author: Mr. Justice Wolee

text:
    Fred J. Schock, Appellant, v. Illinois Bell Telephone Company, Appellee.
    Gen. No. 9,972.

      Opinion filed September 19, 1944.
    Rehearing denied December 12, 1944. Released for publication January 9, 1945.
    Healy, Beverly & Funk, and H. Wheeler Brittain, both of Elgin, for appellant; Paul G. Funk, and H. Wheeler Brittain, both of Elgin, of counsel.
    Alschuler, Putnam, Johnson & Ruddy, of Aurora, and Sidley, McPherson, Austin & Burgess, of Chicago, for appellee; Ralph F. Himmelhoch, George Ragland, Jr., both of Chicago, and Glenn T. Johnson, of Aurora, of counsel.
   Mr. Justice Wolee

delivered the opinion of the court.

On May 28, 1943, Fred J. Schock filed an amended complaint in the circuit court of Kane county, Illinois, against August Henk, the Illinois Bell Telephone Company, a corporation and the National Tea Company for a mandatory injunction, requiring the reconstruction of a party wall, and other relief. The complaint alleges that Fred J. Schock and the defendant, August Henk, had been tenants in common of a certain piece of land known as Tract A; that by a partition suit Schock became the owner in fee simple of all of Tract A; that August Henk was the owner in fee simple of Tract B, which was immediately east of Tract A; that in 1925, August Henk, owner of Tract B and Christian C. Wendt, the former owner of Tract A, entered into a party wall agreement whereby a 12-inch wall should be built between the two lots. The center line of the wall would be the property line between the two lots; that said party wall agreement consisted of a contract between the parties, which runs with the land; that the plaintiff, Schock, started to build a new building on Tract A, and was prevented from doing so by August Henk who claimed the new building was not in compliance with the ordinances of the City of Dundee, where the lots were located; that there is a two-story brick building erected on Tract B and that Schock for the first time, discovered that the wall erected on the line between the lots was a 12-inch wall, which extended only to the first story of the building on Tract B and from thereon, it was an 8-inch wall; that Henk deceived Schock into believing that this was a 12-inch wall; that Henk violated the party wall agreement by erecting windows in the second story of the building.

The complaint further charges that the Illinois Bell Telephone Company, a corporation, and the National Tea Company, a corporation, have, or claim to have some right, interest or title to Tract B, as tenants in possession, or otherwise, the exact nature of which is unknown" to the plaintiff; that the plaintiff has no remedy at law for relief from the oppression complained of.

The prayer of the petition is as follows: ‘ Plaintiff prays that it may be found and decreed that said party wall agreement is valid and is in full force and effect, that it is a covenant running with the title to Tract A, and that plaintiff, as owner of Tract A, is entitled to the benefits thereof; and prays further that it may be found and decreed that plaintiff, as owner of Tract A, is entitled to have and demand of Henk a solid 12-inch wall, constructed in compliance with said ordinance, for the entire length and height of said building on Tract B, the center line of which wall shall be the east line of Tract A, to be used by plaintiff and the owners of Tract A, in common with Henk and the owners of Tract B, as a party wall under said party wall agreement; further prays that Henk may be required by the mandatory injunction and decree of court to immediately cause said party wall to be reconstructed and widened on the easterly side thereof wherever necessary to make the same a solid and substantial twelve inch wall for the entire length and height of said building on Tract B, and to close and brick in the windows and openings in said wall, at his expense and in compliance and conformity with the said ordinance, and that in the event of failure of Henk so to do within a short day to be fixed by the court, that plaintiff be authorized and empowered to take such action, and to engage and use such labor and materials as may be necessary to cause such wall to be so constructed and widened, and to cause such windows and openings to be closed, all at the expense of Henk, and that for such.purposes plaintiff be authorized and empowered to enter upon Tract B and upon and into the building thereon, and to make such alterations and changes thereon and therein as may be necessary for such purposes; further prays that Henk and the owner or owners of Tract B may be perpetually restrained and enjoined from in any wise interfering with or molesting plaintiff, or the owner or owners of Tract A, from using said wall as it now stands, or as reconstructed pursuant to the decree of this court, in connection with any building or structure erected or to be erected upon Tract A.”

The petition was verified and a copy of the party wall-agreement was attached to and made a part of the complaint. Henk filed an answer to the amended complaint and admitted most of the allegations of the same, but he denied that he either in fact or by implication deceived the.plaintiff in any way in regard to the true nature of the party wall and that Schock could readily have ascertained the real condition if he had used ordinary care in the examination of the premises.

The Illinois Bell Telephone Company filed an answer to the amended complaint, and denied that the plaintiff is the owner of Tract A and that plaintiff is in exclusive possession or otherwise. The defendant admits that Henk is owner of Tract B and alleges that he is also a part owner of a portion of Tract A. It denied that there was a party wall agreement entered into between Henk and Wendt, and charges if there was such an agreement that the same is illegal and void. The defendant denies practically every allegation in the plaintiff’s amended complaint.

The answer admits that the Bell Telephone Company has a right, title and interest in part of Tract B as tenant in possession, and alleges it has the right, title and interest in, and to a portion of Tract A. The said answer is verified.

The Illinois Bell Telephone Company on Feb. 11, 1944, filed a petition for an order restraining the plaintiff from doing anything which disturbs the status quo of the first proceeding. The petition alleged: “That plaintiff has filed an amended complaint and defendants Henk and Illinois Bell Telephone Company filed answers thereto prior to January 22, 1944; that the issues formed therein were on said date and still are pending and undetermined; among others, these issues are so pending: the nature, character and extent of title to the premises commonly known as 113 Main Street, West Dundee, Illinois, as well as the property immediately contiguous thereto to the west, allegedly owned by plaintiff; the ownership of said premises as well as of the premises immediately contiguous thereto to the west; whether the west wall of said premises is a party wall, and if so, what portion thereof is a party wall, and if so what rights and liabilities the parties have therein; whether or not there is any valid, subsisting party wall agreement; the true construction of ambiguous documents with respect to the true intent of the grantors and grantees therein purporting to deal with said property; whether there is any covenant running with the land, and if so, the nature, character and extent thereof; whether plaintiff has any right to close the windows and openings in the said west wall.

“That on or about January 22, 1944, during the pendency of said action, and after the aforesaid issues had been joined and were pending, pláintiff caused a structure to be erected adjacent to and touching upon the said west wall and contiguous to that portion of the premises occupied by petitioner, which structure completely closes off and covers three windows located in the west wall of the premises occupied by petitioner and said structure effectively prevents light and air from reaching said premises; that . said structure serves no useful function and was constructed maliciously and without just cause and without any authority of any court, thereby disturbing the status quo in reference to the subject matter of the proceeding in contravention of principles and maxims of equity; that said structure is of such nature as to constitute a health and safety hazard to the continued operation of petitioner’s business, which is a vital communication facility.

“That petitioner submits the affidavits of Liepitz, G-ranskog, Harris, Colburn and Himmelhoch.

“Petitioner prays for the entry of an order restraining plaintiff, his agents, servants and employees, from doing or causing to be done any act which in any manner whatsoever disturbs the status quo, and finding that plaintiff has barred himself from obtaining any aid, redress or relief, and that suit be dismissed at plaintiff’s costs with prejudice.”

The defendant made a motion to strike the petition filed by the telephone company and the affidavits supporting the same, as being wholly insufficient upon their face to justify the relief prayed for. This motion was overruled, and the plaintiff was allowed to file an answer. A part of the answer is as follows: Admits he has filed an amended complaint herein and that defendants Henk and Illinois Bell Telephone Company filed answers thereto prior to January 22, 1944; that he admits that the issues formed herein were on said date and still are pending; that said issues are not fully settled and that the leave granted him to move to strike or reply to the answer of Illinois Bell Telephone Company has not yet expired; that he admits the following issues are pending:

“Whether the west wall of the premises commonly known as 113 Main Street, Dundee, is a party wall, and if so, what portion thereof is a party wall, and if so, what rights and liabilities the respective parties have therein; whether there is any valid, subsisting party wall agreement; and whether there is any covenant running with the land, and if so, the nature, character and extent thereof; that he denies that the following issues are pending:
. “The nature, character and extent of title to the premises commonly known as 113 Main Street, Dundee, as well as the property immediately contiguous thereto to the west which (as petitioner says) is allegedly owned by plaintiff; the ownership of said premises; the true construction of ambiguous documents with respect to the true intent of the grantors and grantees therein purporting to deal with the property in question; and whether plaintiff has any right to close the windows and openings in the west wall of the premises commonly known as 113 Main Street, Dundee. ’ ’

The answer further admits that a structure was erected upon the roof of his building, but denies that it was done maliciously, or that it serves no useful purpose; and denies that it causes or disturbs the status quo in reference to the subject matter of this proceeding. The defendant denied that anything had been done in any way that interferes with the rights of the occupants of Tract B as the improvement is wholly upon his own property, Tract A.

After hearing the arguments of counsel for plaintiff and defendant, the court entered the following order. “It is ordered, adjudged and decreed that the plaintiff, Fred J. Schock, his agents, servants and employees, be and they are hereby restrained from doing or causing to be done any act which in any manner whatsoever disturbs the status quo, and said plaintiff, Fred J. Schock, be and he hereby is ordered to forthwith remove the obstruction heretofore built on or about January 22, 1944, and

“It is further ordered, adjudged and decreed that the petition of the Illinois Bell Telephone Company insofar as it seeks a dismissal at plaintiff’s costs, with prejudice, be and it is denied.”

On the same day that this order was entered, Schock made a motion to dissolve the injunction, but the court overruled said motion and the plaintiff has perfected an appeal to this court from this injunction order.

It is argued by the appellant that the property and the use thereof, was not in controversy, and' it was error to require him to remove his sign and to enjoin him from changing the status quo. In its answer, the Telephone Company challenges the plaintiff’s title and also challenges the validity of the party wall agreement, and the plaintiff’s right to any relief in the original bill. The Illinois Bell Telephone Company was a tenant in the building and is made a party defendant to the original suit, and not only the title, but the use of the property was put in issue by the plaintiff himself. By its answer the telephone company chállenged the right of the plaintiff to compel the owner of Tract B to close up the windows in the party wall and shut out the light and air from the tenant, the telephone company.

It is next insisted that the telephone company had no easement of light and air and it is error to interfere with a right, which does not exist. That is one of the questions that is raised by the plaintiff’s petition in the original suit, and should be litigated in that proceeding. The same is true as to the third point which is, the plaintiff owed the telephone company no duty to keep its windows unobstructed, or any hazard to its business caused by obstructing them, and could not form the basis for relief by injunction. These questions should both be settled in the original suit. The original petition was filed May 28, 1943, and a petition for a restraining order of the Bell Telephone Company was not filed until Feb. 11, 1944. • Why the original controversy was not disposed of up to this time, does not appear in the record.

Whether the plaintiff was motivated by malice by erecting this sign on the roof of his property, or whether he did it with good intentions, seems to us to be an immaterial issue.

It is claimed by appellant that the erection of the sign was a lawful use of the property and it is error to enjoin such use; that the possession of the property, even if the title thereto, is in dispute, should never be taken from one and given to another by a preliminary injunction; that the telephone company does not seek nor could it obtain any ultimate relief, and therefore the preliminary injunction should not have been granted. These questions should be disposed of in the original suit. The telephone company, by their answer, have put in issue appellant’s right to close the windows in the wall of the building. The prayer in the amended complaint is in several alternatives, but the gist of all of them is that he be permitted to go upon Tract B and close up the windows and build an additional four-inch wall on Tract B which would be entirely upon the premises occupied by the Bell Telephone Company. Certainly the telephone company is entitled to a hearing as to whether Schock has a right to do this. What the telephone company is asking is, that Schock be restrained from doing any of these things until he has established a legal right to do so.

The trial court having examined the merits of this controversy, has decided that the injunction should issue. After an injunction has been issued, it is a rule of law that on appeal from such order granting the injunction, the question for determination is whether the court below improperly exercised its discretionary powers in respect to issuing an injunction pendente lite, and unless it clearly appears that it has done so, the order should be affirmed. Fitzgerald v. Christy, 242 Ill. App. 353, also West Side Hospital of Chicago v. Steele, 124 Ill. App. 534.

It is our conclusion that the trial court properly found that the acts of the appellant was an interference to the status quo of the original proceeding, and that the injunction order was properly issued. The decree appealed from is hereby affirmed.

Decree affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Burice

license: Public Domain

text:
    Mrs. Anna Wilkerson, Administratrix of Estate of Luther Wilkerson, Deceased, Appellee, v. Walter J. Cummings, Receiver, et al., Trading as Chicago Surface Lines, Appellants.
    Gen. No. 42,845.

      Opinion filed December 13, 1944.
    Released for publication January 4, 1945.
    Frank L. Kriete, Charles E. Green and Arthur J. Donovan, all of Chicago, for appellants; William J. Flaherty, of Chicago, of counsel.
    Eugene S. Colburn and Reuben S. Flacks, of Chicago, for appellee.
   Mr. Presiding Justice Burice

delivered the opinion of the court.

Anna Wilkerson, as administratrix of the estate of Luther Wilkerson, deceased, filed a complaint in the circuit court of Cook county against the receivers of the corporations doing business as the Chicago Surface Lines. Her action was brought under the Injuries Act to recover pecuniary loss sustained by reason of the death of her husband, Luther Wilkerson, caused by a collision of an automobile he was driving with the rear end of a standing street car on Kedzie avenue at 48th place in Chicago on Thursday night, May 8, 1941. The case was tried before the court and a jury, resulting in a verdict for the plaintiff for $5,000. Motions for judgment notwithstanding the verdict, and in the alternative, for a new trial, were denied and judgment was entered on the verdict. Defendants appeal.

Kedzie avenue is a north and south street, on which is laid a double track street car line. The street is 45 to 47 feet wide from curb to curb. It is 14 feet 5 inches or 15 feet from the curb to the first rail of the street car track. A railroad viaduct crosses over Kedzie avenue at 49th street at right angles, 15 or 16 feet above the street. There is a dip of 4 or 5 feet in the level of the street where it goes under the viaduct, with a gradual incline on both sides extending about a block each way. The grade is about one foot for every 50 feet in length and is approximately 250 feet long. The street is perfectly straight north and south of and under the viaduct and so is the curb, which is well defined. The north upgrade begins 50 feet north of the viaduct. The viaduct is supported in the center by pillars, or abutments, which are about 3 feet wide because of which both street car tracks curve outward for about 2 feet. From 20 feet north of the viaduct, according to a witness, and 50 feet north of the viaduct according to another witness, the northbound street car track curves back to its regular position and is straight from that point north. The street is well payed with brick between the street car tracks and curb and with granite blocks on the street car right of way. The pavement was dry. The sky was overcast and the moon was obscured by clouds. The street underneath the viaduct is well lighted by overhead lights attached to the viaduct, the direct rays of which strike the street from 5 feet beyond the edge of the viaduct according to the testimony of one witness, 15 feet according to the testimony of another, and 40 feet according to the testimony of a third witness. There is a city arc light on a pole 20 feet or more high, located on the east side of the street just inside the curb and from 75 to 80 feet north of the viaduct, and a similar city arc light on a pole on the east side of the street 275 feet north of the viaduct. There are no lights on the west side of the street. The arc lights have around 1,000 watt bulbs, with flat reflectors above them and the direct rays are cast on the street for from 10 to 30 feet from the base of the pole. These two lights were lighted and there were other lights burning all along the street. While the direct rays of the arc lights were reflected downward, some of the light was diffused outward. Defendants were operating their street car northbound on Kedzie avenue. After the car passed beneath the viaduct, the trolley rope broke and, the trolley became detached from the trolley wire. Because of this the power was shut off, all the lights on the street car went out and the street car came to a stop with its rear end about 117 to 120 feet north of the viaduct, according to the policemen, or 65 feet from the viaduct, according to the motorman. The conductor said it stopped with its rear end 50 feet south of 48th place. At the time the street car came to a stop it was approximately 11: 30 p. m. When the street car stopped, the conductor got off. After a few seconds the motorman put his head out of the front door and the conductor told him that the trolley rope was broken. The motorman got off, went to the rear of the street car, told the conductor he would go on the roof of the street car and that the conductor should throw the rope up to him. The motorman proceeded to climb up to the roof of the street car on some lugs attached to the west side of the street car near the rear. The motorman put the trolley pole under the hook and asked the conductor to throw the rope up to him, which was done. The motorman fastened the rope to the trolley pole and then started to come down off the roof. While he was doing so, the automobile being driven by plaintiff’s intestate grazed the conductor’s leg, tearing his trousers, and crashed into the rear of the street car with sufficient force to severely damage the automobile and to kill its driver. The motor of the automobile was “racing” and the conductor shut it off. The automobile hit the rear of the street car in the center, or to the right óf the center. After the accident the automobile was standing on an angle with its right front wheel east of the east rail of the northbound track. The left front wheel was west of the east rail at about the center of the northbound tracks and its rear wheels were in the northbound tracks. At the time of the impact the lights of the automobile were lighted. The front right half of the automobile was not damaged. There is a dispute in the evidence as to whether the automobile was wedged under the street car, or was standing with the front end a foot or so from the rear of the street car. The street car stood on the street unlighted from 3 to 6 minutes before the automobile crashed into it. One witness who sat in the street car until the crash occurred and then immediately went out, said that when the car went dark, the passengers were sitting in the car approximately 5 minutes more or less, and later that altogether the car was standing between 8 and 10 minutes. To make the repair required with reasonable dispatch, requires 5 or 6 minutes. The street car could have been lighted by putting the front trolley pole on the trolley wire. It would have taken 45 seconds to a minute to have gone to the front end of the car to put the front trolley pole on the trolley wire. This was not done. If it had been done it would have charged the rear trolley pole, on which the motorman was working, with 600 volts of electricity. There is no evidence of the rate of speed at which the automobile was being driven, except that as a result of its collision with the street car, the automobile was severely damaged and its driver killed. There is no evidence as to what the driver of the automobile was doing just prior to the collision; as to where he was looking; as to whether he was paying attention to the street ahead of the automobile or that he was driving the automobile with due care. His eyesight was good and he was well acquainted with Kedzie avenue at 48th place. He drove that way many times to and from work. He had a Plymouth automobile with four wheel hydraulic brakes. It also had an emergency brake. There were headlights on the automobile and the one which was not broken in the collision was still burning after the collision. The street car was 13 feet high, 8 feet wide and about 50 feet long, weighed 27 tons and was painted red. The rear end of the street car was standing about 117 to 120 feet from the viaduct, which would place it between 40 and 50 feet from the city arc light which was standing about 20 feet high and 75 to 80 feet from the viaduct.

Police Officer Herman Ade drove to the scene of the occurrence in a police car a few minutes after the accident. The police car turned onto Kedzie avenue at 47th street. Testifying for plaintiff he said that when their car turned to go south, he could see the whole street ahead of him; that the night was clear and the streets dry; that their automobile headlights showed the street ahead of them a couple of hundred feet, and that they could observe “any object in the street that we might bump into.” Police Officer Spencer Samuel, called by plaintiff, testified that the weather was clear; that while seated next to Officer Ade in the police car traveling in a southerly direction on Kedzie avenue, between 47th street and 48th place he could see as far as the viaduct, and that he had no trouble in seeing a full block. Lawrence Peters, the conductor, who at the time he testified was not in the employ of the defendants, called to the stand by plaintiffs, said: “It was a clear night. When I stepped off the platform, the platform was dark. I could see the step of the car. I looked as I stepped down, I could see that right in the light of that street light. I could see all parts of my street car. That street car was painted red, and it looked red to me. When I went around in back, I saw that the rope at the back end of the car was disconnected from the trolley pole. From the rear platform of the street car where I was standing out there, at the time I talked to the motorman, in looking south, I could see through the viaduct. The street and viaduct were perfectly straight, and all the street lights were lighted. When the motorman went up on the top of that car, he had to first find the trolley pole, which is a black metal, not shiny at all. He found that readily and he used no light except the street lights.” The conductor testified further that from where he was standing back of the street car, he could see a man standing on the east curb who had been riding on the rear platform. He saw the tan jacket the man was wearing. When he went over to the automobile he had no trouble seeing that the left door was open. He had no trouble seeing all parts of the automobile. He testified that the visibility was good and that he could see three blocks ahead and that he had no trouble seeing the rope after he got out of the car. The rope was one third of an inch thick.

Jan Grochala, a passenger on the street car, seated at about the middle of the car until the crash and who testified for plaintiff, was able to see the motorman open the door at the front; to see people get off and walk toward 47th street; to see the passengers get np and walk off the car; to see between 8 and 11 people walk off the front platform and some walk off the rear, both men and women; to see some of them on the street while he was sitting in the car; to see the motorman get off; to see his uniform; to see the motorman walk along the other side of the car from which the witness was sitting; to distinguish his hat or cap; to see some people standing on the curb, both men and women, when he went to the rear platform preparatory to getting off, and to see people on the sidewalk. Police Officer Michael Delaney approached the scene of the occurrence from the south in an automobile “a little after midnight.” His “partner” was driving. The street car and automobile involved had been moved. He testified: “Before we passed through the viaduct, just as we are approaching within 50, 60 or 100 feet before we get to the viaduct, and as we are about to go in and through it on that track and as we look ahead, beyond the viaduct, I would say tha.t I could see that portion of the street car track which is beyond and to the left after the curve starts north of the viaduct. I could see both sides of the street as I am driving along myself. I think I might be trained a little bit better in that, probably than some.” He also testified that the “lighting” conditions at the scene of the collision were good. The motorman, John McCarthy, testified that when he walked back the condition of the lights right along the car was very good; that he could see the street in front of him; that when he went around on the west side of the car to get up on top, he could see where he was stepping; that he used no other artificial light or flashlight in looking to see where he was going in mounting the top of the car; that when he got on top of the car he saw the black metal pole very clearly which was straight up in the air and off to the right; that when the conductor threw the rope up to him he caught it on the first throw; that while he was walking on the roof of the car he had no other light than the artificial light afforded right at the location; that the visibility when he stepped out of the car was very good; that it was a clear night; that he could see south on Kedzie avenue to about 52nd street; and that he could discern objects about 5 blocks north of 48th place. One witness, referring to the collision, testified that it was not a violent blow; that it was very light and that he could barely hear it. Another witness testified that it was a violent smash and another that it was a terrific crash. A police officer testified that the automobile was damaged from the left front'side to a little past the center of it and that the right front fender was not damaged; that the left front headlight was damaged and out; that the whole front of the center, the front of the radiator, the grill and the left front fender were damaged. Another police officer said that the left front half of the automobile was damaged and that both the street car and automobile were damaged. The conductor testified that the automobile hit the street car so hard as to separate the metal on the bumper; that it depressed the metal probably 3 or 4 inches and that it was a heavy piece of steel. A police officer found debris or parts of the automobile, the bumper and so forth, lying on the pavement at the point of the impact; that there were marks on the right rear of the street ear and that mostly the left front of the automobile was damaged. The motorman testified that he had locked the wheels of the street car by setting the air brakes with 90 pounds of pressure and that the smash at the rear end of the car moved the car about a foot and a half or two feet.

Defendants insist that the evidence is not sufficient to show, either as a matter of law or as a matter of fact, that plaintiff’s intestate was in the exercise of due care for his own safety át and just before the collision. They assert that if “plaintiff’s intestate failed to exercise such care for his own safety as an ordinarily prudent person would have exercised in the same circumstances, and if such failure contributed in any degree .to bring about his death, plaintiff is barred from recovery.” We do not agree with that statement. In Schmidt v. Anderson, 301 Ill. App. 28, we considered an instruction, a portion of which required that the jury, before finding for the plaintiff, determine that he was not guilty of “any negligence which in any degree contributed to cause said accident.” We reviewed the authorities on the subject and held that this instruction was erroneous. We said: (50): “Conr tributory negligence is such an act or omission on the part of a plaintiff amounting to a want of ordinary care, as concurring or cooperating with the negligent act of the defendant, is a proximate cause of the injury complained of. ’ ’ Plaintiff maintains that the evidence was sufficient to show, both as a matter of law and as a matter of fact, that plaintiff’s intestate was in the exercise of due care for his own safety at and immediately before the collision. In order to recover it must be alleged and proved that deceased was in the exercise of due care for his personal safety. The record is silent as to what plaintiff’s intestate was doing, or where he was looking while his automobile traveled 117 feet from the viaduct to the point of collision. Nor is there a word of evidence that he was keeping a reasonably careful lookout ahead of his automobile such as a reasonably prudent person would do in the circumstances there present. There is no evidence that the deceased was driving his automobile at a speed which was consistent with due care and the circumstances there present. The street car was standing still so that all the force of the collision was produced by the automobile. This has no tendency to prove that the automobile was being driven at a speed consistent with due care. Plaintiffs say that due care need not be proved by direct and positive testimony, but such due care may be inferred from all the circumstances shown to exist immediately prior to and at the time of the collision. That is true as the statement of an abstract proposition. However, the circumstances shown by the record in this case do not establish that due care was exercised by plaintiff’s intestate. By a motion for a judgment notwithstanding the verdict, the sole question presented to the court is whether, admitting the evidence in favor of the plaintiff to be true, that evidence, together with all legitimate inferences, fairly tends to sustain plaintiff’s cause of action. In deciding such a motion the court has no right to pass upon the credibility of the witnesses, to consider any purported impeachment, or the weight of the testimony, since the motion admits the evidence in favor of the plaintiff to be true, together with all legitimate inferences. We have adhered to this rule in passing on the point urged. ‘ ‘ The purpose of looking, as an act of caution, is to determine what one shall safely do next; ordinarily this will be to move or to stand still; hence the looking must be done when and where one can act safely with reference to any danger observed, otherwise the act of looking is minus the element of caution. If plaintiff looked only the instant she was struck, she failed to look with the care and caution necessary for her safety, so that she must be considered as having moved towards the tracks and within the danger zone without looking.” Myhre v. Chicago City Ry. Co., 216 Ill. App. 128. In Dee v. City of Peru, 343 Ill. 36, our Supreme Court said (42): ‘ ‘ The law will not tolerate the absurdity of permitting one to testify that he looked and did not see the danger when the view was unobstructed, and where, if he had properly exercised his sight, he would have seen it.” In Chicago, R. I. & P. R. Co. v. Clark, 108 Ill. 113, appellant insisted that the trial court erred in admitting evidence as to the habits of deceased as to care, prudence and sobriety. The court said (117): “ . .. . as no person was present, or knew how the accident occurred, we think this evidence tended to prove that averment. If he was habitually prudent, cautious and temperate, it tended to prove he was so at the time of the injury, which, with the instinct of self-preservation, would be evidence for the consideration of-the jury in determining whether he was in the exercise of care. Had there been witnesses who saw the infliction of the injury, the jury could then have determined from such evidence whether he was careful or negligent, and in such a case this evidence would not be admissible.” In Illinois Cent. R. Co. v. Ashline, 171 Ill. 313, the court said (317): “It is also claimed that the court erred in the admission of evidence that the deceased was a man of careful habits. It was held in Chicago, Rock Island and Pacific Railway Co. v. Clark, 108 Ill. 113, that such evidence was not admissible except in cases where no witness saw the accident. The evidence leaves the question in doubt whether any person saw the deceased when he was struck by the train, and when such is the case we are inclined to think the evidence admissible.” In Collison v. Illinois Cent. R. Co., 239 Ill. 532, the court said (537):

“The second [instruction] informed the jury that they had the right to take into consideration, with the other facts and circumstances proven in the case, the instinct which naturally leads men to avoid injury and preserve their own lives, in determining whether or not the deceased was using due care for his own safety. The instruction made no reference to the evidence concerning the character and habits of the deceased in respect to care, but stated the broad proposition as applying to all men. It is true that there is an instinct of self-preservation common to all and that such instinct raises a presumption against an affirmative act tending to destroy life, such as suicide, and raises a presumption as to the conduct of a person where there is a known danger to be avoided. The presumption is based upon human experience that a man will, in the presence of danger, act in accordance with the instinct of self-preservation, but that instinct is only operative when danger'is perceived. The law recognizes that there are persons who are careless, heedless and inattentive as well as those who are prudent and careful, and that the instinct of self-preservation does not uniformly lead men to exercise care to ascertain whether conditions exist which are likely to inflict injury. To establish and apply a general presumption in favor of care would obviate the necessity of mailing proof of the fact, which this court has uniformly held must be made. Where there is no eyewitness to the killing of a person, his administrator may establish the exercise of ordinary care oh the part of the deceased by the highest proof of which the case is capable. (Missouri Furnace Co. v. Abend, 107 Ill. 44; Chicago and Atlantic Railway Co. v. Carey, 115 id. 115; Illinois Central Railroad Co. v. Nowicki, 148 id. 29.) In the latter case it was said that where no one saw the killing, direct testimony as to care is not necessary but it may be inferred from the circumstances of the case. Reference was made to decisions of the courts of two other States" relating to the instinct of self-preservation, but their views were not endorsed except in connection with evidence as to the character and habits of the deceased, which might make the presumption applicable to the particular individual.”

In Petro v. Hines, 299 Ill. 236, the court said (239): ‘.‘But where there is an eye-witness who saw the infliction of the injury, the jury must then determine from the testimony of this witness and from the facts and circumstances surrounding the injury whether deceased was careful or negligent, and in such case evidence of the habits of deceased as to care and prudence is not admissible. (Chicago Rock Island and Pacific Railway Co. v. Clark, 108 Ill. 113.) There was at least one eye-witness to this accident, and the court erred in refusing to exclude this evidence.”

Applying these rules to the proof in the case at bar, it is manifest that plaintiff cannot rely upon the instinct of self-preservation, common to all men, to establish the exercise of due care and caution on the part of the deceased. There were eye-witnesses to this occurrence. Plaintiff recognized this and did not offer testimony of the habits of deceased as to sobriety, prudence and the exercise of care and caution in the ordinary affairs of life. One of the purposes of automobile headlights is to illuminate the space a reasonable' distance in front of the automobile so that the driver can see pedestrians, vehicles and other objects in the roadway, allowing him to drive in accordance with the care required for the conditions thus revealed. There is no evidence that deceased used any care at all to discover the danger in time to avoid it. If he, through carelessness, was not aware of the danger until it was too late to avoid it, then any effort thereafter made to avoid the collision would not avail as an excuse for such carelessness in getting into danger. The instinct of self-preservation does not become operative until the danger is perceived, and consequently. cannot have any effect upon want of care before the danger is perceived. Collison v. Illinois Cent. R. Co., 239 Ill. 532. It is the province of the jury to determine from the evidence whether or not the person injured or killed was in the exercise of due care. There must be evidence from which the jury may determine this essential element. The jury cannot function without evidence. A jury will not be permitted to base a finding of fact upon conjecture or surmise. Because of the failure of plaintiff to produce any evidence of due care on the part of plaintiff’s intestate, the judgment of the circuit court of Cook county is reversed and the cause remanded with directions to enter a judgment notwithstanding the verdict for the defendants and against plaintiff. It is unnecessary to comment on the other points argued.

Judgment reversed and cause remanded loith directions.

Kilby and Lupe, JJ., concur.


author: Mr. Presiding Justice Burke

text:
    Raymond Rzeszewski, Minor, by Natalie Rzeszewski et al., Appellants, v. Paul M. Barth, Appellee.
    Gen. No. 42,961.

      Opinion filed December 13, 1944.
    Released for publication January 4, 1945.
    Irving G. Zazove, of Chicago, for appellants.

      Eckert & Peterson of Chicago, for appellee; A. R. Peterson and Owen Ball, both of Chicago, of counsel.
   Mr. Presiding Justice Burke

delivered the opinion of the court. .

Raymond Rzeszewski, a minor, by Natalie Rzeszewski, his mother and next friend, and Frank Rzeszewski, filed their complaint of two counts in the circuit court of Cook county against Paul M. Barth. The first count, in behalf of Raymond Rzeszewski, alleged that on September 19, 1941, he was driving his 'father’s Buick automobile in a westerly direction on 127th street in Worth, Illinois, near the intersection of Ridgeland avenue; that he was in the exercise of due care; that defendant was driving eastwardly along 127th street; that defendant was negligent in operating his automobile at a high and dangerous rate of speed, failing to keep his automobile under proper control, failing to keep a proper lookout, failing to have his car equipped with brakes adequate to stop and control the automobile, and in operating it on the wrong side of the highway. He alleged personal injuries resulting directly and proximately from the negligence charged and asked damages in the sum of $25,000. In the second count Frank Rzeszewski, the father, alleged the same acts of negligence; also, that he was the owner of the automobile; that it was destroyed and that he was deprived of its use. He asked damages of $2,000. Answering, defendant denied that plaintiffs were in the exercise of due care; denied negligence on his part; averred specific acts of contributory negligence and that any damages suffered by plaintiffs were not due to any fault or negligence on his part. At the close of all the evidence, plaintiffs’ motion, for a directed verdict was overruled. The jury returned a verdict of not guilty. Motions by plaintiffs for a judgment notwithstanding the verdict and in the alternative, for a new trial, were denied. Judgment was entered on the verdict and plaintiffs appeal. For convenience we will refer to Raymond Rzeszewski as the plaintiff.

Plaintiff became 19 years of age on August 17, 1941. He lived at 5704 South Western avenue, Chicago, and was a high school student. On Friday, September 19, 1941, he was driving his father’s Buick automobile in a westerly direction on 127th street. Riding with him was a girl friend, Jessie Plucinski, 18 years of age. They were out for a ride. The car turned into 127th street from Western avenue. The car was in good mechanical condition. One Hundred Twenty Seventh street runs in an easterly and westerly direction. The street is a two-lane country concrete highway, running through farm land. The collision occurred on 127th street, a short distance east of Ridgeland avenue, in Worth, Cook county, Illinois. The scene of the occurrence was west of Central avenue, which according to the numbering system, is 5600 west, and east of Ridgeland avenue, which is 5800 west. South of the pavement at the place where the collision took place, according to the testimony favorable to plaintiff, there was an 18-foot grass shoulder, and south of the shoulder there was a ditch, the ditch being 5 feet north of a farm fence. The depth of the ditch is not stated, but one of plaintiff’s witnesses, a farmer who lived in the neighborhood, testified that a vehicle cannot drive over the ditch. A driveway extended from the pavement of the eastbound lane south to a farm house. As part of this driveway, there was a culvert for the pasr sage of water through the ditch. The collision occurred approximately 40 feet east of the driveway. There is another farm driveway, with a culvert, also on the south side of the highway, 125 to 200 feet east of the driveway first described. When about 5 miles west of Western avenue there was a car in front of plaintiff and one behind him. The three cars were moving in a westerly direction. The car in front remained about a half block ahead of him. He had followed this car, which was owned and being driven by Edward C. Maroney, all the way from Western avenue. He first noticed the car back of him through his rear vision mirror two or three blocks before the collision. This car was being driven by Roman Narvid. Narvid accelerated the speed of his car by moving to the left, or into the lane for eastbound traffic. He then drove his car into the westbound lane in front of plaintiff’s car and behind Maroney’s car. The Narvid car remained there only a brief period of time, when it again moved to the left into the eastbound lane to pass Maroney’s car. At this time Paul M. Barth, the defendant, was driving his 1937 four door Dodge sedan in an easterly direction on 127th street. This car was in good mechanical condition. He was returning, from the Oak Hills Grolf Club, located at 131st street and 80th avenue, Orland Park, where he had played golf. There was evidence that defendant’s car was being driven at a speed of 30 to 35 miles an hour in the eastbound lane. Witnesses for defendant did not see anything unusual about the operation of his car.' Mr. Maroney testified that “all of a sudden a car pulled out from behind me and just about the time their rear wheels got even with my front wheels this other car [defendant’s] was practically on top of us,” that defendant “had to pull oft the road in order to keep from hitting the other car,” and that the car which went off the road evidently lost control. The first thing Mr. Maroney noticed was the Narvid car “that pulled over behind me and it practically got even with me and I noticed the other car coming, and I felt that the three of us couldn’t pass on a two lane road.” He also testified that the car which passed him (the Narvid car) was distinguished from the other cars which passed him on the same evening because it “shot out real quick”; and that “it was just like you accelerate your car, probably gave her the gas"and shot around.” There was testimony that the Narvid car was traveling at least 35 or 40 miles an hour; that at the time it got even with the Maroney car, Mr. Maroney saw defendant’s car coming, and that when the rear wheels of the Narvid car got about even with the front wheels of Maroney’s car, Narvid and Barth “were practically going together” and that Barth’s car “had to turn clear off the road.” When defendant’s ear went off the road it was moving at approximately the same rate of speed as before it was forced off the road. The-speed of his car was reduced about 5 miles an hour as he got back on the highway. Mr. Maroney testified that defendant seemed to lose control of his car and he heard the crash in a fraction of a minute; and that it all happened in a few seconds. Mr. Maroney saw defendant’s car, from his rear vision mirror, come back onto the pavement and estimated that defendant’s car went a total of 75 to 100 feet after passing his (the Maroney) car. A witness who examined the tire marks shortly after the occurrence, testified that defendant traveled 35 or 40 feet on the pavement in a generally northeasterly direction. Defendant’s car was completely off the road. He testified that when his car got back on the pavement it was going 30 miles an hour. The left front of defendant’s car came in contact with the left front of plaintiff’s car. The impact took place in the westbound traffic lane. Defendant testified that part of his car was over the line “on the wrong side of the highway”; that it all happened so quickly he did not know how fast he was traveling at the time of the impact, but that he would imagine it was 30 miles an hour; that it happened so quickly that he did not know how far south of the pavement he was before he turned back to the left; that he attempted to get back on the highway; that it all happened so quickly that he imagined he looked to see if there was any traffic coming, but that he couldn’t say, but that he did not see any traffic coining along at the time he immediately pulled back on the highway; that he does not remember whether he applied his brakes; and that he intended to turn on his own side of the road, but that- he evidently lost control of the car. He denied that the reason he could not stay on his side of the road was that he was going too fast and stated that he did not believe that speed contributed in the slightest to the collision.

It was dark at the time of the collision. The driving lights of the 4 cars were burning. Mr. Maroney further testified that the incident he described, defendant’s car leaving the pavement, coming back on and striking plaintiff’s car, “all happened in about two or three seconds.” Plaintiff and Miss Plucinski were seriously and permanently injured. The Buick car was a total wreck. The left front end of defendant’s car was badly smashed, showing the violent physical force with which the cars came together. Maroney brought his car almost to a stop. Through his rear view mirror he saw people coming to take care of the occupants of the cars which had collided, and he followed the car that passed him (Narvid’s car). This car pulled into a “place that sells red hots,” about two blocks west of ftidgeland avenue. When the Narvid car arrived there, Narvid turned off the lights and he and his companion sat in the car. Maroney parked his car behind the Narvid car so as to prevent the occupants from moving their car and called the State police station. Two policemen responded in about 20 minutes. Maroney testified that he “turned them over” and that he had “nothing further to do with it.” Plaintiffs state that defendant testified that he saw “the lights of the first car,” perhaps half a block away; that he saw the Narvid car a half block away; and that at that distance the defendant saw the -lights of the Narvid car in his, defendant’s, lane. Defendant challenges this statement. We agree with defendant that there is no evidence in the record that it was Narvid’s car that defendant saw a half block away. We agree that there is no justification in the claim that defendant admitted either that he saw the Narvid car half a block away, or that the car was then in defendant’s lane. Plaintiff and Miss Plncinski testified that as the defendant approached the Maroney car, he, defendant, was going very fast, from 60 to 70 miles an hour; that coming-east toward Maroney and after passing him, defendant’s car was “zigzagging” or “zigging” and “zagging,” first off the pavement and then on, sometimes over on a portion of the westbound lane, from 5 to' 10 times; that after passing Maroney’s westbound car, when Narvid had entirely left the scene — 5 or 10 minutes after Narvid left, according to Miss Plncinski, or when Narvid was a good block west of Maroney, according to plaintiff — defendant continued to zig-zag and then went off the pavement on the south side of the highway still going 60 to 70 miles an hour and then came back on the pavement and straight for plaintiff’s car, striking it on the wrong side of the road. Plaintiff argues that defendant did not deny the testimony about zigzagging. Defendant answers that in view of Mr. Maroney’s testimony and the further fact that plaintiff and Miss Plncinski were thoroughly impeached on the record, no denial of such “fantastic testimony” was required. Mr. Maroney was a disinterested witness. His testimony from reading the transcript, sounds convincing, and it is apparent that the jury believed him. There was strong impeaching evidence as to the testimony of plaintiff and Miss Plncinski. It is obvious that on the issue presented the jury rejected their testimony. Mr. Maroney’s conduct was commendable. After observing that the victims of the collision were receiving care, he followed the Narvid car and detained him until the State police arrived. At that time Mr. Maroney did not know who was involved in the collision. Plaintiff contends that after defendant was forced off the pavement by Narvid, defondant was negligent in coining back across the pavement and in colliding with plaintiff’s ear. This was a matter based on controverted evidence to be decided by the jury. The jury decided the proposition against plaintiff. The testimony of plaintiff and Miss Plucinski was obviously designed to prove or at least to imply that the defendant had been drinking. Plaintiff’s counsel questioned defendant at the outset of the case about the sale of drinks at the golf club where he had been playing that afternoon, and questioned him closely as to whether he had anything to drink. We agree with defendant that the evidence in this case is overwhelming that he had not been drinking.

Defendant introduced a photograph of the scene of the accident looking east, the direction in which defendant was proceeding. The photograph was taken in March 1943. It shows the open nature of the country. Defendant asserts that the photograph refutes the testimony of one of plaintiff’s witnesses that the shoulder on the south side of the pavement was 18 feet wide and that it corroborates the testimony of the same witness that the ditch could not be crossed by a car. Defendant states that the photograph shows that the width of the shoulder available for travel, by comparison with the two-lane pavement, to be only a matter of inches wider than the width of an automobile ; that it shows the shoulder sloped into the ditch to the south about a foot or two from the right wheel track made by a car traveling on the shoulder; and that in looking at the picture, the first driveway, with its culverts, is the point at which defendant turned back onto the highway after having been forced off by Narvid. Plaintiff contends that defendant had a shoulder on which to drive of 18 feet wide south of the pavement. Defendant replies that the jury looked at the photograph and evidently came to the conclusion that defendant did not have an 18-foot shoulder to drive on. Defendant points out that the shoulder was only a matter of inches wider than the width of defendant’s car, with dangerous culverts ahead bridging a treacherous ditch alongside the shoulder and “separated from the narrow shoulder only by a rapidly descending slope. ” Plaintiff argues that the photograph corroborates his witness and charges that defendant is “attempting to mislead the court as he did the jury with a very crude piece of trick photography. ’ ’ Plaintiff is not in a good position to make this charge. The record shows that the attorney for the defendant stated that he had a conversation with the attorney for plaintiff, wherein he inquired as to whether it would be necessary to bring in the photographer who took the picture, and that the attorney for defendant answered that it would not. The attorney for defendant then offered the picture. The attorney'for plaintiff said: “I object,” but did not give the basis of his objection. The photograph was then received in evidence. Plaintiff could have insisted on the presence of the photographer and could then have cross-examined him as to the manner in which the photograph was taken. He could also have submitted a photograph or photographs taken by a photographer in whom he had confidence.

We turn to a consideration of the contention of plaintiff that the judgment is against the manifest weight of the evidence. Defendant insists that the judgment is not against the manifest weight of the evidence. In argument to the jury and in this court defendant concedes that plaintiff was in the exercise of due care. The theory on which defendant tried the case was that the collision occurred solely through the recklessness and negligence of Roman Ñarvid, who forced defendant off the pavement in passing the Maroney car suddenly and without warning, and that it was a question for the jury whether under the facts proved, defendant was guilty of any negligence. Persons who' have to act in a sudden emergency are not to be judged in the light of after events, but are to be judged, under all the circumstances of the case, by the standard of what a prudent person would have been likely to do under similar circumstances. Barnes v. Danville St. R. & Light Co., 235 Ill. 566. The jury was required to determine whether defendant and Maroney were to be believed in their version of the occurrence and whether, accepting such version, defendant exercised due care. Where a person must act in an emergency it is for the jury to say whether he acted with that care and foresight which a reasonably careful and prudent driver would use in like circumstances. The question before the jury was purely one of fact. The reason why the defendant was on the wrong side of the highway was explained. There was evidence that tended to prove that defendant was not negligent even though his car did go over on the wrong side of the road. When ther§ is evidence as to what actually happened, there is no room for presumptions. We are satisfied that the judgment is not against the manifest weight of the evidence. The judgment is supported by the evidence.

Plaintiff argues that the trial court should have directed a verdict in his behalf, and asks that we reverse the judgment and remand the cause with directions to enter judgment for damages to the car in the amount proven and not disputed, to enter a finding of guilty against defendant, and to submit the question of damages because of personal injuries to a jury. Plaintiff leans heavily on the case of Harrison v. Bingheim, 350 Ill. 269. We do not believe this case supports his contention. Each tort case must rest on its own facts. Having come to the conclusion that the judgment is supported by the evidence, we also reject the contention that a verdict should have been directed for plaintiff, or that we should now direct a finding of guilty for plaintiff.

Plaintiff maintains that the trial court erred in giving the following instruction for the defendant:

“If the jury believe from the evidence that the alleged injury was accidental and that neither the plaintiff nor the defendant was negligent, the jury should find the defendant not guilty.”

Substantially the' same instruction was approved in City of Chicago v. Lavelle, 83 Ill. 482; Bentkowski v. Bryan, 299 Ill. App. 217; and Brown v. Richardson, 177 Ill. App. 488. The giving of this instruction should be discouraged. The jurors are instructed on the issues of the case and this form of instruction tends to divert their attention from the issues. In the instant case defendant’s attorney made no contention that plaintiff was guilty of contributory negligence. The instruction complained of not only required. the injury to be accidental, but also that “neither the plaintiff nor the defendant was negligent” in order to justify acquittal. While we do not approve the giving of the instruction, we are of the opinion that it was so guarded that it could not harm plaintiff, and that the giving of it did not constitute reversible error.

Plaintiff also complains of the giving of instruction 13, which reads:

“Ton are instructed that the law does not hold a person who without negligence on his part is faced with sudden, and imminent danger to the same degree of judgment and presence of mind as one not faced with such danger, and if you find from the preponderance of the evidence under the instructions of the court that without negligence on his part, the defendant, Paul Barth, was confronted with a sudden imminent danger, then the law did not require of him the same degree of judgment and presence of mind as under cir-' cumstances not involving such sudden and imminent danger, if any you find. He is required to exercise that judgment and due care which a reasonable man would exercise under similar circumstances to those appearing in this case from the evidence herein. ’ ’

Plaintiff states that this instruction submits to the jury a question of fact, which the evidence shows was not open for their consideration, and that it did not explain what circumstances in connection with sudden peril must be shown to bring the defendant within the rule; that it assumes that any sudden peril not brought about solely by defendant’s conduct brings the emergency rule into operation to excuse liability, and that in order to bring himself within the rule defendant must show that the sudden peril which caused him to act must not have been brought about in whole or in part by his own fault. The instruction twice requires the jury to find that the person confronted with sudden and imminent danger is “without negligence on his part,” before the rule applies. The instruction concludes by saying “he is required to exercise that judgment and due care which a reasonable man would exercise under similar circumstances to those appearing in this case from the evidence appearing herein.” Our view is that the instruction correctly states the law and that it is applicable to the facts of the case. Plaintiff also complains of instruction 15, which reads:

“If you find from a preponderance of the evidence and under the instructions of the court that the accident in question was due solely to the negligence of one Narvid and not through any negligence as charged on the part of the defendant, Paul Barth, then in that event you should find your verdict in favor of the defendant and against the plaintiff. ’ ’

Plaintiff states that this instruction injects into the case an element which has no foundation in the evidence; that there was no contention that Narvid’s negligence proximately caused the collision; that defendant merely sought to excuse his own presumed negligence by the fact that a third party, Narvid, placed him in peril from which, in his endeavor to extricate himself, he lost control of his car; and that it directs a verdict without requiring the jury to find that the injury was the proximate result of Narvid’s sole negligence. The record shows that in his argument to the jury defendant’s counsel contended that the accident was proximately due to the sole negligence of Narvid and not to any negligence of the defendant. The instruction told the jury that it must find both that the accident was ‘ due solely to the negligence of one Narvid” and that it was “not through any negligence as charged on the part of the defendant, Paul Barth.” Furthermore, in his argument to the jury defendant’s attorney told the jury that plaintiff’s attorney in his closing argument would probably say, in claiming both cars were negligent, “that under the law if they both [Narvid and defendant] were negligent that they can still recover.” Defendant’s attorney then stated to the jury: ‘ ‘ That is true — that is common sense.” Instruction 3, given at the plaintiff’s request, told the jury “that to constitute proximate cause, the negligent act or omission need not be the sole cause, nor the last or nearest cause, but it is sufficient if it occurs with some other cause acting at the same time, which, in combination with it, produces the injury.” Instruction 10 told the jury, in part, that if the jury found that the defendant was guilty of the negligence charged, by which plaintiff was injured, ‘ ‘ then you are instructed that it would be no defense for the said defendant, Paul Barth, to show that the operator of the Narvid car was also guilty of negligence at the time and place in question.” Instruction 11 told the jury that if the two plaintiffs, naming them, were injured in person and property, respectively, “as a result of the joint negligence of the operators of both the Narvid car and the Barth car,” etc., then the plaintiffs could recover. We are of the opinion that instruction 15 is not subject to criticism. The jury was fairly instructed.

Plaintiff urges that the court admitted improper and rejected proper evidence. lie points out that when plaintiff’s counsel interrogated defendant under section 60 of the Civil Practice Act [Ill. Rev. Stat. 1943, ch. 110, par. 184; Jones Ill. Stats. Ann. 104.060] concerning his speed five or six blocks from the scene of the collision, he asked: “How fast was the car traveling that yon passed?” Plaintiff complains that the court erroneously sustained an objection to this question ; that on the vital issue of speed that evidence was admissible; and that five or six blocks away from the scene of the collision was not too remote. Whether this was too remote from the scene of the collision was for the determination of the trial judge in his sound discretion, and we find that in this respect he did not abuse his discretion. The intersecting highway, Ridgeland avenue, lay between the scene of the accident and the place four to six blocks west covered by the question. Plaintiff complains that in cross-examining plaintiff, defendant’s counsel was permitted over objection to bring into the record an admission that he was arrested and fined for speeding at 42 miles an hour very recently before the trial. Defendant’s counsel was under the misapprehension that the arrest had occurred after a convulsion which the evidence showed plaintiff suffered on July 23, 1942. It developed that the arrest occurred July 17, 1942, which antedates the convulsion. There had been testimony from plaintiff about his not driving a car alone at any time after the accident. The interrogation went entirely to the issue of plaintiff’s health. At no time during the trial did defendant claim that plaintiff on the evening of the occurrence involved in the instant suit, was guilty of excessive speed or contributory negligence. Defendant should not have asked the question and the court should have sustained the objection. However, we are of the opinion that it did not harm plaintiff.

Plaintiff asserts that it was prejudicial error for defendant’s counsel to inquire about a Justice of the Peace hearing when Narvid was tried. Plaintiff states that the question was put to the witness in a very damaging light; that it was assumed in the question that Narvid was tried, and that when the witness answered, “I don’t know, was he?” defendant’s counsel said to the witness, “You don’t know that he was there?” referring to plaintiff’s attorney, Mr. Ellis; and that it is not disputed that plaintiff was not present in the justice court when Narvid- wás tried. The record shows that plaintiff’s attorney introduced the testimony of plaintiff on direct examination that he had “signed something” and that he had never appeared at any hearing. We are of the opinion that it was then competent for defendant to cross-examine and show that although not personally present, plaintiff was represented by Mr. Ellis as his attorney. Plaintiff sought to show that he did not know what he signed and that he did not appear at a hearing. We agree that he opened the door for the cross-examination that followed. Plaintiff points out that when defendant’s counsel brought out evidence that plaintiff signed a complaint before a Justice of the Peace, he asked the police officer as to conversations with those present. He states that defendant’s attorney handed the police officer’s report to the trial judge after asking him if it contained anything of the conversations, and that defendant’s counsel said: “I am perfectly willing to have that put into the record. I realize over objection it can’t be admitted.” When plaintiff’s counsel objected to the document and to any comments on it, defendant’s counsel said: “Well, over objection, that is correct.” Plaintiff states that this could have no other effect than to lead the jury to believe that the policeman’s report contained something detrimental to plaintiff, which counsel did not wish the jury to see or hear read. Plaintiff’s counsel opened the door for this offer. On the original examination of police officer John Morrison, defendant’s counsel made no reference to any police report. It was plaintiff’s counsel who brought up the subject of the police report on cross-examination; and by such cross-examination he attempted to gain some advantage from what the report did or did not show, or he would not have asked the witness about it. Defendant urges that in that situation, unless he had shown a willingness that the report go into evidence, plaintiff’s counsel would have demanded to know of the jury in his argument, after the offer was too late, why defendant was afraid of the report, or why he did not offer the report. Under the circumstances, the action of defendant’s counsel did not constitute reversible error. No harm was done to plaintiff by this offer because the court told the jury that from the report it was obvious that the witness did not see the accident, and defendant’s counsel immediately stated that the ruling of the court was correct and that the only reason he asked for the report was because plaintiff’s counsel had asked about it.

Plaintiff complains that in the redirect examination of the Justice of the Peace, defendant’s counsel attempted to show that the witness had a diagram presented to him in the trial of Narvid, which was made by Narvid, but never put in evidence, and that this was clearly a self-serving declaration. Plaintiff states that although the court sustained the objection and the jury was instructed to disregard it, the damage was done by the remarks and conduct of counsel which no instruction could cure. We are of the opinion that the attempt to introduce the diagram did not harm plaintiff and that he was not prejudiced because of the questions concerning it. Plaintiff also states that it was error to ask the Justice of the Peace if he accepted as true the testimony given by Narvid; that the trend of the examination of the Justice of the Peace was to show that Narvid' was convicted of passing an automobile improperly; that the conviction was based on the testimony of defendant and Maroney; that such conduct could have no other effect than to cause the jury to believe everything the two said and to believe that because Narvid was convicted of passing Maroney’s car improperly that he thereby created a sudden peril and that since his conviction was on a complaint" signed by both defendant and plaintiff, the defendant’s negligence did not create the emergency which he relied on to excuse his conduct. Plaintiff opened the door by stating repeatedly that he did not know what he had signed and by testifying that there was a Justice of the Peace hearing and by later cross-examination of defendant’s witnesses. For the purpose of showing that plaintiff had signed a complaint charging Narvid with reckless driving, which was inconsistent with the testimony of plaintiff and Miss Plucinski that Narvid was a considerable distance west of the Maroney car at the time defendant passed the Maroney car, defendant called the Justice of the Peace, who appeared and produced his file and testified on direct examination only concerning the signing of the complaint, the explanation to the plaintiff of his right to sign it and the circumstances surrounding the signing of it by plaintiff. Defendant’s attorney made no effort to show what happened before the Justice of the Peace hearing. He made no effort to show what the judge decided, or what the outcome of the case against Narvid was. Plaintiff’s counsel on cross-examination of the Justice of the Peace sought to show that the complaint was improperly changed on the trial from reckless driving to passing a vehicle improperly. It is clear that plaintiff opened the door for a wide inquiry on redirect examination. The court did not allow the witness to answer the question as to whether he accepted as true the testimony given by Narvid.

Finally, plaintiff urges that defendant’s counsel was guilty of prejudicial conduct. After a careful study of the record we are satisfied that this charge is without merit. Because of these views, the judgment of the circuit court of Cook county is affirmed.

Judgment affirmed.

Kilby and Lupe, JJ., concur.


text:
    Helen Michalowski, Appellant, v. Adolph Stefanowski, Appellee.
    Gen. No. 43,100.
    Opinion filed December 13, 1944.
    Released for publication January- 4, 1945.
    Vincent G. Ponic and Stephen Lee, both of Chicago, for appellant.
    Wachowski & Wachowski, of Chicago, for appellee ; Casimir B. Wachowski, of Chicago, of counsel.
   Mr. Presiding Justice Burke

delivered the opinion of the court.

On August 6,1943 Helen Miehalowski filed her statement of claim in the municipal court of Chicago praying judgment for $798, and interest, as the balance due on a loan of money allegedly made to Adolph Stefanowski, the defendant. A writ of summons was issued on August 6, 1943. The bailiff made a return on August 16, 1943 that the defendant could not be found. An alias summons was issued on August 27, 1943. On September 8,1943 the bailiff again made a return that the defendant could not be found: A p'luries summons was issued on September 30, 1943. On this summons the bailiff endorsed the following return:

“Served this writ on the within named defendant Adolph Stefanowsld at his usual place of abode by delivering a copy thereof with a Praecipe and Statement of Claim and affidavit attached thereto, stamped by the clerk ‘A True Copy,’ to Antonette Stefanowski, wife a person of his family of the age of ten years or upwards and informing her of the contents thereof, in the City of Chicago, this 4th day of October, 1943. I hereby certify that I also sent a copy of this writ together with a copy of Praecipe and Statement of claim and affidavit attached thereto, stamped by the Clerk as ‘A True Copy,’ by mail in a sealed envelope, with the postage fully prepaid, addressed to said defendant Adolph Stefanowski at his usual place of abode 1914 S. Washtenaw Ave., in the City of Chicago this 5th day of October, 1943..”

On October 11, 1943 an order of default for want of appearance was entered against defendant. On October 21, 1943 judgment was entered for plaintiff and against defendant for $798 and costs. On December 4, 1943 a writ of execution was issued. The return of the bailiff shows that a demand under this writ was made on defendant on December 21,1943, and that the bailiff at that time also delivered to him a copy of the writ. On January 14, 1944 defendant’s attorneys mailed a notice to the attorney for plaintiff that on January 18, 1944, they would ask the court to vacate the judgment in accordance with the verified petition, a copy of which was also mailed to plaintiff’s attorney. The notice and verified petition were filed on January 18, 1944, and on the same day an appearance for the defendant was filed. Plaintiff was granted leave to file an answer to the petition. The petition reads:

“Your petitioner, Adolph Stefanowski, respectfully represents unto this court that he is the defendant in the above entitled cause. Your petitioner further states that it appears by the return of the Bailiff of this court that he was served with summons on October 4, 1943 by leaving a copy of said summons with Antonette Stefanowski, his wife. Your petitioner in the above captioned case further states that the return of the Bailiff in this respect is not true and correct; that a copy of the summons was never left with his wife, Antonette Stefanowski for and on behalf of this petitioner, as a result of which service of summons was never had upon this petitioner and that the judgment entered in the above captioned cause on the 21st day of October, 1943 for $798.00 and $14.00 costs is null and void and of no effect, since this court never had jurisdiction of the person of this petitioner. Your petitioner further shows that he has a good and sufficient defense to the plaintiff’s claim in that plaintiff never loaned him said money and her claim therefore is purely fictitious. Wherefore, your petitioner prays that the judgment'heretofore entered against him on October 21st, 1943 in the above entitled cause be vacated and set aside; and that this court grant him such other and further relief as to your honor may seem meet. ’ ’

The verified answer to the petition filed February 15, 1944, reads:

“Helen Miehalowski, plaintiff and respondent to the petition to vacate the judgment herein says: 1. That as to the allegations in the first paragraph of defendant’s petition, pertaining to the return of the Bailiff, the record herein imports verity. 2. That the matters asserted in the second paragraph of the petition are insufficient in law and fact, and respondent further avers said matters are insufficient to controvert the record of service of process herein. 3. As to the third paragraph of the said petition, respondent states the fact to be that defendant had ample notice of the proceeding herein, and the matters of said petition are insufficient in law and fact to grant the relief prayed.”

On March 8,1944 the court sustained the motion to vacate the judgment and entered a rule on the defendant to file a defense ” in 10 days. Plaintiff appeals from the order sustaining the motion to vacate the'judgment and asks that such order he reversed.

Section 21 of the act establishing the municipal court of Chicago (par. 376, ch. 37, Ill. Rev. Stat. 1943 [Jones Ill. Stats. Ann. 108.046]) provides:

“. . . If no motion to vacate, set aside or modify any such judgment, order or decree shall be entered within thirty days after the entry of such judgment, order or decree, the same shall not be vacated, set aside or modified excepting upon appeal or writ of error, or by a bill in equity, or by a petition to said Municipal Court setting forth grounds for vacating, setting aside or modifying the same, which would be sufficient to cause the same to be vacated, set aside or modified by a bill in equity; Provided, however, that all errors in fact in the proceedings in such case, which might have been corrected at common law by the writ of error coram nobis may be corrected by motion, or the judgment may be set aside, in the manner provided by law for similar cases in the circuit courts. ’ ’

In the instant case judgment was entered on October 21, 1943. The motion to vacate the judgment was made on January 18, 1944, more than 30 days after the entry of judgment. The source of the power of the municipal court to vacate the judgment is section 21 of the Municipal Court Act. The petition does not indicate whether it is filed under the clause of section 21 providing for a petition setting forth grounds for vacating, setting aside or modifying the judgment which would be sufficient to cause the same to be vacated, set aside or modified by a bill in equity, or under the clause allowing the granting of relief on a motion in place of the common-law writ of error coram nobis. Plaintiff urges that after the 30-day period following the entry of the judgment, the parties are hound by the bailiff’s return unless a false return has been procured by the fraud of the plaintiff; that the petition to vacate is required to set out sufficient ultimate facts to warrant relief; and that a proceeding under section 21 requires the allegation of facts and supporting affidavits. Defendant points to rule 42 of the municipal court of Chicago as follows:

“(1) All objections to pleadings shall be raised by motion. Such motion shall point out specifically the defects complained of, and shall ask for such relief as the nature of the defects may make appropriate, such as the dismissal of the action or the entry of a judgment where a pleading is substantially insufficient in law, or that a pleading be made more definite and certain in a specified particular, or that designated immaterial matter be stricken out, or that necessary parties be added, or that designated misjoined parties be dismissed, and so forth.

“ (2) Where a pleading or a division thereof is objected to by a motion to dismiss or for judgment or to strike out the pleading, because it is substantially insufficient in law, the motion must specify wherein such pleading or division thereof is insufficient.”

Belying on this rule, defendant states that plaintiff, instead of filing a motion to strike as required by the rule, filed an answer in which she specifically alleged that the petition was insufficient in- law to controvert the record of service of process. Defendant also states that the court was not asked, nor did it rule upon the answer of plaintiff to the petition; that if the answer be considered a motion to strike, the record does not show that the motion was overruled or sustained; and that the record affirmatively shows by the order entered March 8, 1944 that the answer was not even urged for consideration by the court. In our opinion the petition was insufficient. The proper procedure would be for plaintiff to file a motion to strike the petition and to deny the relief prayed therein. However, plaintiff filed an answer which raised only questions of law. An answer should admit the facts well pleaded, or by denial or statement of an affirmative defense present or aid in presenting an issue of fact. The defendant did not move to strike the answer. It is apparent that the court and the parties treated the answer as the equivalent of a motion to strike the petition.

The matter of allowing the motion to vacate the judgment was argued before the court on March 8, 1944, and the record recites that the trial judge was fully advised in the premises prior to ruling on the motion. We treat the answer to the petition as the equivalent of a motion to strike. The effect of the trial court’s order was to rule adversely to plaintiff on the points raised in her answer. There was no issue of fact to be decided and no evidence was heard. Defendant does not contend that the return was procured by any fraud on the part of plaintiff. In the case of Nikola v. Campus Towers Apartment Bldg. Corp., 303 Ill. App. 516, we reviewed the law on the subject under discussion and said (526):

“It is clear, therefore, that where the sheriff, through mistake, has made a false return, that the defendant therein may obtain relief by filing a complaint in chancery. The burden then rests on the plaintiff in the chancery case to establish the allegations of his complaint. Every presumption in favor of the return is indulged, and it will not be set aside upon the uncorroborated testimony of the party upon whom service purports to have been made. If it be clear from the evidence that the plaintiff in the chancery case has not been served, the judgment should be set aside.”

We will treat the petition as filed under the clause of section 21 providing for a petition purporting to set forth grounds sufficient to vacate by a complaint in equity. In the municipal court, after the lapse of 30 days from the entry of the judgment, relief may be had in a proper case by a petition setting up ultimate facts which would entitle such petitioner to relief in equity. Clearly, the petition filed by defendant does not purport to set forth any ultimate facts which would entitle him to relief under a motion to correct errors in fact which might have been corrected at law by the writ of error coram nobis. If the defendant was entitled to any relief by his petition, it was under that provision of section 21 allowing the municipal court on petition to grant relief which could be granted by a court of chancery. This is a broader jurisdiction than that allowed by a motion taking the place of a writ of error,coram nobis. In the case of Shaw v. Carrara, 312 Ill. App. 410, we held that a petition to vacate a judgment after the term has expired is required to set out sufficient ultimate facts to warrant relief. It will be observed that the return of the bailiff states that he served the summons on defendant by delivering a copy thereof with the praecipe and statement of claim and affidavit attached thereto to the wife of defendant, and that he also informed her of the contents thereof. The petition states that the copy of the summons was not left with the wife of defendant “for and on behalf of defendant.” This is not a denial that a copy of the summons was left with the wife of the defendant. The petition does not deny that the bailiff informed the wife of defendant of the contents of the summons. The return of the bailiff certifies that on October 5, 1943 he sent a copy of the summons, together with a copy of the praecipe, statement of claim and affidavit, by mail in a sealed envelope, with the' postage fully prepaid, addressed to defendant at his usual place of abode at 1914 South Washtenaw avenue, Chicago. There is no denial of the receipt of the copy of the summons through the mail, nor that the address given was the usual place of abode of defendant. As the petition is construed most strongly against defendant, we are bound to assume that he did receive the copy of the summons so mailed to him. Despite the fact that he was servéd with the summons on October 4-, 1943, and that a copy of the summons was mailed to him on . October 5, 1943, and that a copy of the execution was delivered to him on December 21, 1943, he did not file his petition to vacate the judgment until January 18, 1944. The burden of showing that the judgment should be vacated was on the defendant. The petition on which the court acted did not set forth grounds for vacating the judgment which would be sufficient to cause the same to be vacated by a complaint in equity, nor was it sufficient as a motion to correct an error in fact which might have been corrected at common law by the writ of error cor am nobis.

The order of the municipal court of Chicago entered on March 8,1944 vacating the judgment of October 21, 1943 and ruling defendant to file a “defense” in 10 days, is reversed.

Order reversed.

Kiley and Lupe, JJ., concur.


text:
    Roy B. Zimmerman, Appellee, v. Bankers Life and Casualty Company, Appellant.
    Gen. No. 43,124.

      Opinion filed December 13, 1944.
    Released for publication January 4, 1945.
    Michael A. Gerrard, of Chicago, for appellant.
    Bennett & Colbach, of Chicago, for appellee.
   Mr. Presiding Justice Burke

delivered the opinion of the court.

On June 4, 1943 Roy P. Zimmerman filed his statement of claim in the municipal court of Chicago against Bankers Life and Casualty Company, a corporation, and asked judgment for $433.81, plus interest, based on a contract under which he was, to receive certain commissions as general agent of defendant. Defendant filed an answer purporting to state a defense to the entire claim. Plaintiff’s attorneys served notice on defendant’s attorney that on August 11, 1943 they would move for a judgment for $202.84 “admitted in the defendant’s affidavit of merits.” The motion was made and came on for hearing on August 20,1943. The record shows that “the court being fully advised in the premises,” the motion for judgment was sustained, and that by agreement between the parties judgment for $202.84 was entered against defendant, “admitted in affidavit of defense.” On September 11, 1943 a satisfaction of judgment was filed. This document, dated August 20, 1943 and signed by plaintiff by his attorneys, acknowledged full satisfaction of the judgment entered on August 20, 1943 and empowered the clerk to satisfy the judgment of record. On March 2, 1944 defendant filed the following plea of res judicata:

“Now comes the Bankers Life and Casualty Company, a corporation, by Michael A. Gerrard, its attorney, and in addition to the other defenses as set forth in the affidavit of defense heretofore filed by the Bankers Life and Casualty Company, a corporation, the defendant herein, alleges as follows: 1. That after the filing of the affidavit of defense in the above captioned matter, the plaintiff, Boy B. Zimmerman, by and through his attorney, moved the court for judgment on the pleadings in said cause and in accordance with the agreement of the parties hereto, through their respective counsel, a judgment in the sum of Two Hundred Two Dollars and Eighty-four Cents ($202.84) was entered in said cause and appears of record as follows: ‘8-20-43 Gutnecht-Mo. pltf. judg. sust. By agr. judg. for $202.84 vs. deft. Bankers Life So Casualty Company, a corporation, admitted on affidavit of defense.’ That thereafter in accordance with the agreement heretofore entered into as above set forth, the defendant on August 20th, 1943 satisfied said judgment and obtained a satisfaction of judgment which said satisfaction of judgment was filed in court on the same date; that it, therefore, appears of record that all issues existing between the parties, the subject matter of this suit, have been fully adjudicated. ’ ’

On the same day the following order was entered:

“Jury waived. How come the parties to this cause, and thereupon this cause comes on in regular course for trial before the court without a jury and the court having heard the evidence and the arguments of counsel, and being fully advised in the premises, enters the following finding, to-wit: ‘The court finds the issues against the defendant, Bankers Life and Casualty Co., a Corp., and assesses the plaintiff’s damages at the sum of Two Hundred Thirty and 00/100 Dollars ($230.00).’ Judgment on finding against defendant, Bankers Life So Casualty Co., a Corp., Two Hundred Thirty and 00/100 Dollars ($230.00) and costs as to balance. Defendant objects to entry of judgment.”

Defendant appeals.

Defendant asserts that there can be only one judgment and one satisfaction in the same cause of action; that a settlement agreement respecting litigation concludes the question in controversy and bars subsequent litigation with respect to the matters compromised; that where there is a dispute and the creditor accepts payment which clearly evidences the intention of the debtor to extinguish the entire debt, an accord and satisfaction results; and that compromises are encouraged because they promote peace. Defendant calls attention to the fact that the record of August 20, 1943 shows that by agreement a judgment for $202.84 was entered against defendant and that the order does not reserve any right of trial as to the balance sought by the statement of claim; that the judgment was satisfied ; and that the file was marked ‘ disposed of. ’ ’ The record before us, however, does not show that the file was marked ‘ ‘ disposed of. ’ ’ Such a notation would be made by the clerk as a ministerial act in distributing the files in his office space and would not necessarily indicate that the court had so ordered. Eule 75 of the municipal court of Chicago provides that “more than one judgment may be rendered in the same cause.” Section 50 of the Civil Practice Act [Ill. Rev. Stat. 1943, ch. 110, par. 174; Jones Ill. Stats. Ann. 104.050] provides that “the court shall control proceedings so that the plaintiff shall receive but one satisfaction. A writ of execution may issue on one or more judgments rendered in the same cause. Judgment may be entered in such form as may be required by the nature of the case and by the recovery or relief awarded, and more than one judgment may be rendered in the same cause.” It is clear that under the practice in the municipal court and in the other courts of record in Illinois there may be more than one judgment in the same cause. The court may dispose of a segment of the litigation and render judgment thereon, reserving the remaining issues for trial at a later time. At the later trial a distinct judgment may be rendered. In the instant case plaintiff in his statement of claim was asking judgment for $433.81. Defendant in its affidavit of defense said that it did not owe plaintiff anything. Plaintiff by his motion considered that the legal effect of defendant’s affidavit of defense was to admit that it owed $202.84. Evidently, plaintiff felt that the defendant’s affidavit of defense presented a triable issue as to the balance. The order of August 20, 1943 sustained plaintiff’s motion for a judgment. This order went on to recite that by agreement judgment was entered for $202.84 “admitted in affidavit of defense.” We take this to mean that the court found that defendant admitted that the legal effect of its affidavit of defense was that it owed $202.84. The satisfaction of judgment satisfied the judgment for $202.84. In our opinion, the record does not show a compromise. It shows that plaintiff was claiming $433.81 and also contending that the legal effect of defendant’s affidavit of defense was that defendant admitted that it owed $202.84. Judgment was accordingly entered for the latter amount and the. case remained undisposed of as to the balance.

We agree with defendant that the proper practice on the entry of a judgment for an amount admitted by the pleadings, where on the face of the pleadings other issues remain to be disposed of, or a balance remains due, is to continue the case for trial as to the remaining issues, or as to the balance claimed to be due. The procedure in the instant case was rather informal, but we are satisfied that the intention of the court and the parties was to reserve for trial the issue as to the balance claimed. There was one judgment and one satisfaction as to the amount which was admitted. In effect, therefore, the court reserved jurisdiction to determine whether the defendant owed the balance claimed. On the trial as to the balance claimed, the only defense offered was the plea of res judicata. We are of the opinion that the court was right in deciding that under the circumstances this plea was "invalid. Because of the views expressed, the judgment of the municipal court of Chicago is affirmed.

Judgment affirmed.

Kiley and Lupe, JJ., concur.