author: Mr. Justice Dady

text:
    Arthur Budds, Appellee, v. Keeshin Motor Express Company, Inc., Appellant.
    Gen. No. 9,449.

      Heard in this court at the May term, 1945.
    Opinion filed May 28, 1945.
    Released for publication June 23, 1945.
    Provine, Williams & Pinkerton and Ernest Gr. Young, all of Springfield, for appellant.
    Edward Pree and Harold O. Werner, both of Springfield, for appellee.
   Mr. Justice Dady

delivered the opinion of the court.

This is a negligénce action growing out of a collision in which an automobile driven by plaintiff ran into the rear left corner of defendant’s tractor trailer truck.

There was a verdict and judgment of $2,500 for plaintiff. Defendant appeals.

The collision happened on December 8, 1940, about 3:00 a. m., on TI. S. Route 66, about one and one-half miles north of the city limits of Springfield, Illinois, at a point estimated at one-half block to 100 feet south of the top of a hill known as “Portuguese Hill.” Both vehicles had been proceeding southerly. The incline of the hill was about 500 feet in length. The lower half of the hill was lighted with amber flood lights. South of that there were no street lights. The night was clear. South of the top of the hill the road was straight and level, was paved and had a black or yellow distinguishing line in the center. The shoulders of the road were of asphalt. There was no other traffic. No one was in the automobile other than the plaintiff, and no one was in the truck other than the truck driver. The truck was of a dark grey color. As to the relative positions of the two vehicles after the collision, the record merely shows that the truck was then about 50 feet southerly of the plaintiff’s car.

On the east side of the road and opposite the point of the collision there was a service station and grocery store. About 300 feet south and on the west side of the highway there was a tavern which was then being operated by Clifford Lyle and wife. To the north and adjoining the tavern was a service station. North of such last service station up to the point of the collision there were two, three or four houses. South of the Lyle tavern and on the east side of the road was located Black’s tavern which was also being operated.

Plaintiff testified that he drove up the hill and was going about 30 or 35 miles per hour after reaching the top, his bright head lights were on and would show about 100 feet in front of Ms car, Ms brakes were good, he could stop Ms car within about 100 feet when going about 35 miles per hour, Ms car while being driven at 35 miles per honr could be turned 10 feet to the left of its course within a distance of 50 feet, he was looking out for traffic, he first saw the truck when he was 10 or 20 feet from the truck, the truck was then standing still or moving very slowly, he saw no lights on the truck and no flares, when he first saw the truck he put on his brakes and turned his wheel to the left to avoid hitting the truck, but his car hit the left corner of the truck.

Lyle, the tavern keeper, testified that he had gone south to Black’s tavern to get some change and was on Ms way back to his own tavern when he saw the plaintiff’s car with its lights on coming over the hill from the north and then heard a crash, that he saw the truck standing on the slab on the west side of the Mghway two or three minutes before the collision, without any front lights on, that there were no flares until after the collision, that he first saw the rear of the truck after the collision and at that time there was no lighted lantern on the rear of the truck. He further testified without objection that when he came to the place of the collision Cole, the driver of the truck, told him that he did not have any lights on the back of the truck.

Mrs. Lyle testified that she was in the tavern and heard the crash. She further testified, without objection, that shortly after the collision Cole, the driver of the truck, came into the tavern' and ’phoned his company, and in so doing told his company that he had had a wreck and did not have any lights on his truck and had not had any lights on his truck for quite a ways back; that she then went out of the tavern and saw no lights on the truck and saw no flares on the road. ‘ ,

Henry Bear testified that he was driving south and came to the scene of the collision .shortly after the collision, that there were no lights on the rear of the truck and no flares, but that there was an unlighted lantern on the back of the truck.

Cole, the driver of the truck, testified that he was going between 20 and 25 miles per hour at the time of the collision, that his head' lights were on, that when he left Bloomington, 61 miles north, he examined his rear lights and they were then on, that no lantern was on the back of the truck either before or after the collision, and that the truck had a rear vision mirror, but he saw no lights on the car approaching from the rear. He further testified that he did not tell Lyle that he did not have any lights on the truck, that he had no conversation with Lyle, and that while telephoning his company after the collision he did not say that he had had no lights on his truck.

Percy Tates testified that he was standing in front of the filling station immediately north of the Lyle tavern, that he saw the truck coming and heard the crash, that the truck driver then pulled to the side of the road and lit a fusee, that as the truck approached its head lights were burning, that he did not notice whether there were any lights on the rear of the truck, and that although he was in a position to see plaintiff’s car approaching he did not see such car until after the crash.

The first contention of the defendant appellant is that the uncontradicted evidence shows that the plaintiff was'guilty of contributory negligence as a matter of law.

In brief, the argument is that, assuming that the plaintiff was driving 35 miles per hour with head lights that would have enabled him to see 100 feet in front, and with brakes that would have enabled him to stop within 100 feet, that his automobile at such speed could be turned 10 feet to the left of its course within a distance of 50 feet, that the plaintiff did not see the truck until within 10 or 15 feet of it and then applied his brakes and turned to the left to avoid a collision, but “just barely” hit the truck on its left rear corner, it follows as a matter of law that the plaintiff was guilty of contributory negligence in not seeing the truck until he was within 10 to 15 feet from it, and in not having seen the truck and stopped of turned his automobile in time to have avoided the collision.

The appellant, in support of its contention, cites Hogrefe v. Johnson, 271 Ill. App. 469; Johnson v. Kushler, 269 Ill. App. 553; Collins v. McMullin, 225 Ill. App. 430; James v. Motor Transit Management Co., 260 Ill. App. 246; Cooney v. F. Landon Cartage Co., 308 Ill. App. 444, and Sugru v. Highland Park Yellow Cab Co., 251 Ill. App. 99, in each of which cases the court held the plaintiff guilty of contributory negligence as a matter of law or that the evidence did not tend to prove due care on the part of the plaintiff.

We have carefully read such cases and believe the facts in each of them differ materially from the facts in the instant case. In some of such cases it appears that the court weighed contradictory' evidence, while the rule seems to be that in passing upon the question of contributory negligence only the uncontradicted facts and the evidence that is favorable to the plaintiff can properly be considered. (Pienta v. Chicago City R. Co., 284 Ill. 246, 252; Thomas v. Buchanan, 357 Ill. 270, 277.)

The case of Moyer v. Vaughan’s Seed Store, 242 Ill. App. 308, is a well considered case in which the facts are quite similar to the facts in the instant case. In that case the plaintiff’s car, driven at a speed of 20 to 25 miles per hour, ran into the rear of a standing truck which was loaded with shrubbery. The night was .dark and there was a drizzling rain falling so that the driver of the automobile could not see more than 20 feet in front of the car. The defendant contended that it was negligence as a matter of law on the part of the plaintiff to drive an automobile along a public highway in the dark at such a speed that it could not be stopped within the distance that objects could be seen ahead of it. The Appellate Court, per J. O’Cohhor, said, “So in the case at bar we are of the opinion that whether the driver of plaintiff’s automobile was guilty of negligence which contributed to the collision was a question of fact and not one of law, and, therefore, the peremptory instruction requested by defendant was properly refused. Of course there may be situations where it may be negligence as a matter of law for one to drive an automobile along a public highway in the nighttime at such speed that it cannot be stopped within the distance that objects can be seen ahead of it. The test in such cases is, would all reasonable minds reach the conclusion that the conduct of the driver of the automobile was violative of rational standards of conduct applicable to persons in similar situations? . . . In the instant case we think; it cannot reasonably be said that the driver of plaintiff’s automobile was guilty of negligence as a matter of law. The night was dark and misty. The plaintiff was driving along a country road where standing vehicles were not to be expected. There is evidence to the effect that there was no rear light on the truck; that the color of the truck and its load blended with the coloring of the surface of the road. These, and many other circumstances which might be alluded to, show that all reasonable minds would not reach the conclusion that the driver of plaintiff’s automobile was acting as no rational person would act under like circumstances, and, therefore, the question to be determined was one of fact and not law. It is not argued that the finding of the jury in favor of plaintiff on this, question is against the manifest weight of the evidence.”

(See also Miller v. Burch, 254 Ill. App. 387; Wedig v. Kroger Grocery & Baking Co., 282 Ill. App. 370; Wise v. Kuehne Mfg. Co., 322 Ill. App. 26; McKay v. Hannah, 320 Ill. App. 437.)

A court can only determine as a matter of law that the evidence does not tend to show due care on the part of a plaintiff when no other reasonable conclusion can be drawn from the .uncontradicted facts and from the evidence that is favorable to the plaintiff. (Pienta v. Chicago City R. Co., 284 Ill. 246, 252; Thomas v. Buchanan, 357 Ill. 270, 277; Smith v. Courtney, 281 Ill. App. 530.) The law does not charge one with anticipating dangers, but he may assume that others have done their duty to give proper warnings of hidden dangers. (Pollard v. Broadway Cent. Hotel Corp., 353 Ill. 312.) Persons who have to act in a sudden emergency are not to be judged in the light of after events, but are to be judged, under all the circumstances of the case, by the standard of what a prudent person would have been likely to do under the same circumstances. (Barnes v. Danville St. R. & Light Co., 235 Ill. 566, 571.) If a person without fault on his part is confronted with sudden danger or apparent sudden danger, the obligation resting upon him to exercise ordinary care for his own safety does not require him to act with the same deliberation and foresight which might be required under ordinary circumstances. (Synwolt v. Klank, 296 Ill. App. 79, 85.)

Following and applying the foregoing general rules of law, we are required to assume as true the testimony favorable to the plaintiff, and in so doing are required to assume as true the evidence tending to show that at the time of and immediately prior to the collision the truck was standing still on a portion of the westerly half of the pavement without any light or warning signal on or near its rear-end. We are also required to assume as true the testimony of the plaintiff that he was going about 30 or 35 miles per hour, that his headlights showed about 100 feet in front of his car, that he first saw the truck when distant about 20 feet from the" truck, and that he at once put on his brakes and turned his wheel to- the left to avoid a collision. Whether he told the truth when he testified that he was looking out for traffic was a question of fact, which the jury evidently believed.

We cannot say as a matter of law that under all the circumstances of the case such rate of speed of 35 miles per hour was unreasonable. At a speed of 35 miles per hour the plaintiff’s car moved about 50 feet per second and traveled the last 100 feet in about two seconds. Had the plaintiff seen the truck the instant he was 100 feet from the truck, he would' then have had only about two seconds in which to react, apply his brakes and turn his wheel in time to avoid the collision. We do not feel that we can properly say as a matter of law that in the exercise of due care the plaintiff should have been so intent and alert in his driving as to have necessarily seen the truck the instant it was 100 feet distant. Nor can we say that he was required to anticipate such an unforeseen obstruction on the highway.

It is our opinion that we cannot properly say that all reasonable minds would reach the conclusion that the uncontradicted evidence shows that the plaintiff was guilty of contributory negligence as a matter of law.

The only other contentions of the defendant are that the record is void of evidence tending to prove the negligence charged in count one, that the manifest weight of the evidence is that the defendant was not guilty of the negligence charged in count two, and that there is no evidence tending to establish the negligence charged in count three.

The specific negligence alleged in the first count of the complaint was that the defendant carelessly and negligently operated the truck, and as a result of such negligence the truck collided with, upon and against the car of the plaintiff.

The specific negligence alleged in the second count was that the truck driver stopped the truck and permitted it to stand stationary on the west side of the highway, partly on the slab and partly on the shoulder, and failed to exhibit from the truck a lighted lamp throwing light in a reverse direction as required by par. 202, ch. 95%, Ill. Rev. Stats. [Jones Ill. Stats. Ann. 85.234], and that as a result of such negligence the plaintiff’s automobile struck the truck.

The specific negligence alleged in the third count was that the defendant stopped and permitted the truck to be left standing on the west side of the highway without a taillight burning and without flares, lanterns or other warning of the location of the truck as required by par. 218 [Jones Ill. Stats. Ann. 85.250] of such statute, and that as a result the plaintiff’s car struck the truck.

We believe the contention as to count one is correct. As to count three, we will assume such contention to be correct. As to count two, we believe the evidence was sufficient to justify the jury in finding the defendant guilty of the specific negligence charged in such count. When there is one good count to which the evidence is applicable and which is sufficient to sustain the judgment, the error of the court, if any, in refusing to instruct the jury to disregard the other counts, becomes harmless. (Chicago & A. R. Co. v. Anderson, 166 Ill. 572, 575; Consolidated Coal Co. v. Scheiber, 167 Ill. 539, 541; Olson v. Kelly Coal Co., 236 Ill. 502, 504; Baltimore & O. S. W. R. Co. v. Keck, 185 Ill. 400, 402.) This follows the holding in a long line of ordinary negligence cases, and we do not believe is inconsistent with the holding in Greene v. Noonan, 372 Ill. 286, in which case the complaint contained not only a count charging negligence hut also a count charging wilful and wanton misconduct, and there was no evidence to support the latter charge.

The judgment of the trial court is affirmed.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    In re Estate of William H. Barnard, Deceased. Cecile Barnard, Executor of Last Will and Testament of William H. Barnard, Deceased, Appellee, v. Hazel Michael and Harold O. Michael, Appellants.
    Gen. No. 9,466.
    Heard in this court at the May term, 1945.
    Opinion filed May 28, 1945,
    Released for publication June 23, 1945.
    C. E. Tate, of Champaign, for appellants.
    Filson & Williamson and Dobbins, Dobbins & Thomas, all of Champaign, for appellee.
   Mr. Justice Dady

delivered the opinion of the court. This is an appeal from an order of the county court of Champaign county, which order denied a motion to vacate a prior order for the sale of real estate to pay debts, and approved a report of sale based on such order for sale.

The decedent, William H. Barnard, died testate on May 23, 1940. Letters testamentary issued to his widow, Cecile Barnard, on June 18, 1940. By his will the decedent devised and bequeathed to his wife the life use of his entire estate, and devised and bequeathed the remainder thereof to the appellant, Hazel Michael, who was his daughter by a former marriage. The other appellant, Harold 0. Michael, is the husband of Hazel Michael.

On November 4,1940, on the petition of the executor the county court entered an order which directed that the executor sell certain real estate belonging to the estate at private sale. On August 25, 1944, the executor filed in said court a report of sale which stated that on August 9, 1944, pursuant to the order of November 4, 1940, the real estate was sold to certain named purchasers.

On October 13, 1944, the county court entered an order, which order denied a motion of the appellants to vacate the order of sale entered November 4, 1940, overruled objections to and approved said report of sale, and ordered the executor to execute and deliver a deed of conveyance to the purchasers. This appeal is from said last mentioned order.

Appellee has made a motion to dismiss the appeal on the ground that “no supersedeas bond has been given, either in the trial court or in this court, and . . . that the appeal . . . has not operated as a supersedeas,” that “subsequent” to the entry of the order appealed from the purchasers paid the balance of the purchase price and appellee conveyed the property to the purchasers, and that therefore the result of this appeal will not affect .the title to the property and will not finally determine any questions of substantial interest to the parties to this appeal.

In support of such motion appellee has filed in this court her affidavit sworn to on January 29, 1945, in which it is stated that “thereafter” (that is sometime after October 13, 1944) appellee Blade such conveyance and received such payment.

Appellee relies on that part of section 76 [par. 200] of the Civil Practice Act, chapter 110, Revised Statutes [Jones Ill. Stats. Ann. 104.076], which provides that where an appeal is perfected within 30 days after the entry of the order appealed from and no supersedeas bond is filed and approved within said 30 days, the reversal of such order shall not affect the right, title or interest in or to any real property of any person not a party to such action, acquired after the entry of such order but before such appeal operates as a supersedeas under the provisions of such Civil Practice Act.

Appellee also relies on that part of Subparagraph 1 of section 82 [par. 206] of such Civil Practice Act [Jones Ill. Stats. Ann. 104.082] which provides that “An appeal to the Appellate or Supreme Court shall operate as a supersedeas only if and when the appellant, after notice duly served, shall give and file a bond in a reasonable amount, to secure the adverse party. . . . If notice of appeal is served within twenty days after the entry of the order . . . complained of, and if bond is given and filed and approved within thirty days after such entry . . . the notice of appeal shall, upon the approval of the bond, operate as a supersedeas.”

Were it not for the motion to dismiss the appeal, a freehold would be involved in a decision of this case. (Retzinger v. Retzinger, 337 Ill. 378.) Where a freehold is involved, this court is without jurisdiction, and must transfer the cause to the Supreme Court. (McCornb v. McComb, 238 Ill. 555.)

It is our opinion that a freehold is involved notwithstanding the motion to dismiss the appeal, and that the pendency of such motion does not give this court jurisdiction of the cause.

An order will he entered in this court transferring the cause to the Supreme Court, and directing that the record and files be transmitted to the clerk of that court.

Cause transferred to Supreme Court.


author: Mr. Justice Hayes

text:
    Millikin National Bank of Decatur, Appellant, v. Shellabarger Grain Products Company et al., Appellees.
    Gen. No. 9,418.
    Heard in this court at the May term, 1945.
    Opinion filed May 28, 1945.
    Released for publication June. 23, 1945.

      Lee Boland and LeForgee, Samuels & Miller, all of Decatur, for appellant.
    Hal M. Stone, of Bloomington, and Emanual Rosenberg, of Decatur, for appellees.
   Mr. Justice Hayes

delivered the opinion of the court.

On August 24, 1938 the Millikin National Bank of Decatur filed suit against the Shellabarger Grain Products Company and certain individual defendants alleging fraud, misrepresentation and concealment and asking judgment for a balance due on certain obligations of the company held by the bank. A trial before a jury in the circuit court of Macon county resulted in a verdict for defendants which was set aside by the court and a new trial granted. The cause was retried in December 1942 and this time the jury returned a verdict for plaintiff. Defendants filed alternate motions for new trial and judgment notwithstanding the verdict. The court overruled the motion for new trial but entered judgment on the latter motion against plaintiff for costs. The plaintiff bank appealed.to this court where this judgment was reversed and the cause remanded to the circuit court of Macon county with direction to vacate and set aside the judgment notwithstanding the verdict, deny the motion therefor and enter judgment for the plaintiff on the verdict of the jury for the amount thereof and costs of suit. Millikin Nat. Bank of Decatur v. Shellabarger Grain Products Co., 322 Ill. App. 189. Upon further review the Supreme Court reversed our judgment and remanded the cause to this court with directions to pass upon and determine the questions raised by appellant’s motion for new trial. Millikin Nat. Bank of Decatur v. Shellabarger Grain Products Co., 389 Ill. 196.

The grain company in its answer in the original proceedings for review in this court argued that the trial court should have granted its motion for new trial because of errors the court committed in giving and refusing instructions. It should be noted at the outset, however, that the instructions complained of are not set out in the brief and argument but are simply referred to by letter and number. Because of this, the grain company was not entitled to have the alleged errors reviewed. Jones v. Keilbach, 309 Ill. App. 233; Sterling-Midland Coal Co. v. Ready & Callaghan Coal Co., 236 Ill. App. 403; General Platers Supply Co. v. Charles F. L’Hommedieu & Sons Co., 228 Ill. App. 201. We have nevertheless examined the instructions in the light of the argument, of counsel but find that no reversible error was committed by the trial court. True, the ones given are not models of perfection. We believe, however, that they adequately informed the jury of the issues involved and the law applicable thereto.

In its petition for rehearing in this court, the grain company, in addition to complaining of the rulings of the court on instructions, contended that the verdict was against the manifest weight of the evidence. At that time, we carefully reviewed the evidence and it was our opinion that' this contention was not sound. After further review of the evidence which is summarized in our former opinion, Millikin Nat. Bank of Decatur v. Shellabarger Grain Products Co., 322 Ill. App. 189 we still adhere to that determination. The evidence is complicated and in many instances two equally plausible interpretations can be made from the facts. It is our opinion that the verdict of the jury must be sustained.

The order of the circuit court of Macon county denying a motion for new trial is therefore affirmed. The judgment of that court notwithstanding the verdict is reversed and the cause remanded with directions to vacate and set aside the judgment notwithstanding the verdict, deny the motion therefor and enter judgment for plaintiff on the verdict for the amount thereof and costs of suit.

Affirmed in part, reversed in part and remanded with directions.


text:
    John J. Lingle, Appellee, v. Board of Supervisors of Macon County, Illinois and County of Macon, State of Illinois, Appellants.
    Gen. No. 9,447.

      Heard in this court at the May term, 1945.
    Opinion filed May 28, 1945.
    Released for publication June 23, 1945.
    Ivan J. Hutchens, State’s Attorney in and for County of Macon, and Joseph L. Rosenberg, Fred G. Leach and Roy B. Foster, all of Decatur, for appellants.
    Charles E. Lee, of Decatur, for appellee.
   Mr. Justice Hayes

delivered the opinion of the court.

John J. Lingle filed an application for a blind pension with the board of supervisors of Macon county, Illinois on November 18, 1938 which contained the necessary averments to comply with the Blind Pension Act. (Ill. Rev. Stat. 1943, ch. 23, sec. 279 et seq. [Jones Ill. Stats. Ann. 18.071 et seq.]) A report of the committee of pensions and public institutions at a subsequent meeting of the board of supervisors disclosed that Lingle’s application and others had been investigated and that all the applicants had been referred to the medical examiner. The report continues: “Your Committee wishes to state that all of the above applications have been returned to us from the Medical Examiner, Dr. Strickling, under his signature, as being blind . . . .” The committee then recommended that all the applicants including Lingle be added to the blind pension roll. In their action on this report, the supervisors limited the pension roll to *158 pensioners to be selected by the committee, the remaining applicants to be placed on a waiting list by the committee and this action was approved by the board but for some unexplained reason, Lingle’s name was added to the roll and he received a pension from April 1, 1939 to June 11, 1940. On this last date the board removed several pensioners including Lingle from the roll.

In November 1942 Lingle prayed a writ of mandamus from the circuit court of Macon county compelling the board of supervisors of that county to pay him a blind pension from June 11, 1940 to July 1, 1944 when blind relief became an obligation of the State. The circuit court allowed the writ and the board of supervisors and the County of Macon have appealed to this court.

The County of Macon contends that Lingle was not entitled to a pension because the blind examiner did not indorse on Lingle’s application a certificate showing that Lingle was blind as required by the statute (Ill. Rev. Stat. 1943, ch. 23, par. 283 [Jones Ill. Stats. Ann. 18.075]) and cite our opinion in People ex rel. Howse v. County of Shelby, 257 Ill. App. 349. In that case we held subject to demurrer a petition that did not aver “that the application of the petitioner was referred to the physician who was appointed ‘examiner of the blind’ by the supervisors, nor that this examiner indorsed on the application a certificate showing that the applicant was blind . . . . ” In any case an allegation and proof thereof that an applicant was referred to the blind examiner would be essential; and in a normal case, an averment and its proof that the examiner’s certificate was indorsed on the application would follow. We believe however, that substantial compliance with this latter provision of the statute is sufficient where the proof is clear and convincing that the blind examiner did in some definite manner certify to the board of supervisors that the applicant was blind. We do not mean to condone a lax administration of this statute or deviations from its requirements, but it seems clear that the legislature could not have intended to deny applicants the benefit of the statute because of errors made by those charged with administering it. See Waters v. Heaton, 364 Ill. 150. For the same reason we do not believe that it was fatal to Lingle’s case that the county clerk read to the board at their meetings the names and residences of the applicants determined by the examiner to be entitled to pensions instead of presenting a formal certificate containing that information.

The County of Macon also contends that John J. Lingle was never placed on the blind pension roll by action of the board of supervisors. In its answer to the complaint in this cause, however it admitted “that the Board of Supervisors of Macon County, by its action on March 15, 1939, authorized the placing of said applicant upon the Blind Pension Roll as of the 1st day of April 1939, but state that said action of said Board of Supervisors was unlawful, erroneous and occurred through inadvertence and mistake. ...” While certain records of the board of supervisors showing that Lingle’s name was merely placed upon a so-called “waiting list” appear in the record it does not appear that these records evidence all the action taken by the board in this matter. Having made the above quoted admission in its pleadings, we believe it was necessary in order to avoid its effect, for the county to furnish proof that Lingle’s name was placed upon the roll by mistake and to explain how that mistake occurred. Instead, the county offered no evidence and stated through counsel that it was content to reply upon a “legal defense.” In the absence of proof to the contrary, it must be assumed that Lingle’s name was in some manner properly placed upon the roll.

The judgment of the circuit court of Macon county is therefore affirmed.

Judgment affirmed.


text:
    Darlene M. Anderson, Appellee, v. Charles Kuchan, Sr., and Charles Kuchan, Jr., Appellants.
    Gen. No. 9,465.
    Heard in this court at the May term, 1945.
    Opinion filed May 28, 1945.
    Released for publication June 23, 1945.
    Chiperfield & Chiperfield (Frederick O. Mercer and James F. Scott), of Canton, for appellants.
    W. S. Jewell, of Lewiston, for appellee.
   Mr. Justice Hayes

delivered the opinion of the court.

On October 29, 1943 Darlene M. Anderson and another young lady attended a theater in Canton, Illinois owned by Charles Kuchan and managed by his son Charles Kuchan, Jr. After the performance Mrs. Anderson and her friend went to the ladies ’ rest room. They had been there only a short time when Mrs. Kuchan, Jr. entered the rest room and asked them to leave, telling them that the theater was being locked up. Mrs. Anderson testified that she and her friend agreed to leave after the latter had finished combing her hair; that about a minute afterwards Charles Kuehan, Jr. entered, that he did not say anything but grabbed hold of plaintiff, swore at her, pushed her against the wall, and struck her five or six times, knocking her to her knees; that she then got up and got out of the theater as fast as she could. She further testified that while he was striking and pushing her her glasses were broken and her clothing was torn, and that there were bruises on her shoulders and legs and on one eye. Her testimony was corroborated by the testimony of her friend.

A doctor who examined the plaintiff the next day testified that he found a slight bluish discoloration on the left side of her face and on both shoulders and on her right thigh.

Charles' Kuehan, Jr. and his wife were the only witnesses for the defense. Their testimony was to the effect that after asking the plaintiff to leave and after her refusal, Charles Kuehan, Jr. tried to gently push the plaintiff from the room; that the plaintiff resisted and in so doing the plaintiff struck her face against a door and then walked out, and that Charles Kuehan, Jr. did not strike the plaintiff or push her against a door or wall.

Mrs. Anderson filed suit in the circuit court of Fulton county. The cause was heard by the court without a jury who rendered judgment for plaintiff in the sum of $250. The Kuchans have appealed to this court.

Assuming that Kuehan had a right to eject Mrs. Anderson from the theater, and this assumption is most favorable to appellant, the only issue in the case is one of fact: Did Kuehan use greater force than was necessary to eject her? Kiley v. Chicago City R. Co., 189 Ill. 384. The circuit court decided that he did and although the testimony of Mrs. Anderson and her friend on the one hand and Mr. and Mrs. Kuehan on the other is in direct conflict, there is sufficient, evidence in the record to support the judgment. This court will not interfere in cases of this type where the judgment of the trial judge is not clearly contrary to the weight of the evidence. Tarjan v. Regelin, 202 Ill. App. 320. The trial court evidently believed the testimony of the plaintiff and her friend. Such testimony, if true, was amply sufficient to justify the judgment.

The judgment of the circuit court of Fulton county is therefore affirmed.

Judgment affirmed.


text:
    In re Estate of Walter S. Vanderwater, Deceased. City National Bank of Kankakee, Executor of Last Will and Testament of Walter S. Vanderwater, Deceased, Appellee, v. Richard S. Vanderwater, Appellant.
    Gen. No. 10,002.
    Heard in this court at the February term, 1945;
    opinion filed May 28, 1945;
    released for publication June 18, 1945.
    V. W. MeIntire for appellant;
    C. M. Granger and W. C. Schneider, for appellee.
   Opinion by

Presiding Justice Dove. Not to be published in full.


author: Presiding Justice Dove.

text:
    Anderson Brothers Manufacturing Company and Swan F. Anderson, Appellees, v. G. A. Larson, Appellant. Anderson Brothers Manufacturing Company, Appellee, v. G. A. Larson, Appellant. Swan F. Anderson, Appellee, v. G. A. Larson, Appellant.
    Gen. No. 10,007.
    Heard in this court at the February term, 1945;
    opinion filed May 28, 1945;
    released for publication June 18, 1945.
    James Berry, for appellant;
    Carl Solomonson and Large, Reno & Zahn, for appellees.
   Opinion by

Presiding Justice Dove.

Not to be published in fuU.


author: Justice Huffman.

text:
    D. T. Smiley, Appellant, v. Samuel Carson, Appellee.
    Gen. No. 10,019.

      Heard in this court at the February term, 1945;
    opinion filed May 28, 1945;
    released for publication June 18, 1945.
    D. T. Smiley, pro se;

    Samuel Garson, pro se.

   Opinion by

Justice Huffman.

Not to be published in full.


author: Justice Wolfe.

text:
    Louis Meppen, Individually, and as Executor of Last Will and Testament of Wilhelmina Meppen, Deceased, Appellee, v. Arthur Meppen et al., Appellants.
    Gen. No. 10,009.
    Heard in this court at the February term, 1945;
    opinion filed May 28, 1945;
    released for publication June 18, 1945.
    Warner & Warner, for appellants;
    Henry C. Warner, of counsel;
    Clyde Smith, for appellee.
   Opinion by

Justice Wolfe.

Not to be published in full.


author: Presiding Justice Riess.

text:
    Bankers Life Company, for the use of Continental Casualty Company, Appellant, v. Union Automobile Indemnity Association, Appellee.
    Gen. No. 9,446.

      Heard in this court at the May term, 1945;

    opinion filed May 28, 1945;
    released for publication June 23, 1945.
    Bracken, Livingston, Murphy & Barger, for appellant;
    Thomas M. Barger, Jr., of counsel;
    Hal M. Stone, for appellee.
   Opinion by

Presiding Justice Riess.

Not to be published in full.


author: Mr. Presiding Justice Burke

text:
    Reilly Tar and Chemical Corporation, Now Known as The Reilly Corporation, Appellant, v. Francis J. Lewis, Appellee.
    Gen. No. 41,697.

      Heard in the third division of this court for the first district at the April term, 1941.
    Opinion filed January 7, 1942.
    Rehearing denied January 22, 1942.
    Released for publication June 8, 1945.
    See also case reported on p. 117, post.
    W. M. Keeley and Royal W. Irwin, both of Chicago, for appellant.
    A. B. Manion, of Chicago, for appellee.
   Published in full by order of the court. (Abstract opinion 312 Ill. App. 654.)

Mr. Presiding Justice Burke

delivered the opinion of the court.

On April 24, 1933, plaintiff filed its declaration against Francis J. Lewis and William. H. Lewis, and on June 25,1936, plaintiff filed.its amended declaration. In the amended declaration the cause was discontinued as to William H. Lewis. The action was upon a contract and plaintiff alleged that defendant agreed to pay one half of certain income taxes claimed by the United States Government against plaintiff and defendant upon settlement of the claims, and that settlement was accordingly made. After the court overruled a demurrer to the first count of the declaration, issue was joined. The trial was commenced on May 9,1938. At the close of plaintiff’s proofs the court sustained defendant’s motion to direct a verdict and judgment was entered against plaintiff, who prosecuted an appeal to this court. In an opinion filed on October 25,1939 (301 Ill. App. 459), we held that plaintiff made out a prima facie case. We reversed the judgment and remanded the cause. The cause was redocketed and the second trial commenced on October 14, 1940. On October 25, 1940, during the argument to the jury, defendant was granted leave to file “an amendment to the defendant’s special defenses,” which reads:

“And for further defense this defendant says that the alleged agreement set forth in plaintiff’s declaration was cancelled and rescinded by the mutual consent of the parties to the said alleged agreement on or about June 20th, 1928, and before any of the alleged parties to said agreement had acted thereon.”

The trial resulted in a verdict against plaintiff. The court overruled plaintiff’s motion for a new trial and entered judgment on the verdict for the defendant. This appeal followed. We refer to our opinion in the previous appeal to avoid repeating matters there discussed.

The first point urged by plaintiff is that the court erred in permitting the reading to the jury as impeachment of witness Walter S. Orr, the questions and answers from a deposition taken at New York City in January 1936. Plaintiff asserts that of the forty questions and answers read for the purpose óf impeachment, not one was contradictory or inconsistent; that twelve were not read to the .witness on his cross-examination, nor shown to him, and as to eleven such questions the witness said he would now testify the same way, and that the form of the questions constituted merely a memory test. Plaintiff declares that the method of examination followed by the defendant shows an absence of the elements which must be found in impeaching proof. These elements, plaintiff contends, are: (a) statements read as impeachment must be contradictory to and inconsistent with the testimony given in the trial; (b) such contradiction or inconsistency must be as to material matters; (c) the earlier statements must be read or shown to the witness, and (d) the witness must deny making the earlier statements. Defendant meets these contentions by the statement that plaintiff objected only to the last question read into the record as impeachment. Defendant maintains that in any event, the impeaching questions were proper, that they were in compliance with the recognized practice, that the witness was evasive, and that defendant properly brought to the attention of the jury previous contradictory statements. The purpose of impeaching a witness is to show that he is not worthy of belief. We agree with the plaintiff in its statement of the elements which must be found in impeaching proof. However, when a witness is asked whether he made statements different from his testimony on the trial, and the time and place and language are specified and he states he does not recollect, the other party may prove that he did make such statements. We are of the opinion that plaintiff objected in due time. It is apparent that the court understood the objections. The trial judge, after overruling the objections of plaintiff’s attorney, announced that he would let the jury decide whether or not the questions were impeaching. It was the court’s duty to decide, as a matter of law, as to the admissibility of such evidence. As to several questions and answers read to the witness from the deposition, defendant asked, “Do you remember that question and answer?” The witness answered that he did not recollect. This was merely a memory test. He did not deny giving any of the answers. As to some of them he replied that probably he did so answer, and as to others that he would now so answer. After a careful study of the record, we are convinced that the court was in error in permitting the reading to the jury as impeachment of witness Orr, the questions and answers from the deposition taken in January 1936.

Plaintiff maintains that the court erred in permitting the introduction in evidence of the written contract between defendant and International Combustion Engineering Corporation, executed in June 1927, as well as the contract preliminary thereto. Defendant asserts that plaintiff was not a party to the contract, that its interests were not affected thereby and that it was not bound by it in any way. The chief contention in this case is whether the contract of May 25, 1928 was between plaintiff and defendant, or the International Combustion Engineering Corporation and defendant. In ruling on the admissibility of evidence, the court must view the contentions of the respective parties. The two contracts are admissible as showing the background of the agreement of May 25, 1928, and also as tending to show the motives of the parties in their subsequent conduct. The court was right in admitting these documents.

Plaintiff criticizes the ruling which permitted defendant to testify as to what his attorneys told him concerning a conference with representatives of the Government on May 25, 1928. On direct examination defendant testified about statements which he made to Hunter in New York City in June 1928. Over objection he was permitted to relate what he told Hunter as statements made to him (Lewis) by his attorneys Ryan and Lux regarding what occurred at the conference at the Revenue Bureau in Washington on May 25, 1928, following the hotel conference of that date. Plaintiff contends that in that way defendant got into the record and before the jury what he alleged to be statements made to him by Ryan and Lux who were not witnesses in the case, nor subject to cross-examination. Hunter was an officer of plaintiff corporation. The alleged conversation with Hunter was admissible. Plaintiff also contends that the court erred in permitting defendant to testify as to what Learnard said to defendant at the office of Hunter in New York. Learnard was the president of the International Combustion Engineering Corporation. He was not, however, an officer of plaintiff corporation. The record does not show that he was authorized to act in behalf of plaintiff corporation. There was a close relationship between the two corporations. The International Combustion Engineering Corporation owned all of the stock of plaintiff. The conversation between defendant and Learnard took place in the presence of Hunter (who, at the time, was an officer of plaintiff). Our view is that this testimony was admissible.

Plaintiff urges that the court erred in permitting the introduction of the deposition testimony of Daly and Charest and certain exhibits in support of a contention by defendant that the tax settlement of 1928 was reopened and annulled by action of the Government in 1933 making deficiency assessments against bim for several years; also that the 1932 offer in compromise was a reopening of the 1928 settlement as to plaintiff. A careful consideration of the respective contentions convinces us that the 1928 settlement disposed of the appeals then pending and nothing else. The claims presented by the Government subsequent to 1928 were new claims and had nothing to do with the settlement effected in 1928, which is the subject matter of the instant case. We find, as a matter of law, that there is no competent evidence that the settlement made in 1928 was disturbed. The introduction of the testimony of Daly and Charest, the testimony of Hunter on the same subject, and the various exhibits relating thereto, could serve only to confuse the jury and should not have been admitted. Plaintiff also urges that the court erred in refusing to permit plaintiff to introduce on rebuttal the deposition testimony of witness Orr and four exhibits, to show that the transaction in 1932 was not an opening up or setting aside or disturbance of the settlement in 1928 and to meet the proof in Daly and Charest depositions. We have indicated that the testimony of Daly, Charest and Hunter on this point and the exhibits thereon should not have been admitted. The court, having allowed defendant to introduce the testimony and exhibits relating to the alleged opening up of the 1928 settlement, should have permitted the plaintiff to introduce the proffered testimony in rebuttal. Plaintiff insists that the court erred in refusing to permit it to introduce the Boynton and Hayes depositions and plaintiff’s exhibit No. 801 as rebuttal proof against the evidence produced by defendant. Defendant introduced a letter written by Hunter dated April 27, 1929, wherein he called attention to the agreement dated May 25, 1928, between defendant and the International Combustion Engineering Corporation, and requested defendant to pay his share in the sum of $211,247.44. Exhibit No. 801 was a journal entry made in the record of plaintiff corporation in March 1929, setting up this item of $211,247.44 as a charge against defendant. It was proper rebuttal evidence and should have been admitted. Plaintiff argues that the court erred in sustaining objections by defendant to questions asked by plaintiff of defendant Lewis, and also in overruling objections by plaintiff to questions asked by counsel for defendant as shown on certain pages of the record. Defendant answers the criticism by saying that the plaintiff does not attempt to show by way of explanation or argument how it was injured in any way by the rulings complained of, and that plaintiff is not entitled to have the court pass on wholesale objections not supported by explanations, arguments or authorities. Plaintiff replies by asserting that the errors in these rulings are of such number and appear so frequently in the record that to present them separately with a statement of the situation bringing out the error in each case would have unduly lengthened the brief. After a careful study of the record we are satisfied that the court did unduly restrict the plaintiff in his examination of the defendant. ¡We are also of the opinion that the court was in error in overruling the objections by plaintiff to some of the questions asked by counsel for defendant; for instance, William H. Lewis was asked whether he delivered certain checks in payment of income taxes to the Collector of Internal Revenue in reliance on an alleged agreement between defendant and plaintiff. The court overruled the objection of plaintiff and the witness answered in the negative. William H. Lewis was not conversant with the situation. Any information he had was necessarily derived from others. The question invaded the province of the jury and allowed the witness to decide the chief issue in the case. As appears from page 2026 of the record defendant as a witness was permitted to invade the province of the jury by giving his conclusion that the written agreement entered into at Washington on May 25,1928 was with the International Combustion Engineering Corporation. On page 2027 a like error appears. As appears on page 2075 the court erroneously permitted defendant to state his construction of the agreement of May 25, 1928. Plaintiff complains about the action of the court in admitting defendant’s exhibits Nos. 8, 30, 31, 34, 35 and 37. The court did not err in admitting exhibits Nos. 8, 30 and 31. The- court should not have admitted exhibits Nos. 34, 35 and 37. As heretofore stated, the last three exhibits would serve only to confuse the jury.

Plaintiff further contends that the court should not have permitted defendant to file his “amendment to defendant’s special defenses” on October 25, 1940, at the close of the trial. This is the amendment which avers that the alleged agreement pleaded in plaintiff’s declaration was cancelled and rescinded by mutual consent of the parties on or about June 20,1928. We have ruled that the testimony by defendant as to conversations in New York in June 1928 was admissible. We find that the granting of permission to file the -amendment was within the discretion of the court. Plaintiff also complains of the action of the court in striking the second count of plaintiff’s amended declaration, consisting of the common counts. We are of the opinion that the court was in error in striking the common counts. We do not believe that such action affected the substantial rights of plaintiff, as the first count of the amended declaration fully presented its case. Plaintiff urges that the court erred in striking from the first count of its amended declaration the clause, “and that the said F. J. Lewis and W. H. Lewis would reimburse the plaintiff, and the plaintiff would reimburse the said F. J. Lewis and W. H. Lewis for any such additional taxes and interest thereon assessed and paid by it or them in excess of one half of such aggregate amount.” We agree with plaintiff that the court should not have striken this clause. However, as in the striking of the common counts, this action did not harm plaintiff. The clause merely sought to state the obligation arising from the matters alleged.

Plaintiff urges that the court erred in giving instructions and in refusing to give instructions, and supports this assignment of error by argument and citation of authorities. Defendant responds by saying that plaintiff is in no position to urge that the giving or refusal of any instruction was error because no specific objection was interposed by the plaintiff. Defendant does not discuss the instructions, or attempt to meet the argument of plaintiff, except to point out that no specific objection was interposed. The record does not show that plaintiff objected to the giving or refusal to give any instruction prior to the time when it filed a motion for a new trial. In the motion for a new trial it did present the same objections as are now presented as to the instructions. The point made by defendant was passed on by the Supreme Court in the case of Department of Public Works & Buildings v. Barton, 371 Ill. 11. Under the doctrine of that case it is unnecessary at the present time to object or except to the giving or refusal of instructions before the jury retire to consider their verdict. A litigant may object to the giving or refusal of instructions in his motion for a new trial.. Having so objected, a court of review will pass on the points raised. The court refused to give plaintiff’s instruction No. 1, which presents the “ratification and adoption theory” discussed in our previous opinion. We agree that plaintiff has the right to have this theory presented to the jury and that the instruction should have been given. Plaintiff also insists that the court erred in refusing to give plaintiff’s instruction No. 11, which told the jury that the plaintiff was not a party to the written contract between defendant and International Combustion Engineering Corporation, relating to the sale by defendant of stock in plaintiff corporation, and that the claims asserted by plaintiff and plaintiff’s right of action, if any, were not affected by the sale and the contract made between defendant and International Combustion Engineering Corporation. Plaintiff had the right to an instruction that it was not a party to the sale contract between defendant and International Combustion Engineering Corporation. The balance of the. instruction, however, would tend to confuse the jury, and the court did not err in marking it ‘ ‘ refused. ’ ’ Plaintiff also contends that the court erred in giving defendant’s instruction No. 1. This instruction undertakes to outline the pleaded claims of plaintiff. The instruction omits any reference to that part of the declaration setting out the written memorandum of May 25, 1928. This instruction also tells the jury that one of the defenses is that the alleged contract was rescinded by the mutual consent of the contracting parties before it was acted upon. The instruction does not indicate who the contracting parties were. It also tells the jury that the agreement mentioned in plaintiff’s declaration contemplated a settlement of defendant’s tax liability for certain years including 1917 to 1920, inclusive, and that such settlement was not effected pursuant to the alleged agreement, but was effected by the independent action of the defendant in the year 1934. Our discussion of this subject in another part of the opinion necessarily condemns this instruction. Instructions similar to defendant’s instruction No. 4 have been criticized by our courts of review. Defendant’s instruction No. 8, in referring to the written agreement of May 25, 1928, states that they are to be construed “against the party for whom or on whose behalf they aré prepared, and that if ambiguous the jury is to adopt a construction more favorable to the defendant in this case.” This instruction is misleading and confusing. Defendant’s instruction No. 10 should not have been given. It could only serve to confuse the jury. Defendant’s instruction No. 11 is confusing in that it assumes that the evidence might prove that there was an agreement entered into between defendant and Hunter. Hunter acted only as an agent for the plaintiff or International Combustion Engineering Corporation. Defendant’s instruction No. 12 is on the subject of fraud. It leaves out the essential elements that constitute fraud and should not have been given. Defendant’s instruction No. 13 tells the jury that express proof of fraud is not required and that fraud may be proved by circumstantial evidence as well as by positive proof. This is an abstract instruction and is misleading. Instructions No. 12 and 13 should not have been given for the further reason that the record does not show that there was any fraud. In view of our criticism of the attempt to impeach the witness Orr, defendant’s instruction No. 14 is erroneous. Instruction No. 17 is subject to the same criticism. Defendant’s instruction No. 20 is erroneous in that it ignores the ratification and adoption theory of plaintiff. Plaintiff complains that defendant’s instructions Nos. 7, 26 and 27 emphasize defendant’s claim that he made no contract with plaintiff, but was contracting with the International Combustion Engineering Corporation, and calls attention to cases which hold that the practice of giving an excessive number of instructions has been condemned. We agree with this criticism. Defendant’s instruction No. 25 informs the jury that if they believe that after May 25, 1928, the contract was rescinded or cancelled by the consent of the contracting parties, they should find for the defendant. There was evidence of rescission consisting of the testimony of defendant as to a conversation in June 1928, in which he repeated to Hunter and Learnard what had been told to him by Ryan and Lux concerning the conferences with representatives of the Government on May 25, 1928. Plaintiff also argues that this testimony is not worthy of belief. The latter part of the objection to this instruction is in reality leveled at the character of testimony on which the instruction is based. Instruction No. 28 is bad as it leaves to the jury the construction and effect of the power of attorney. The construction of the power of attorney was for the court. Plaintiff also argues that counsel for defendant was guilty of improper and prejudicial conduct during the trial. Defendant replies by saying that as plaintiff did not object then, he cannot be heard to complain now. In this respect, we agree with defendant.

Finally, plaintiff insists that the verdict is contrary to the manifest weight of the evidence. Because of the errors discussed, requiring a reversal of the judgment, it is unnecessary to consider whether the verdict is manifestly against the weight of the evidence. Defendant assigns as cross-error the action of the court in sustaining plaintiff’s special demurrer to defendant’s plea of the Statute of Limitations to Count No. 1 of the amended declaration. This point was urged by defendant on a previous appeal and rejected as being without merit. On this subject we adhere to the views expressed in the previous opinion. Because of the errors pointed out, the judgment of the circuit court of Cook county is reversed and the cause remanded with directions for" further proceedings not inconsistent with this opinion.

Reversed and remanded with directions.

Hebel and Kiley, JJ., concur.


author: Mr. Presiding Justice Bristow

text:
    R. W. Lemmons, Administrator De Bonis Non, etc., et al., Appellants, v. Harvey H. Sims et al., Appellees.
    Term No. 44M7.

      Heard in this court at the October term, 1944.
    Opinion filed October 27, 1944.
    Rehearing denied July 2, 1945.
    Released for publication July 3, 1945.
    Sumner & Lewis, of Lawrenceville, and O. E. Lewis, of Olney, for appellants.
    Donovan D. McCarty, of Olney, for appellees.
   Mr. Presiding Justice Bristow

delivered the opinion of the court.

On April 28, 1942, Willard Sutton and his wife, Addie B. Sutton, came to their deaths as a result of an automobile accident, and on April 3, 1943, C. F. Stoll was appointed administrator of the estates of said decedents upon the application of their daughter in the county court of Lawrence county. On April 14, 1943, he filed this suit against the defendants for wrongful death of the decedents. He is described in the Letters of Administration as “Public Administrator.”

The record discloses that O. F. Stoll was appointed Public Administrator of Lawrence county for a term beginning March 12, 1938, but failed to file his bond within 60 days next after his appointment, as provided by statute. Based upon this circumstance, the defendants filed a verified motion to dismiss the suit, setting up that the plaintiff did not have the legal capacity to sue in that he was not the legal Public Administrator by reason of his failure to qualify under the law.

The trial court allowed the defendants’ motion on June 29, 1943. Subsequently thereto, on July 9, 1943, C. F. Stoll as administrator de bonis non filed a motion to set aside the order of dismissal, and for leave to be substituted as plaintiff in lieu and instead of O. F. Stoll, administrator of said estates. The defendants filed a countermotion to strike plaintiff’s motion for substitution. A hearing was had, and the trial court allowed defendants’ countermotion to strike plaintiff’s motion for substitution of plaintiff, and thereupon entered judgment in the case for the defendants and dismissed the suit at plaintiff’s costs. Subsequently C. F. Stoll died and R. W. Lemmons, who was appointed administrator de bonis non to succeed him was permitted to substitute as party plaintiff to take and carry on this appeal.

The plaintiff contends that regardless of the validity of the appointment of 0. F. Stoll as Public Administrator of Lawrence county, he was nevertheless the duly qualified acting administrator of the estates of the decedents, and as such had proper capacity to bring the suit in question; that the suit being brought within the statutory period for the bringing of such actions was properly pending at the time he sought the substitution of C. F. Stoll, administrator de bonis non, as plaintiff; that by reason thereof the trial court erred in refusing to allow the substitution and in dismissing his suit. The defendants contend that the plaintiff did not have the legal capacity to sue; that he failed to qualify as Public Administrator in that he did not file his oath and give bond within 60 days of his appointment as required by law; that the county court of Lawrence county exceeded its jurisdiction in appointing C. F. Stoll as Public Administrator, administrator of the decedent estates herein, and that the attempted substitution of C. F. Stoll as administrator de bonis non more than one year next after the death of the decedents was made too late so that the action was barred under the provisions of the Injuries Act of the State of Illinois.

If in this case a suit was brought within one year next after the death of the decedents by someone having the legal capacity to sue, then the plaintiff would be.entitled to his day in court without question. It then becomes important for a correct decision of this case to determine, when the suit was brought on April 14, 1943, by “C. F. Stoll, Public Administrator and administrator of the estate of Willard Sutton, deceased” and “C. F. Stoll, Public Administrator and administrator of the estate of Addie B. Sutton, deceased,” whether that plaintiff had such capacity.

Under our statute, the county court of Lawrence county had complete jurisdiction in all matters of the probate of decedent estates. It is the law that such a court in adjudging the administration of an estate has a jurisdiction as general as that of the circuit court. People for use of Stough v. Danforth, 293 Ill. App. 280.

The county court acting within the scope of its jurisdiction upon the application of the daughter of the husband and wife decedents, appointed C. F. Stoll administrator of their estates, and while it is true in so appointing him it designated him as “Public Administrator,” that title added nothing and neither did it detract from the specific appointment as administrator of the respective estates qf the decedents. The words “Public Administrator” are merely “descriptio personam.” Goff v. Will County Nat. Bldg. Corp., 311 Ill. App. 207. That the county court appointed O. F. Stoll administrator of these estates is not questioned by the defendants. They raise the point that although so appointed the said appointment was beyond the power of the county court to make and did not amount to a valid' appointment so as to constitute the appointee the actual administrator. This directly calls into question the validity of the county court’s appointment and amounts to a collateral attack thereon. Since the county court has the general jurisdiction to appoint administrators, its appointments are valid and binding and not subject to collateral attack. The courts have often at great length distinguished between the power of a court to enter an order, judgment or decree and the proper exercise of that power. When a court has the power to act, it may act, even though erroneously. When it commits error, upon proper application by direct appeal the court can be reversed, but it has ever been held, and it must necessarily so be in the proper administration of justice, that where a court has the general jurisdiction to act concerning a certain matter, its actions in that regard are conclusive for all purposes in any collateral proceedings. In Frothingham v. Petty, 197 Ill. 418, the court said (at page 428):

“We are of the opinion that the county court complied with all the necessary provisions of the statute to give it jurisdiction over both the person and the subject matter in this proceeding, and even though mere irregularities occurred in the proceeding, such could only be urged on direct proceeding for reversal. In Blair v. Sennott, 134 Ill. 78, we said (p. 88): ‘Having jurisdiction of the subject matter and of the person, the same presumptions in favor of the correctness of the ruling of the probate court must be indulged as in favor of circuit courts under like circumstances.’ The record showing that the court had jurisdiction of the person and the subject matter to remove Steagall, such finding cannot be questioned in a collateral proceeding. In the ease of Harris v. Lester, 80 Ill. 307, this court said (p. 310): ‘No principle of law is better settled than where a court has jurisdiction of the subject matter and the persons of the parties, its judgment or decree, when questioned collaterally, will be held valid, and, notwithstanding the court may have proceeded irregularly, a purchaser in good faith under its judgment or decree will be protected.’ (Bowen v. Bond, 80 Ill. 351.)”

That this principle is- true in all the fields of jurisprudence is illustrated by the following cases:

In the case of Miller v. Rowan, 251 Ill. 344, the court said, at page 348:

“A judgment or decree is not binding upon anyone unless the court rendering the same had jurisdiction of the parties and the subject matter of the cause. The court did have jurisdiction of the parties, and the appellant, who is disputing the binding effect of the decree, was one of the complainants. Jurisdiction of the subject matter is the power to adjudge concerning the general question involved, and if a bill states a ease belonging to a general class over which the authority of the court extends, the jurisdiction attaches and no error committed by the court can render the judgment void. If the court has jurisdiction, it is altogether immaterial, when the judgment is collaterally called in question, how grossly irregular or manifestly erroneous its proceedings may have been. The judgment cannot be regarded as a nullity, and cannot, therefore, be collaterally impeached. Such a judgment is binding on the parties and on every other court unless reversed or annulled in a direct proceeding and is not open to collateral attack. If there is a total want of jurisdiction in a court its proceedings are an absolute nullity and confer no right and afford no protection but will be pronounced void when collaterally drawn in question. Buckmaster v. Carlin, 3 Scam. 104; Swiggart v. Harder, 4 id. 364; People v. Seelye, 146 Ill. 189; Clark v. People, 146 id. 348; O’Brien v. People, 216 id. 354; People v. Talmadge, 194 id. 67.”

In the case of Jeffries v. Alexander, 266 Ill. 49, at page 53, the court said:

“The Court sustained an objection to the decree and excluded all evidence in regard to the previous marriage. This is assigned as error. The decree of divorce was rendered by the circuit court of Marion county, and it is contended that it was void because it contained no finding that the complainant was a resident of that county. That the decree was for that reason erroneous and might have been reversed is established by the case of Becklenberg v. Becklenberg, 232 Ill. 120. But it does not therefore follow that it was void and could be wholly disregarded. The argument made against it is, that the decree failing to show On its face that the court had jurisdiction of the subject matter was therefore absolutely void and subject to collateral attack. The circuit courts of this State have jurisdiction of the subject matter of divorce, and, being courts of general jurisdiction, every presumption will be indulged in favor of their decrees. Nothing will be presumed to be without their jurisdiction which does not specially appear to be so. The court having general jurisdiction of the subject matter will be presumed to have jurisdiction of the particular cause unless its want of jurisdiction affirmatively appears. In the decree in question want of jurisdiction does not affirmatively appear. Though it does not appear that the complainant was a resident of Marion county it does not affirmatively appear that she was not, and the court having rendered a decree, it will be presumed, as against a collateral attack, that the particular cause was within its jurisdiction.”

It is not necessary in this case to discuss whether C. F. Stoll was ever validly the Public Administrator of Lawrence county as that office has no hearing upon the facts in this case. The county court could have appointed any individual administrator and upon the application of the decedents’ heir he appointed C. F. Stoll. If any irregularity occurred in said appointment, an interested party in the respective estates could have properly raised the point in the matter of said estates. It is too well established to permit of dispute that a party not interested in said estates would be in no position to object to the appointment of an administrator even before the county court who made that appointment. Only one actually interested in the estate, such as an heir or a creditor, could object to the appointment; a debtor of an estate is not one having such an interest. In re Estate of Trost, 292 Ill. App. 60.

From what has been said in the foregoing it is apparent that the defendants could not in this case collaterally attack the appointment of the administrator of the estates and that the suit for wrongful death having been filed within the statutory period, should not have been dismissed. The subsequent motion for leave to substitute C. F. Stoll as administrator de bonis non should have been allowed as a matter of course, in accordance with the broad terms of the statute. Ill. Rev. Stat. ch. 110, par. 178 [Jones Ill. Stats. Ann. 104.054].

For the foregoing reasons, the judgment of the court below is reversed and the cause remanded with directions to set aside the order dismissing, said suit, and to permit the substitution of O. F. Stoll, administrator de bonis non, as party plaintiff, and for other proceedings herein not inconsistent with the views herein expressed.


author: Mr. Justice Stone

text:
    Allie Kohler, and Allie Kohler as Guardian of Karl Kenneth Kohler and Robert Eugene Kohler, Minors, Appellees, v. Sam H. Kohler, Appellant.
    Term No. 44,012.

      Heard in this court at the February term, 1945.
    Opinion filed March 5, 1945.
    Rehearing denied June 21, 1945.
    Released for publication June 27, 1945.
    Paul D. Reese, of Jonesboro, for appellant.
    R. Wallace Karraker, of Jonesboro, for appellees.
   Mr. Justice Stone

delivered the opinion of the court.

This is a suit in chancery wherein Allie Kohler, plaintiff appellee (hereinafter designated as plaintiff), both in her individual capacity and as legal guardian of Karl Kenneth Kohler and Robert Eugene Kohler, her minor children, has brought an action against her former husband, Sam H. Kohler, defendant appellant (hereinafter designated as defendant), to reform a property agreement, entered into during the pendency of a divorce suit between them. The purpose of the agreement was to settle property rights as between the parties and to make an adequate settlement for the support and maintenance of their two children during their minority.

The complaint alleged in substance that plaintiff is the legal guardian of Karl Kenneth Kohler and Robert Eugene Kohler, ages 7 and 16 years respectively, the children of the parties hereto; that said parties were divorced by decree of the circuit court of Union county, October 25, 1941; that in the year 1938 or 1939, defendant while married to plaintiff began a notorious association with a woman and during such time was absent from home for more than a week when it was stated upon information and belief that he was in the company of said woman; that as a result of defendant’s conduct plaintiff was greatly annoyed, under great mental anguish, her home disgraced and the lives of her minor children and herself made miserable ; that while she was so distressed, she agreed to a divorce and property settlement agreement, which was then and there entered into between her and said defendant, and that she acted without deliberation or consideration, had no legal advice and that the attorney who prepared said property agreement was employed by and acted as counsel for the defendant.

The complaint also alleged that defendant’s income had increased and that he had inherited certain property since the settlement; that the property settlement made was grossly unfair and inadequate for the support of plaintiff and the two minor children, as it was the intention of all the parties and in the interest of said children, that the principal of certain bonds given said children in the settlement remain intact and be delivered to them as they reached their legal majority and that only the interest on said bonds should be used. There is also an allegation that the real estate deeded to Robert Kenneth Kohler, produced only a $30 a month income with expenses for repair and upkeep; that the income from the funds transferred to plaintiff are not sufficient to support and care for her and maintain a home for the said children; that the condition of her health is such that she fears that she will not be able to work much longer. The prayer of the complaint is that the said separation agreement be declared null and void, and that the court reopen all questions of property settlement between plaintiff and defendant and that defendant be further required to make an adequate property settlement for the care, maintenance and education of said minor children.

Attached to the complaint, as “Exhibit A” is the contract between the parties hereto, which in substance provided, that the wife had filed suit for divorce, and for the custody of the two minor children; the husband was desirous of conveying to the wife and to the two children, certain real estate and other property. The agreement further provided that the husband had placed certain U. S. government bonds, totaling $7,600, together with 14 shares of C. I. P. S. Co. stock and warranty deed to certain real estate in the hands of the Anna State Bank, Anna, Illinois, in escrow, with directions to transfer the same to the said Allie Kohler; that he had placed certain U. S. government bonds, totaling $3,000 together with deed to certain real estate, in the hands of the Anna State Bank, in escrow, with directions to transfer the same to the son Robert Eugene Kohler, a minor, Allie Kohler, his legal guardian; that he had placed deed to certain other real estate, together with U. S. government bonds, totaling $3,000 in the hands of the Anna State Bank, with directions to transfer the same to the son, Karl Kenneth Kohler, a minor, Allie Kohler, his legal guardian. By such settlement it was further provided that the defendant herein, had by the agreement, provided for the support and maintenance of the two children during their minority.

Upon a trial of the issues before the court, it was decreed that the only matter for the consideration of the court was whether proper provision had been made by the parties for the care and support of the two children, and as to this question the court found that proper provision had been made as to Robert Eugene Kohler, but that defendant had not properly com tributed his share for the support of Karl Kenneth Kohler and that defendant should contribute further for his care and support the sum of $30 a month and that defendant pay the costs of the proceeding.

From such decree appeal was prosecuted to this court. After appeal had been perfected and supersedeas bond had been approved and filed by defendant, plaintiff filed her petition in the trial court for an order on defendant requiring him to pay to plaintiff the sum of $350 for necessary expenses and attorney fees in defending the appeal. After a hearing on said petition the trial court entered a further order directing that defendant pay to plaintiff the sum of $350, pursuant to the prayer of her petition. From such order appeal was likewise perfected.

Among the many errors relied upon for a reversal of the findings, orders, judgments and decrees of the trial court is that the court erred in finding that the defendant should make a further contribution of $30 a month for the care and support of Karl Kenneth Kohler, minor. In that regard, plaintiff contends that it is the duty of the parent to support his child and the court in determining this question should consider all the circumstances of the child and the parent. With these generalities, we are inclined to agree, when those questions are submitted to the court in the proper kind of action. The prayer of the complaint was, that the separation agreement be declared null and void and that the court reopen all questions of property settlement between plaintiff and defendant and that defendant be required to make an adequate property settlement for the care, maintenance and education of said minor children. There was no prayer for periodical payments to either of the children. The judgment or decree must conform to and be supported by the pleading and proofs in the cause. Sharkey v. Sisson, 310 Ill. 98; Lewis v. Lewis, 316 Ill. 447; Richards v. Davis, 352 Ill. 277; Parker v. Gray, 317 Ill. 468; O’Donnell v. Henley, 327 Ill. 406; Brinkerhoff v. Huntley, 223 Ill. App. 591.

The instant case is not a divorce action, and an application to enforce or modify a decree for custody or support of minor children in a divorce, case must be made in the court where the decree was rendered. Kellogg v. Kellogg, 302 Ill. App. 604; Harding v. Harding, 120 Ill. App. 389.

The complaint herein shows on its face that the parties hereto were divorced by the decree of the circuit court of Union county. The pendency of a former suit in the same jurisdiction, in the same or other court of equity, between the same parties respecting the same subject matter may be pleaded in abatement of the second suit. Haas v. Righeimer, 220 Ill. 193; Illinois Life Ins. Co. v. Prentiss, 277 Ill. 383; James v. Langley, 323 Ill. App. 268; Lyons v. 333 North Michigan Ave. Bldg. Corp., 277 Ill. App. 93.

Even assuming that the instant suit were a divorce suit where an order could properly be entered for the further support of one or both of the minor children involved, there is no showing that the property conveyed to them by defendant has been exhausted. Certainly the language of the contract, which by implication becomes a part of the complaint, shows that both real estate and bonds were transferred by defendant to the children absolutely, without any restrictions as to when said property was to be used. Plaintiff admitted that she still had these bonds. While courts of equity may exercise their powers to hear and determine divorce cases, and all matters relating thereto, within the limits of the jurisdiction conferred by statute, the jurisdiction depends upon the grant of the statute and not upon general equity powers. Smith v. Smith, 334 Ill. 370; Smith v. Johnson, 321 Ill. 134. The circuit court of Union county continued to have jurisdiction, after the divorce decree to modify its orders and directions as to the care and custody of these minor children. We are of the opinion that the trial court erred in decreeing that defendant should make a further contribution of $30 a month for the care and support of Karl Kenneth Kohler, minor.

It is urged on behalf of defendant, that the trial court erred in entering a supplemental decree ordering defendant to pay the sum of $350 for expense in the Appellate Court, after appeal was perfected in the original suit, and after supersedeas bond was given. This action not being a divorce or separate maintenance suit, where by statute (ch. 40, par. 16, Ill. Rev. Stat. 1943 [Jones Ill. Stats. Ann. 109.183]) power is expressly conferred upon the trial court to grant a sum of money for defense, in the event of an appeal (Jenkins v. Jenkins, 91 Ill. 167) where notice of appeal is duly filed in the trial court the jurisdiction of the Appellate Court attaches and the trial court loses jurisdiction. Simon v. Balasic, 316 Ill. App. 442; Cowdery v. Northern Trust Co., 321 Ill. App. 243. We are therefore of the opinion that the trial court erred in entering such order after the perfecting of the appeal from the original decree.

We do not deem it necessary to pass on any of the other numerous errors assigned by defendant. We find no merit in the cross-error, assigned by plaintiff that the decree failed properly to provide for the care and support of the two minor children.

The original decree of the circuit court of Union county is reversed and the cause remanded for further proceedings in conformity with this' opinion. The supplemental decree is reversed, with directions to dismiss the petition of plaintiff for expense in the Appellate Court, for lack of jurisdiction.

Reversed and remanded with directions.


text:
    Dora A. Moore, Appellee, v. Southern Independent Oil and Refining Company, Appellant.
    Term No. 44,016.
    Heard in this court at the February term, 1945.
    Opinion filed March 5, 1945.
    Rehearing denied June 21, 1945.
    Released for publication June 27, 1945.

      Hatfield, Meter, Fine & Hatfield, of Evansville, Indiana and Marion M. Hart, of Benton, for appellant.
    Frank E. Trobaugh and Stephen E. Brondos, both of West Frankfort, for appellee.
   Mr. Justice Stone

delivered the opinion of the court.

This is an action for rent brought by Dora A. Moore, appellee, hereinafter designated as plaintiff, against Southern Independent Oil and Refining Company, appellant, hereinafter designated as defendant. Summons in distress warrant proceedings recited that plaintiff, the landlord, had lately distrained the goods and chattels of defendant, describing the personal property contained in a building used by defendant in operating its filling station. The amended answer of defendant alleged among other things, that defendant was prevented and forbidden from operating its service or distributing station in the manner provided for in the lease, because of Petroleum Directive No. 57. In addition thereto, it alleged an abandonment of said premises by defendant. The reply of plaintiff denied that under the Federal regulation known as Petroleum No. 57, defendant was prevented and forbidden from operating its station under the terms of the said lease.

Upon the trial of said cause by the court, without a jury, judgment was entered in favor of plaintiff and against defendant in the sum of $325, being the sum claimed by plaintiff for rent due, for a period of five months from February 1,1943, to July 1, 1943, at $65, a month, payable in advance. From this judgment defendant appeals to this court.

It appears that plaintiff, as lessor and defendant as lessee, on September 11, 1941, entered into a lease of certain premises situated in the City of West Frankfort, Illinois. Said lease was for a period of five years, and provided a monthly rental of $65, payable in advanee. Among other provisions the lease set forth that it was the lessee’s purpose to use said property as a service or distributing station, filling its tanks directly from tank cars to be placed on the adjacent railroad track and that “if during the period of this lease, or any extention thereof, lessee’s plan of operation, namely, of unloading the whole- contents of a tank car into said' station, should be prevented or forbidden by any law, ordinance or other regulation . . . lessee shall have the right to terminate this lease. ’ ’ The lease further provided for a 60-day notice to lessor, in such event. There was further proviso, that in the event the lease was terminated for any cause therein provided or by mutual agreement or otherwise, lessee agreed to continue to pay rent at the rate of $65 per month until it removed its improvements, tanks, equipment and other property located thereon.

On the 24th day of August 1942, there was promulgated a Federal regulation commonly known and designated as Petroleum Directive No. 57. Section 1510.17 thereof being as follows: “1510.17. Area of Restriction Upon’ Movement of Certain Petroleum Products by Rail. No person, natural or artificial, engaged in the business of refining, transporting, purchasing or distributing petroleum or petroleum products in the United States on or after August 24, 1942, shall move, cause to be moved, purchase or sell for movement by railroad tank car, any automotive gasoline for commercial distribution, from any point within the United States to any other point within the States of Illinois . . . (here are enumerated a number of other states).”

Said directive further provided that under the order, distributors should arrange for common use of terminals and that no distributor in the area affected should be deprived of an opportunity to share equitably in the available supply and use of facilities throughout the area affected. Under exceptions, the directive further provided that the governmental agency would provide such common use of transportation, as would be necessary to attain maximum efficient utilization of all available transportation, supply and distribution facilities as would insure the maintenance of an adequate supply of petroleum products throughout the area; further, that in tfie event any person affected by the directive, showing the authorities such directive would result in the nondelivery of products for agricultural purposes, continued efficient operation of any essential industrial establishment, or for the maintenance of public health or safety, might apply to the director for special authorization to get gasoline.

Leases, in common with other contracts, are construed from the four corners of the instrument in order to arrive at the true intention of the parties. It is not allowable to interpret what has no need of interpretation and when the words have a definite and precise meaning, to go elsewhere in search of conjecture in order to restrict or extend the meaning. Weill v. Centralia Service & Oil Co., 320 Ill. App. 397. Although it is set out in the lease, that defendant is to use the property as a distributing station, filling its tanks through pipelines directly from tank cars placed on the adjacent railroad tracks, nowhere is it stated that the lessee has a right to terminate the lease because or on account of the fact that it is unable to obtain delivery of gasoline in tank car lots. The language used, is, “If during the period of this lease . . . lessee’s plan of operation, namely, of unloading the whole contents of a tank car into said station should be prevented or forbidden by any law, ordinance or other regulation . . .” which is followed' by other expressed conditions particularly applicable to the property at its situs. The familiar doctrine of the law of expressio unius est exclusio alterius, is particularly applicable here. The expression in a contract of one or more things of a class, implies the exclusion of all not expressed. Hammerquist v. Swensson, 44 Ill. App. 627; Stettauer v. Hamlin, 97 Ill. 312; Century Parlor Furniture Co. v. Harty Bros. & Harty Co., 141 Ill. App. 17.

We are therefore of the opinion that even though Directive 57 entirely prohibited the transporting of gasoline in tank-car lots, that such exclusion cannot be read into the lease or reasonably inferred as being the intention of the parties. The evidence shows that the last gasoline delivered to defendant by rail was in April 1942, and that both before that and after, some deliveries were made to it by truck; that after that date all of its gasoline was delivered to it by transport trucks. The evidence shows no effort on the part of defendant to take advantage of the exceptions offered under Directive 57, in securing gasoline.

Under this record we cannot hold that the court erred, as claimed by defendant, in holding that Directive 57 did not give defendant the right to terminate the lease given defendant by plaintiff.

Paragraph 6 of the lease involved herein, provided that in the event the lease was terminated for any cause therein- provided, or by mutual agreement or otherwise, the lessor agreed to continue to pay rent at the rate of $65 a month until it removed its improvements, tanks, equipment and other property located thereon. There is evidence in the record that after notice was served by defendant on plaintiff, a tank and other equipment, the property of defendant, remained on the premises. On behalf of defendant, John Sanders, who up to the time he withdrew as such attorney, represented defendant, testified that he had informed the husband of plaintiff, that defendant had abandoned that equipment. There is some evidence in the record, however, of attempts on the part of defendant, after the attempted termination of the lease, to sell said tank and equipment, which is inconsistent with the theory of abandonment of said property on the part of defendant.

Whether there was an abandonment, was unquestionably a question of fact for the court. The case was tried before the court, without a jury, and as a court of review, we will not substitute our findings of fact for the findings of the trial court, unless the judgment is clearly against the manifest weight of the evidence. As a reviewing court, we will accept the findings of the trial judge upon questions of fact, based upon the statements of witnesses whom he saw and heard testify, unless such findings are clearly and palpably erroneous. Floyd v. Estate of Smith, 320 Ill. App. 171; Frazier v. Allison, 315 Ill. App. 253.

We find no reversible error in this record and the judgment of the trial court is affirmed.

Affirmed.