text:
    W. F. Holmes, Appellant, v. Bertha Fanyo, Appellee.
    Gen. No. 10,030.
    Heard in this court at the May term, 1945.
    Opinion filed October 22, 1945.
    Rehearing denied November 28, 1945.
    Released for publication November 29, 1945.
    Clyde E. Mitchell, of La Salle, for appellant.

      Saum & Nelson and A. Fred Kendall, both of Watseka, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.

On Sept. 13, 1937, W. F. Holmes filed a complaint in the circuit court of Iroquois county for confession of judgment, and a cognovit signed by appellee’s (Bertha Fanyo,) attorney, confessing judgment in favor of Holmes to the amount of $2,290.64, plus costs of suit. On the same date an execution was issued and delivered to the sheriff, and returned by him on the same day showing said execution, “no part satisfied.” On Sept. 9, 1944, pluries execution was issued in said case, and delivered to the sheriff who on Nov. 24,1944, levied upon real estate belonging to the appellee, Bertha Fanyo. On Dec. 9, 1944, the appellee, Fanyo, filed a motion to quash said levy, and to stay further proceedings thereon, because said levy was made more than seven years after the date of the judgment.

After a hearing upon said motion, the trial court, on Dec. 14, 1944, entered an order quashing said levy, and staying further proceedings thereon, upon the ground that said levy was made more than seven years after the date of the rendition of the judgment, and the court further ordered that said execution, which was issued prior to the seven year period, be recalled and that the realty levied upon, under said execution be released from the lien of said levy and execution. It is from this order that the appeal is prosecuted.

The chronological order in which the events important to the decision of this, litigation is as follows:

Í. September 13, 1937 — Judgment rendered in favor of W. F. Holmes and against Bertha Fanyo, for $2,290.64 plus costs of suit.

2. September 13, 1937 — Execution issued and delivered to sheriff.

3. December 13, 1937 — Return of execution showing no part satisfied.

4. September 9, 1944 — Pluries execution issued and delivered to sheriff.

5. November 24, 1944 — Levy on certain real estate by sheriff.

6. November 24, 1944 — Certificate of levy showing that by virtue of pluries execution of September 9, 1944, said sheriff levied on certain real estate.

7. December 9, 1944 — Defendant’s motion to quash levy and stay further .proceedings thereon.

8. December 14, 1944 — Order of circuit court quashing levy and staying further proceedings thereon and memorandum opinion of circuit court.

The question to be decided in this appeal is whether or not a judgment continues as a lien when an execution was issued prior to the seven year period, (or the expiration lien limitation period of a judgment,) but a levy had not been made on the premises of the defendant until after the seven year period had expired. Part of sec. 1, ch. 77, Ill. Rev. Stats. 1943 [Jones Ill. Stats. Ann. 107.151] is as follows: “As to real estate included within Class 2, a judgment of a court of record shall be a lien on the real estate of the person against whom it is obtained, situated within the county for which the court is held, from the time the same is rendered or revived, for the period of seven years, and no longer.” Section 6 [107.156] of the same chapter is as follows: “No execution shall issue upon any judgment after the expiration of seven years from the time the same becomes a lien, except upon the revival of the same by scire facias; but real estate, levied upon within said seven years, may be sold upon a venditio rei (venditioni) exponas, at any time within one year after the expiration of said seven years.”

The case must he decided, as declared by the statute, as a judgment lien, is purely a creature of the statute. A judgment did not create a lien on real estate of the debtor at common law. Smith v. Toman, 368 Ill. 414. It is held in the case of Dobbins v. First Nat. Bank of Peoria, 112 Ill. 553, that in construing the judgment statute, secs. 1 and 6 should be construed together. The appellant relies upon the case of Dobbins v. First Nat. Bank of Peoria, supra, and Hastings v. Bryant, 115 Ill. 69. An examination of these cases discloses that they are not authority for the question as presented to us. In each of the above mentioned cases, an execution was issued, and given to the sheriff for service, and the sheriff levied upon the property within the seven year period, and the court held that under the law as it then, and now exists, that the levy was good and that they could sell the property after the expiration of the seven year period. In the present case, the execution was issued, and delivered to the sheriff within the seven year period, but no levy was made until after the expiration seven year period, and under the statute the lien created had expired.

It is our opinion that the court’s order in quashing the levy and staying further proceedings in regard to the execution, was proper and the judgment appealed from should be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Dady

license: Public Domain

text:
    Wallace Lasko, Appellee, v. Vern Meier, Appellant.
    Gen. No. 9,469.

      Heard in this court at the October term, 1945.
    Opinion filed October 23, 1945.
    Released for publication November 19, 1945.
    Omer Poos, of Hillsboro, for appellant.
    J. D. Wilson, of Nokomis, for appellee.
   Mr. Justice Dady

delivered the opinion of the court.

This is a personal injury suit growing out of a collision between two automobiles.

Defendant appeals from a judgment of $8,000 for the plaintiff based on a verdict.

The collision occurred on July 28, 1940, about 2:00 p.- m. in the northeast quarter of the intersection of Vine and Central streets in Nokomis, Illinois. Each street was from 30 to 40 feet in width.

The plaintiff was in the front seat of an automobile owned and being driven by his brother, Leo, in a northerly direction on Vine street. The defendant, Vern Meier, was driving his father’s car in a westerly direction on Central street. The right front of the car driven by the defendant struck the right rear corner of the car in which the plaintiff was riding.

The plaintiff was very severely injured. No claim is made that the judgment is excessive.

The first contention of the defendant is that the complaint does not state a cause of action in any manner against the defendant Vern Meier.

The suit was originally brought against both Ferd Meier and Vern Meier. Ferd Meier was the father of Vern Meier and owned the automobile driven by Vern Meier. At the conclusion of the plaintiff’s evidence the suit was dismissed as to Ferd Meier on the motion of the plaintiff.

So far as the question is raised concerning the sufficiency of the pleadings, the complaint, consisting of one count, charged “that the defendant, Ferd Meier, was the owner of and through his agent, servant and son, Vern Meier, was possessed and had control of an automobile . . .; that the defendant, Ferd Meier, through his agent, son and servant, Vern Meier, not regarding his duties in the premises, then and there did one or more of the following acts: (a) So carelessly and negligently drove and managed his said automobile west at a speed of fifty' miles per hour on said west Central Street at or near said intersection; or (b) operated his said motor vehicle at a rate of speed in excess of the amount that was reasonable and proper, contrary to Section 49” of the statute; “that by means of the premises and the negligence of the defendant as aforesaid, and as a direct and proximate result thereof, said automobile of the defendants ran upon, against and collided with the said automobile in which the plaintiff was riding, and plaintiff was thrown through the windshield . . . and thereby injured.”

Defendant made no motion to strike the complaint, but merely filed an answer which categorically denied each paragraph of the complaint. At the conclusion of the plaintiff’s evidence, and again at the conclusion of all .the evidence, the defendant made a written motion for a directed verdict. After verdict the defendant filed a written motion for a judgment notwithstanding the verdict, and a written motion for a new trial. No one of such motions raised the question of the sufficiency of the complaint, but such question has been raised fo.r the first time in this court of review. In this state of the record, all intendments are in favor of the verdict and judgment. (Connett v. Winget, 374 Ill. 531.) A verdict will aid a defective statement of a cause of action by supplying facts defectively and imperfectly stated or omitted. (Grace & Hyde Co. v. Sanborn, 225 Ill. 138, 140.)

It is our opinion that the complaint in the present case, although informal, stated sufficient facts on which to base the verdict and judgment.

The next contention of the defendant is that the plaintiff must prove “that . . . the plaintiff himself was in the exercise of due care and caution for his own safety at and prior to the time of the accident in question, and that he warned the driver to call his attention to'the apparent danger,” and that a judgment should be entered in favor of the defendant “because the record shows that the plaintiff was guilty of contributory negligence as a matter of law, convicted thereof by his own unquestioned statements.”

Defendant has not argued that the evidence does not show that the defendant was guilty of actionable negligence. Therefore it is unnecessary for us to discuss the evidence relating thereto.

The substance of the argument of the defendant is that from the testimony of the plaintiff and of his brother “it can conclusively be seen . . . that the plaintiff did not give the driver of the car (his brother) any warning whatsoever of the danger or try to avoid it, ’ ’ and that therefore the plaintiff was guilty of contributory negligence as a matter of law. Such argument necessitates a statement of the testimony of the two brothers as to what occurred at and immediately prior to the time of the collision.

At the time of the collision the plaintiff was aged 19 years. His brother was “older,” and the brother owned and was driving the automobile in which they were riding. The plaintiff and his brother each testified that as the car in which they were riding approached the intersection, and thereafter until the time of the collision, it was traveling about 20 miles per hour.

The plaintiff testified that “about 15 feet from the intersection I looked to see if there were any cars coming and I saw one coming from the right about 60 or 80 feet down, the road, and we were practically in the intersection by then, and we just kept on going”; that when he saw the defendant’s car coming down Central street it was going between 60 and 65 miles per hour; that when the defendant “saw we were in the intersection he applied his brakes” and his car skidded into the Lasko car; that he first saw the defendant’s car when the Lasko car was 15 feet from the intersection, and he did not tell his brother to stop and did not say anything to his brother, although the Lasko car while going at a speed of 20 miles per hour could in his opinion be stopped in a distance of from three to five feet.

Leo Lasko testified that he was about ten feet south of the south line of the intersection when he first saw the defendant’s car, that as he approached the intersection he looked towards the left and saw nothing coming, that he then looked east and when about ten feet south of the intersection saw the defendant’s car for the first time, the defendant’s car was then “a good ways back,” about 80 or 90 feet east of the intersection, and that he, Leo "Lasko, then started across and was almost across the intersection at the time of the collision. He further testified that his brother, the plaintiff, did not say anything to him.

In support of his contention that the plaintiff was guilty of contributory negligence as a matter of law because he did not tell his brother to stop and did not say or do anything, the defendant has cited: Grifenhan v. Chicago Rys. Co., 299 Ill. 590; Dee v. City of Peru, 343 Ill. 36; Briske v. Village of Burnham, 379 Ill. 193; Morgan v. Rockford, B. & J. Ry. Co., 251 Ill. App. 127; McDermott v. McKeown Transp. Co., 263 Ill. App. 325; Walker v. Illinois Commercial Telephone Co., 315 Ill. App. 553, and other cases.

The defendant has cited: Fisher v. Johnson, 238 Ill. App. 25; St. Clair Nat. Bank of Belleville v. Monaghan, 256 Ill. App. 471; Rhoden v. Peoria Creamery Co., 278 Ill. App. 452; Smith v. Courtney, 281 Ill. App. 530; Serletic v. Jeromell, 324 Ill. App. 233, and other cases. We do not consider there is any difference in the rules of law stated in such cases.

We do not consider it to be the law that in every case a guest or passenger is guilty of contributory negligence merely because he says or does nothing at the time of or immediately before an accident. We believe in many cases a jury could well believe that the highest degree of caution in a particular case may consist of inaction on the part of a guest or passenger. Of course a correct decision in any case depends largely upon the particular facts in such case. There is no rule of law which prescribes any particular act to be done or omitted by a person who finds himself in a place of danger. In a variety of circumstances which constantly arise it is impossible to announce such a rule. The only requirement of the law is that the conduct of the person involved shall be consistent with what a man of ordinary prudence would do under like circumstances. (Stack v. East St. Louis & Suburban R. Co., 245 Ill. 308.) Contributory negligence becomes a question of law only when it can properly be said that all reasonable minds would reach the conclusion, under the facts stated, that such facts do not establish due care and caution on the part of the person charged therewith (Thomas v. Buchanan, 357 Ill. 270, 277) and the question of contributory negligence is ordinarily a question of fact for a jury to decide under proper instructions. (Smith v. Courtney, 281 Ill. App. 530.)

Assuming that the Lasko car was traveling 20 miles per hour at and immediately before the accident, then it was moving about 30 feet per second. Assuming that the plaintiff did not see the defendant’s car until the Lasko car was 15 feet from the intersection, then the Lasko car entered the intersection within about half a second after the plaintiff first saw the defendant’s car. There is no evidence tending to show that the plaintiff’s brother, who was driving, did not see defendant’s car at about the same instant that plaintiff first saw such car, and no evidence tending to show that plaintiff had any reason to believe that his brother did not then see such car or would not take the proper precautions in driving his car. When the plaintiff first saw the defendant’s car the plaintiff was then confronted with a sudden and apparent danger, and the obligation rested upon him to exercise ordinary care for his own safety, but did 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; Barnes v. Danville St. R. & Light Co., 235 Ill. 566.)

Under the particular facts in this case we do not feel that all reasonable minds would reach the conclusion, or that we can properly say, that the plaintiff was guilty of contributory negligence as a matter of law.

As to instructions, the defendant complains as to only two instructions given at the request of the plaintiff, and as to the refusal of only three instructions asked by the defendant but refused by the court.

It is our opinion that the given instructions correctly stated the law. It is also our opinion that the refused instructions were fully covered by other instructions given by the court.

The judgment of the trial court is affirmed. •

Affirmed.


author: Mr. Justice Wheat

text:
    Benjamin F. Bell, Appellee, v. Raymond McMullen, Appellant.
    Gen. No. 9,470.

      Heard in this court at the October term, 1945.
    Opinion filed October 23, 1945.
    Released for publication November 19, 1945.
    Clarence W. Heyl, of Peoria, for appellant.
    J. M. Powers, of Pekin, for appellee.
   Mr. Justice Wheat

delivered the opinion of the court.

This is a negligence action arising out of a collision of two automobiles. The jury returned a verdict for plaintiff in the sum of $3,250, and upon remittitur, judgment was entered in the sum of $2,500, from which defendant appeals.

The collision happened on March 26, 1941, at about 8 p. m. in Tazewell county, Illinois, in or near the intersection of routes 121 and 122, about six miles east of Delavan. Concrete highway 121 extends in a northerly and southerly direction; it is intersected by another concrete highway, route 122, which extends westerly from route 121 but not easterly therefrom; the paved portion of route 121 at the intersection is straight in a northerly and southerly direction, but the paved portion of route 122 at the intersection is forked or “Y” shaped, with the north fork curving northeasterly into route 121 and the south fork curving southeasterly therein; both forks being level. Plaintiff was alone in a panel body Chevrolet truck and had been going north until he turned west into route 122. Defendant was alone in a Packard car, going south. The only other traffic at the time was a north bound truck in the rear of plaintiff’s truck.

Plaintiff charges that he had been driving northerly on route 121 and turned westerly on the south fork of route 122 and had progressed about 20 feet west of the west line of route 121 when his truck was struck by the car of defendant who had theretofore been travel-ling south on route 121.

As one of the grounds for reversal, defendant contends that the verdict and judgment are against the manifest weight of the evidence. It is necessary to set forth briefly that part of the evidence relating to the occurrence for a proper consideration of this point.

Plaintiff testified that he was 73 years of age; that he was returning home to Kingston Mines, near Pekin, from Springfield; that he was familiar with this intersection; that as he approached it at a speed of five to ten miles per hour he saw the lights of another car coming south at a speed of about 50 to 60 miles per hour, weaving back and forth across the black line in the middle of route 121, about 300 feet away; that he opened his left door and looked back to see if anyone was coming and saw the lights of a truck about four-tenths of a mile in the rear; that he turned left and when about 20 feet west of the west line of route 121, the car of defendant came cater-corner across and hit his truck near the right door; that at the moment of impact he was going five miles per hour; that he was slowing down ‘ ‘because I had no business on that road and wanted to go hack”; that the truck was thrown over on its side and when he was assisted out, the Packard was jammed into his truck; that skid marks extended northerly 12 feet from defendant’s car; that he saw these by the lights of the truck which had been back of him and had stopped nearby after the collision.

Upon cross-examination, he stated his truck travelled 170 feet from the point where he started to turn until the collision occurred, during which time defendant’s car travelled 300 feet. He also stated, “ I- would say I crossed the pavement, when I seen him coming at me I stepped on the gas, just like that, and shot my car — if you want the truth of it, I will try to tell you. Well then, when.I started across there, I was travelling, say about ten miles per hour, when I stepped on the gas just to jam my truck right across there, and as soon as I got crossed I commenced to slow down and wasn’t going over five to ten miles per hour when he hit me”; that before he turned left he saw defendant’s car approaching at a high rate of speed and had seen it coming for some time before that, and he knew when he turned across its path it was going at a high rate of speed; that he could have stopped right there; that on the taking of a deposition he testified that when he started to turn, the defendant’s car was four or five car lengths from him and that he did not intend to turn there to go into Delavan but intended to turn farther north to go into Pekin.

Plaintiff produced only one other witness, Balph Nafziger, who testified that he lived a mile south and a quarter of a mile east of the intersection; that-he knew neither of the parties; that he drove right away to the scene of the accident; that the truck was on its side on route 122, the distance being about 20 feet from the middle of the truck to the west line of route 121; that the Packard car was entirely on route 121, facing south on the west side thereof near three white posts; (the photographs in evidence indicate that these three posts are along the west side of route 121 just north of where the south fork of route 122 intersects the same).

On behalf of the defendant, the witness, Aaron Martin, testified that when he arrived at the scene of the accident, there were five or six cars there; that the Packard car was on route 121 near the white posts; that tire marks appeared extending about 20 feet north and back of the Packard’; that he did not recall any skid marks south or west of the intersection or off of route 121; that he helped push the Packard car off of the highway to the south end of the ‘ ‘ Y” on the west side of the road, south of where the truck was lying.

Mrs. Eose Kelley testified that when she arrived she saw a panel truck, a Packard, and another truck; that the panel truck was over on its side on the edge of route 122, the Packard was on route 121 near the white posts; skid marks showed on route 121 north of the intersection; the Packard was some distance from the panel truck.

The witness, James Brasel, testified that he was driving his truck northerly on route 121; that a quarter of a mile south of the intersection he came up behind the plaintiff’s truck and started to pass; that the panel truck pulled over in front of him and witness directed his truck to the right side of the highway; that he flickered his lights and started to pass a second time and the panel truck again pulled over in front of him; witness saw a car coming from the north and pulled back to the east side of the highway when he was about 50 feet from the intersection; he saw the collision; the car coming from the north was on the west side of the road and did not wobble back and forth over the center line before the collision; he had driven a truck for 20 years and had driven two or three hundred thousand miles; that defendant’s car was travelling 20 to 25 miles per hour; at the time of the collision, defendant’s car was going 15 miles per hour and the truck of plaintiff between 15 and 20 miles per hour; almost past the intersection the panel truck turned directly across the highway; “well it looked to me like he just reached up and got the wheel and pulled it right straight across the pavement”; the truck turned over on route 121 and slid across; when the vehicles came to rest they were about 10 to 12 feet apart; the panel truck was not over 8 or 10 feet west of the west line of route 121 and the vehicles remained in this position for quite some time; after the collision he went slightly north, stopped, and put out flares; the witness, Mrs. Kelley, drove up and he gave her flares to flag traffic; the Packard was headed south and he helped to move it to the south and west; the panel truck went about 8 or 10 feet after being hit; it scooted sideways just a little and then turned over; it did not go over 20 feet after the impact and the Packard didn’t go over 8 feet; the one back wheel of the Packard was setting across the center line of route 121 about two feet and the south wheels were in the west lane.

Defendant testified that on the day in question he had his car brakes adjusted and the front wheels trued up at a Peoria garage pursuant to a previous arrangement ; that new tires had been put on a day or so before at the same garage; that the mechanical condition of the car, including brakes, was perfect; that he had driven a car since 1908; that as he travelled south towards the north fork of route 122 his speed was between 40 and 50 miles per hour; that he saw the lights of two cars approaching from the south; that at the north fork of the “Y” his speed was 35 miles per hour; that he was at all times on the west side of the black center line; that he was 40 feet from plaintiff when the latter turned suddenly left; he applied his brakes; the right front of the Packard struck the right front of the truck on route 121 north of the north side of route 122, between that point and the white posts; defendant’s car did not travel over 8 or 10 feet after the collision and when stopped was on the right or west lane of route 121; plaintiff’s truck was then on its side in the south lane of route 122; that the Packard could not be moved under its own power but that later it was pushed south across the width of route 122 on to the shoulder of route 121 to the rear of plaintiff’s truck; that in a conversation with plaintiff about May 2, 1941, the former said that he did not intend to turn at that point; witness stated that the Packard was not moved until after the witnesses Nafziger and Martin arrived; that tire marks extended northly from his car for 8 or 10 feet, none of which went onto the north edge of route 122 nor west into the space between where the collision occurred and where the truck was lying on its side.

Defendant urges that the verdict was against the manifest weight of the evidence, particularly on the issue of due care of the plaintiff. This is not the same as the issue raised in determining whether or not plaintiff was guilty of contributory negligence as a matter of law.

As to the latter the test is whether all reasonable minds would reach the same conclusion that the conduct of the plaintiff was violative of rational standards of conduct applicable to persons in similar situations, to be determined by a consideration of only the uncontradicted' facts and the evidence that is favorable to plaintiff. „ (Budds v. Keeshin Motor Exp. Co., Inc., 326 Ill. App. 59.)

As to the former it is fundamental that the issue of due care is a material one in a negligence case and must be alleged in the complaint and proved by a preponderance of the evidence. (Urban v. Pere Marquette R. Co., 266 Ill. App. 152; Illinois Cent. R. Co. v. Oswald, 338 Ill. 270.) As to whether the verdict and judgment are contrary to the manifest weight of the evidence, this must therefore be determined as on any other material issue, by a consideration of all the evidence.

The evidence clearly shows that the plaintiff, an elderly man, was undecided whether or not this was his turn into Pekin; he said he knew he had no business on that road and that he did not intend to turn there to go into Delavan but intended to turn farther north to go into Pekin; he suddenly swerved his car from its northly direction on route 121 to the left in front of the car of defendant; that before he turned left he saw defendant’s car approaching at a high rate of speed and had seen it coming for some time before that and he knew when he crossed its path it was going at a high rate of speed; that he could have stopped his car right there; that he “shot his car” and “stepped on the gas just to jam my truck right across.” In his deposition, he testified that the car of defendant was only four or five car lengths in front of him when he started to turn.

As to the location of the point of impact on the pavement, plaintiff is not corroborated in his statement that it occurred about 20 feet west of the west line of route 121, in route 122, by his own witness, Ralph Fafziger, who stated that the Packard was entirely on route 121, facing south on the west side thereof. Three witnesses for the defendant, besides himself, likewise so testified, as well as to skid marks north of where the Packard was located. The witness, James Brasel, testified that when plaintiff was almost past the intersection he turned directly across the highway; he said, “Well, it looked to me like he just reached up and got the wheel and pulled it right straight across the pavement”; he also stated the collision occurred on route 121.

Defendant also urges that plaintiff violated the provisions of par. 166, ch. 95½, Ill. Rev. Stat. 1943 [Jones Ill. Stats. Ann. 85.198], which provides as follows: “Any driver of a vehicle approaching an intersection with the intent to make a left turn shall do so with caution and with due regard for traffic approaching from the opposite direction and sba.fi not make such left turn until he can do so with safety.” That this section applied to the intersection in question is stated in the case of Geschwindner v. Comer, 222 Ill. App. 417, wherein it is said that when a street runs into and ends at another street, they intersect within the meaning of statutes or ordinances governing the right of way of vehicles at intersecting streets. In the case of Edwards v. Hill-Thomas Lime & Cement Co., 378 Ill. 180, the Supreme Court approved an instruction substantially in the language of the statute.

From the foregoing, it is apparent that the verdict and judgment are clearly against the manifest weight of the evidence on the question of due care of the plaintiff and any actionable negligence of defendant.

It is unnecessary to discuss other errors assigned relating to instructions and errors committed during the trial, for if the case is retried, these questions, doubtless, will not arise again.

For the reasons above given, the judgment of the circuit court of Tazewell county is reversed and the cause remanded.

Reversed and remanded.


author: Mr. Presiding Justice Stone

text:
    Charles J. Knaebel, Appellee, v. Guy A. Thompson, Trustee of Missouri Pacific Railroad Company.
    Term No. 45M4.
    Heard in this court at the October term, 1945.
    Opinion filed October 26, 1945.
    Released for publication November 27, 1945.
    Whitnel, Browning, Listeman & Walker, of East St. Louis, for appellant; T. T. Railey and Lloyd Middleton, both of St. Louis, Mo., of counsel.
    F. E. Merrills, of Belleville, and Sol Andrews, of Chicago, for appellee.
   Mr. Presiding Justice Stone

delivered the opinion of the court.

This case .is governed by Case No. 45M5. Filed in this court contemporaneous herewith.

The cause is affirmed and remanded for further proceedings.


text:
    Philip H. Cohn, Appellee, v. Fannie Cohn, Appellant.
    Term No. 45M9.

      Heard in this court at the May term, 1945.
    Opinion filed October 26, 1945.
    Released for publication November 27, 1945.
    Jesse R. Brown, of Edwardsville, and Louis H. Beasley, of East St. Louis, for appellant.
    McCawley Baird, of East St. Louis, and Mallory L. Burroughs, of Edwardsville, for appellee.
   Mr. Presiding Justice Stone

delivered the opinion of the court.

On April 20,1943, Philip H. Cohn, plaintiff appellee, who will be. designated hereinafter as plaintiff, filed suit for divorce in the circuit court of Madison county, against Fannie Cohn, defendant appellant, who will be designated hereinafter as defendant, charging cruelty. Defendant filed a counterclaim for separate maintenance, and answer to the complaint. Hearing was had before the court, without a jury, on July 24, 1944, and a decree was entered thereafter granting plaintiff a divorce on the grounds of extreme and repeated cruelty, with no finding in the decree as to separate maintenance. By the terms of said decree, defendant was granted attorney fees and an allowance of $125 a month. From this decree, defendant prosecutes her appeal to this court.

The record discloses that the parties were married in St. Louis, in 1918, and that three children were born of the marriage, who lived part of the time with plaintiff and at other times with defendant. Plaintiff and defendant had lived together in different hotels and homes, but for many years had not cohabited as husband and wife.

Plaintiff was in the real estate business, and in recent years had maintained an office in the Metropolitan Building in East St. Louis. In 1937 he bought a farm, just west of Collinsville, in Madison county, where, he lived for more than five years, before the filing of the suit for divorce, and where defendant was actually living at the time of instituting the suit. Plaintiff testified to having been a resident of Collinsville for 57 or 58 years. He left this farm home on January 12,1943 to go to a hospital in Bast St. Louis, and upon leaving there seems to have temporarily taken up his abode with the father of defendant. It is alleged as one of the errors relied upon for reversal that the court erred in finding that plaintiff was an actual resident of Madison county, Illinois. The place of residence of a party in a divorce suit, is a matter of intention and when a residence has once been obtained it is not lost by any temporary departure from that place, which remains the residence of the party, until he or she has acquired another residence, which does not mean merely a temporary abode. Tobias v. Tobias, 208 Ill. App. 539. This was a question of fact for the court, who found that plaintiff was an actual resident of Madison county, and we are not inclined to disturb that finding.

It is alleged that the court erred in admitting improper evidence offered on the part of plaintiff. The only ruling of the court on the matter of improper admission of evidence which was argued by counsel for defendant was with reference to certain leading questions asked the witness, Stephen Pronay, a witness called for the plaintiff. He was asked, “In other words, she bit him?” Which was objected to by counsel for defendant and overruled. The court then asked, “What did she do, if you saw it?” And the witness answered, “I did see it. She bit him.” This witness had already previously testified more or less in detail without the use of leading questions about defendant biting the finger of plaintiff, in an altercation in the office of plaintiff in Bast St. Louis. Even where incompetent evidence is admitted judgment will not be reversed if there is other evidence in the record sufficient to support the finding of the court. In re Estate of Schriver, 289 Ill. App. 581. Inasmuch as the witness had already testified to these facts, simply reaffirmed later by leading questions, we do not regard the ruling of the court as prejudicial.

It is contended that the trial court erred in finding that defendant has been guilty of extreme and repeated cruelty toward plaintiff, and in that regard it is argued by counsel that the decree of the trial court should be reversed for the reason that there is no finding of any specified acts of cruelty contained in the decree and cite as their authority therefore, Neely v. Neely, 223 Ill. App. 168.

The Neely case held that when the evidence was not preserved the finding in the decree for divorce that defendant has been guilty of extreme and repeated cruelty since said marriage, as alleged in complainant’s bill of complaint, was insufficient to sustain the decree. This is on the theory that it is the general rule in chancery that a party in whose favor a decree is entered, must preserve in the record, the evidence justifying the decree, as in such case no presumption will be indulged that evidence sufficient to sustain the decree was heard, where such evidence does not appear in the record. Inasmuch as in the instant case the evidence was preserved, and was sufficient to justify the ultimate finding of the court, the Neely case is not applicable.

It has been held that even when the evidence is not preserved, it will be sufficient if the record shows that the court heard evidence and found the allegations of the bill to be true. Shillinger v. Shillinger, 14 Ill. 147; Hawes v. Hawes, 33 Ill. 286; Schmid v. Schmid, 60 Ill. App. 174.

Plaintiff testified that Mrs. Cohn came into his office in 1937, with a blunt instrument in her hand and hit him across the nose and eyes, resulting in a broken nose and a black eye. He is corroborated as to this act by the witness, Joseph H. Goldenhersh, an attorney who officed with plaintiff at the time, who testified in substance that defendant came to the office, and that plaintiff came out shortly after bleeding around the bridge of his nose and under one eye. Witness saw no marks on her. He is also corroborated by his secretary Aleda Wulfmeyer, who testified that plaintiff had a cut across his nose and his face was bleeding. She saw the movement of defendant’s arm as she struck plaintiff, but did not see the final impact of the blow.

Plaintiff also testified that in March 1943, also in his office, defendant threw the .telephone at him, also a heavy paper weight, weighing a pound or more, and finally bit him on the finger, which was lacerated and bled profusely. As to this act, plaintiff is corroborated by Stephen Pronay, employed in his office, who testified that he saw her bite plaintiff.

There is also evidence in the record that she threatened him with a butcher knife in the home, in which he is corroborated by the housekeeper, employed there at the time.

These acts of extreme cruelty are shown against a background of harrassing and annoying conduct, both in the home and at plaintiff’s office, characterizing her conduct toward him. The record could seem to indicate that she was derelict in taking care of her home and that she would come to plaintiff’s office practically every day, sometimes staying an hour or hour and half, and sometimes longer, going into the file of anyone who would come into the office on business and questioning them.

In support of her counterclaim for separate maintenance, and by way of recrimination, defendant testified to several acts of cruelty on the part of plaintiff toward her, but in the main is uncorroborated as to these.

Counsel for defendant seem to rely greatly on the case of Teal v. Teal, 324 Ill. 207, cited by them in their reply brief, as being authority for their position as to what law is applicable to the facts in the instant case. We do not find either the reasoning or the conclusion in that case in point here. That case was reversed because of erroneous instructions and erroneous exclusion of evidence.

As a reviewing court we will not substitute our judgment for that of the trial court, who saw the witnesses and heard them testify, where the decision depends upon the weight given the testimony. Ryan v. Ryan, 321 Ill. App. 467; Berlingieri v. Berlingieri, 372 Ill. 60.

Counsel for defendant contend that there has been a condonation of the, acts of cruelty charged. Condonation implies forgiveness conditioned upon the promise not to repeat the offense, and thereupon if the offense be again committed the effect is to revive the acts committed before condonation. Teal v. Teal, 324 Ill. 207. The record is very vague, as to the times when the parties herein lived and cohabited as husband and wife. Certainly there is no well defined line of demarkation, as to when the marital relationship ended. The last act of cruelty testified to by plaintiff was in March 1943, and the record does not indicate that the parties lived together as husband and wife after that. Assuming that there was a condonation of the act of 1937, the act of March 1943 would revive the acts committed before condonation.

The findings of the chancellor will not be disturbed unless they are against the manifest weight of the evidence. Berlingieri v. Berlingieri, 372 Ill. 60; Lewis v. Lewis, 316 Ill. 447; Arliskas v. Arliskas, 343 Ill. 112. Such is not the case here. Other errors assigned are either not argued and therefore waived, or merit no discussion here.

The judgment of the circuit court of Madison county will be affirmed.

Affirmed.


author: Mr. Justice Bartley

text:
    Pure Torpedo Corporation, Appellant, v. Ben H. Nation, Appellee.
    Term No. 45F1.

      Heard in this court at the May term, 1945.
    Opinion filed October 26, 1945.
    Released for publication November 27, 1945.
    Pyle & McCallister, of Carmi, and Ekern, Meyers & Matthias, of Chicago, for appellant; Donald L. Thompson and Arthur F. Gruenwald, both of Chicago, and Albert W. McCallister, of Carmi, of counsel.
    Mills, Umfleet & Mills, of Fairfield, for appellee.
   Mr. Justice Bartley

delivered the opinion of the court.

The appellant, the Pure Torpedo Corporation, plaintiff below, brought an action on an account stated to recover $914 against the appellee, Ben H. Nation, defendant and counterclaimant below. The defendant counterclaimed and alleged that the plaintiff was guilty of negligence in the shooting of an oil well owned by the defendant in that the shot was improperly placed by plaintiff 130 feet above the lower part of defendant’s well; that when the shot was exploded it destroyed the lower part of the well, damaging it and causing the well to be destroyed, whereby he sustained damages of $17,556.42. A jury was waived and the case was tried before the court, which entered judgment in favor of the defendant for $11,055.26. It is conceded by appellee that this amount should have been $10,135.26. The court arrived at this amount by determining what he conceived to be the cost of the oil well, less the salvage, and then credited the amount with $664, being the amount of the alleged account stated less the charge for shooting the oil well in question.

The plaintiff is a manufacturer of nitroglycerin and is engaged in the business of shooting oil and gas wells. The defendant is engaged in the business of drilling and operating oil and gas wells.

On November 18, 1940, the defendant owned the leasehold on what is known as the McIntosh Well No. 1. On that date he entered into an oral agreement with the plaintiff to shoot the well in question for the purpose of shooting what is known as the Aux Yaus formation, and thereby endeavor to make the well oil producing in paying quantities. At that time the well hole was approximately 3,255 feet deep. The bottom of the casing was 3,214 feet deep, and it was agreed between the plaintiff and defendant that the shot should be placed at the bottom of the well with the top of the shot at a depth of about 3,222 feet, allowing a distance of 8 feet between the top of the shot and the bottom of the casing. It was further agreed that 100 quarts of solidified nitroglycerin, which according to the record does not explode with the speed of liquid nitroglycerin, were to be placed and exploded. These determinations as agreed upon were made by the defendant.

The plaintiff contends as a ground for reversal that the manifest weight of the evidence shows there was an account stated between the parties, for which it was entitled to a judgment of $914, together with interest from the date of the account stated, namely, January 21, 1941; that such account stated constituted a bar to any claim for negligence on the part of the defendant in the shooting of the well in question; that the evidence fails to show that the plaintiff was guilty of any negligence causing the damage in question; and that the defendant waived any right of action for negligence by an implied contract with the plaintiff.

The evidence shows without any contradiction that there was a balance due the plaintiff from the defendant of $914 for materials furnished and services performed, which included an item of $250 for material furnished and services performed in the shooting of the well in question, and that an account was rendered January 21, 1941. The evidence further shows that about this date the defendant was rendered a bill for the amount, that he retained it without objection, and on a number of occasions agreed to pay it. The defendant does deny an unqualified promise to pay in that he says that he only promised to pay upon settlement being made for the damages to the well in question. He is uncorroborated in any way in this question. The first demand by him for damages was when he filed his counterclaim after being sued. On the other hand, his own account books showed the balance to be $914, and his own auditor in a communication with the plaintiff verified the amount, and on a number of occasions the defendant admitted to at least three officers and employees of plaintiff the balance of the indebtedness due of $914 and promised to pay the same. These witnesses directly contradict the defendant in his statement that he qualified his promise to pay. The evidence shows that at no time did the defendant make any objection to the account.

In the case of Dean & Son v. W. B. Conkey Co., 180 Ill. App. 162, the court commencing on page 178 discusses the meaning of an account stated and the law relative to it, and says:

“In 1 Am. & Eng. Ency. L. & P., p. 688, it is said:

“ ‘An account stated is an agreement between parties who have had previous transactions of a monetary character, that all the items of the accounts representing such transactions are true and that the balance struck is correct, together with a promise, express or implied, for the payment of such balance. . . (p. 689) In stating an account, as in making any other agreement, the minds of the parties must meet. . . . (p. 693) The meeting of the minds of the parties upon the correctness of an account stated is usually the result of a statement of account by one party and an acquiescence therein by the' other. The form of the acquiescence or assent is, however, immaterial, and may be implied from the conduct of the parties and the circumstances of the case. . . . (p. 699) Where an account is rendered by one party to another and is retained by the latter beyond a reasonable time without objection, this constitutes a recognition by the latter of the correctness of the account and establishes an account stated. . . . (p. 716) An account stated is in the nature of a new promise or undertaking, and raises a new cause of action between the parties. . . . (p. 723) It is deemed conclusive both at law and in equity unless impeached for mistakes or fraud. . . . (p. 725) The defense to an action upon an account stated must relate to it and not to matters of anterior liability, except in so far as they constitute a foundation for the introduction of evidence to the real substantial defense impeaching the settlement for fraud, error, or mistake. . . . (p. 731) The burden of proof is upon the party seeking to open an account stated for fraud, or to surcharge or falsify such an account on the ground of omission or mistake. . . . The fraud or mistake must be clearly shown. . . . (p. 723) Where the facts tending to show the statement of account are undisputed, the question as to whether the transaction amounts to an account stated is for the determination of the court, as where the entire evidence consists of correspondence. ’

“The law, as stated in the text book referred to relative to accounts stated, we believe to be the law of this state. In State v. Illinois Cent. R. Co., 246 Ill. 188, page 241, it is said:

“ ‘A stated account is an acknowledgment of an existing condition of liability of the parties, from which the law implies a promise to pay the balance thus acknowledged to be due. ... It may be impeached for fraud or mistake. The general rule is, that in an application to open a stated account the plaintiff must either charge fraud or state particular errors. . . . (p. 242) “A person seeking to open a settled account must specify in his claim either errors of considerable extent, both in number and amount, or at least one important error of a fraudulent nature.” . . . (p. 243) The authorities seem to be a unit in holding that mistakes or errors must be specifically alleged and proved. . . . (p. 246) In ordinary business transactions, if an account has been transmitted from one individual to another it will be deemed a stated account from the presumed approbation or acquiescence of the parties, unless an objection is made thereto within a reasonable time. . . . When the facts are undisputed the question is for the court, but when the facts are in dispute in a common law action the question should be submitted to the jury under proper instructions.’ See also Northwestern Fuel Co. v. Western Fuel Co., 144 Ill. App. 92; Wurlitzer Co. v. Dickson, 153 Ill. App. 36; Pickham v. Illinois I. & M. Ry. Co., 153 Ill. App. 281.

“In Dick v. Zimmerman, 207 Ill. 636, 639, it is said:

“ ‘In an action upon an account stated, the original form or evidence of the debt is unimportant, for the stating of the account changes the character' of the cause of action, and is in the nature of a new undertaking. The action is founded, not upon the original contract, but upon the promise to pay the balance ascertained.’ ”

The plaintiff was entitled to recover on the account stated, which as before stated is $914, or not at all. (Albert Pick & Co. v. Edward Slimmer, 70 Ill. App. 358.) It was, therefore, improper for the court below in any event to have allowed thereon $664 as a credit on the amount of the judgment awarded in favor of the defendant. Moreover, the preponderance of the evidence shows that there was a stated account between the parties for $914,

As a matter of fact, the court below did not pass upon the question as to whether there was a stated account between the parties, but simply allowed the credit of $664 heretofore referred to on the amount of damages awarded on the counterclaim. In this the court erred.

As to the position of the plaintiff, however, that the stated account barred the alleged cause of action for negligence growing out of the same transaction, this is a different question. An account stated as ordinarily understood has to do with the settling of the previous transactions between the parties of a monetary character. (Associated Furniture Manufacturers v. Leader Mouse Furniture Co., 224 Ill. App. 597.) The balance agreed to be due has to do only with the items considered, and the items not considered may be the subject of setoff or counterclaim. This is the rule in most of the jurisdictions. (Par. 2238, chapter on Accounts and Accounting, vol. 1, Am. Jur. pp. 276-277, 290.) The record does now show that, in arriving at the balance of $914, there, was any consideration given by the parties to the alleged claim for damages of the defendant. We conclude from the facts shown by the record that the account stated did not bar the alleged cause of action against the plaintiff.

The well in question had originally been drilled to a depth of 3,375 feet and had previously been shot by the plaintiff, at the request of the defendant, on November 14, 1940. This shot of 70 quarts of nitroglycerin was in what was known as the McClosky formation. This was a lime formation. According to Mr. Nation, there was then oil standing in the well up to possibly 250 feet. There is no question about this shot. It was then determined by the defendant to make a shot in the formation known as the Aux Vaus sand. According to the record this is a hard formation at the well in question. A bridge of gravel was put in to bring the depth of the hole to about 3,250 feet, and the bottom of the casing was placed at 3,214 feet. The outside measurements of the pipe was 5% inches and the inside measurement was 4 and inches. It was agreed as before stated that 100 quarts of solidified nitroglycerin were to be used, and that the shot was to be discharged at a depth from 3,352 up to 3,222 feet. This would allow 8 feet between the top of the shot and the bottom of the casing.

Under the arrangement made by the plaintiff and the defendant the plaintiff’s responsibility was to place and discharge the shot, while the defendant was to do the necessary things to protect the pipe and mechanical parts of the well from damage by the explosion.

When the shooters for the plaintiff arrived at the location of the well on November 18,1940, it was determined between them and the defendant to put the 100 quarts of nitroglycerin down in 4% inch shells. The shooters then checked the depth of the well with %2 of an inch torpedo line by letting down a dummy shell and determined the depth of the well to be 3,255 feet, and that the casing was set at 3,214 feet, which gave a 41 foot clearance from the bottom of the casing to the bottom of the hole. The dummy shell, which was let down to check the distances, was a 10 quart shell loaded with gravel weighing about 25 pounds and was 4% inches in diameter. There were no obstructions in the casing. Five 20 quart shells 4% inches in diameter were loaded with 20 quarts each of nitroglycerin. Bach shell was 5 feet 4 inches long. Three runs were made to place the shells. The first two had two shells connected together by bails and hooks, and to the last shell was attached a “Zero Hour” time bomb to discharge the shot. The' bomb was set with clocks to discharge the shot six hours after setting. In addition, there was placed on the last shell, what is known as a cave-catcher. When the torpedo line was released it would open up in the form of an umbrella to prevent gravel from getting along the side of the shells containing nitroglycerin and being forced into the formation. After the nitroglycerin was set, the shooters checked with a measuring meter at the top of the shot and found it to be at 3,222 feet, leaving a clearance of 8 feet to the bottom of the casing. After that, the driller, an employee of the defendant, put a bridge of 4 or 5 feet of gravel on the cave-catcher and this measurement was checked. According to the shooter, A gey, after the bridge was put in, the distance was again checked with a measuring lin§, and it again checked as to distance; namely, 4 or 5 feet above the top of the shot, which was at 3,222 feet. The defendant then proceeded to load the hole with gravel which has as its purpose, the holding down of the force of the explosion and the protection of the casing. The defendant testified that about 350 feet of gravel was put in the casing above the top of the shot; that at that time his employees made measurements as to the gravel in the casing; that 3% yards were put in and a yard would fill approximately 100 feet. The evidence was, as a matter of fact, that a yard will fill a pipe like the one in question about 184 feet. The evidence shows that he was not present during all the time the gravel was being put in and obviously he could not have known the quantity put in. The records of the operation, signed by the driller employee of the defendant, was that the top of the nitroglycerin string was 3,214 feet and that about 270 feet of gravel was put in the hole. An expert witness called by the defendant testified that to safely shoot 100 quarts of nitroglycerin to prevent damaging of the pipe, it would require 3 or 4 yards of sand or gravel. The defendant and an employee of defendant testified that as the last shell of nitroglycerin was being lowered they saw the torpedo line slacken, and Mr. Nation testified that he then took it up with the shooters, telling them that he did not think a shell was on the end of the line. The shooters who were standing on the truck on which the machinery was operated which put down and pulled up the torpedo line, checked the situation and satisfied Mr. Nation that the shells were going down properly and were placed on the bottom. The shot went off in due time, and after this a receipt or memo was signed by Mr. Nation’s driller acknowledging the fact that 100 quarts were shot; that the casing was sunk to 3,214 feet; that the top of the shot was 3,222 feet and the bottom of the shot was 3,255 feet. After the shot was exploded, the defendant went into the hole with cable tools to pump out the gravel and found they couldn’t get them down more than 3,045 feet, because of an obstruction, which he determined was metal. Charles A. Baldwin, an expert driller and producer of oil was employed by the defendant to work on the well after the defendant found he could not get down in the hole. He testified that around 3,100 feet he encountered the pipe and finally determined that he could not get down, because of pipe, which was loose in the hole, and that he moved off the location and that in his opinion that obstruction was 100 or 150 feet from the bottom. The hole was afterwards abandoned and such parts of pipe as could be were salvaged. As before stated, the employee, A gey, testified positively that the nitroglycerin shot was placed at the bottom of the hole. In this, he is corroborated by a receipt or memo herein before referred to, and also by the drilling report made out by him at the time and signed by Buzz Eddy, a driller employee of the defendant.

The court below in reaching his conclusion that the plaintiff was liable for negligence did so from the fact that the torpedo line seemed to slacken and that after the explosion the pipe was found to be damaged some 130 or 140 feet from the bottom and he concludes that, therefore, the nitroglycerin must have been placed and exploded at this point; and that, therefore, the plaintiff was guilty of negligence in placing and discharging the nitroglycerin at that point and in not placing it at the bottom of the hole.

Negligence like other facts must be proven and the burden was on the defendant to prove by a preponderance or greater weight of the evidence that the plaintiff was guilty of the negligence charged; namely, of misplacing and discharging the shot at some 130 feet above the bottom of the casing.

The doctrine of res ipsa loquitur is not applicable here nor is so contended by the defendant appellee. The fact of negligence must therefore be proven by direct or circumstantial evidence. There is no direct evidence in the record by the defendant and counterclaimant tending to show that the nitroglycerin was placed or exploded improperly. His only evidence as to this is the slackening of the torpedo line and damaging of the casing at the time of the exploding some distance above the bottom. A fact cannot reasonably be inferred from evidence when the existence of another fact inconsistent with the first can be from the same evidence inferred with equal certainty. A fact cannot be said to be established by circumstantial evidence unless the facts relied on are of such a nature and are so related to each other that it is the only conclusion that can reasonably be drawn from them. . (Condon v. Schoenfeld, 214 Ill. 226; Ohio Bldg. Safety Vault Co. v. Industrial Board, 277 Ill. 96.)

The record does not show in any way by expert testimony or otherwise that from the fact that the pipe in the well is found to be destroyed a distance of some 130 feet to 150 feet above the bottom that the nitroglycerin was exploded at that point or that the damage could not have been caused by the nitroglycerin being exploded at the bottom. The record fails to show, either by expert or other testimony, but what the damage to the pipe could just as well have been caused by a failure of the defendant to adequately protect the pipe from the effects of the explosion as from any 'other canse. The evidence is barren as to whether the plaintiff did anything, but what was in the usual and customary way of carrying on such operations as it is likewise barren as to whether the defendant did the usual and customary things necessary to protect the pipe from the effect of the explosion. There is nothing in the record to justify a conclusion to the effect that because the torpedo line slackened the canister of nitroglycerin had stopped. It is a matter of common knowledge that .many things would cause a line to slacken other than the stopping of the load on its end. Gas coming up would do it. Striking oil in the well would do it. From all that appears in the record, the damage to the pipe may have resulted just as well from failure to properly load it or otherwise adequately protect it as from an explosion at from 130 to 150 feet up from the bottom. The weight of the evidence is that the pipe was only loaded with no more than 300 feet of gravel, whereas some 550-700 feet was required to adequately protect the pipe in this respect. Nowhere in the record is there any proof of the effect of the explosion of nitroglycerin in such quantities as 100 quarts; the force created, or the direction of the force. There is not anywhere in the record any proof of the density of the formation in which the shot was fired, or other conditions of the earth and formations along the pipe in question.-

As against the unsatisfactory evidence of the defendant is the direct, uncontradicted evidence of the shooter of the plaintiff that the shot was placed properly, checked as such, and discharged properly. In this he is corroborated by records of the event, including the acknowledgment in writing of the employee of defendant and by other facts and circumstances appearing of record.

The judgment of the trial court, who has heard the evidence and seen the witnesses, will not lightly be interfered with, by a reviewing court. However, in an action for negligence the conclusion of that fact, and the fact of the exercise of due care on the part of the defendant, like other facts cannot be concluded from speculation and conjecture. Among cases announcing this rule in oil shooting cases are: Davidson v. Humes Torpedo Co., 188 Pa. 335, 41 Atl. 649; East End Oil Co. v. Pennsylvania Torpedo Co., 190 Pa. 350, 42 Atl. 707; Carter Oil Co. v. Independent Torpedo Co., 107 Okla. 209, 232 Pac. 419 and Eastern Torpedo of Ohio Co. v. Shelts, 121 Okla. 129, 247 Pac. 975. In the Eastern Torpedo of Ohio Co. v. Shelts case, the court there among other things said on page 977:

“Neither conjecture nor speculation forms a reasonable basis for arriving at a verdict in a case where recovery is sought upon the alleged negligence of the defendant, but there must be evidence reasonably tending to show that defendant was guilty of some one of the negligent acts charged, and that such negligence was the proximate cause of the injury.”

It was further said in that case that conjecture is an unsound and unjust foundation for a verdict.

In the East End Oil Co. case (East End Oil Co. v. Pennsylvania Torpedo Co., 190 Pa. 350, 42 Atl. 707) the producer gave the defendant the depth of the well and other information and left the size of the shot to be used to the judgment of the defendant. After the shot, and in the process of cleaning the hole it was discovered that the hole was damaged 200 feet above the oil bearing rock where the shot was supposed to be placed. It was contended that the shot was negligently placed and exploded at this point, causing shale to fall in so badly thereafter that the well had to be abandoned.

The court in that case said:

“It may be conceded, as appellants argue that the blocking up of a well by falling in of loosened materials along its sides is not the usual result of shooting it with a torpedo or the practice would soon cease; but it might be far from usual, and yet not so entirely unusual as to be evidence per se of negligence. . . . The cause of the accident was largely conjectural, and it may as well have arisen from the loose and crumbling nature of the well walls as from the defendant’s negligence.

. “If there is any other cause apparent to which the injury may with equal fairness be attributed, the inference of negligence cannot be drawn.”

In the Carter Oil Co. case (Carter Oil Co. v. Independent Torpedo Co., 107 Okla. 209, 232 Pac. 419) the court said:

“We may with an equal amount of reason say that this explosion was caused, either by letting the shell down at too great a rate of speed, or by letting down a shell carrying nitroglycerin on the outside of it, or by striking the shell against a sliver in the casing. . . . The circumstances surrounding the explosion afford no reasonable solution as to its origin. We have seen that a verdict must not be found by conjecture or guess.”

From a careful examination of the record we find that the judgment of the court below was contrary to the manifest weight of the evidence.

The basis of the contention of the plaintiff that the defendant by contract waived any right of action for negligence in the shooting is that the words, “All Wells Shot At The Owner’s Risk” were printed on the price lists and bills and the like. It is contended that because of this there was an implied agreement relieving the plaintiff from negligence. While the evidence shows that this statement was on some price lists, bills and the like, yet there were others on which it did not appear. The defendant denies knowledge of seeing any with the statement on it and says, if he had seen it, it would not have meant anything to him. Contracts to relieve one from negligence in so far as they are valid require a meeting of the minds in regard thereto. In view of our conclusion we are not passing on that question. It is sufficient for us to say that we cannot see wherein such language as, “All Wells Shot At The Owner’s Bisk” printed on the bill-heads and the like, without anything more, and even though known to those dealing with the plaintiff could be construed as a contract by the defendant to relieve the plaintiff from its negligent acts and those of its servants. No cases are called to our attention holding that such would constitute such a contract, nor do we know of any.

The judgment of the court below is reversed and remanded.

Reversed and remanded.


text:
    Samuel Robertson, Jr., Appellee, v. Louisville and Nashville Railroad Company, Appellant.
    Term No. 45M8.
    Heard in this court at the May term, 1945.
    Opinion filed October 26, 1945.
    Released for publication November 27, 1945.
    Harold Baltz, of Belleville,- for appellant.
    Philip G. Listeman, of East St. Louis, and Lloyd Middleton, of St. Louis, Mo., for appellee.
   Mr. Justice Bartley

delivered the opinion of the court.

Appellee sued the appellant railroad, under the Federal Employer’s Liability Act to recover for injuries to his back received while at work as a trucker in the East St. Louis freight yards of the railroad. A jury awarded appellee a verdict of $7,500. The trial court overruled motions for a new trial and for judgment notwithstanding the verdict and the case is here on an appeal brought by the railroad company.

The appellant charges that the verdict of the jury is. contrary to the clear weight of the evidence and that the damages awarded are excessive. These are the only two errors relied upon.

The negligence charged is that a broken, damaged and unsafe “car mover” was supplied to appellee which failed to work, causing him to fall and sustain the injuries complained of. While the record does not contain a technically accurate description of the tool, it appears that it is a metal device with a wooden handle designed to move a railroad car by exertion of pressure against the wheel. It is manually operated by working the handle up and down. Its use is apparently confined to cases where it is necessary to move the car very short distances.

It was stipulated at the trial that interstate transportation was involved and the only questions raised on this appeal are that the verdict and judgment are against the clear and manifest weight of the evidence and that the verdict is excessive, having been influenced by passion and prejudice.

The case was tried on the theory that the accident complained of took place on March 15, 1943. The appellee testified that he thought that was the date of the occurrence. His original complaint alleged that he was injured in the month of February 1943, and he did not deny that in a deposition taken January 28, 1944, he stated that he was not hurt on March 15, but during the latter part of February.

The evidence shows that appellant railroad maintained a freight' terminal in East St. Louis and that railroad tracks ran parallel to the freight house on its north side. Track No. 28 lay immediately north of and adjacent to the unloading platform of the freight house and cars.on this track were unloaded directly on said platform. Track No. 27 lay immediately north of and parallel to track No. 28. The practice followed in unloading from a car on track No. 27 was to “spot” or place the car directly along side of and parallel to an empty car on track No. 28 so that the side doors of each were in juxtaposition. A steel platform was then placed through both sets of doors and the freight was transported over this steel ‘platform, through the empty car on track No. 28 and thence to the unloading platform of the freight house. This operation required the two cars to be placed directly along side of each other and where a car had to be moved a few feet to place it in such position, the moving was done by hand with the aid of a car mover and a pinch bar.

Appellee was his only occurrence witness. He testified that he had worked for appellant railroad as a trucker for over a year prior to the accident; that his duties consisted of transporting freight from cars to the warehouse or to other vehicles for carriage beyond his terminal; that he worked in a group, or to use the vernacular, a “gang” of five men consisting of T. A. Doyle, a checker, Arthur Jordan, a picker, Mose Reed, “Doc.” Harrison, and himself. The latter three were truckers.

With reference to the accident in question, appellee testified that shortly after noon on March 15, 1943, a car had to be unloaded from track No. 27; that it had to be moved some 8 or 10 feet to place it opposite an empty car, previously unloaded, on track No. 28; that only one car mover was available and that he had previously used it in similar operations; that two or three days before, he saw the car mover slip and fail to work properly, and when Edward Pfarrer, the foreman, ordered him to get the tool and move the car up, he called Pfarrer’s attention to the fact that it had “Slipped the other day.” Pfarrer, appellee testified, then said “Yes, we had it worked on, see how it works now.” The appellee then went to the office where the car mover was kept, brought it out, adjusted it to the rail and the car wheel at the southeast corner of the car; that when he first pressed downward on the lever, he moved the car some 10 or 12 inches and that the tool was “working fine”; that he then renewed the pressure by bearing down on the handle or lever and that the mover slipped and the handle on which he was pushing fell to the ground; that he fell. He described the fall by saying, “I hit the middle of the track and twisted my back and my back fell across the tracks.” On cross-examination, he amplified his account by saying that he fell forward between the two rails of track No. 27, striking the palm of his right hand on the cinders; that he then twisted to the left and landed with the small of his back across the south rail of track No. 27. Prior to the fall, he says that he was standing in the space between tracks No. 27 and 28 south of track No. 27 and facing north.

Appellee positively testified that he was moving the car without assistance from any other members of his group; that a man whom he knew as “Andy” was nearby; he does not account for the whereabouts of the other members of the group at the moment of the fall.

Appellee testified that after falling, he arose, told the foreman, Pfarrer, that he had fallen, went into the washroom, washed the cinders from his hands, that his hand was bleeding slightly; that Pfarrer applied mercurochrome to the hand, and directed him to do light work the rest of the day when he complained that his back was hurting him. •

Appellee further testified that he worked out the day and reported for work on March 16, but was sent by Pfarrer to Dr. McQuillan; that he went to this doctor four or five times; that he worked up to March 27, 1943, when he joined the Army; that after a short stay at Scott Field, he was sent to a camp at Salt Lake City, where he worked one day lifting logs and that his back bothered him so that he reported sick. He then spent 28 days in the camp hospital, some 5 or 6 weeks in his barracks, and was medically discharged on June 25,1943, when he came back to East St. Louis. After his return, he applied to Thomas J. Byrne, appellant’s freight agent, for re-employment and was refused. He passed a physical examination through the same Dr. McQuillan for employment by the Aluminum Ore Company, where he worked about nine months. He was first employed as a guard, and for the last 4 or 4% months sacking ore. He described the latter work as heavy and deleterious to his back and he quit, going to Evansville, Indiana, where he worked two weeks. This work was, as he described, too heavy and he came back to East St. Louis, and after an interval of four or five weeks, secured employment at the plant of the Socony-Vacuum Company, making chemical tests. He was still so employed at the time of the trial. Appellee testified that he never took any medicine to alleviate the condition which he described. No treating physician testified at the trial. The record is silent as to whether his earning capacity was decreased after the fall; also, it appears that he has not incurred any medical expense. He described himself as being unable to work steadily and claimed that his back was the source of continual pain and distress. There was, however, no objective evidence of injury.

Appellee is entirely uncorroborated on a single element of his testimony, except that it was admitted that the accident in question was reported to the company not on the date of its supposed occurrence, but two days later.

E. 0. Pfarrer, the railroad freight house foreman, testified that he was not present on March 15, 1943, when the car in question was moved; that he left the premises at 1:00 o’clock on that day for lunch and did not return until 2:00 p. m. He denied that he had ordered appellee to “spot” this car, denied in its entirety, the statement attributed to him that he knew the car mover had been out of order, but had nevertheless ordered its use, denied that any accident had been reported to him by appellee on March 15; denied that he had assisted in applying mercurochrome to appellee’s hand, and denied that he had instructed appellee to do light work during the remainder of the afternoon of March 15. He testified that the first complaint made by appellee as to being injured was made on March 17, and at that time, he sent appellee to Dr. McQuillan.

Andrew Jordan testified that he was one of appellee’s “gang” that he remembered the incident of the car being moved on March 15; that it had to be moved about three feet; that he had a pinch bar in his hand and directed a general order to the rest of his group to get the car mover; that no particular person was indicated, but that appellee got it; that he and Doc. Harrison were at the northeast corner of the car in question and appellee and Mose Reed were at the southeast corner; that appellee used the car mover, he used the pinch bar, and Reed and Harrison used their hands; that the car was moved and that he did not see appellee fall during the operation, although he was less than 5 feet away from him; that at no time during March 1943, did he see appellee moving a car by himself or see him fall; that this car was the only car moved by hand in March 1943, and that the car mover was utilized rarely; that he did not know anything of appellee’s supposed accident until two days later when appellee told him that he had hurt his back.

Mose Reed testified to the same effect and said that he did not see appellee fall and did not know that appellee had claimed to have been injured on March 15, 1943, until the second day thereafter; that appellee worked all day with the gang up until 5 :00 o’clock, and was not doing light work, as he claimed.

Nathaniel Harrison testified to substantially the same facts as did Reed and Jordan. He said that he did not see appellee fall and that the entire gang had participated in the moving of the car on March 15; he also said that appellee had not reported any injury until March 17.

The witnesses Pfarrer, Thomas A. Doyle, Jordan, Reed and Harrison all testified that the car mover in question was the only one used at the terminal. Appellee, himself, stated that only one was in use. All of appellant’s witnesses identified the car mover in question, which was produced in court as an exhibit, calling attention to initials placed thereon by a former foreman. All testified that the car mover was never repaired; that it was in good working condition on March 15, 1943, and was in the same condition at that time as when produced in court. Some of the witnesses testified that when the appellee’s suit was started, the tool was taken out of service and placed in the company vault, apparently for use as evidence.

It was established by the testimony of Thomas J. Byrne, that the car mover had been purchased by appellant company on December 1,1941. Chalón Aitken, a general utility repair man, testified that he had never repaired this' car mover, and there was also testimony that the tool had never been sent to the general repair shop of the railroad for repairs.

On cross-examination, appellee failed to point out any defects in the car mover, saying he was not a mechanic. On rebuttal, however, and based upon an examination which took place during a court recess, he pointed out some supposed differences between its physical condition at the time of trial and upon March 15, 1943.

Dr. McQuillan was dead at the time of trial. The only medical witness called upon behalf of appellee was Dr. E. L. Campbell, who testified that he had seen and examined appellee on three occasions, January 12, 1944, May 8, 1944 and November 12, 1944; that he had not treated appellee; that he found on his first examination an inflammation of a muscle in the back and that this condition could have been produced by a violent trauma; he could not tell how long the condition which he found would last.

Appellee claims to have reported for work on March 16, 1943, the day following the accident. In this he is disputed by all of his fellow-workmen and by the company time-sheet, which was introduced in evidence. There is no pretension that the injuries which appellee claims were disabling. He admittedly remained at work during the balance of the day of March 15, 1943, and until he joined the Army. . He worked only one hour on the following Sunday. When he returned to civilian life in June, he continued to work steadily. During the 17 months that intervened up to the time of trial, he was gainfully employed with the exception of a short interval during which he was seeking employment. Although he describes his physical condition as being one of almost continual pain and distress during this interval, it does not appear that he ever secured or sought any medical advice or treatment.

The nature and character of his fall is also unusual in the light of its claimed effect. His own version shows that he fell in a forward direction on his right hand, which became imbedded with cinders and slightly lacerated. From this position he says that he twisted on his left side over on his back. It is difficult to perceive how appellee’s back could have struck the rail with sufficient force to inflict the injuries complained of under the circumstances which he narrates.

As we have before stated, appellee’s story stands without corroboration. On the other hand, he is contradicted on almost every material element by several witnesses whose interest in the lawsuit cannot be fairly said to have been as great as his own. It was appellee’s obligation to prove that the railroad company furnished him with an unsafe tool, that he used the tool in the manner intended, and that its defective condition was the proximate cause of the injury producing the accident. (Palmer v. Wichita Falls & N. W. Ry. Co., 60 Okla. 205, 159 Pac. 1115.) The evidence in this case falls far short of this goal.

Counsel for the appellee calls the court’s attention to such cases as Tennant v. Peoria & P. U. R. Co., 321 U. S. 29, 64 Sup. Ct. 409, 88 L. Ed. 520; Summers v. Hendricks, 300 Ill. App. 498. In the Tennant case there is among" other things said that “courts are not free to reweigh the evidence and set aside jury verdicts merely because the jury could have drawn different inferences or conclusions or because judges feel that other results are more reasonable.” In the Summers case, it is said that where the proofs bearing upon the questions of negligence and proximate cause are conflicting and raise questions of fact, that the verdict of the jury must not be set aside as against the weight of the evidence. We have no quarrel with these pronouncements and the rules announced in these cases. They are well known established principles of law. It is an equally well known and established principle of law that, which qualifies the foregoing rules, where an examination of the record shows that the verdict of the jury is clearly against the manifest weight of the evidence, it is the court’s duty to set it aside. (Bradley v. Palmer, 193 Ill. 15; Hebard v. Tilley, 134 Ill. App. 1.)

The general evidentiary situation in the case of Springfield Electric Light & Power Co. v. John J. Mott, 120 Ill. App. 39, is so similar to this case that we quote therefrom commencing on page 40:

“Appellees right of recovery in this ease is predicated upon his uncorroborated version of the occurrence in question. He testified, that in response to the call of the foreman Flannigan, he and one Evans went to Flannigan’s assistance in unloading poles from a wagon; that they lifted the large end of the pole from the wagon bed onto the front wheel of the wagon and lifted the small end of the pole onto the hind wheel; that while the pole was resting on the four-inch tires of the wagon wheels, Flannigan directed appellee and Evans to ‘hold it;’ that Evans held the pole at the small end and appellee at a point five or six feet from the small end, about as high as he could reach; that Flannigan, without giving any warning as ' to what he was going to do, went to the opposite side of the wagon and jerked the large end of the pole with a crow-bar; that as the large end of the pole went down the small end went up and threw appellee down and under the pole; that as he was jerked up and thrown down he felt something burst in his bowels; that he lay under the pole on the ground about ten seconds before he was able to crawl out; that the injury immediately developed an external swelling as large as his arm, diagnosed by the physician, who attended him for the first time on June 22, 1904, as an inguinal hernia. The witnesses Evans, Flannigan, Womach and DeFrates, all of whom were within a few feet of appellee and in a position to observe what took place when, as he testifies, he was thrown down and laid on the ground ten seconds, did not see him struck or jerked by the pole or fall to the ground. To none of the persons present, did appellee mention the fact of his injury, except as he testifies, he said ,to Evans, ‘By gosh, that pretty near done me up,’ and as to this alleged remark he is not corroborated by Evans. Notwithstanding the serious and painful injury claimed to have been then sustained by appellee, he continued the work of digging holes the same day and for days and weeks immediately following. That appellee has a hernia does not admit of doubt, but it is incumbent upon him to show by a preponderance of the evidence that it resulted from the negligence of appellant upon the occasion and under the circumstances alleged in his declaration. We have no hesitancy in saying that this appellee failed to do, and that the verdict of the jury upon that issue is against the manifest weight of the evidence in the record.”

Because of the view which we take, it is unnecessary to discuss the question of whether the damages are, or are not excessive.

In our opinion, the verdict and judgment in this case are clearly against the manifest weight of the evidence, and this judgment must be reversed and cause remanded for new trial.

Reversed and remanded.


author: Mr. Justice Culbertson

text:
    Ross Swofford, Appellee, v. Eliza Swofford, et al., Appellants.
    Term No. 45M2.

      Heard in this court at the October term, 1945.
    Opinion filed October 26, 1945.
    Released for publication November 27, 1945.
    D. L. Duty, of Marion, for appellant.
    R. W. Harris, of Marion, for appellee.
   Mr. Justice Culbertson

delivered the opinion of the court.

This is an appeal from á decree of the circuit court of'Williamson county, Illinois, ordering and decreeing that the sum of $668 deposited in the name of the appellant, Eliza Swofford (hereinafter called defendant), and the Peoples National Bank of McLeansboro he impressed with a trust in favor of the appellee, Ross Swofford (hereinafter called plaintiff), as the beneficiary of the trust, and that the defendant (and the bank), account to the plaintiff for the sum of $668, and that the hank be released after the payment of such money to the plaintiff.

The pleadings and the evidence disclose that plaintiff and defendant were husband and wife and lived together near the city of Marion, Illinois. Plaintiff and defendant had opened a joint bank account in the Bank of Marion, which had the usual provisions as to withdrawal by either of them. All of the money deposited in the account was money which was earned by the plaintiff. The testimony indicates that there was an understanding that the plaintiff’s wife, the defendant, was not to withdraw any money other than small amounts at a time for family use. On April 22, 1942, the defendant left the plaintiff and at the same time withdrew the sum of $668.92 from the joint account and deposited such sum in the Peoples National. Bank at McLeansboro in her own name. The complaint of the plaintiff had the usual allegations of fiduciary relationship and charges that the defendant fraudulently took the money and alleged that a trust was impressed in favor of plaintiff by reason of the fiduciary relationship. The cause was tried before the court, without a jury, and a decree was entered in the court below impressing a trust in favor of plaintiff, as the beneficiary, and decreeing that the sum of $668 on deposit be paid to plaintiff by the bank in which defendant had deposited the said sum of money in her own name.

The defendant contends that the establishment of a joint deposit account in the Bank of Marion during the period when plaintiff and defendant were living together, gave her the absolute right to withdraw the money and that under the facts, plaintiff was not entitled to the relief given by the court below, and that no fiduciary relationship resulted therefrom. Defendant additionally contends that the specific relief of impressing the fund with a trust was not prayed for in terms in the complaint, and that inasmuch as the complaint contained no general prayer for relief, the court was without power to grant any such relief not specifically prayed for.

The evidence clearly and unequivocally demonstrated that the funds on deposit in the joint account resulted from moneys earned by the plaintiff. The evidence also disclosed that as between plaintiff and defendant, the defendant was only to withdraw such portion of the funds as would be necessary for family expenses. While it is true that the creation of a joint account would protect an innocent third party as against any private understanding, the court below correctly concluded that the defendant could not set up the creation of a joint account as a basis for defeating the constructive trust created in the principal case. Constructive trusts are created by equity for the purpose of working out right and justice, though there was no intention of the party to create such relation, and often directly contrary to the intention of the one holding the legal title (Doner v. Phoenix Joint Stock Land Bank of Kansas City, 381 Ill. 106), and money • which is held in a fiduciary capacity by one who places it in a bank, can be recovered from the bank even ■ though mixed with the depositor’s own money. If the money is held by the depositor in a fiduciary capacity the character of the money is not changed by being placed to the credit of the depositor and mingled with his own money in his bank account (Woodhouse v. Crandall, 197 Ill. 104, 112-113; Live Stock Exchange Inc. v. Roseville State Bank, 249 Ill. App. 44, 49).

It has also been clearly established that the fact that a husband and wife had a joint bank account against which either might draw, is no warrant for either to withdraw all the funds and apply them to his or her exclusive use. In one case it was deter'.mined that where a wife had done so just before filing her bill for divorce, the court in the divorce action, may properly order her to make restitution of the money drawn out (Gercke v. Gercke, 331 Ill. 413, 419).

Under the facts in the instant case, the court was clearly justified in impressing a trust in favor of plaintiff upon the money deposited by defendant in her name, and decreeing that such sum be paid to plaintiff. The fact that the complaint may not have contained specific prayers for relief in requesting that a trust be impressed, does not deprive the court of equity of the right to enter a decree of such character. In Kaifer v. Kaifer, 286 Ill. App. 433, the court specifically stated that, under sec. 34 of the Civil Practice Act (ch. 110, 1943 Ill. Rev. Stat., par. 158 [Jones Ill. Stats. Ann. 104.034]), even though every complaint is required to contain specific prayers for relief, the prayer for relief is not deemed to limit the relief obtainable, but where other relief is sought the court shall, by proper orders and upon such terms as may be just, protect the adverse party against prejudice by reason of surprise. It is pointed out in that case that the former practice in equity of granting relief not specifically prayed for, where the allegations of the complaint and the proof supported such relief, is preserved by the section of the Civil Practice Act referred to, whether or not the complaint contains a general prayer for relief.

The decree of the circuit court of Williamson county was proper and is, accordingly, affirmed.

Affirmed.


text:
    Walter J. Smith, Appellee, v. Guy A. Thompson, Trustee of Missouri Pacific Railroad Company, Appellant.
    Term No. 45M5.
    Heard in this court at the October term, 1945.
    Opinion filed October 26, 1945.
    Released for publication November 27, 1945.

      Whitnel, Browning, Listeman & Walker, of East St. Louis, for appellant; T. T. Railey and Lloyd Middleton, both of St. Louis, Mo., of counsel.
    F. E. Merrills, of Belleville, and Sol Andrews, of Chicago, for appellee.
   Mr. Justice Culbertson

delivered the opinion of the court.

This is an appeal from a judgment of the circuit court of St. Clair county, finding appellant, Buy A. Thompson, trustee of Missouri Pacific Railroad Company (hereinafter called defendant) guilty of contempt by reason of his failure to comply with an order of such court to answer certain interrogatories propounded by appellee, Walter J. Smith (hereinafter called plaintiff), and assessing a fine of $200 by reason of such failure to answer on part of defendant. The subject matter of this appeal is identical with that involved in a case of Charles J. Knaebel v. Buy A. Thompson, trustee, Missouri Pacific Railroad Company now pending in this court [see p. 21, supra], and as to which a similar decision is being rendered simultaneously.

The complaint in the action in St. Clair county charged negligence under the Federal Employers’ Liability Act, and motions to strike were followed by the filing of an amended complaint. On December 11,1944 certain interrogatories and a motion for a rule on the defendant to answer the same were filed. An order of court was entered on December 18, 1944, directing the defendant to answer such interrogatories within 20 days. Defendant failed to answer and a motion was filed by plaintiff for an order of default. As the result of the hearing had upon such motion, the court below did not enter an order of default, but found defendant in contempt for failure to comply with the order of December 18,1944, and assessed a fine of $200 by reason thereof. This appeal is taken from the order of the court so finding the defendant in contempt and assessing the fine referred to.

No issues of notice, or lack of notice, or that defendant, or his counsel, were not present, have been raised in this case by defendant, but defendant raises only the issues referred to and considered in this opinion. It is the contention of the defendant that the circuit court had no power to order the defendant to answer interrogatories propounded by the plaintiff, and that the only remedy or action which could be taken by the court upon the failure to answer such interrogatories is to fix the liability to pay the expenses incurred- by the other party in ascertaining the facts sought to be established by use of the interrogatories, or demands that certain facts be admitted (1943 Ill. Rev. Stat. ch. 110, pars. 182, subpar. (2), 259.18, subpar. (2) [Jones Ill. Stats. Ann. 104.058, subpar. (2), 105.18, subpar. (2)]).

It is also contended that some of the interrogatories were improper for the reason that they could not be answered directly and without qualification or explanation, and for the reason that they call for an expression of opinion or construction. We will not discuss these latter contentions for the reason that no explanation was given by defendant in the court below for the failure to answer interrogatories, but the position apparently was taken that the court below had no power to compel the defendant to answer the interrogatories and that the only remedy of the plaintiff was under the sections referred to, to recover the expenses occasioned in ascertaining the facts sought to be established by use of the interrogatories or demands for admission of facts. It is, likewise, apparent that some of the interrogatories were clearly proper in form and could be answered without qualification or explanation.

The cases involving consideration of admissions and the analogous problem of interrogatories under the Supreme Court Bules and the Civil Practice Act do not indicate that the penalty provided for as to the refusal to make admissions, in assessing the costs is exclusive. There is nothing in the Act which either directly or impliedly deprives the circuit court of its power to punish for contempt for arbitrary refusal in failing to carry out an order of such court in a proper case. We have been cited to no cases or precedents which would indicate that the circuit court of St. Clair county acted unreasonably or unlawfully in punishing the defendant for contempt in the instance case. An order of the circuit court was disobeyed without any reason being assigned. The power of the court to punish by contempt in a proper case has not, in our judgment, been modi-, fied in any manner by the Civil Practice Act or Supreme Court Buies specifying the procedure as to interrogatories or admissions, but the procedural requirements of such Act and the Supreme Court Buies have apparently expanded the scope of action of the court and have given an additional remedy to litigants.

The power and discretion of the court to compel a litigant to obey an order of the court cannot be defeated simply by an unjustified refusal to answer. We believe that the action of the circuit court of St. Clair county was proper and should be affirmed and that this cause should be remanded to the circuit court for further proceedings in this cause.

Affirmed and remanded for further proceedings.