repetition of the charges. The court had no alternative to dismissing the actions, findings could not be made without a hearing, and the reconciliation condoned the charges with the implied condition.

On the question of fees, counsel for defendant contends that plaintiff should not be permitted to cause defendant to incur fees and expenses and then defeat her right to reimbursal by dismissing his action. Fees are sought for the cross-action as well as for defense. The finding of reconciliation raised the bar to the cross-action. (Smith v. Smith, 214 Ill. App. 302; Klemme v. Klemme, 37 Ill. App. 54), and there was no right in -cross-plaintiff to fees therefor. Newman v. Newman, 69 Ill. 167; McCulloch v. Murphy, 45 Ill. 256 and Steger v. Steger, 67 Ill. App. 533. As to the matter of fees and expenses for defending plaintiff’s action, counsel by hesitating to press defendant’s requests for fees before dismissal of the complaint, lost the opportunity. Anderson v. Steger, 173 Ill. 112; Druce v. Druce, 313 Ill. App. 169.

We believe the trial court acted properly in refusing to set aside the decree for the purpose of making findings or determining fees. It appeared that the family through forgiveness had come together. The court’s concern over the instant proceeding properly ceased with the reconciliation.

For the reasons given the decree is affirmed.

Decree affirmed.

Burke, J., concurs.

ITebel, P. J., took no part.


text:
    Booker T. Williams, Appellee, v. Dorothy Williams, Appellant.
    Gen. No. 42,240.
    Opinion filed November 17, 1943.
    Ellis & Westbrooks and Joseph J. Attwell, Jr., of Chicago, for appellant; Joseph J. Attwell, Jr., of Chicago, of counsel.
    No appearance for appellee.
   Mr. Justice Kiley

delivered the opinion of the court.

This is an appeal from an order dismissing defendant’s petition to vacate a divorce decree. No brief was filed by plaintiff in this court.

The record discloses the decree was entered November 12, 1940 in favor of plaintiff, providing alimony and attorneys’ fees for defendant in accordance with a stipulation entered into by the parties. Defendant’s cross-complaint was, on motion of defendant’s counsel, withdrawn. The decree discloses that Blaine Gr. Alston of the firm of Ellis & Westbrooks represented defendant at the trial, and at his suggestion in open court, a provision of the stipulation was modified. The decree disposed of the questions of divorce, custody of the child of the parties, and defendant’s alimony rights and attorneys’ fees.

July 26, 1941, a petition was filed by defendant’s sister and “Guardian,” represented by Ellis & West-brooks, seeking to vacate the decree on the ground that defendant was incompetent when the stipulation was signed and her condition known to plaintiff, but unknown to her attorneys; and the petition seeks a hearing on the merits, claiming financial provisions were inadequate; a modification of those provisions and attorneys’ fees. Plaintiff moved to strike the petition on the ground that the court had no jurisdiction to vacate the decree “after term time.” The trial court sustained the motion to dismiss.

No grounds are set forth in the petition to vacate which would justify the court in setting aside, in September of 1941, a decree entered in November, 1940. Sim v. Sim, 247 Ill. App. 321.

The order appealed from is affirmed.

Order affirmed.

Burke, J., concurs.

Hebel, P. J., took no part.


text:
    People of the State of Illinois ex rel. Rosemary Coryell, Appellee, v. George F. Barrett et al., Appellants.
    Gen. No. 42,299.
    Opinion filed November 17, 1943.
    George F. Barrett, Attorney General, for appellants ; Albert E. Hallett and William C. Wines, Assistant Attorneys General, of connsel.
    Michael F. Ryan, of Chicago, for appellee; Richard F. McPartlin, Jr., of Chicago, of connsel.
   Mr. Justice Kiley

delivered the opinion of the court.

This is a mandamus proceeding to reinstate plaintiff to the position of telephone operator in the Attorney General’s office and compel approval of payrolls carrying her name. Defendants abided by their amended motion to dismiss, which was denied and appealed from the judgment on the complaint.

The motion admits facts well-pleaded. Plaintiff became a civil service operator in 1938, with the ordinary duties of operating a switchboard and giving information to visitors at the office of the Attorney General. The legislature appropriated $1,500 per annum for one telephone operator in the Attorney General’s office for the biennium 1939 to 1941. For the next biennium $1,500 was appropriated for a clerk in that office, but no appropriation was made for a telephone operator and on July 15, 1941, plaintiff was discharged.

Plaintiff’s complaint charges that the duties of a civil service telephone operator are being performed by a temporary clerk, after plaintiff’s removal without cause, in violation of the civil service law that there was no abolition of her position, but simply a change of title and that the position continues and she has a right to be restored to it.

Defendants contend that executing ■ the writ would cause ouster of the incumbent, the clerk, without a right to be heard, in violation of the rule that whoever would be prejudiced or adversely affected must be made parties and that under the rule in Powell v. People, 214 Ill. 475, the Board was without jurisdiction since incumbent was not made a party.

Plaintiff says incumbent is a temporary political employee without right to the position and that fact distinguishes the Powell case, since the incumbent there was a civil service employee with civil service rights and also because there the relief prayed was directed at the incumbent’s ouster, while here, plaintiff asks only reinstatement. The effect of the reinstatement it seems to us would be the same regardless of the specifications of the prayer. Plaintiff makes the same distinction as to the balance of cases cited by defendant and says that incumbent has no right under the real position of telephone operator, since she took no examination and has none under the nominal position since she depends for tenure upon the Attorney General’s whim. Defendants say that, while their motion admitted all well-pleaded allegations, that the allegations that the incumbent is a usurper without right, is one which only incumbent could admit and that defendants were not competent to do so; and that the allegation presented an issue for determination. whether plaintiff or defendant had the right to the position on which defendant certainly should be heard, as determination against her would oust her and that we can hold incumbent is not a necessary party, only by holding that the position of clerk is not the same as telephone operator, while if we hold that, plaintiff’s case falls on the merits.

Defendants rely strongly on People ex rel. Markee v. Barrett, 383 Ill. 207. The court there said that there was no issue whether the position of senior stenographer and court reporter were the same, or whether plaintiff was entitled to restoration to the position of court reporter and, therefore, the court reporter was not a necessary party. The inference is, then, that since the issues here are whether the position of telephone operator and clerk are the same and whether plaintiff should be restored to the position of clerk, incumbent is a necessary party. We must consider, however, whethér there is any distinction between the quality of incumbent’s position and that of court reporter in the Marlcee case. Or, more precisely, whether incumbent has a legal right as the court reporter had. Defendants admit incumbent is not civil service. She has then, only such rights as her employer permits and no legal right to her place upon which she could maintain an action to force him to continue her employment against his will. Accordingly, there was no proper issue of any right in her, but only the question of plaintiff’s right. The senior stenographers and the court reporter in the Marlcee case had legal rights, since the former was civil service and we assume the latter was employed by contract. The incumbent in the Powell case was civil service and the relief prayed for was cancellation of his certificate and, accordingly, those cases do not apply here. Incumbent was not a necessary party.

It is agreed that the civil service law protects the person in the post and if the post of telephone operator has been abolished, plaintiff has no right. The question is not whether the Attorney General had improper motives, but what the legislature intended. It is agreed to that the terms “telephone operator” and “clerk” are not identical and defendants admit that there was no civil service classification for clerk. We must presume that the legislature meant clerk, not telephone operator, since they used the latter term in the 1939-41 Bill and the former in 1941-43. Plaintiff contends that the duties remain the same and that the legislature could not abolish the position therefor by simply changing the name. Question of duties is immaterial for the legislature did not define the duties of either. It established a clerkship in lieu of telephone operator. An administrator can impose on the legislature, but we cannot go behind the power of the legislature. It is common knowledge that department heads submit their requests to the legislature for inclusion in the appropriation bill and plaintiff says that while motives of the legislature cannot be attacked,.the same is true of the city council, and the Supreme Court has refused to permit the city council to circumvent the civil service law. The fact that the Attorney General employs incumbent in the position of clerk, but doing the work of telephone operator, is expressive of the legislative intent that the duties should continue. In view of the common knowledge referred to hereinabove, it is suggested that the Attorney General by having the title changed sought to evade civil service for political reasons. The point is not relevant to our decision.

The legislature can change the names of positions and nullify civil service without cause or reason. It is not restrained from abolishing a position it has created, either by eliminating it entirely or by changing its name. The appropriation bill is the law and we must presume that the legislature knows the items which make up the bill and what the law is intended to do. Since there is no civil service post of clerk, it must be presumed that the post of telephone operator was civil service and the clerk not, and its intention apparently was to change from one to the other.

Plaintiff’s rights were attached to the civil service post and since it has been displaced by a non-civil service post those rights have been lost. We cannot declare the act of the legislature invalid because of individual injustice, if it had authority to act. People v. Dunne, 258 Ill. 441. We believe cases involving cities which have adopted the Civil Service Act are not helpful, for such cities are bound by the act, but the legislature is not. Plaintiffs point out that, if this is so, the result might be complete abolishment of the Civil Service Law. The possibility that such a catastrophe might happen does not justify holding that the legislature would have no such power. People ex rel. Millner v. Russel, 311 Ill. 96.

For the reasons given the judgment of the superior court is. reversed.

Judgment reversed.

Burke, J., concurs.

Hebel, P. J., took nq part.


text:
    Bernice H. Biggs, Appellant, v. Theodore Bear and Edda Bear, Appellees.
    Gen. No. 42,317.

      Opinion filed November 17, 1943.
    Krohn & MacDonald, of Chicago, for appellant; Stuart B. Krohn and Ian P. MacDonald, both of Chicago, of counsel.
    Kirkland, Fleming, Green, Martin & Ellis, of Chicago, for appellees; William H. Symmes, David Jacker, Charles R. Morrow and John M. O’Connor, Jr., all of Chicago, of counsel.
   Mr. Justice Kiley

delivered the opinion of the court.

This is a personal injury action in which the court directed a verdict of not guilty and entered judgment thereon.

To test the court’s action we must assume plaintiff’s evidence to be true, favor her strongly in drawing legal inferences and consider then whether there is any evidence tending to prove the elements of her case. Under the issues plaintiff was required to prove that defendants violated a duty to warn her, their guest, of a dangerous arrangement of doors in their kitchen; and that while exercising due care and as a result of defendants’ failure to warn her, and their further negligence in failing to light and guard, and provide a landing between the door and the steps of the rear stairway, she fell down the stairs and was injured.

Plaintiff, with four other women, was invited to a 12:30 o’clock luncheon at defendants’ home and, before dessert, while they were stretching, she inquired for a washroom and, having been directed by “someone,” went toward one of three or four doors in the kitchen, all of which looked alike with nothing to distinguish them. Looking toward the door to which she was advancing, she opened it away ‘from her and stepped and looked simultaneously into the darkness. There was no landing and, not knowing of, or expecting, the stairway, she fell down ten or twelve steps and was injured. She had never been on the premises before, and before the luncheon she was shown partially about, but not shown the stairway and knew nothing of it.

The vital question is whether plaintiff was a licensee or invitee. If a licensee, the court properly directed the verdict, since there was no evidence of wilful and wanton misconduct. Roth v. Schaefer, 300 Ill. App. 464. No Illinois case cited is precisely applicable. In Fisher v. Jansen, 30 Ill. App. 91, plaintiff was a guest of a tenant of a multiple dwelling and the landlord was defendant. Chalmers v. Kolb, 9 F. (2d) 924 would appear to support plaintiff’s view, but it fades in the light of what is hereinafter stated. Several Illinois cases express the difference between the general terms licensee and invitee, but in none of them is the negligence alleged based on a social relationship. Milauskis v. Terminal R. Ass’n, 286 Ill. 547; Purtell v. Philadelphia Coal Co., 256 Ill. 110; and Pauckner v. Wakem, 231 Ill. 276. Each of those cases refers with approval to Plummer v. Dill, 156 Mass. 426, which refers to the leading case on the subject, Southcote v. Stanley, an English case reported in 1 Hurlstone & Norman’s Repts. 247, where it was held that a social guest in the host’s home must take the house as he finds it, with no greater right than a mere licensee. The English case was principally relied upon in Comeau v. Comeau, 285 Mass. 578, where the question of the right of a social guest, upon the ordinary negligence of his host, is thoroughly discussed and the holding of the English case was invoked to bar recovery. It appears that wherever the question has arisen, State courts have followed the English law. 45 C. J. 794 and notes; Gregory v. Loder, 116 N. J. L. 451, 185 Atl. 360; Greenfield v. Miller, 173 Wis. 184, 180 N. W. 834. The Comeau case wisely points out that not every person invited is an invitee as the latter term is used in the law of torts; and that a social guest becomes a member of the family of the host for the time being and cannot at the same time stand upon the strictly commercial transaction between the invitor and invitee in the law of torts. It also refers to the limitations upon the right of an automobile guest in Massachusetts to recover from a host, as we now point to our Automobile Guest Statute (par. 58a, ch. 95½, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 85.064(1)]) in support of the reasonableness of the rule that a social guest on the premises of the host is a licensee.

We need not consider any other points. The judgment is, accordingly, affirmed.

Judgment affirmed.

Burke, J., concurs.

Hebel, P. J., took no part.


text:
    People of the State of Illinois, Defendant in Error, v. Lee W. Reuter, Plaintiff in Error.
    Gen. No. 42,557.

      Opinion filed November 17, 1943.
    James J. Barbour, of Evanston, for plaintiff in error.
    Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, John T. Gallagher, Melvin S. Rembe and Joseph A. Pope, Assistant State’s Attorneys, of counsel.
   Mr. Justice Kiley

delivered the opinion of the court.

This is a criminal proceeding for violation of section 24 of the Medical Practice Act, chapter 91, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 79.25], and on a verdict against him, defendant was sentenced to 30 days on each of the first three counts of the information, with a fine of $150 on the second count. The court announced that probation would be allowed on the sentences which were to be concurrent. Counts 4 and 5 were quashed on defendant’s motion.

Using the name of Johnson, Charlotte Hermes, an investigator for the State Department of Registration and Education, went to defendant’s office in Chicago July 7, 1937 and paid $2 for what she claims, and the State charges, was a diagnosis of, and a prescription and treatment for a human ailment in violation of the Act.

The first three counts charge that defendant without a license to do so, unlawfully “diagnosticated” the “ailment” of Mrs. Hermes as “sinus trouble and nerve strain called ligatites”; that he treated the “alleged sinus trouble etc.” by “manipulating and applying pressure, etc.”, and that he suggested and recommended for the “alleged sinus trouble, etc.” the “manipulation, etc.” Each such specific charge following a videlicet is preceded by a general charge in the language of the statute.

Defendant contends that the counts should have been quashed as insufficient because indefinite and uncertain in the language of the statute and, the first because “sinus trouble and nerve strain called ligatites” are not human ailments and “supposed” ailments were excluded by the specific charge following the videlicet, and because the term “diagnosticate” did not inform defendant of the nature of the charge; the second, because the treatment described amounted only to a massage, which is lawful, and ‘ alleged sinus trouble, etc.” refers to “ailment” in the first count which is not really an ailment; and the third because prescribing a simple massage, which is all that is described, is not a crime, and the charge is not aided by the treatment described since reference is again made to the “ailment” in Count 1.

It is not the actual treatment described which is charged as a crime, nor the reason for the treatment, but the practicing without a license.

We believe that the information using the language of the statute with sufficient particulars of the acts alleged to have been committed by defendant, clearly defines the offense so that it was readily understandable by the jury and intelligible to the defendant and therefore sufficient. People v. Krause, 291 Ill. 64. Obviously, a pleader cannot define each word in a statute so that it will be intelligible to every person, and we believe the term “diagnosticate” in charging a crime under the Act involved was sufficient and not a conclusion.

Defendant contends that there is a fatal variance between the information and proof because the charge is, in the first count, that defendant diagnosticated Mrs. Hermes “ailment” and in the second count that he treated that ailment and in the third count that he prescribed for that ailment, while the proof shows and the State admits that she had no ailment. Mrs. Hermes testified that she had no headache when she saw defendant; had no sinus trouble or nerve strain, but that she pretended and the State admits this is so, but claims that the word “alleged” in the second and third counts is synonymous with “supposed” used in the general charges in the first and second count, and sufficiently wide to accommodate the proof made. The State was obliged to prove the elements of the offense beyond a reasonable doubt. Defendant says proof of a real ailment was essential. The Act in question was designed by the legislature to regulate the treatment of human ailments for the better protection of the public health. The means used for the design are regulations in the form of qualifications which must be met before those who seek to treat human ailments shall be licensed to do so. The punishments provided for violation of section 24 are the means provided to protect the public against those who would without license treat human ailments. In the light of the purpose of the Act, the important factor is not so much whether Mrs. Hermes was suffering from a human ailment, but whether defendant without a license did what section 24 prohibits. It is unreasonable to expect that in all cases, investigators employed to aid in enforcing the act, shall be suffering human ailments when making investigations. Defendant says, even if Mrs. Hermes had sinus trouble and nerve strain, no proof of the essential was made since they are not ailments and, accordingly, defendant should have been acquitted because there being no ailment, there could not be a diagnosis of nor prescription, nor treatment, for an ailment.

We believe the State’s case does not fall because Mrs. Hermes had no ailment any more than it would if a bona fide patient believing she had an ailment, but actually having none, were diagnosticated by the defendant. The question is not whether there is actually an ailment nor, for that matter, whether defendant believed a patient had an ailment, but whether he, in violation of section 24 of the Medical Practice Act, practiced in a field reserved to those licensed under the Act. Mrs. Hermes testified that she told defendant she had been suffering from headaches; that he .told her that he had successfully treated headaches; that he could tell more from an examination and that he examined her, telling her there was congestion in the upper part of her neck and said he thought she had sinus trouble and nerve strain which caused the headaches. He says she asked for a massage and he gave it, informing her that there was congestion in her neck; that he made a notation of parts of her body he wanted to massage later and that he put the paper away until she should return for further treatment. He denies making a diagnosis or prescribing the treatment for sinus trouble or nerve strain. The jury saw these parties and it was Mrs. Hermes’ word against defendant’s and, by its verdict, the jury showed that it believed her. We believe it was unnecessary to prove that Mrs: Hermes actually had headaches or sinus trouble or nerve strain, or that he or she supposed she had. Assuming, as we must on this record, that defendant did what Mrs. Hermes claims, we infer that either he believed she had sinus trouble and nerve strain or did not, and told her she did and prescribed for and treated her accordingly. We think in either event he committed a crime under the Act.

Defendant cites Thompson v. State, 228 Ala. 231, 153 So. 470, where defendant was convicted of violating a law prohibiting the treatment of “diseases of human being ... by any system of treatment.”, upon evidence showing that he massaged two persons, one of whom had a pain in her shoulder and the other in her neck. The court said defendant had not treated the patients for disease and had not diagnosed the pain as diseases nor treated them as snch. The court relied strongly on an Oregon case which' held that backache was not a disease and pain only a symptom of disorder, which in turn, might not he a disease and that many leading courts defining “disease” as used in a criminal statute, decided it should mean more than mere temporary pain or disorder. There is nothing in this opinion inconsistent with the holdings in those cases.

Because we hold that the crime was in doing what defendant here did, even though Mrs. Hermes had no ailment, it is not necessary for us to consider arguments or testimony defining headache, sinus trouble or nerve strain. Technical definition of the term ailment” and “disease” are not essential to a determination of this case. No good would he served by trying to draw a line between some human illnesses and others in a consideration of this question. Suffice to say, that the terms as defined in Webster’s New International Dictionary, permit of what we think is this reasonable construction of section 24. It is plain that the legislature intended that no person without a license should enter upon the field of diagnosing, prescribing or treating for illnesses of human beings. It is not the illness hut the unlawful act of the practitioner which constitutes the crime. The cases of People v. DeYoung, 378 Ill. 256 and People v. Hettiger, 150 Ill. App. 448 are not applicable, and we are not concerned with the questions whether massages are unlawful in themselves, nor of the definition of naprapathy.

Defendant complains of the introduction of evidence that the term “naprapath” followed his name on his office window. The fourth count containing a charge that defendant unlawfully used the abbreviations “D. N.” was quashed. The evidence, therefore, was inadmissible, hut since a receipt given Mrs. Hermes had the same abbreviation and defendant admits it indicates a naprapath, he was not prejudiced; and while we think that the trial court erred in permitting the State’s Attorney to question the defendant about his use of the title “doctor” and the abbreviation referred to, we think there was no harm.

State’s instruction 1, set forth Section 24 in full, including crimes not charged here and those charged in counts which were quashed. The objectionable clauses could have been eliminated and should have been, hut we think the jury knew, what precise charges defendant was tried upon and were not confused by the instruction.

State’s instruction 2, told the jury that the terms, “massage,” “naprapath,” etc., were not involved in the case and that the name applied to the treatment was immaterial and that proof of real ailment was unnecessary. We think that the instruction was proper and helped clear confusion rather than confuse.

State’s instruction 3, told the jury that the term medicine included the art of healing and the science of preserving health and treating disease for cure, whether medical substances were used or not. This instruction, 'while not careful, tended to help the jury understand that the conduct prohibited by the Act was not required to he that of practitioners who used drugs, medicine or surgery. There was no error in refusing to instruct the jury that a massage treatment was not illegal, unless “incidental to and a definite part of the operators engaging on his own account in the treatment of a human ailment.” The instruction is neither clear nor accurate. What we. have said hereinbefore indicates that the court properly refused to instruct the jury that defendant must have actually supposed Mrs. Hermes had an ailment and must have diagnosed a supposed real ailment and the court properly refused to give defendant’s instruction No. 2, which was misleading upon the question of what constitutes a diagnosis and defendant’s instruction No. 3 defining “diagnosticate” in giving defendant’s view of a diagnosis. Defendant’s instructions No. 4, 5 and 7 were improper under our view of the essential points discussed hereinabove. Instruction No. 6 was properly-refused as misleading on the question of what constituted a prohibited treatment. Instruction No. 8 is inaccurate. Instruction No. 9 is misleading. Instruction No. 10 on the question of entrapment was properly refused because defendant’s intention was not an element of the crime. Instruction No. 11 was covered by State’s instructions 5 and 6, and No. 12 is wholly inaccurate. No. 13 is improper because it singles out Mrs. Hermes on the question of interest of witnesses.

Defendant cited cases to support his contention that the court committed error in altering two of defendant’s instructions by deleting words with pen and ink. There is no such rule and the parts deleted were objectionable.

It is our opinion that the information was sufficient; that whatever error occurred at the trial did not prejudice defendant; there was no prejudicial error in the instructions; there is no reason for setting aside the jury’s verdict; and the judgment of the trial court is hereby affirmed..

Judgment affirmed.

Burke, J., concurs.

Hebel, P. J., took no part.


text:
    Julius G. Levy, Appellee, v. Elizabeth Levy, Appellant. Elizabeth Levy v. Julius G. Levy, on counterclaim.
    Gen. No. 42,724.
    Opinion filed November 17, 1943.
    Earl J. Walker, of Chicago, for appellant.
    Julius H. Selinger, of Chicago, for appellee.
   Mr. Justice Kiley

delivered the opinion of the court.

This is a divorce action by a husband with a counterclaim for separate maintenance by the wife. The latter appeals from a decree for plaintiff on his amended complaint and against her on the counterclaim.

Each party in pleading and in proof, charges the other with cruelty. The decree found that the parties were married August 2,1923; had two children aged 14 and 10 years at the time of the trial; and that the defendant and cross-complainant had been guilty of extreme and repeated cruelty on October 28,1937, February 10, 1942, March 9, 1942, April 15, 1942 and June 24,1942. The court entered a decree of divorce in favor of plaintiff, dismissed the cross-complaint, gave custody of the children to the defendant and ordered payment of $60 per week to the defendant for the support and education of the children.

Defendant counter plaintiff contends principally that the acts charged, even if proved, do not amount to extreme and repeated cruelty; that the defense of recrimination was sustained; and that she should have separate maintenance or, in the alternative, alimony.

At the trial plaintiff did not contradict defendant’s testimony that, shortly before the separation in an altercation between them, he told her that she was too’old for him; that he wanted a young wife and suggested the he would go to a hotel with a woman, or, in the alternative, she should go to a hotel with a man so that there would be reason for a divorce. We believe that these uncontradicted statements of plaintiff indicated a desire for a divorce and an inclination to resort to extreme means, including collusion, to obtain one.

The acts found to have been committed were that defendant struck plaintiff on the head with a book; bit and scratched him about the face on two occasions; threw a folding chair at him, striking him in the foot and inflicting an open wound by striking him on the leg with a stick; throwing a statuette at him; and kicking him. There is no question raised as to manifest weight. The question is, assuming the acts to be properly proved, do they as a matter of law constitute. a sufficient case for divorce on the grounds of extreme and repeated cruelty?

Many cases have been called to our attention upon the meaning of extreme cruelty as used in the Divorce Act, where a husband is the plaintiff. We believe that the case of Teal v. Teal, 324 Ill. 207, is the most reliable to which we have been referred. Under its holding, slight acts of violence by the wife against the husband do not constitute cruelty, where the husband can protect himself by reasonable physical force. The record indicates that on more than one occasion defendant in the presence of plaintiff’s patients at his medical office, insulted and struck him, and under the Teal case, these facts may be considered in determining the quality of the alleged cruel acts. The record shows that there were financial disagreements with proof of unwarranted and unsuccessful speculation on the wife’s part. The parties were married 19 years, had two children, the condition of one of whom caused great anxiety; the wife had a serious operation during recent years for a kidney ailment which at time of trial still caused pain; and most of her alleged misconduct was committed in the few months preceding their separation.

Under all of the circumstances of this ease, we must find that the acts found in the decree do not come within the rule of extreme and repeated cruelty as defined in the Teal case and are not sufficient to support a decree for divorce in favor of the husband.

The decree is reversed and the cause is remanded with directions to dismiss the complaint and to reconsider the counterclaim for separate maintenance, giving due attention to the views expressed herein.

Decree reversed and cause remanded with directions.

Burke, J., concurs.

Hebel, P. J., took no part.


author: Mr. Presiding Justice O’Connor

text:
    People of the State of Illinois, Defendant in Error, v. Stanley Kuduk, Plaintiff in Error.
    Gen. No. 42,636.

      Opinion filed December 13, 1943.
    Rehearing denied December 28, 1943.
    Roman E. Posanski, of Chicago, for plaintiff in error.
    Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, John T. Gallagher, Melvin S. Rembe and Joseph A. Pope, Assistant State’s Attorneys, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

By this writ of error Stanley Kuduk seeks to reverse orders entered finding he had violated the conditions of his probation, terminating probation and sentencing him to the penitentiary for not less than one year and not more than 14 years for the crime of manslaughter.

The record discloses that two indictments for manslaughter were returned by the grand jury of Cook county charging him with recklessly driving an automobile, as a result of which, two persons were killed. He was arraigned on both indictments and entered a plea of not guilty, was released and his bail was reduced to $3,000. There were a number of orders continuing the case and April 23, 1941, defendant withdrew his plea of not guilty and entered a plea that he was guilty of manslaughter as charged. At that time defendant was 23 years old. The testimony was stipulated, the court (Judge LaBuy) found defendant guilty as charged and defendant moved to be released on probation. The matter was continued and April 30, 1941, an order was entered sustaining defendant’s motion and he was “released on probation for a period of one (1) year to be extended one (1) year on his own recognizance of Five Hundred ($500) Dollars day to day, as to each of the” two causes.

April 22, 1942, the State’s Attorney filed a verified petition to terminate the probation in which the conviction and probation are set up and it is then averred that on November 30, 1941, while defendant was on probation he was “arrested and charged with the crime of driving an automobile while under the influence of intoxicating liquor and of reckless driving” and that an indictment was returned against him by the grand jury in the Criminal court of Cook county. Afterwards the cause came on for trial before the court without a jury, and after hearing, the court found defendant not guilty. It is set up in the petition that defendant on that trial, which was before Judge Ward, testified that he was not driving the automobile as charged; that on the same day of the trial, April 16, 1942, Henry Chmielewski testified that defendant was not driving the car as charged in the indictment but that it was driven by defendant’s brother, Chester. The record discloses that at the close of that day, Chmielewski was taken into custody and was again put on the stand the next day when the trial was continued, and testified that he had testified falsely and that defendant Stanley was driving the car as charged. The petition further charges that after defendant was found not guilty and acquitted in that, case, an examination was made of the files-in the office of the probation officer which showed that defendant, on December 15, 1941, had reported to the probation officer, John M. Haas, that he had had an accident with the Homewood police car [November 30, 1941] and that defendant stated that he had paid the damages caused by the accident and that defendant said he was driving the automobile ‘ ‘ and had been drinking a little intoxicating liquor.” The petition continues and charges that the testimony given by Kuduk on the trial of the case before Judge Ward was in conflict with the admission he had made before the probation officer “and that had said testimony of said John M. Haas been adduced in court on the trial of said cause, said defendant would not have been found not guilty. ’ ’ The petition was verified by an Assistant State’s Attorney and his affidavit was also made a part of it in which he swore to substantially the same facts. The affidavit of Haas, the probation officer, was also attached and stated substantially the same matters as were set up in the petition.

The petition came up for hearing before Judge Dunne sitting in the criminal court, on the 23rd of April, 1942, and a number of orders were entered continuing it from time to time. The evidence was then introduced. But counsel for defendant says that he “deemed it unnecessary to burden the court with an abstract of the entire testimony” but that he abstracted ‘ only such portions of the record as affirmatively show that there was a hearing before Judge Ward on the matter alleged in the first petition filed before Judge Dunne for the termination of defendant’s probation in which proceeding the defendant was exonerated.” Counsel for defendant objected to the introduction of this evidence and moved to strike the petition on the ground that the matter had been adjudicated by Judge Ward. Tbe judge, however, stated be would bear tbe evidence and then rule on tbe objection. And after tbe evidence was all introduced and this phase of tbe case closed, one of tbe Assistant State’s Attorneys stated be bad been informed by Mr. Haas, tbe probation officer, that defendant was arrested May 18, 1942, in tbe city of Harvey, charged with tbe crime of “disorderly conduct and drunkenness,” before Justice Berggken, of Harvey, and that on tbe trial of that matter defendant was found guilty and fined $10 and costs. Tbe Assistant State’s Attorney then stated that in as much as tbe court bad taken tbe matter under advisement be would ask leave to file a new or amended petition so as to set up tbe matters which occurred in Harvey. Tbe court gave leave to file tbe amended petition which was later filed, evidence on tbe additional charge was introduced, which included a transcript of tbe proceeding before tbe police magistrate of Harvey. Frank Del Nagro, a police officer of Harvey, then testified that be arrested defendant May 18, 1942, that a complaint was filed against him on the following day, and tbe matter beard before tbe police magistrate. He further testified: “Tbe case against Stanley Kuduk was a charge of disorderly conduct”; that be was in tbe court room when Kuduk was found guilty of disorderly conduct and fined $10. In tbe transcript of tbe record tbe case is entitled “People of tbe City of Harvey v. Stanley Kuduk” and states that “May 18, A. D. 1942, Complaint in writing under Oath filed by Officer Del Nagro, charging defendant with Disorderly Conduct”; that on May 19, 1942, tbe case was called in tbe court room in tbe city of Harvey; that tbe People were represented, defendant present and be pleaded not guilty, a jury was waived, witnesses sworn and examined and ‘ ‘ Tbe Court finds from tbe evidence that tbe defendant is guilty of tbe following offense which is more specifically described in said complaint.” And further, that on the 18th of May in the city of Harvey, defendant did unlawfully conduct himself in a disorderly manner hy being drunk, fighting and using vile and abusive language contrary to the form of the Statute in such case made and provided and against the peace and dignity of the People of the City of Harvey.” And a $10 fine was imposed, together with costs of $5. This hearing on the amended petition was on June 10, 1942. At that time defendant had not filed an answer but it was agreed he might do so later, and the record discloses that defendant filed his answer September 15, 1942, “Nunc pro tunc as of June 15, 1942.”

When the People had finished introducing evidence on June 10, which was in reference to the Harvey affair, the matter was continued to July 1, and at that time counsel for defendant stated he had no further evidence to offer; that he would rest on the record. The court then terminated the probation and counsel for defendant at that time said: “Now, your Honor’s finding is on the basis of that conviction by the Justice of the Peace. The Court: Not it alone, but the petition and the amended petition.”

Counsel for defendant says that the petition filed by the State’s Attorney “was not sufficient to authorize the Court to terminate the probation.” We think there is no merit in this contention, moreover, the evidence was heard and the question is whether the evidence was sufficient to warrant the court in terminating the probation and sentencing defendant.

The Act providing for a system of probation, Ill. Rev. Stat. 1943, ch. 38, par. 784, et seq. [Jones Ill. Stats. Ann. 37.771, et seq.], provides in par. 787, the conditions for the releasing of a person on probation, the pertinent part of which is: “Release on probation shall be upon the following conditions: (1) That the probationer shall not, during the term of his probation, violate any criminal law of the State of Illinois, or any ordinance of any municipality of said state,” and further, that the person convicted of a felony or misdemeanor and placed on probation shall not leave the state without the consent of the court, that he shall report once a month or as often as the court may direct, of his conduct, employment, etc., enter into a bond of recognizance in such sum as the court may direct, with or without surety and performing the conditions imposed. Then follow other provisions of the section not important here, and continuing, par. 6 of the section provides: “That the defendant shall do or refrain from doing such further acts touching upon his personal habits and conduct, including the use of intoxicating liquors, the operation of motor vehicles, visiting houses of ill fame, associating with prostitutes or criminals, as the Court may deem necessary for the proper conduct and reform of such defendant, provided, however, the violation by the defendant of that part of the order based on this paragraph, shall not be ground for revoking the order admitting the defendant, but shall be deemed in contempt of the Court and defendant may be proceeded against as in other cases of contempt.”

The order of Judge LaBuy, granting defendant probation is not in the record before us, nor is the complaint filed before the police magistrate in the City of Harvey, but the transcript of the police magistrate states that the complaint charged defendant with “disorderly conduct” and the transcript shows that defendant conducted himself in a disorderly manner “by being drunk, fighting and using vile and abusive language” contrary to the statute “and against the peace and dignity of the People of the City of Harvey.”

Counsel for defendant says that what defendant was charged and found guilty of by the police magistrate was not sufficient to warrant the court in revoking the probation and sentencing him to the penitentiary bnt only that he might be charged with contempt of court as provided in par. 6, above quoted. That paragraph provides that where one is on probation and uses intoxicating liquors he may be proceeded against as for a contempt only. And counsel further contends that the finding of defendant guilty by the police magistrate and the imposition of the $10 fine “hardly takes on the character of a crime or misdemeanor within the meaning of the probation statute so as to authorize and justify” a justice of the peace in terminating the probation, citing People v. Prell, 299 Ill. App. 133.

Counsel for defendant contends that the acquittal before Judge Ward was res judicata of the matter brought before Judge Dunne except the proceeding in the City of Harvey, to revoke defendant’s probation, and further, that to permit the same matter to be gone into before Judge Dunne placed defendant in double jeopardy. We think neither of these contentions can be sustained. The issues tried before Judge Ward were criminal and the People were required to prove the charge beyond a reasonable doubt while the matter before Judge Dunne was whether Kuduk had violated the terms of his probation, which did not require such a degree of proof. And this court would not be warranted in disturbing the judgment revoking the probation and sentencing defendant under his plea of guilty to the charges made before Judge LaBuy unless we are able to say that Judge Dunne acted arbitrarily and abused his discretion. People v. Hill, 344 Ill. 246; People v. Lewis, 376 Ill. 509, and no contention is made that Judge Dunne acted arbitrarily or abused his discretion. The only contention by counsel for defendant is that the court erred in admitting evidence of the offense which had been tried before Judge Ward. This evidence was properly admitted. People v. Lewis, 376 Ill. 509; Keats v. Board of Police Com’rs, 42 R. I. 240, 107 Atl. 74; Kavanaugh v. Paull, 55 R. I. 41,177 Atl. 352.

The orders of the criminal court of Cook county are affirmed.

Orders affirmed.

Niemeyee and Matohett, JJ., concur.


author: Mr. Presiding Justice O’Connor Niemeyer, J.,

text:
    Joseph Krawitz and Milton Krawitz, Appellants, v. Jules Leonard Levinstein, Trading as Albert Lumber and Supply Company, and Cleveland Cook, Appellees.
    Gen. No. 42,654.

      Opinion filed December 13, 1943.
    Sher & Karlin, of Chicago, for appellants; Leo S. Karlin, of Chicago, of counsel.
    James A. Dooley, of Chicago, for appellees.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

Plaintiff, Joseph Krawitz and his brother, Milton, brought an action against defendants to recover for personal injuries sustained by Joseph and property damage sustained by Milton, who owned a Dodge automobile, against defendants Levinstein the owner of a truck and Cook, his agent, who was driving the truck. Levinstein filed a counter claim seeking to recover property damaged on account of his truck being damaged as a result of a collision between the two vehicles. There was a jury trial, a verdict of not guilty as to plaintiffs’ action and as to defendants’ counter claim, and plaintiffs appeal.

The record discloses that about noon on October 8, 1940, plaintiff, Joseph Krawitz, was driving his brother’s Dodge automobile west in 58th street and defendant Cook, who was employed by defendant Levinstein, was driving a one and a half ton truck loaded with lumber doors and windows, south in Albany avenue. There was a collision between the vehicles, the evidence tending to show that the left front part of the truck struck the Dodge automobile on the north or right side, the two vehicles turned over and landed somewhere near the. southwest corner of the street intersection. Both vehicles were damaged and plaintiff, Joseph Krawitz, received personal injuries.

The roadway of each street was well paved and about 30 to 35 feet wide. There were two vacant lots at the northeast corner of the intersection and the north side of 58th street was vacant for a distance of about a half block east of Albany avenue. Residences are on the other three corners. The weather was dry and clear, it was a nice day.

As is usual in such cases, there was evidence tending to show the speed of the respective vehicles and their distances from the intersection. Joseph’s testimony is to the effect that he was driving the automobile west in 58th street at a speed of from 15 to 18 miles an hour on the north half of the street; that as he reached a point about 15 feet east of the east building line he slowed down to 8 or 10 miles an hour; that he looked to the left or south and saw nothing, then to the north and saw defendant’s truck coming south in Albany avenue about 150 to 200 feet north of the intersection. He was unable to determine the speed of the truck. He shifted the speed of the automobile and continued west and when the front end of the automobile was about at the west curb, it was struck on the right side by the front of the truck. That the collision occurred in the northwest quarter of the. intersection.

Defendant Cook, who was driving the truck, testified that he was driving south in Albany and as he approached 58th street, he was traveling from 15 to 18 miles an hour; that he slowed down and decreased his speed about 3 miles; that before he got to the intersection he looked to his left and saw plaintiff’s car and when the truck was about 15 feet into the intersection he heard a noise again looked to his left and the automobile was coming at a high rate of speed, about 40 miles an hour; that he immediately jammed on his brakes and swung to the right to try to avoid the collision. That plaintiff turned toward the south and ran in front of the truck when the collision occurred. Both vehicles were overturned. These were the only occurrence witnesses but shortly after the collision, police officers arrived and pictures were taken by them showing the street and the positions at which the two vehicles came to rest.

There is considerable other evidence in the record as to skid marks but we think it is unnecessary to refer further to the evidence for we are of opinion that the verdict of the jury, finding against plaintiff, is not against the manifest weight of the evidence, as plaintiffs contend. We think the question was for the jury.

Plaintiffs further contend that the court erred in giving instructions submitted by defendants numbered 17, 21, 23, 20, 22 and 14.

By instruction 17, the jury were told that a statute of this state provided that “Motor vehicles traveling upon public highways shall give the right of way to vehicles approaching along intersecting highways from the right and shall have the right of way over those approaching from the left,” and that if the jury find from the greater weight of the evidence and under the instructions of the court certain other specified things, that it was the duty of “Joseph Krawitz to yield the right of way to said truck operated by said Cleveland Cook.” This instruction was wrong for the reason that it failed to tell the jury that they must also take into consideration the distance the vehicles were from the point of collision and the speed of their approach. Heidler Co. v. Wilson & Bennett Co., 243 Ill. App. 89. In that case, in an opinion written by Mr. Justice Thomson, we reviewed the authorities on this right-of-way statute and pointed out that the true construction of such a statute was laid down in Ward v. Clark, 232 N. Y. 195, in an opinion by Judge Cardozo. Other cases holding to the same effect are Rupp v. Keebler, 175 Ill. App. 619; Salmon v. Wilson, 227 Ill. App. 286; Darling & Co. v. Yellow Cab Co., 238 Ill. App. 326; Schwartz v. Lindquist, 251 Ill. App. 320; Coleman v. Hait, 293 Ill. App. 615; Edwards v. Hill-Thomas Lime & Cement Co., 309 Ill. App. 168. But counsel for defendants says' that any omission from this instruction, if any, was cured by instruction number 4, given at plaintiffs’ request, which also advised the jury as to which party had the right-of-way. We are unable to agree with “this contention. Whether plaintiffs or defendants had the right-of-way, in deciding the question of liability, might in the jury’s mind have been of controlling importance, and the jury should therefore have been correctly instructed.

Instructions 21 and 23 are complained of. Instruction 21 told the jury that if both plaintiffs and defendants were guilty of negligence proximately contributing to the collision, then the jury had no right to compare the negligence of plaintiffs with that of defendants and if they believed from all the evidence and under the instructions of the court that plaintiff failed to exercise ordinary care for his own safety and such failure contributed to his injury then, even if the jury also believed the defendants were negligent, plaintiffs could not recover.

And by instruction 23, the jury were told it was not sufficient to entitle plaintiffs to recover to show defendants were guilty of negligence, but plaintiffs must go farther and show that such breach was the proximate cause of the collision. And counsel for plaintiffs say these two instructions “attempt to establish a double standard of negligence, that is, a standard of negligence on the part of the defendants, limited by the requirements of proximate cause, and a standard of negligence on the part of the plaintiffs, not limited by any requirements of proximate cause.” While the point is rather technical we think the jury should be told that the same standard of conduct is required by each party.

Instruction 20 told the jury that if they believed from the evidence that plaintiff by the exercise of reasonable care could have seen defendant’s truck and by the exercise of reasonable care could have his automobile under control so as to avoid the collision and the driver of the automobile failed to use such care, then they should find defendants not guilty. This instruction omitted the question whether plaintiffs' or defendants had the right-of-way under the statute and therefore should not have been given.

Instruction 22 told the jury that if they believed from the evidence and under the instructions of the court that if plaintiff was injured as the result of an accident without negligence on the part of defendants, then they should find defendants not guilty. This instruction was obviously wrong. The collision did not occur on account of an accident but was due to the negligence of one or both of the parties.

By instruction 14 the jury were told that “the fact that an accident occurred and that one of the plaintiffs was injured, of itself raises no presumption, of negligence or liability on the part of the defendants for such injury, if any. Negligence like any other material fact must be alleged and proved by the plaintiff by a preponderance of the evidence. ’ ’ Under the facts in the instant case we think this instruction ought not to have been given. Minnis v. Friend, 360 Ill. 328.

The judgment of the superior court appealed from is reversed and the cause remanded for a new trial.

Reversed and remanded.

Matchett, J., concurs.

Niemeyer, J.,

specially concurring: I concur in the reversal and remandment of the cause, but do not agree with what is said as to instruction 17. This instruction, after quoting the statute as to right-of-way and requiring the jury to find from a greater weight of the evidence that the plaintiff Joseph Krawitz was approaching the intersection from the left, and the motor truck operated by the defendants was approaching from the right and that the motor truck was in full view of the plaintiff Krawitz, concluded as follows : “. . . if you also find from the greater weight of the evidence in this case that under the instruction (s) of the court it was apparent to the said Joseph Krawitz that unless he yielded the right of way, the automobile operated by him might or would collide with said motor truck, then you are instructed that the said motor truck so operated by said Cleveland Cook was approaching the intersection from the right within the meaning of the statute and that it was the duty of said Joseph Krawitz to.yield the right of way to said truck operated by said Cleveland Cook.” The rule embodied - in this instruction is that announced in Partridge v. Eberstein, 225 Ill. App. 209, where the court said (213): “ While we hold that plaintiff’s automobile, according to the evidence before us, came within this description, (the statutory description of vehicles ‘approaching along intersecting highways from the right’) it would be very difficult, if not impossible, to lay down a rule in precise terms of measurement applicable in all cases. However, we' suggest this: That a vehicle is approaching an intersection from the right, within the meaning of the statute, and entitled to the right-of-way when, on its left, on an intersecting street, another vehicle is approaching whose driver, in the exercise of due care, would or should see that unless he yielded the right-of-way the vehicles might or would collide.”

The Heidler case, (243 Ill. App. 89) relied upon in the majority opinion, adopts substantially the same rule, although stating it negatively in describing a car not within the statute. In that case (pages 94, 95) the court states in substance what is said in the Partridge ease as to when a car may be said to be approaching an intersection from the right within the meaning of the statute, and adds: “When the driver of a vehicle approaches an intersection and he sees another vehicle approaching from the right, at a greater distance from the intersection and at a speed such that, in the exercise of due care, he believes he will be across the intersection before the vehicle approaching from the right reaches it, then, in our opinion, the latter car is not one ‘approaching from the right’ within the meaning of the statute, and so as to require such driver to stop or yield the right of way.” The elements of distance from the intersection or point of collision, and the speed of the cars, are not specifically mentioned in the instruction, but are necessarily implied. It is difficult to see how the jury could determine whether the driver on the left, in the exercise of due care, would or should see that unless he yielded the right-of-way the vehicles might or would collide, without giving consideration to the relative distance and speed of the cars. In fact, no other element is likely to enter into a determination of this question.