author: Mr. Presiding Justice Hayes

text:
    Joe Balfour, Appellee, v. Dohrn Transfer Company, Appellant.
    Gen. No. 9,481.

      Opinion filed February 28, 1946.
    Released for publication March 26, 1946.
    David Axelrod and Carl L. Steiner, both of Chicago, for appellant; David Axelrod and Carl L. Steiner, both of Chicago, of counsel.
    Wilson & Schmiedeskamp, of Quincy, for appellee.
   Mr. Presiding Justice Hayes

delivered the opinion of the court.

This is an action by Joe Balfour, the owner of a tractor-trailer combination, against Dohrn Transfer Company, the lessee of that combination, brought in the circuit court of Adams county. The complaint contained two counts, one for $324.95 due Balfour under certain lease agreements for the use of his truck and trailer, the other for damages to the truck and trailer caused by an accident when the truck and trailer were under lease to the Transfer Company. The Transfer Company, in its answer, admitted that it owed the sum claimed under Count One, denied the allegations of Count Two and filed a counterclaim for damages to merchandise being transported in the trailer at the time of the accident. The case was tried before a jury and a verdict in favor of plaintiff for $1,579.85 was returned. Defendant has appealed to this court.

Balfour, the owner of the truck and trailer, employed a driver who was operating the truck at the time of the accident. The lease agreement pursuant to which the trip was made was entered into with the Transfer Company by the driver and on behalf of Balfour, and provided for the transportation of merchandise to various consignees in Galesburg, Illinois. The Transfer Company, as its name implies, was engaged in transporting personal property in its own vehicles and in vehicles under lease as in the present case. Balfour claims that the driver of the truck was the employee of the Transfer Company on this particular trip and that it is liable for damages caused his truck and trailer because of the driver’s negligence. The Transfer Company argues that the driver was Balfour’s employee and there is evidence in the record supporting both theories of the case.

It should be noted first that the Transfer. Company apparently employed two types of leases. The one upon which Count One of the complaint is based provided that “the equipment herein leased shall be in the exclusive possession and control of the Lessee, and that the driver of the equipment shall be an employee of the Lessee.” The lease which covered the trip during which the accident took place merely provided “that the equipment herein leased shall be in the exclusive possession and control of the Lessee.” The defendant also proved that Balfour furnished at his own expense all necessary oil, gasoline and tires; he paid the driver’s wages out of the contract price and in addition paid for his meals and hotel room. The record discloses on the other hand that the Transfer Company paid the driver by its own check which was deducted from Balfour’s rental; that it paid social security on the driver as its employee, withheld income taxes from his wages and protected him with workmen’s compensation insurance.

Faced with this evidence, we believe the court properly submitted the case to the jury for decision. It would serve no useful purpose to repeat the various definitions of the employer employee relationship which have been developed by courts in cases of this type. Each must rest upon its own facts, — the primary element being the source and nature of the control exercised by the various parties involved. The Transfer Company argued strenuously that the right to discharge an employee is determinative, and that since it could not discharge the truck driver it should be exonerated. The right to discharge is but one element in the complex determination of the employer employee relationship and no doubt this was considered by the jury along with the other items of proof enumerated above. We believe the verdict is supported by the evidence and are not disposed to disturb it on this ground.

The Transfer Company also objects to the evidence offered by Balfour to prove the amount of his damages. One itemized bill was introduced, and the balance of the evidence consisted of testimony by Balfour as to the various amounts expended by him for repairs. The Transfer Company contends that this evidence was inadmissible since the testimony of Balfour was not the best evidence of the cost of the repairs made, and further there was no proof that the amounts he paid were fair and reasonable charges for the service and material furnished. The itemized bill introduced by Balfour as proof of part of the cost of repairs paid by him, was cle'arly admissible. Where a bill for repairs is the result of an ordinary business transaction and where there is nothing to cast suspicion on it, the amount paid will be presumed to be reasonable. Darling & Co. v. Yellow Cab Co., 238 Ill. App. 326.

We do not deem it necessary to pass upon the admissibility of plaintiff’s testimony to prove the remaining items of damage. Defendant made no objection to the testimony at" the time it was given but was content to move to strike “this evidence as to damages” prior to cross-examination of plaintiff. A similar motion “to exclude all the evidence as to the truck and the repairs” was made at the close of all the evidence. Since there was admissible evidence in the record proving some of the items of damage, defendant’s motion was too broad. The trial court could not be expected to sort the evidence, striking those items that were objectionable. Graham v. Dressen, 292 Ill. App. 15.

Defendant also contends that the evidence does not justify an award to plaintiff for the loss of the use of bis vehicle during the time it was being repaired. The record discloses that plaintiff averaged two trips to Chicago each week; that his profit per trip was about $20 and that it took five weeks to repair the truck and trailer. On the other hand, plaintiff testified that he owned two truck-trailer combinations, but that only one was in operation at one time. He further testified that he made no effort to secure a substitute for the one that was damaged. Under these circumstances we do not believe that plaintiff was entitled to compensation for the loss of use of the damaged vehicle, since plaintiff in its brief agrees that $200 was awarded by the jury for this purpose, this amount must be remitted or a new trial will be awarded. If plaintiff will, within 10 days, remit $200 from the judgment, it will be affirmed for the balance; otherwise the judgment is reversed and the cause remanded for a new trial.

Affirmed upon remittitur.


source: Caselaw Access Project

license: Public Domain

text:
    Della M. Parker, Appellee, v. Railway Mail Mutual Benefit Association, Appellant.
    Gen. No. 9,487.
    Opinion filed February 28, 1946.
    Released for publication March 26, 1946.
    Hal M. Stone, of Bloomington, for appellant.
    Thompson & Martensen and Pacey & Pacey, all of Paxton, for appellee.
   Mr. Presiding Justice Hayes

delivered the opinion of the court.

This suit has been brought by Della M. Parker formerly Della M. Grove for death benefits she claims she is entitled to as beneficiary in a certificate of membership issued by the defendant, Railway Mail Mutual Benefit Association to Orville II. Grove. The cause, was tried before a jury in the circuit court of Ford county and a verdict for plaintiff was returned. The defendant association has appealed to this court.

The contract between the association and Grove provided for monthly instalments which, under the bylaws, became due without any express action by the executive committee or officer of the association, on the eighth day of every calendar month, which assessment had to be paid on or before the eighth day of the succeeding calendar month. The by-laws further provided that any member who failed to pay the assessment on the eighth day of the succeeding month should “thereby be suspended without any action by the association or any officer or committee thereof, and the failure to pay a regular monthly assessment on or before the eighth day of the second succeeding calendar month shall of itself work a forfeiture of membership without any action by the association or any officer or committee thereof.” During suspension the by-laws provided that a member should not be entitled to any benefits nor should benefits be paid to the beneficiary of any member dying under suspension or during forfeiture. It was further provided that a member might be automatically reinstated during the suspension period by paying all past due assessments; where forfeiture occurred in addition to the payment of all past due instalments a new written application accompanied by a doctor’s certificate was necessary.

Orville H. Grove died March 30, 1940. A monthly instalment of $2.25 had been levied by the association on February 8, 1940, due March 8, 1940, which Grove had not paid at the time of his death. The assessment was paid by plaintiff, his widow, immediately after his death. The association, relying upon the provisions of its by-laws, declared that Grove’s membership was suspended and that as a result his beneficiary was not entitled to death benefits. Plaintiff on the other hand furnished proof that over a period of years in which 69 assessments became due, 42 were paid by Grove after they had become due, 41 of which were made in connection with the last 53 assessments. Of these 42 past due payments, 28 were made during so-called “periods of suspension.” Thirteen were made “after forfeiture” atid in only four of these latter instances formal application with accompanying doctor’s certificates were forwarded to the association by Grove. Plaintiff contends that this course of conduct proves that default in payment was tolerated by the association and therefore the right to invoke the effect of suspension provided by the by-laws has been waived by it.

At the outset, it should be noted that contracts of insurance are liberally construed in favor of the insured. Grand Legion Illinois Select Knights of America v. Beaty, 224 Ill. 346. Moreover forfeiture of life insurance policies is not favored by the courts and-any course of conduct tolerating defaults will be construed as a waiver by the company of its right to declare a forfeiture. Routa v. Royal League, 274 Ill. App. 152.

Defendant argues that acceptance of past due instalments cannot be construed as waiver because the by-laws expressly provide that such payments must be accepted if made during the period of suspension. It further points out that a notice was sent to Grove warning him that he was' in default and not protected by his policy. These defenses have been asserted in numerous cases where policies of insurance of this type have been before the appellate courts of this State and they have been repeatedly rejected. Railway Passenger & Freight Conductors’ Mut. Aid & Benefit Ass’n v. Tucker, 157 Ill. 194; Routa v. Royal League, supra; Tesk v. Sagerstrom, 317 Ill. App. 231; Riddle v. General Union of International Brotherhood of Blacksmiths, Drop Forgers & Helpers, 309 Ill. App. 163.

A strict or technical construction of the bylaws involved here based on pure logic gives considerable strength to the defense suggested above. In reading the eases as they have developed in Illinois over a long' period of time it is apparent however, that the courts have taken into consideration numerous factors; the fact that fraternal insurance contracts afford protection almost exclusively to members of the crafts and other working people; that the constitution, by-laws and insurance contract are drawn by the company, and that companies of this type, as is well illustrated in the present case, acquiesce in repeated delayed payments. It has been the policy of the courts of this State to give the insured and his family the benefit of every possible consideration to allow them to recover on their policy.

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

Judgment affirmed.


author: Mr. Justice Dady

text:
    Walter E. Miller, Appellee, v. Illinois Central Railroad Company, and Albert Miller, Appellants. Albert Miller, Appellant, v. Illinois Central Railroad Company, and Walter E. Miller, Appellees.
    Gen. No. 9,480.

      Opinion filed February 28, 1946.
    Released for publication March 26, 1946.
    Mark O. Roberts, of Springfield and N. E. Hutson, of Monticello, for appellant; Mark O. Roberts, of Springfield, of counsel.
    Robert P. Shonkwiler, of Monticello, and John W. Freels, of Chicago, for certain appellee; Vernon W. Foster and Charles A. Helsell, both of Chicago, of counsel.
    Weilepp & Wilson, of Decatur, and Hawbaker & Silvers, of Monticello, for certain other appellee.
   Mr. Justice Dady

delivered the opinion of the court.

This is a personal injury and property damage suit growing out of a collision between a locomotive and a tractor-trailer truck while the truck was crossing railroad tracks on a public highway.

The plaintiff, Walter E. Miller, who was riding in but not driving the truck, brought suit against the Illinois Central Bailroad Company and Albert Miller. Albert Miller, a brother of the plaintiff, was driving the truck. Albert Miller filed a counterclaim against Walter E. Miller and the railroad company. Both brothers suffered personal injuries and property damage.

By its verdict a jury found the defendant Albert Miller guilty on the original complaint and assessed Walter E. Miller’s damages at $3,000. The verdict found the railroad company not guilty on such complaint. The trial court denied Albert Miller’s motion for a directed verdict at the conclusion of the plaintiff’s evidence and at the conclusion of all of the evidence, denied his motion for judgment notwithstanding the verdict, and denied his motion for a new trial.

On the original complaint the court entered judgment on the verdict in favor of Walter E. Miller and against Albert Miller for $3,000 and costs, and entered judgment in favor of the railroad company and against Walter E. Miller.

On the counterclaim of Albert Miller, the court allowed the motion of the railroad company for a directed verdict at the conclusion of the counterclaimant’s evidence, and later denied the counterclaimant’s motion for a new trial and entered judgment in favor of the railroad company.

Albert Miller is the only appellant.

The first contention of appellant, Albert Miller, is that the proofs show that at the time of the accident the plaintiff, Walter E. Miller, was a guest in the motor vehicle of the appellant and therefore cannot maintain this action, and the court erred in denying appellant’s motion for a judgment notwithstanding the verdict, because the Guest Act, sec. 58a, eh. 95½, Ill. Rev. Stat. 1945 [Jones Ill. Stats. Ann. 85.064(1)] provides:

“No person riding in a motor vehicle as a guest, without payment for such ride, . . . shall have a cause of action for damages against the driver or operator of such motor vehicle or its owner or his employee or agent for injury,, death or loss, in case of accident, unless such accident shall have been caused by the wilful and wanton misconduct of the driver or operator of such motor vehicle or its owner or his employee or agent ... ”

and because the complaint does not charge wilful and wanton misconduct on the part of the driver of the truck, but merely charges that the plaintiff engaged the defendant (appellant) to transport for plaintiff certain livestock from Chicago to Cisco, Illinois, that in order to take care of said livestock plaintiff accompanied same in the truck from Chicago towards Cisco, that said contract did not allow or permit plaintiff to direct or control the operation of the truck, that plaintiff engaged with Albert Miller to pay the usual and customary price of such transportation of said livestock and that as a part of such consideration, and in order to care for said livestock, plaintiff was permitted to ride in the truck.

Walter E. Miller and Albert Miller, his brother, lived in the same neighborhood at or near Cisco, Illinois. Walter was aged 62 years. Albert was aged 67 years. Walter was a farmer and from time to time sold in various markets livestock which he had raised or fattened. Albert was engaged in the trucking business and owned and operated several trucks for hire. Albert for several years had hauled most of Walter’s livestock to various markets, for which service he was always paid by Walter. Walter testified that as a part of their job, Albert and his drivers had to get the cattle up when the cattle were down in a truck. On-some but not all of such trips Walter also rode on the truck which carried the livestock. Walter testified that when he went along on such occasions Albert did not charge him anything for riding, but he went along principally to see what price the livestock brought, and also to take care of such stock. Albert testified that his ordinary running time between Cisco and Chicago was about six hours.

The accident occurred in open country near White Heath, Illinois, on Tuesday, September 29,1942, about 5:20 p. m. at a time when Albert was hauling eight cattle and two horses from Chicago to Cisco. The distance between Chicago and the place of the accident was about 145 miles. Walter and Albert were the only ones on the truck. Walter had purchased one of the horses in Chicago on Monday, September 28,1942, and was having the other horse taken to Cisco for the purpose of trying to sell it for a friend. The weight of the truck and load was about ten tons.

Walter testified that shortly before September 27, 1942, he told Albert he wanted Albert to take a couple of truck loads of cattle to Chicago; that Albert said he would do so, and would charge thirty cents a hundred pounds; that he, Walter, told Albert that he wanted to go along to see the cattle sold, but that he was not coming back the same day, and would stay in Chicago and probably buy a saddle horse, and asked Albert if he could later bring such horse back, and that Albert said he could; that on Sunday night, September 27, 1942, two of Albert’s trucks, driven by two of Albert’s employees, took Walter’s cattle to Chicago where they were sold the next day; that he, Walter rode on one of the trucks and stayed in Chicago until Tuesday; that Albert came up Monday night with a load of cattle belonging to a third party; that the following morning, that is on Tuesday morning, the day of the accident, there was loaded into Albert’s truck eight cattle and the two horses; that the cattle belonged to a third party; that he, Walter, helped Albert load the horses into the truck and they put blankets on the horses, and Walter and Albert then, about 10:00 a. m., got into the truck, and thereafter until the accident Albert was driving the truck toward Cisco; that he did not think anything was said between him and Albert about whether Albert charged for hauling the horses, but that Albert always charged and he, Walter, always expected to pay; that Walter told him he could haul the horses, and he paid Albert for everything except bringing the horses toward Cisco.

Albert’ testified that a day or two before September 27, 1942, he had arranged with Walter to take the latter’s cattle to Chicago; that Walter said he wanted to go there Sunday night; that on Sunday night two of Albert’s employees drove the trucks and Walter rode away in one of such trucks; that Walter helped load the cattle into the trucks; that Walter said, “I will go up with these boys and will stay over and come back with you”; that Walter said he expected to buy a horse in Chicago and wanted Albert to bring the horse back to Cisco; that the next day he, Albert, took another truck load of cattle to the yards in Chicago, the cattle belonging to a third party; that on Monday night he and Walter slept in the same room in a hotel, and the next morning had breakfast together and then went to the yards and loaded the truck with the cattle and horses, and then started for Cisco. When asked “What happened with reference to Walter E. Miller arranging to ride” back from Chicago, Albert testified, “Well, he didn’t need to make'any arrangements, when they wanted to ride they just piled in, that is all there is to it,” and that “nothing” was said about Walter riding; that he, Albert, got paid by customers for hauling livestock and “we don’t expect any ,help from anybody else, but if they go along and want to help they sure get a chance to”; that his charge “at that time was fifteen cents a hundred on return stuff. ’ Where we took a load up there for a man and returned stuff for him we returned that at half price. ’ ’

No Illinois case has been called to onr attention in which we consider the facts as being analogous to the facts in the present case. We do not consider as being in point such cases as Crane v. Railway Express Agency, 369 Ill. 110, and Blank v. Illinois Cent. R. Co., 182 Ill. 332, which cover the question of the liability of common carriers of passengers.

In Connett v. Winget, 374 Ill. 531, 534, the court said: “In determining whether a person is a guest within the meaning of the ‘Guest statutes’ in the several States, consideration is given to the person or persons advantaged by the carriage; if it confers only a benefit incident to hospitality, companionship or the like, the passenger is a guest, but if the carriage tends to promote mutual interests of both the person carried and the driver, or if the carriage is primarily for the attainment of some objective or purpose of the operator, the passenger is not a guest within the meaning of such enactments. . . . Many instances may be imagined where a person riding in the automobile of another and not paying, is not a guest as defined by the statute. In Webster’s New International Dictionary a guest is defined as a ‘person to whom the hospitality of the home (etc.) is extended.’ As applied to an automobile, the owner carrying another for the purpose of selling something cannot be said to be extending hospitality when he expects or hopes for material benefit from the carriage.”

In Klopfenstein v. Eads, 143 Wash. 104, 254 Pac. 854, the court said: “It is plain that the deceased was not a trespasser, because he was riding with the knowledge and apparent consent of the driver of the truck. We are also of the opinion that he was not a passenger for hire. There is nothing in the record to show that he paid or expected to pay for his own transportation. It merely shows that he hired the appellants to transfer his trunks from Olympia to Shelton, and that he got- in the car without invitation. . . . Merely hiring appellants to haul his trunks would not make him a passenger for hire. It seems to us that the deceased was a mere ‘guest,’ riding in the truck at his own invitation but with the consent of the driver, and for his own benefit and convenience.” (See also Te Selle v. Terpstra, 180 Wash. 73, 38 P. (2d) 379.)

In Chaplowe v. Powsner, 119 Conn. 188, 175 Atl. 470, the court said: “While we have held that ‘the Legislature, when it used the word “guest,” did not intend to include persons who are being transported for the mutual benefit of both the passenger and the operator or owner of the car,’ we have also said that in determining as to the existence of such mutual benefit ‘not merely the act of transportation must be considered, but also any contract or relationship between the parties to which it was an incident.’ In Leete v. Griswold Post, 114 Conn. 400, 408, 158 A. 919, 922, we further pointed out that ‘the extent and nature of the reciprocal advantages,’ which will constitute such mutual benefit as will relieve one of the disabilities of a guest, ‘are not unlimited but are confined to certain definite relations, such as master and servant, and to tangible benefits accruing to the transporter — as in saving time for which he as master pays, facilitation of a servant’s work, or the like.’ These, limitations and their practical application have been illustrated by subsequent cases which have come to this court and right of recovery has been sustained only when such definite relations and tangible benefits have been present.”

Applying the foregoing rules of law, it is our opinion and we find that at the time of the accident Walter E. Miller was a guest, without payment for such ride, within the meaning of the Guest Act, and therefore cannot maintain this action against Albert Miller. The carriage of Walter E. Miller was not primarily for the attainment of any objective or purpose of Albert. There was no charge directly or indirectly for his ride. In our opinion there is no evidence showing or tending to show that Walter’s presence was necessary or tangibly helpful to Albert, or that his so riding in any way tended to promote the mutual interests of both parties. Although Walter testified that when he rode on such occasions he did so partly to care for the livestock, this statement was a mere.conclusion. All he did in this respect on this trip was to help load the cattle and horses and to blanket the horses on leaving the yards in Chicago, and it does not appear that anything else was done or to be done by him for or with the livestock on the return trip.

The next question presented is whether on the counterclaim of appellant the trial court erred in directing a verdict in favor of the railroad company at the conclusion of counterclaimant’s evidence, and in later entering judgment in favor of such company and against Albert Miller on the counterclaim. In passing on such question we can consider only such evidence as was introduced before the verdict was directed.

At the time of the accident Albert Miller was driving the truck southerly on State route 47 which was paved. The railroad tracks crossed the highway at or nearly at right angles. North of the crossing there was a curve in the highway, but from the southerly end of such curve to the crossing, for a distance of from 400 to 600 feet, the highway was straight. At the crossing there were a wigwag signal and bell and the usual railroad crossing signs.

The truck was about 34 feet in length, and about 25 feet of the truck passed in front of the engine before it was struck. The train was going about 15 or 20 miles per hour, and stopped when the locomotive, tender and three freight cars had passed over the crossing. The locomotive was about 15 feet in height. Corn about six feet in height was growing in the field west of the highway and north of the railroad. Weeds and sumac were growing along the right of way to a height of five or six feet.

Albert Miller testified that the brakes on his truck had recently been repaired and were in good condition; that the cab window was closed on his side but open on Walter’s side; that there was a very heavy head wind; that he was familiar with the crossing and had been over it many times, and knew there was a signal device at the crossing; that they were going about 30 miles per hour when an automobile then distant about 200 feet pulled off from a side road and in front of the truck; that such automobile was going about 10 miles an hour so he started to go around such automobile on its left when about 600 feet north of the crossing, and in passing such automobile he traveled about 150 feet; that he was pulling back on to the right side of the highway when he first saw the railroad wigwag signal moving; that there was a glaring sun to his right, but the sun was not bothering him; that he thought such wigwag movement was due to the wind; that he then looked down the track and when about 75 or 80 feet from the crossing saw the smoke from the locomotive and that Walter then hollered; that he did not then make any effort to stop because he knew he could not stop, but he immediately pulled toward the left as quickly as he could, and when about 70 or 80 feet from the crossing he gave the truck all the gas he could and went across the crossing, but the rear of the truck was struck by the locomotive; that as he approached the crossing he heard no whistle and there was no red light flashing at the crossing; that immediately after the accident the wigwag signal was working just a little, but the bell was not ringing and there was no red light on the wigwag signal.

Walter testified that about a half or quarter of a mile before reaching the crossing an automobile pulled onto the highway in front of Albert’s truck; that Albert then speeded up to about 30 or 35 miles per hour and passed such automobile; that as they approached the crossing he, "Walter, saw a signal mast and signal device quite a piece back from the crossing, but there was no wigwag working, and when about 200 or 300 feet north of the crossing, and while they were going about 30 or 35 miles per hour, he first saw the smoke of an engine, the smoke being about the same distance from the crossing as was the Miller truck; that the crossing signal had not at that time begun to work; that he, Walter, immediately said, “Albert, there is a train,” and Albert"automatically released the gas for they slowed up a little; that he, Walter, then unfastened the door and stepped on the running board and fell on the pavement; that before he fell Albert started going faster and said, “I cannot stop”; that he was watching the train and thought the engine bell was ringing when the train went over the crossing, but that he did not hear any bell or whistle until the train was about at the crossing.

Darwin Musick testified that he was driving northerly on route 47 and saw the train approaching the crossing, and saw the accident when about a quarter of a mile south of the crossing; that he paid no attention to whether a whistle was blowing, and did not hear any bell that he knew of; that he then went to the crossing; that the wigwag signal was then moving back and forth but there was no light flashing; that the level of the ground in the field northwest of the crossing was lower than the pavement and sloped toward the north until it was about level with the railroad tracks, 100 or 200 yards north of the highway.

We believe the foregoing is a fair statement of all the material evidence before the court at the time the motion for a directed verdict was allowed.

The specific charges of negligence alleged in the counterclaim were that the railroad company (1) improperly and negligently operated said train; (2) negligently ran said train at a high and dangerous rate of speed; (3) negligently failed to slacken the speed of said train upon approaching the crossing; (4) negligently failed to erect proper signs and warnings at the crossing; (5) negligently failed to keep its right-of-way clear of brush and weeds, and (6) negligently failed to cause a bell or whistle to be sounded as required by statute.

We do not consider that there is any evidence in the record tending to support the first three charges.

As to the fourth charge, the only complaint is that the wigwag and bell were not properly working. Albert says that when he first saw thé wigwag it was moving, but he thought this movement was due to the heavy wind and that the wigwag was working just a little. Albert having seen the wigwag working, it is immaterial whether Walter saw it working or not. Assuming, however, that the wigwag bell was not working and that there was no red light on the wigwag, we do not consider that under the particular circumstances of this case such facts tended to show actionable negligence.

As to the brush and weeds so assumed to be on the highway, we do not believe there is any evidence tending to show that Albert Miller, seated as he was in the truck, could not have looked over the top of such weeds and brush and have seen the locomotive and boxcars if he was in the exercise of reasonable care for his own safety.

As to the charge that the whistle and bell were not properly sounded, it is our opinion that the evidence which it is claimed tends to prove such charge has no probative value. In Berg v. New York Cent. R. Co., 391 Ill. 52, at page 60, the court said, “It is obvious that if a witness, without explanation of his evidence, testifies that he did not hear a bell or whistle, such testimony would have no value. To give it probative force, it must appear that the witness was in such proximity that he could have heard the sound had it been given, and that his attitude of attention was such that if the bell or whistle had sounded it Would have attracted his attention.” According to the testimony of Albert and Walter, the truck was traveling about 30 miles per hour against a heavy head wind, the cab window on Albert’s side was closed, Albert was intent on passing another car, and it does not appear that their attitude of attention was such that if the bell or whistle had sounded it would have attracted their attention. Musick paid no attention to whether a bell was ringing or not. In Moudy v. New York, C. & St. L. R. Co., 385 Ill. 446, 452, the court said: “One who has an unobstructed view of the approaching train is not justified in closing his eyes in crossing a railroad track in reliance upon the presumption that a bell would be rung or a whistle sounded, and offer the presumption as an excuse for not exercising care. . . . Likewise it is clear that if the view of the crossing is obscured, and the location of the crossing is known to the traveler, it is his duty to approach the crossing with the amount of care commensurate with the situation as it exists. The claim that care and caution by any person has been exercised cannot be sustained, when the known facts disclose that ordinary care would have avoided the accident. ... If the plaintiff is to be believed in all that he says he was simply taking the chance there would be no train, and, without being able to see a train, was relying blindly upon hearing its sound, when he knew it would be impossible for him to stop his car after he had reached the speed described by him.”

It is our opinion that the trial court properly directed the verdict against Albert Miller and in favor of the railroad company because we find as a matter of law that no actionable negligence of the railroad company was shown, and because we find that the proofs show that Albert Miller was guilty of contributory negligence as a matter of law.

The judgment which was rendered in favor of the railroad company and against Albert Miller on the counterclaim is affirmed.

The judgment which was rendered in favor of Walter E. Miller and against Albert Miller is reversed.

One half of the costs in this court are ordered taxed against Albert Miller and the other half of such costs are ordered taxed against Walter E. Miller.

Affirmed in part, and reversed in part.


text:
    Harold E. Thomas, Trading as Thomas Farm Equipment Company, Appellee, v. State Bank of Saybrook, Appellant.
    Gen. No. 9,495.
    Opinion filed February 28, 1946.
    Released for publication March 26, 1946.
    Dwight H. Doss, of Monticello, for appellant.

      John M. Mitchem and Elmer F. Davies, both of Urbana, for appellee.
   Mr. Justice Dady

delivered the opinion of the court.

On November 15, 1943, Harold E. Thomas, doing business as Thomas Farm Equipment Company, on receiving a down payment, sold and delivered to Clarence P. Carter a piece of farm machinery, known as a combine, on a conditional sales contract, by which contract Carter agreed to pay therefor $408.43 in instalments of $194.53 on August 15, 1944, and $213.90 on November 15, 1944, with interest. The contract provided that the title to the combine should remain in the vendor until the full payment of the purchase price and interest had been made.

From November 15, 1943, and thereafter until the levy hereinafter referred to, Carter continued to have possession of said combine under said conditional sales contract.

On March 27, 1945, the State Bank of Saybrook obtained a judgment by confession against Carter on two notes, evidencing moneys borrowed by Carter from the bank in the Spring and Fall of 1944. Thereafter an execution was issued on such judgment and by virtue of such execution the sheriff made a levy on such combine. Thereupon this trial of right of property proceeding was begun in the county court. The case was tried without a jury, and the county court entered judgment in favor of the claimant Thomas, and ordered that the property be returned to Thomas. The bank brings this appeal from such judgment.

In Sherer-Gillett Co. v. Long, 318 Ill. 432, the Sherer-Gillett Co. sold and delivered to one Taylor, under a conditional sales contract, a display counter to be used by Taylor in his grocery store, by which contract Taylor agreed to pay $10 in cash and $10 each month until the full purchase price was paid, title to remain in the vendor until full payment of the purchase price had been made. Two days later Taylor sold the counter to one Long for $100. Long had no notice of the rights of the Sherer-Gillett Co. The Sherer-Gillett Co. brought an action in replevin against Long. The Supreme Court held that the Sherer-Gillett Co. was entitled to recover the property.

While the facts in the Sherer-Gillett Co. case differ from the facts in the instant case in that in such case the attempted sale to the bona fide purchaser took place before the indebtedness became due under the conditional sales contract, yet in passing on such case the Supreme Court used persuasivd language which we feel we should be guided by and follow in the instant case. The Supreme Court there said: “By section 20 of the act (of the Uniform Sales Act, Ch. 121-½ Rev. Stats.) the validity of a contract of conditional sale is recognized. Section 23 . . . provides: ‘Subject to the provisions of this act, where goods are sold by a person who is not the owner thereof, and who does not sell them under the authority or with the consent of the owner, the buyer acquires no better title to the goods than the seller had, unless the owner of the goods is by his conduct precluded from denying the seller’s authority to sell.’ It is a general, well-established principle that no one can transfer a better title than he has. . . . Section 23 declares, in harmony with the settled law of estoppel, that the owner of the goods may by his conduct be precluded from denying the seller’s authority to sell. In order to give rise to an estoppel, however, it is essential that the party estopped shall have made by act or word a representation, and that the person setting up the estoppel shall have acted on the faith of this representation in such a way that he cannot without damage withdraw from the transaction. . . . What representation has appellee made upon which appellant has relied to his damage? What conduct of appellee precludes it from denying the seller’s authority to sell? It did not clothe Taylor with indicia of title. Clothing another person with indicia of ownership does not mean simply giving him possession of a chattel. Possession is one of the indications of title, but «possession may be delivered by the owner to a lessee, a bailee, an jagent or a servant. Owners of chattels must frequently entrust others with their possession, and the affairs of men could not be conducted unless they could do so with safety, so long as the possession of the chattel is not accompanied by some indicium of ownership or the right to sell. . . . Whether the legislature should adopt the companion act, which provides for the recording of contracts of conditional sale, is not for this court to decide. . . . There is no basis for the operation of an estoppel in this record.”

In American Type Founders Co. v. Metropolitan Credit & Discount Corp., 271 Ill. App. 380, the Founders company on October 15, 1929, sold and delivered to Van Hoesen company certain machines on a conditional sale contract, the last payment on which became due on April 15, 1931. On April 15, 1931, the Founders company, notwithstanding the indebtedness had fully matured, did not repossess the property. In November 1931, the Metropolitan Corp. loaned the Van Hoesen company $3,750, to secure which the Van Hoesen company gave the Metropolitan Corp. a chattel mortgage which covered all of the personal property of the Van Hoesen company, including the property so sold by the Founders company. The mortgage was recorded the next day. On April 5, 1932, the Metropolitan Corp., as mortgagee, took possession of all of such personal property and caused the same to be sold at public auction on April 9, 1932, to an agent of the" Metropolitan Corp. On April 11, 1932, the Founders company brought an action in replevin, which case eventually reached the Appellate Court. After considering the Sherer-Gillett case, supra, and other cases, including the case of Haines v. Doss, 269 Ill. App. 179, hereafter referred to, the Appellate Court held that by merely permitting the Van Hoesen company to continue to retain possession of such personal property after the indebtedness on its conditional sales contract became due on April 15, 1931, until November 1931, when the chattel mortgage was given to the Metropolitan Corp., and thereafter, the Founders company was not estopped from successfully maintaining the replevin suit.

In so doing the Appellate Court quoted with approval the following language from the case of In re Steiners Improved Dye Works, 44 F. (2d) 557: “There is no statute of limitation, touching the time during which the possession and right of property may be retained by the seller, nor is there any limitation as to the time within which the seller must retake the property in case of default. There is nothing in the statute to indicate that the seller, under such a contract, is subject to any limitation other than the general statute of limitations applicable to written contracts. We see no reason, if the purchase price is not fully paid, why the seller may not act at any time within the period of limitations unless he is estopped. An estoppel is based upon a wrong. (Sherer-Gillett Co. v. Long, 318 Ill. 432; Commercial Nat. Bank of New Orleans v. Canal-Louisiana Bank & Trust Co., 239 U. S. 520.) It is not here insisted that anybody was injured by any act or failure to act on the part of appellee. The failure of appellee to take possession upon default did not induce any one to pursue a course of action to his hurt.”

In the instant case the only ground of estoppel claimed against Thomas is that he thus permitted Carter to retain possession of the combine after the indebtedness became due on November 15, 1944, until the levy was made under the execution, a period of about four and one-half months. It is our opinion that there is no merit to such contention.

While the ease of Haines v. Doss, 269 Ill. App. 179, decided by this court (Third District) appears to be in point, it is our opinion that under the facts in the instant case no estoppel has been shown as against Thomas.

The judgment of the county court is affirmed.

Affirmed.


author: Mr. Justice Wheat

text:
    C. C. Engel and Stewardson Community High School District No. 192, Appellants, v. V. Max Elbert et al. and Shelbyville Community High School District No. 195, Appellees.
    Gen. No. 9,484.

      Opinion filed February 28, 1946.
    Released for publication March 26, 1946.
    Charles R. Myers, of Vandalia, for appellants.
    A. L. Yantis, of Skelbyville, for appellees.
   Mr. Justice Wheat

delivered the opinion of the court.

This is an appeal from an order of the circuit court of Shelby county, affirming the action of the county superintendent of schools of Shelby county, in detaching certain territory from Stewardson Community High School District No. 192 and adding the same to Shelbyville Community High School District No. 195.

On September 11, 1944, a petition to detach the territory in question from Stewardson Community High School District No. 192 and to add the same to Shelby-ville Community High School District No. 195 was filed in the office of the county superintendent of schools of Shelby county, Illinois. Subsequent proceedings were had resulting in an order of the county superintendent of schools of Shelby county granting the prayer of the petition, detaching the territory from the Stewardson district and adding the same to the Shelbyville district. The proceedings were conducted under the provisions of par. 99d, ch. 122, Ill. Rev. Stat. 1943 [Jones Ill. Stats. Ann. 123.106(2)]. On appeal to the circuit court of Shelby county, the appellants herein filed a motion to strike the petition for detachment on the ground that the county superintendent had no jurisdiction to act on the petition for the reason that the Shelbyville district was organized subsequent to January 1, 1940. The circuit court denied the motion and the order of the county superintendent was affirmed.

The statute in question (par. 99d, ch. 122, Ill. Rev. Stat. 1943) provides in part as follows:

“In addition to means for creating high school districts heretofore provided in this act, the county superintendent of schools shall have power to alter the boundaries of existing community and township high school districts organized prior to January 1, 1940, when petitioned by the voters as hereinafter provided. The county superintendent of schools shall change the boundaries of any township or community high school districts so as to detach territory from one such high school district arid add the same to another such high school district: (1) when petitioned by two-thirds of the legal voters residing within the territory proposed to be detached, as described in the petition and by a majority of the legal voters residing in the high school district to which such territory is proposed to be added, asking that such territory be detached from the one high school district and added to the other high school district; or (2) when petitioned by a majority of the legal voters of the entire school district containing the territory proposed to be detached from such district and by a majority of the legal voters residing in the high school district to which such territory is proposed to be added; asking that Such territory, therein described, be detached from the one high school district and added to the other high school district.”

From the stipulation of facts, it appears that Stewardson Community High School District No. 192 was organized prior to January 1, 1940, and that Shelbyville Community High School District No. 195 was organized in 1944 The sole question raised is as to whether or not the county superintendent of schools had jurisdiction to act on the petition by reason of the fact that the Shelbyville district was organized subsequent to January 1, 1940.

Appellants contend that the county superintendent had no jurisdiction or authority to alter the boundaries of either district by detaching from the one which was organized prior to January 1, 1940, and adding the same to a district organized subsequent to that date, and that the statute above quoted is applicable only in situations wherein each of the two districts concerned were organized prior to January 1, 1940.

Appellees argue that the county superintendent had the power to detach territory from a district organized prior to January 1, 1940, and that it is immaterial as to what disposition was then made of such detached territory, and the fact that the territory so detached was to be added to another district did not limit or restrict the jurisdiction of such superintendent.

The issue presented has not been heretofore determined by any Illinois reviewing court, and it is necessary to construé the language in the following excerpt from such statute: “ . . . The county superintendent of schools shall have power to alter the boundaries of existing community and township high school districts organized prior to January 1, 1940, . . . ”

There is merit in the contention that one of the uncertainties facing any community high school district relates to the question of territory, for on that depends the assessable property for tax income and its potential of prospective pupils, both of which, in turn, affect the size of its teaching staff, its physical equipment and the ability to render adequate school service. In general, the predictability of income and expense and the requirements of a school plant in a district are all dependent on its taxable area. It is argued that districts organized prior to January 1, 1940, presumably were reasonably stablized as to area and that the legislature, by said statute, sought to preserve such status against the danger that new districts might be created which would attempt to acquire part of the territory of the pre-existing districts.

It is equally logical to argue that by this statute the legislature intended to furnish some protection to newly created districts to preserve any possible loss of territory to a pre-existing district; that when a new district is created, emotions frequently run high and those citizens opposed to the creation of the new district might attempt to injure the same through attempts to .have property detached. Each of these views is entirely consistent with what this court believes to be the plain meaning of the statute, to-wit: that to confer jurisdiction on the county superintendent, it is necessary that each of the districts involved must have been organized prior to January 1, 1940.

It is our opinion that the intention of the legislature was to accomplish the double purpose of ending the uncertainty of an old district of the fear that a new district might be created subsequent to January 1, 1940, which would acquire part of its territory, and to charge any district sought to be created after such date with the knowledge of the improbability of acquiring any territory from an already established district. The statute would also end any fear of a newly created district of losing any of its territory to a district theretofore established. We believe this construction fully accomplishes both purposes and gives to the words “alter” and “change,” as used in the statute, their plain and ordinary meaning.

The trial court should have sustained the motion to strike the petition for detachment for the reason that Shelbyville Community High School District No. 195 was organized subsequent to January 1, 1940, rendering the statute inapplicable. The finding of the trial court is reversed with directions to strike the petition.

Reversed and remanded with directions to strike petition.


author: Mr. Presiding Justice Wolfe

text:
    Charles J. Majewski, Appellee, v. Florence Majewski, Appellant.
    Gen. No. 10,042.
    Opinion filed March 8, 1946.
    Released for publication April 1, 1946.
    Looze & Kinne, of Crystal Lake, for appellant.
    Philip R. Davis, of Chicago, for appellee.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.

Charles J. Majewski and Florence Majewski were married in April 1930, and lived together as husband and wife until August 11,1944. They have two daughters, Jacqueline, age 12 and Maxine, age 5. On August 14, 1944, Charles J. Majewski filed a suit for a divorce in the circuit court of McHenry county, charging his wife, Florence Majewski, with having committed adultery with one, John Doe, on August 11, 1944. The complaint is sworn to by the said Charles J. Majewski on August 11, 1944.

To this complaint the defendant, Florence Majewski, filed her answer, and denied that she was guilty of committing adultery on August 11, 1944, with John Doe, or with any other person at any time or place. She also filed a cross complaint asking for separate maintenance. The case was submitted to the court without a jury who found the issues in favor of the plaintiff, and that the defendant, on August 11, 1944, and on divers other occasions, committed adultery with the said John Doe. A decree was entered accordingly. The cross complaint for separate maintenance was dismissed. It is from this decree and order that Florence Majewski has perfected an appeal to this court.

The plaintiff, in his own behalf, testified that he was a postal clerk in the City of Chicago; that on August 11, 1944, he came home from work and found Mrs. Mabel Herzstock in the dining room at his home arranging her hair; that "he asked the whereabouts of his wife; that she told him that his wife was out back of the house; that he went to the back door, and saw a car standing in the lot back of his home; that the ground slopes considerably down to a depression in the back of his home; that there are bushes and trees in this depression in which he had a large tent for the children to play in; that he walked down towards this tent to fepeak to his wife when he heard voices; that he heard voices; that he heard mumbles and highly emotional cries, low cries and mumbles; that he looked into the tent, and no one was in it; that he then became suspicious and walked around the tent quietly, and he saw his wife and the said John Doe locked in each other’s arms, and in the act of sexual intercourse; that his wife was dressed indecently in shorts, which were large legged; that there was a bottle of liquor, and they were drinking and imbibing at the time when he first saw them. This evidence was given at the preliminary hearing of the case.

The plaintiff testified at the hearing that Mrs. Herzstock had been a frequent visitor at their home; that as he came into his home on the morning of August 11, he made inquiry in regard to his wife; that Mrs. Herzstock was in the house and rearranging her hair; that after making inquiry in regard to where his wife was, he went down to the back of the lot; that he went out to look.to see where his wife was; that he found her back of the tent, which was back of the house, in a hollow; that she was there with a neighbor, John Doe.; that he saw them in the act of sexual intercourse, and stood and watched them for about four minutes before either of them saw him; that there was a bottle of liquor on the ground, and they were reaching for the liquor to take a drink before either of them saw him watching them; that he watched them for about four minutes without saying a word to either of them; then he said to his wife, “You are not a satisfactory mother to be here with the children; mow you have 30 minutes to get in, get your things you need, and get out; you are no longer wanted around here;” that he did not say a word to John Doe and the wife did not say a word to him in reply; that his wife followed him back to the house; that he did not say anything to his wife after she entered the home; that he handed Mrs. Herzstock the keys to his car, and said: ‘ ‘ Take the children out of here; get your suitcases and take my children along with you, because this is no place for them; my wife was back there; she has been drinking back there; my wife is carrying on back there; she is doing some awful ugly things that a mother shouldn’t be doing, and drinking;” that Mrs. Majewski did not say a word at that time, and did not deny the accusation.

To support the plaintiff’s case, Mrs. Herzstock was called as a witness and told of frequent visits of John Doe to the home of the Majewski’s and of trips that she and Mrs. Majewski had taken with John Doe and that several times they were drinking. She also told of John Doe coming to the home the morning of August 11, but testified to nothing which corroborated the testimony of the plaintiff that his wife actually committed adultery.

Jacqueline Majewski was called by the father to support his case. She testified that when the mother came in, she was wearing loose shorts and her hair was rather mussed and her clothes were not very tidy.

Mrs. Majewski testified in her own behalf. She admitted going out riding on several occasions with John Doe and Mrs. Herzstock, and drinking on several occasions, but denied in toto any acts of adultery with John Doe, or any other person at any time, or any place. She stated that John Doe came to their home frequently; that he was a farmer; that he had a cow from which they obtained milk daily; that they would use the cream and what milk they needed, then John Doe would come practically every day, and get the milk not used, and other scraps from the kitchen to feed some hogs that he had at his place which adjoined the Majewski lot; that John Doe came to their home August 11, 1944; that they had two lambs, that were tied at the back of the lot, and she asked him to go down and see these Iambs in regard to their feed, as she thought they were too fat; that they stood there at the fence watching the sheep and talking when John Doe squatted down on the ground, and she sat down about 5 or 6 feet away from him and they were in that position when her husband came and ordered her to get her things and get out; that she started to say that she had done nothing wrong, but he would not give her an opportunity to say anything; that'she followed him into the house, and called her brother and told him that she was ordered out of her home, and for him to come and get her. She also testified (which is not denied), that the shorts she was wearing was a gift to her from her husband.

The John Doe referred to in the testimony and complaint, was called as a witness in behalf of the defendant, and testified as to his correct name; that on Aug. 11, 1944, he lived as neighbor to the Majewski’s; that he arrived at the Majewski home about 11:30 and had a bottle of liquor with him; that he saw Mrs. Herzstock and Mrs. Majewski, and sat on a bench talking; that he offered the ladies a drink and Mrs. Herzstock took the first one, and that during the time they were sitting on the bench, which was probably 30 or 40 minutes, Mrs. Herzstock took three drinks, and then went into the house; that he and Mrs. Majewski went back to look at some sheep that were in the backyard; that they were looking at the sheep and talking for about ten minutes; that they had several drinks while in the backyard; that he had several and Mrs. Majewski had one drink; that he was crouched down on his heels and Mrs. Majewski was sitting down" on the grass when Mr. Majewski came up and said: “Get your things and get out of here.” That Majewski didn’t say a word to him, and he didn’t say a word to Majewski; that he walked over to the fence, got into his car and drove away. He denied positively, that he had ever engaged in sexual intercourse with Mrs. Majewski.

Mr. J. P. Lang testified that he was a neighbor of the Majewski’s and by profession, a veterinarian; that on the 11th of August 1944, he had been out at work and came home about 11 o’clock in the morning; that he has a lot surrounded by an electric fence that adjoins the property of the Majewski’s; that he was working on this fence from about 11:30 until after 1:00 o ’clock; that he saw John Doe and Mrs. Majewski come to the back of the Majewski property, and standing at the' fence looking at some sheep; that John Doe and Mrs. Majewski were in plain view of him all of the time, that he was working on his fence; that he heard them talking, but did not hear what they said; that his attention was first attracted to them by the lambs, Matting ; that he saw John Doe sitting on his heels and Mrs. Majewski was standing, but a little later sat down on the grass; that the vegetation around where they were, did not exceed 6 or 8 inches in height; that a little .later he saw Mr. Majewski come down the path and around to where the two people were sitting; that they were in that position when Mr. Majewski saw them; that Majewski stood there for a minute, then turned around and went back to the house; that he could hear voices, but could not distinguish what was said; that Mrs. Majewski followed her husband into the house and John Doe got up and went away.

Dr. Lang further testified that he had a conversation with Charles Majewski that same evening; that they were again in their backyards, and Mr. Majewski called over the line fence, and asked him if he would take care of his lambs, and the doctor told him that he would; that Majewski said he had had trouble with his wife and had started divorce proceedings; that he tried to reason with Majewski, but he didn’t have a chance to say anything, then finally Majewski said: “After what I saw last night, I am all washed up,” and he did not mention at all that he had caught his wife in any misconduct that forenoon.

William Beecham testified that he was a brother of Mrs. Majewski, and that his sister called him on August 11, 1944, and that he talked to her over the telephone ; that it was about 20 minutes after twelve; that after the conversation, he drove his car to his sister’s home and was met at the door by his brother-in-law, Charles Majewski who said: “Have they called you already ? ” “ Did they get in touch with you already ? ’ ’ He, Beecham; answered, “What do you mean?” To which Majewski replied: “What, did they get in touch with you already?” To which the brother-in-law replied: “Just a few minutes ago, and I don’t know what it is all about. ’ ’ At that time his sister came in and he asked her what it was all about; to which Majewski replied: “I saw Flo sitting on, — sitting on John Doe’s knee in the kitchen sharing a bottle of beer between them,” then he turned directly to Mrs. Majewski and said: “And you can’t deny it, get your things together, and get out of here,” then Majewski turned to the witness, and said: “Be sure she doesn’t take anything else than just what belongs to her, and her only.” On cross-examination the brother was asked whether the sister denied that she was sitting on the man’s lap and sharing a bottle of beer. His reply was, “It is impossible for me to answer the question, yes, or no, because the sister would open her mouth to speak, and was not given a chance. ’ ’

Considerable space is devoted in the brief and argument of the appellee to the fact that the wife never denied the accusation of. adultery when she was so charged by her husband. An examination of the evidence, as abstracted, fails to disclose that at any time did the husband charge his wife with adultery, or having illicit intercourse at any time with John Doe, or with any other person. He admits in his testimony on cross-examination that he never at any time, charged his wife with adultery, until he started his suit for a divorce, which the records show was the afternoon of the day of the trouble. He told the neighbor of whom he was asking a favor, that the reason he had started this suit for divorce was because of something he had seen the night befóre, but he did not charge his wife with adultery, which he now claims that he had seen committed but a few hours before.

It is a well known fact that adultery is usually committed in secret, and the neighbors are excluded from seeing it. It seems strange that two people in committing adultery, would go back of a tent in plain view of a neighbor, and commit the act openly when they could very conveniently have gone into the tent, and be secluded from the public eye. In the early case of Blake v. Blake, 70 Ill. 618, it is stated: “It is exceedingly important for the well-being of society that a check should be placed upon the tendency of the age to sever the marriage relation, and more especially should clear proof be required when the result of the verdict sought to be obtained will publish a defendant to the world as a prostitute, and brand the children of complainant as the descendants of an unchaste woman.”

It is stated in Eames v. Eames, 133 Ill. App. 665, 670; “In no event can the unsupported testimony of the charging party, when met with the denial of the party accused of adultery, and with other corroboration, warrant a decree of divorce upon so serious a charge. ’ ’

In Hoef v. Hoef, 323 Ill. 170, we find this language : “Defendant in error testified to seeing his wife go into Curless ’ room a few times, where she remained two or three minutes. He testified that on another occasion when he got up early in the morning he went into the cellar and looked through the place where the cold air pipe of the furnace had been disconnected at the floor and saw Curless in the parlor, sitting in a rocking chair, and that his wife came into the room and sat down for a short time on Curless’ lap, but that he did not see him kiss her or hear anything said. She denied this episode. He testified that he accused her of intimacy with Curless and that she made a remark which would tend to show her guilt. This she denied, as she also denied specifically the charge of adultery. It being important to the well-being of society that the marriage relation should not be severed, where a divorce is sought from a wife for adultery the proof to warrant a decree must clearly convince the mind affirmatively that actual adultery was committed, as nothing short of the carnal act can lay the foundation for such divorce. Blake v. Blake, 70 Ill. 618.”

We are not unmindful of the rule that reviewing courts hesitate to reverse a case tried by a judge without a jury, as the presumption is that the trial judge considered only the competent evidence. He sees and hears the witnesses testify, .however, when there is a lack of evidence to sustain the judgment, or decree, reviewing courts will not hesitate to reverse the same.

After reviewing the evidence in this case, it is our conclusion that if falls far short of being of such convincing nature as to establish that the defendant was guilty of adultery, as charged in the complaint. The decree of the circuit court granting the plaintiff a divorce, and dismissing the defendant’s cross complaint for separate maintenance is hereby reversed, and the cause remanded to said court.

Reversed and remanded.


text:
    In re Estate of Albert G. Frick, Deceased. Claim of Charles C. Kratzer, Appellant, v. Estate of Albert G. Frick, Appellee.
    Gen. No. 10,051.
    Opinion filed March 8, 1946.
    Released for publication April 1, 1946.

      Harold B. Nettles, of Freeport, for appellant.
    Louis F. Reinhold, of Freeport, for appellee.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.

On November 6, 1922, Albert G. Frick (now deceased), for the consideration of $1,500 assigned a note secured by a mortgage on certain land in the State of Colorado, to Charles C. Kratzer. It is claimed that Frick represented to the claimant that the note secured by the mortgage, was a first mortgage lien on said premises; but actually the mortgage was a second mortgage lien and therefore, the claimant lost his $1,500. It is also claimed that at the time of the assignment of the note and mortgage, Frick knew that the mortgage was not a first lien on the premises.

For about 11 years after the assignment of the note and mortgage, interest payments were made to Kratzer by the said Frick, and not the actual mortgagor. On September 26, 1934, Kratzer found out that said mortgage was not a first lien, as represented, but a second lien on the premises, and that the first lien had been foreclosed, and he had lost his $1,500. Shortly thereafter, Kratzer had a conversation with Frick regarding this matter, and Frick promised to pay the amount of money that Kratzer had paid to him for the note and mortgage, and on several occasions thereafter, and up to within a year of the time of the death of Frick, he reiterated his promise to pay to Kratzer the sum of $1,500.

Frick died on July 11, 1943, and administration was duly had upon his estate. Kratzer filed a claim against Frick’s estate in the county court of Stephenson county, setting out the facts, as above stated. To this claim Frick’s administrator filed a motion to dismiss. The court sustained this motion, and dismissed the claim. From this order, an appeal was taken to the circuit court. The circuit court likewise sustained the administrator’s motion to dismiss, and it is from this order that an appeal was taken to this court.

A copy of the note and mortgage in question, were attached to the claim. The note on its face states: ‘ ‘ This note and interest notes annexed are secured by a first mortgage deed duly recorded in Las Animas County, State of Colorado.” The note was made payable to Albert GT. Frick and signed by one, R. A. Lee. The indorsement on the back of the note shows that Frick indorsed the same without recourse, so in the absence of fraud, or a new promise to pay Kratzer the money he had lost, the action cannot be maintained. If the appellant had sued in an action of tort, no doubt the Statute of Limitations would begin to run from the date of the transaction, and a new promise to pay would not take the case out of the Statute of Limitations, (Nelson v. Petterson, 229 Ill. 240).

It is contended by the appellant that he can waive the tort and sue in contract and that the deceased, Frick, in his lifetime, repeatedly promised him that he would repay him the $1,500. To sustain his contention, the appellant relies upon the two Appellate Court cases, Wilson v. Williams, 42 Ill. App. 612, and Wood v. Williams, 40 Ill. App. 115. An examination of these cases lend little support to Ms case. Both the appellant and appellee cite the case of Skrodski v. Sherman State Bank, 348 Ill. 403, as lending support to their various contentions, but this case sheds little light, or benefit to either of them.

In the case of Nelson v. Petterson, supra, we find this language: “In Holtham v. City of Detroit, 98 N. W. Rep. 754, it was said: ‘An action of tort once barred by the Statute of Limitations cannot, like an action arising out of contract, "be revived by either an express or implied agreement.’

“We are of opinion that if, as contended by plaintiff, the fraudulent representations and concealments of defendant alleged in the declaration created a liability from which the law implied a promise to pay, so that indebitatus assumpsit would lie, still the liability results from a tort and not a contract; If the tort might be waived and an action of assumpsit maintained, still the very foundation of the action is the tort, and it is only by a fiction of law that a promise to pay is said to be implied. It is true, as contended by counsel for plaintiff, that in this State the authorities are to the effect that in actions ex contractu, where a subsequent promise is relied upon to take the case out of the bar of the statute, the original promise, and not the subsequent one, is the cause of action, and the subsequent promise only operates to restore or revive the remedy on the original cause of action. But as this rule does not apply to actions ex delicto, where the only cause of action is a tort, it would be illogical to say that an action in tort, when barred, cannot be revived by a subsequent promise, but as the law implied a promise to pay the alleged damages resulting from the commission of the tort, the action in form ex contractu may be revived by a subsequent promise. If the declaration, instead of setting out the tortious acts out of which the liability arose, had been in the ordinary form of indebitatus assumpsit, it could not be contended that the discharge in bankruptcy would not be a complete bar.”

In the Nelson case, supra, our Supreme Court quotes from the case of Peterson v. Breitag, 88 Iowa 418: “A suit was begun to foreclose a mortgage made to secure a note which was given in settlement of damages claimed by the payee and mortgagee to have been sustained by him as a result of a tort committed by the mortgagor. The tort was committed in 1877 and the note and mortgage were executed in 1889. By the Statute of Limitations of the State of Iowa an action in tort was barred in two years. The court held there was no consideration for the note and mortgage and that they could not be enforced because the liability resulted from a tort, which was barred by the Statute of Limitations before the note and mortgage were given, and the giving of them could not operate to revive the cause of action.”

It will be observed that the note in question was indorsed without recourse by Albert Frick at the time that Charles Kratzer purchased it. - Under such circumstances, there was no contractual obligation on the part of Frick to reimburse in any way, the assignee of the note and mortgage. Any liability to pay, arose out of the promise to reimburse the appellant for the loss he had sustained.

It is our conclusion that this action is barred by the Statute of Limitations governing tort actions, and that the judgment of the circuit court should be affirmed.

Judgment affirmed.


author: Mr. Justice Dove

text:
    Melville C. Dean, Appellee, v. Frank Ketter, Trading as North Shore Cab Company, Appellant.
    Gen. No. 10,059.

      Opinion filed March 8, 1946.
    Released for publication April 1, 1946.
    Mortimer Singer and Esther C. Singer, both of Highland Park, for appellant.

      Lidschin & Pucin of Waukegan, and Robert E. Dunne, of Chicago, for appellee; Robert E. Dunne, of Chicago, of counsel.
   Mr. Justice Dove

delivered the opinion of the court.

Appellee, Melville C. Dean, recovered a judgment in the circuit court of Lake county, for $332.40 against Frank Ketter, appellant, on account of an accident by which a taxicab owned by appellant and driven by Clarence Davis, ran into the rear end of appellee’s car while it was parked at night on a street in Highland Park. The suit came to the circuit court by an appeal from a justice of the peace, and the trial on the appeal was by the court without a jury. Clarence Davis was not made a party defendant to the action.

The testimony shows that appellant owned the taxicab, on which appeared the name “North Shore Cab;” that the City Grarage in Highland Park, which was not a taxicab company, maintained an. office from which one of its employees received and dispatched calls for several taxicab companies, all of which, including appellant’s business, took their calls from that office; and that the dispatcher’s salary was paid by the City Grarage. Clarence Davis testified that on the night of the accident he was going on such a call to the Hotel Moraine; that he had been driving a taxicab for two years; that he received no salary from appellant but paid him six cents a mile for the use of the taxicab, and supplied his own gasoline; that his arrangement with the defendant was that he could accept or refuse calls at will; that he could reject any call, whether or not he had a passenger in his cab, and. that while he, personally, did not reject calls, he could do so if he wanted to, and that all of such conditions were in effect on the night of the accident.

The principal issue is whether Clarence Davis was an employee or agent of appellant or was a bailee of the taxicab and an independent contractor. Appellee insists that there is no testimony to show that the driver was in business for himself, or that he was bonded for operation of a taxicab, as required by section 42a of the Motor Vehicles Act (Ill. Rev. Stat. 1945, ch. 95½, par. 59 [Jones Ill. Stats. Ann. 85.057]), or that appellant was not bonded for the particular taxicab, or had no control over the operation thereof. The section of the statute mentioned prohibits the operation of any such motor vehicle on any public street or highway without the furnishing of a bond by or an insurance policy to the owner, and provides for a bond conditioned on the payment of all final judgments recovered against the owner for any injury to or death of any person resulting from the negligence of such owner or his agent in the operation of such motor vehicle. Obviously, the application of this section in this case depends upon whether the driver of the taxicab was an agent of appellant. The claim that there is no testimony to show that the driver was in business for himself, or that appellant had no control over the operation of the taxicab is refuted by the testimony of the driver, which is not contradicted. The obvious and necessary conclusion from his testimony is that he rented the taxicab from appellant on a mileage basis, received no pay from appellant, but was entitled to all the receipts from his operation thereof, and whether he paid his rental from such receipts or from other sources would not affect the character of his relations with appellant. His testimony that he could accept or reject a call at will demonstrates that appellant had no control over his operation of the taxicab.

The general rule is that a party injured by the negligence of another must seek his remedy against the person who caused the injury, since such person is alone liable. To this general rule the cases of master and servant and principal and agent are exceptions and the negligence of the servant or agent is imputable to the master or principal, but to bring the case within the exception it is necessary to show that the relation of master and servant or principal and agent exists between the person at fault and the one sought to be charged for the result of the wrong, and the relation must exist at the time and in respect to the particular transaction out of which the injury arose. An automobile is not so dangerous an agency as to make the owner liable for injuries caused by it to travelers on the highway regardless of the agency of the driver, and the owner of an automobile who permits another to operate it is not liable for the negligence of such other in the operation of the automobile unless the other person is, in operating the automobile, the servant or agent of the owner. (Mosby v. Kimball, 345 Ill. 420, 427.)

The law of agency is an outgrowth and expansion of the doctrine of master and servant. (Scott v. Greene, 242 Ill. App. 405.) An agent is a person employed by another to act for him. (Barnard v. Springfield & N. E. Traction Co. 274 Ill. 148, 151.) An agent is one who undertakes to manage some affairs to be transacted for another by his authority on account of the latter who is called the “principal” and to render an account. (Andrews v. Votaw, 240 Ill. App. 311.) The burden of establishing an agency rests upon the party asserting such agency. (Chesley v. Woods Motor Vehicle Co., 147 Ill. App. 588; Kuhn v. Pulaski County Mill & Elevator Co., 188 Ill. App. 279.) In La Prise v. Carr-Leasing, Inc., 326 Ill. App. 514, we held that a failure to prove agency was fatal to recovery.

While the words “agent” and “servant” are not wholly synonymous, yet in considering the tort liability of the agent and servant, it is generally agreed that no basic or fundamental distinction is to be drawn between the liability of the principal for the tort of the agent and the liability of the master for the tort of the servant. (2 Am. Jur. Agency, sec. 7, pp. 16, 17), and while it is impossible to lay down any hard and fast rule as to the meaning of the terms “employee” and “independent contractor” and each case must depend upon its own facts (Lickhalter v. Industrial Commission, 383 Ill. 527, 533), the rule of non-liability of an independent contractor is applied to both negligence cases and compensation cases. (Postal Telegraph Sales Corp. v. Industrial Commission, 377 Ill. 523, 527.) It naturally follows that the principles of law applied in compensation cases in determining the relations of the parties are a guide in negligence cases.

An independent contractor has been repeatedly defined as one who renders service in the course of the occupation, and represents the will of the person for whom the work is done only with respect to the result, and not the means by which it is accomplished. (Postal Telegraph Sales Corp. v. Industrial Commission, 377 Ill. 523.) The principal consideration which distinguishes the employee from an independent, contractor is the right to control the manner of doing the work. The test of the relationship is the right to control. (Olympic Commissary Co. v. Industrial Commission, 371 Ill. 164, 171; Murrelle v. Industrial Commission, 382 Ill. 128, 134; Postal Telegraph Sales Corp. v. Industrial Commission, 377 Ill. 523; 2 Am. Jur. Agency, sec. 8, p. 17.) Under these holdings, the fact that Davis, the driver of the taxicab, testified that he was driving it that day for Frank Ketter, when considered with his other testimony, does not tend to show that he was an agent or employee of appellant, but that he was an independent contractor, or bailee for hire.

At common law it seems to be well settled, both in bailments for gratuitous use and, in lettings for hire, that the bailor cannot be held responsible to a third person for injuries resulting from the bailee’s negligent use of the bailed chattel, in the absence of any control exercised by the bailor at the time, or of his own negligence which proximately contributed to the injuries. This general rule has been superseded in some states by statutes relating to bailments of animals, automobiles and other vehicles, which impose liability, or a presumption thereof, upon the owner of such a chattel for injuries occurring while it is being used by another with his consent on highways or other public places. The view is taken that such a statute, for the purposes comprehended therein, superimposes the relationship of principal and agent over that of bailor and bailee. (6 Am. Jur. Bailments, sec. 316, p. 399.) From the note to the text it appears that such statutes have been adopted in New Jersey, California, Connecticut, Iowa and Michigan, but there is no such statute in this State, and hence the general rule is applicable.

In Robeson v. Greyhound Lines, Inc., 257 Ill. App. 278, relied upon by appellee, the court held that the name of the defendant on a bus involved in- an accident was prima facie evidence of ownership, and that there was no competent testimony that the driver was not the defendant’s agent, and affirmed a judgment for the plaintiff. If, from the name on the taxicab, there arose a presumption that it was operated by appellant, as claimed by appellee, such a presumption is not evidence, and in the case at bar, the presumption entirely vanished by the testimony of the driver. (Coal Creek Drainage & Levee Dist. v. Sanitary Dist. of Chicago, 336 Ill. 11, 31; Lohr v. H. Barkmann Cartage Co., 335 Ill. 335, 340; Sharp v. Sharp, 333 Ill. 267, 274; Osborne v. Osborne, 325 Ill. 229, 230; Paulsen v. Cochfield, 278 Ill. App. 596; Howard v. Amerson, 236 Ill. App. 587.) The general rule as to the vanishing of such a presumption by testimony to the contrary is particularly applicable in cases of automobile accidents, in which cases the appearance of the name of the owner on the vehicle, cannot in the very nature of things, he considered as inducing a third party to act or rely upon any presumption therefrom to his peril or injury.

DeLuxe Motor Cab Co. v. Dever, 252 Ill. App. 156, 163, also relied upon by appellee, is readily distinguishable from the case at bar. In that case the court pointed out in the opinion that the rules and regulations of the cab company prescribed the duties of the drivers in almost every conceivable particular, including personal habits, clothing, manners, how to manage cabs, and conduct toward passengers, with penalties for violation thereof. Manifestly that case has no application here.

In Singer v. Cross, 257 Ill. App. 41, operators of ‘‘Drive-Urself ” cars, rented from the owner, were held not to be employees. In that case the court was urged, as a matter of public policy, to declare an exception to the rule as to nonliability of a bailor for negligence of his bailee, where the bailor was engaged in the business of renting automobiles but the court held that it was unable to find any substantial ground for making such an exception.

Under the facts in this case and the applicable law, the driver of the taxicab was neither an agent or servant of appellant, but was a bailee for hire and an independent contractor, which precludes any recovery from appellant for the negligence of the driver in the operation of the taxicab. This conclusion makes it unnecessary to consider the other points urged by appellant for reversal. The, judgment of the circuit court is reversed and the cause remanded.

Reversed and remanded.


author: Mr. Presiding Justice Matchett

text:
    Ruth Will (Mueller), Appellee, v. 1527-31 Wicker Park Avenue Building Corporation et al., Defendants. Elm Park Hotel Company, Appellant.
    Gen. No. 43,056.

      Opinion filed March 11, 1946.
    Released for publication March 25, 1946.
    Hinshaw & Culbertson of Chicago, for appellant; Oswell G. Treadway, of Chicago, of counsel.
    Hy Smoller and Marion J. Hannigan, both of Chicago, for appellee.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

In the trial court there were three defendants. At the close of the evidence the cause was dismissed as to the defendant building corporation. The jury returned a verdict in favor of the defendant American Fork St Hoe Company and another verdict against the hotel company, with damages assessed at $25,000. On a motion for a new trial the court required a remittitur of $7,500 and entered judgment on the verdict of the - jury for $17,500. Plaintiff did not appeal from the judgment rendered on the verdict for defendant fork and hoe company. The defendant hotel company appealed. We reversed the judgment against it. (324 Ill. App. 264.) The Supreme Court reviewed our judgment, reversed it and remanded the cause “with directions to consider the other error assigned in that court.” (Mueller v. Elm Park Hotel Co., 391 Ill. 391.) No other briefs have been filed in this court, but the cause has been again argued orally.

The complaint alleged the defendants were negligent. The facts are stated in the opinions heretofore filed and need not.be repeated at length. Plaintiff was injured in the forenoon of May 5,1941. She resided at the hotel and was the employee of Julia Orszulak, who leased from the hotel space in which she conducted a coffee shop on the first floor of the building. The kitchen floor of the shop needed repairs. Mr. Starlin, was the maintenance man of the hotel. He had been employed by it from December 1, 1940. He also acted as janitor, attended to the plumbing and electrical and carpenter work. The manager of the hotel told him to go to the coffee shop and repair the floor. It was covered with linoleum, securely fastened with cement and gum. When directed to do this, Starlin told the manager he didn’t have the tools “to start in.” The manager told him to order the tools. This was on the Saturday before the injury to plaintiff, which occurred the following Monday. Starlin bought a small pinch bar and a hatchet from a nearby hardware store. Monday morning he went to the coffee shop and told Mrs. Orszulak he would be ready to start the work early. He left and returned with a hammer, a hatchet and a pinch bar. He started to work between 9:00 and 9:30 a. m. The front door of the restaurant was closed. No customers were served while he was doing the work. There was a sign on the door that the place was closed. Mrs. Starlin, Mrs. Orszulak and the plaintiff were present. Plaintiff took a seat from 10 to 15 feet away from where, the work was done. She sat on a seat in front of the service table, drinking a cup of coffee and smoking a cigarette.

Starlin began cutting away the old linoleum. He used the hatchet as a cutter and struck it with the hammer; held the hatchet in his left hand, the hammer in his right, and hit the top of the hatchet with the hammer. He was on his knees as he worked. He struck the hatchet with the hammer. A spark flew and a piece of the hatchet chipped off. There is no claim made that defendant knew, or in the exercise of reasonable care should have known, that the hatchet was defective. Plaintiff felt a sharp pain in her right ankle and saw blood from a small hole just above the instep. Mrs. Starlin and Mrs. Orszulak rinsed the blood from her limb and applied mercurochrome. Plaintiff called her physician and went to her room in the hotel. The piece of steel was extracted and the wound healed.

A few days afterwards plaintiff felt a numbness on the outside of her right heel and a pink spot about the size of a dime appeared there. It did not yield to treatment but grew worse. She was examined by Dr. Smith on May 14, 1941, and on May 23 was sent to the Walther Memorial Hospital, where she remained under the care of Dr. Smith until June 3. The condition of her heel was diagnosed as a skin infection, “ringworm dermatitis.” When she left the hospital she returned to her own doctor for further treatment. A specialist was called, but the treatment did not give relief. She went to the Cook County Hospital; where she remained until October 1, 1942. Her right limb became swollen from the ankle up to the thigh. There was a large open ulcer on the side of her right foot at the time of the trial, June 25, 1943.

The complaint charges defendants (a) “improperly used the aforesaid hatchet”; and that they were negligent (b) “In that they failed to properly guard the place in which said work was being performed”; (d) that the hotel “negligently allowed said repair work to be done without providing proper and sufficient safeguards.” On the trial plaintiff abandoned the theory that the use of the hatchet in itself was improper and argued to the jury that the fork and hoe company “manufactured and distributed a defective hatchet,” then an issue in the case. That question has been eliminated by the verdict of the jury and the judgment of the court in favor of the fork and hoe company, from which no appeal was taken by plaintiff.

It seems, the sole questions left for our consideration are, whether there was any evidence from which the jury could reasonably find that the chip of steel which struck plaintiff’s limb was the legal cause of the dermatitis or ringworm on her heel, and whether defendant hotel company was negligent in failing to provide safeguards for the place in which the work was done. The condition on plaintiff’s heel was diagnosed as a skin infection, ringworm dermatitis. Plaintiff offered medical testimony by an expert physician, who stated in response to a hypothetical question (which covered only a part of the facts of the actual case) that the chip of steel might or could, in his opinion, have caused the condition of plaintiff’s limb. Defendant objected to the hypothetical question on the ground it was not a complete statement of the material facts, whereupon plaintiff’s attorney asked defendant’s attorney to suggest in what respects this was true. Defendant’s attorney declined to assume the responsibility of doing this. .We therefore hesitate to reverse on that point. Brockman v. Peoples Gas Light & Coke Co., 319 Ill. App. 115; Hallis v. Stover Co., 275 Ill. App. 44, 53.

The question seems narrowed to this: whether it was negligent in law; for the servant of the hotel company to do this work without providing safeguards which would have prevented the injury to plaintiff. The plaintiff had a right to be in the coffee shop at the time she was there. By her agreement with her employer she was to receive food in part-payment for her services. She was not, however, required to be present at the time the repairs were being made nor was it necessary for her to sit in the seat in which she sat where she was injured. We hold as a matter of law the defendant hotel company was not negligent in doing the repair work at the time and in the way it was done. We hold this to be true for the reason that in the exercise of ordinary care the servant of defendant making the repairs could not have anticipated the accident by which plaintiff was injured or any similar accident to her.

In Dabrowski v. Elinois Cent. R. Co., 303 Ill. App. 31, at page 42, this court said:

“Assuming a duty from one person to another and neglect thereof, liability for the neglect is limited in law to results which reasonably could have been anticipated. Without such a rule people could not safely live in our complex society. The Supreme Court of the United States, in Atchison, Topeka & Santa Fe Ry. Co. v. Calhoun, 213 U. S. 1, at page 9 said: ‘But even where the highest degree of care is demanded, still the one from whom it is due is bound to guard only against those occurrences which can reasonably be anticipated by the utmost foresight. It has been well said that “if men went about to guard themselves against every risk to themselves or others which might by ingenious conjecture be conceived as possible, human affairs could not be carried on at all. The reasonable man, then, to whose ideal behavior we are to look as the standard of duty, will neither neglect what he can forecast as probable, nor waste his anxiety on events that are barely possible. He will order his precaution by the measure of what appears likely in a known course of things.” ’ ”

In support of the contention defendant was liable, only the case of City of Flora for use of Liberty Mut. Ins. Co. v. Bryden, 300 Ill. App. 1, is cited. The plaintiff there was injured in the boiler room of an electric light plant, where cement was being removed from the bottom of the boiler pit. Steel chisels and sledge hammers. weighing about ten pounds each were used in driving the chisels into the cement. An employee was struck by a piece of steel broken from a sledge hammer. We agree with the statement in defendant’s reply brief: “It seems almost absurd to compare this operation with that in the case at bar, . . . .”

We hold the instruction requested by defendant for a verdict in its favor at the close of all the evidence should have been granted, and its motion for judgment notwithstanding the verdict should have been allowed. For these errors the judgment will be reversed.

Reversed.

Niemeyer, J., concurs.

O’Connor, J., specially concurring. I agree with the result.