text:
    In re Estate of John T. Cunningham, Deceased. Allan D. Cunningham, Executor, etc., et al., Appellants, v. Reconstruction Finance Corporation, etc., Appellee.
    Gen. No. 42,905.
    Opinion filed November 6, 1944.
    Eeleased for publication November 24, 1944.

      Defrees, Fiske, O’Brien & Thomson, of Chicago, for certain appellant.
    H. E. Christensen, of Chicago, for certain other appellant; Vincent O’Brien and John Merrill Baker, both of Chicago, of counsel.
    Frank Michels, Lee Walker and B. A. Bellinger, all of Chicago, for appellee; Frank Michels, of Chicago, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.

The Probate court of Cook county allowed the claim of Beconstruction Finance Corporation against the Estate of John T. Cunningham, Deceased, in the sum of $356,655.48. The claim was based upon a judgment by confession entered in the Circuit court of Cook county on February 7, 1933, against John T. Cunningham and others in favor of Central Bepublic Trust Company in the sum of $245,811.25, upon a joint and several promissory note payable to National Bank of the Bepublic, signed by Peter L. Evans, Harold C. Strotz, John A. O’Keefe, Fred W. Georgs, Bobert A. Schiewe, Byron C. Thorpe, Nelson K. Beese, John T. Cunningham, Henry A. Sellen, Henry D. Cheney and Otto C. Braese, the latter since deceased. The note was assigned by the payee to Chicago Trust Company, a banking corporation, and assigned by that company to Central Bepublic Bank and Trust Company, a banking corporation, the name of which was later changed to Central Bepublic Trust Company. That company pledged the note with Beconstruction Finance Corporation, a corporation organized and existing under the laws of the United States. Central Bepublic Trust Company was the plaintiff in the original action but later Beconstruction Finance Corporation was substituted as beneficial plaintiff. In that action the motion of all of the defendants to open the judgment by confession and permit them to defend upon the merits, the judgment to stand as security, was allowed. After certain pleas had been filed by defendants there was a trial before the court and a jury and at the conclusion of the evidence, upon their motion, a verdict for defendants was directed. Plaintiff appealed from the judgment entered upon the verdict. Upon appeal to this court the judgment setting aside the judgment by confession was reversed and the judgment by confession confirmed. (See Central Republic Trust Co. for use of Reconstruction Finance Corp. v. Evans, 307 Ill. App. 605.) Upon appeal to the Supreme court the judgment entered by this court was affirmed. (See Central Republic Trust Co. v. Evans, 378 Ill. 58.) A complete statement of the pleadings and facts will be found in our opinion.

On pages 637 and 638 of our opinion will be found a statement as to the eleven makers of the note and their important business connections, and from the facts stated therein one would assume that after the Supreme court had affirmed the judgment of thii court Reconstruction Finance Corporation would have no trouble in obtaining a satisfaction of the judgment, but that corporation, after the said affirmance, found itself confronted with a serious situation when it undertook to obtain satisfaction of its judgment. On July 3, 1936, Nelson K. Reese, one of the makers of the note, filed a voluntary petition to be adjudged a bankrupt, in the District Court of the United States for the Northern District of Illinois, and in his schedule he listed the claim of the Reconstruction Finance Corporation based upon the nóte and judgment in question. That corporation filed its claim in the bankruptcy proceedings but, apparently, there were no assets with which to pay any dividend to creditors. Reese received his discharge in bankruptcy and later obtained a perpetual stay of execution upon the judgment in question as to him. Robert A. Schiewe, one of the makers of the note, died in 1936 and letters of administration were issued upon his estate. The inventory filed showed less than $300 in the estate and that it was insolvent. The estate was closed; the creditors received nothing. In the District Court of the United States for the Southern District of California, on October 22, 1940, Harold C. Strotz, one of the makers of the note, was adjudged a bankrupt on a petition filed by him. In the schedule filed he stated that the total of his indebtedness was $2,127,641.86 and that his total assets amounted to $525. Reconstruction Finance Corporation filed its claim in that proceeding, but the creditors received nothing. It would unduly lengthen this opinion to state the facts surrounding the claimed insolvency of other makers of the note. Suffice it to say that appellants, in their reply brief, concede the insolvency of all of the surviving makers of the note. Appellee’s contention that it is strange, indeed, that all of the eight surviving makers of the note should have become insolvent ordinarily would have force, but in the instant case it must be remembered that in the original proceeding all of the defendants plead that the note for $210,000 could not be enforced against them because it was executed, and the money was obtained thereon, in furtherance of a criminal conspiracy, and, in view of the nature of that plea, it is neither strange nor surprising that they would take steps to evade the payment of the judgment. Reconstruction Finance Corporation finally discovered that the only way in which it could obtain satisfaction of the judgment was to file its claim against the estate of John T. Cunningham. The opinion of this court (307 Ill. App. 605) was filed December 30,1940, and while a petition for a rehearing was pending Cunningham died, on January 10,1941, and on January 17,1941, letters testamentary were issued in his estate to Allan D. Cunningham by the Probate court of Cook county, and the executor, on January 17, 1941, filed a motion in this court asking that “he, the said Allan D. Cunningham, as Executor under the Last Will and Testament of John T„ Cunningham, deceased, be substituted as a defendant in this cause in the place and stead of John T. Cunningham, deceased,” which motion was granted on January 21, 1941. After the Supreme court had granted the defendants an appeal from the judgment of this court, one of the counsel for the executor of the Cunningham estate filed an affidavit in the Supreme court in which he stated that the estate of Cunningham in all probability may be sufficient to pay the judgment if the same is affirmed by the Supreme court, but that the satisfaction of such judgment may result in the insolvency of the estate of Cunningham and that none of the other defendants, individually or collectively, are financially able to satisfy this judgment.

The claim of Reconstruction Finance Corporation against the estate of John T. Cunningham was allowed by the Probate court on January 20, 1942. On February 4, 1942, the executor of the estate filed a motion in that court to vacate the order of January 20, 1942, and in the motion he states: ‘ That he is informed by his said counsel that prior to, as well as after, the allowance of said claim they were daily searching the law for a valid defense to the allowance of said claim and that he is informed by his said counsel that as the judgment which is the basis of the claim of the Reconstruction Finance Corporation is a joint judgment and not a joint and several judgment the liability thereon as against the estate of John T. Cunningham ceased at his death and that his estate is not liable for said claim or any part thereof.” In support of the motion one of the attorneys for appellants filed an affidavit, in which he states: “That ever since the decision of the Supreme Court of Illinois, he, together with other members of the firm of Defrees, Buckingham, Fiske & O’Brien, has given a great deal of consideration and study to the question of whether or not there is a defense to the allowance of a claim against the estate of said John T. Cunningham based on said judgment. That affiant and other members of said firm are of the opinion that, as the said judgment is a joint judgment and not a joint and several judgment, the said claim cannot be allowed against the estate of John T. Cunningham but that only the surviving judgment debtors are liable for the satisfaction thereof.” The Probate court denied this motion and the executor and Margaret Cunningham Amberg, one of the legatees of the estate, appealed to the Circuit court, where, in a hearing de novo, the claim was allowed as a seventh class claim to be paid in due course of administration, in the amount of $372,157.40. Appellants appeal from that order.

The executor and the legatee contend:

“1. That the holder of a joint and several note has an election to enforce either the several or the joint liability, and that an election to enforce the joint liability is irrevocably made by taking one judgment against all of the makers in one proceeding, and that thereby the several liability of the makers is extinguished.

“2. That the rule at common law was, and still is, that the death of one of several joint obligors extinguishes the debt against his personal estate and leaves only the surviving obligors liable.

“3. That the provisions of Section 3, Chapter 76 of the Illinois Revised Statutes [Jones Ill. Stats. Ann. 70.04] to the effect that ‘ except as otherwise provided in this Act, all joint obligations and covenants shall be taken and held to be joint and several obligations and covenants,’ are not applicable to a joint judgment.

“4. That equity will relieve against the operation of the common law rule only when and if the obligee avers and proves (a) that all remedies against the surviving joint obligor have been exhausted, and (b) that the deceased joint obligor actually received the real consideration for which the obligation was given and was not acting merely as an accommodation party or as a surety.

“5. That the Claimant, Reconstruction Finance Corporation, failed to prove those two conditions precedent to recovery in equity.

“6. That the decision of the Supreme Court above mentioned did not adjudicate anything more than that the note on which judgment was confessed was supported by legal consideration, and thus that its decision is not res judicata on the question of who received the actual consideration in the equitable sense — a question which now arises for the first time.

“7. That, accordingly, the trial court erred in rejecting the offer of proof made by the Executor to further support his contention that Cunningham was an accommodation party or a surety.” (Italics ours.)

As to points 4 and 5 in the foregoing, appellants, in their reply brief.and upon oral argument, concede that all remedies against the surviving obligors were exhausted.

Reconstruction Finance Corporation relies upon the following propositions to sustain the instant judgment :

“1. The proceeding in the presentation and allowance of claims against an estate is not governed by the rules of common law. The Probate Court exercises equitable powers in the adjustment of a claim. Where a claim is presented to the Probate Court based upon a judgment, the Court under its equitable powers will look behind the judgment to the obligation upon which it is based and if such obligation was joint and several will allow the claim.

“2. In Illinois a judgment against several upon a joint and several obligation is joint and several.

“3. A judgment is an obligation within the meaning of Section 3, Chapter 76 of the Illinois Statutes making all obligations joint and several.

“4. Upon the death of John T. Cunningham, his Executor was upon his motion substituted in the Appellate Court as a defendant in the original case and therefore the judgment is in fact against ‘Allan D. Cunningham, Executor of the Estate of John T. Cunningham, Deceased.’

“5. The rule that the death of one of several joint obligors discharges his estate from liability applies only to the case where the deceased joint obligor was a mere surety, receiving no benefit from the obligation. It appears from the facts found by the Appellate Court (307 Ill. App. 605) and the Supreme Court (378 Ill. 58) that Cunningham was not a ‘mere surety’; that the note in question was the primary obligation of all the defendants and that Cunningham and the other defendants received real consideration for the execution and delivery of the note.

“6. The Estate was estopped from asserting that Cunningham did not receive real consideration by the doctrines of ‘estoppel by verdict’ and ‘res adjudicata.’

“7. It appears from the record (a) that there' was an exhaustion of remedies against the surviving obligors; (b) the Cunningham Estate having admitted the insolvency of the surviving obligors it would be unnecessary even under the Estate’s theory to show exhaustion of remedies.

“8. The Cunningham Estate is estopped hy its conduct from denying its liability upon the judgment or from asserting that the claim of the RFC is contingent.

“9. The ruling of the Court upon the Estate’s offer of proof was correct.”

Upon the hearing of the instant case in the Circuit court, on motion of the appellee, there were admitted in evidence, without objection by appellants, all of the pleadings in the original suit, consisting of the narr. and cognovit; the original pleas of defendants; the special additional plea of defendant Cunningham, which plea was adopted by all of the other defendants; the special similiters and replications of the plaintiff to the defendants’ pleas; the judgment of this court entered December 30, 1940, in case No. 39,121; the order entered by the Circuit court in the original suit pursuant to the mandate of this court; the opinion of this court, reported in 307 Ill. App. 605; the opinion of the Supreme court, reported in 378 Ill. 58, and the mandate of the Supreme court.

In our view of this appeal it is not necessary to decide a number of points argued at length by the able counsel for both sides.

In Trego v. Estate of Cunningham, 267 Ill. 367, 374, the court said: “To avoid the delay, expense and embarrassment in the settlement of estates by requiring a resort, in the first place, to a court of equity, it will proceed in a case of an equitable character as though a bill in chancery has been filed, and will hear the evidence, investigate the claim and apply equitable rules in determining the judgment. (Moore v. Rogers, 19 Ill. 347; Dixon v. Buell, 21 id. 203; Heward v. Slagle, 52 id. 336; Wadsworth v. Connell, 104 id. 369; Thomson v. Black, 200 id. 465.) In such a case the court will act substantially as a court of equity, disregarding mere matters of form and looking to the substance to determine the equities of the parties.” As stated by Mr. Presiding Justice Wilson in In re Estate of Kinsey, 261 Ill. App. 481, 487, 488: “Numerous decisions of this State have recognized the rule that probate courts have equitable jurisdiction in matters pertaining to the administration of estates. Wadsworth v. Connell, 104 Ill. 369; Shepard v. Speer, 140 Ill. 238; In re Estante of Mertz, 246 Ill. App. 283; Trego v. Estate of Cunningham, 267 Ill. 367. ” In Harris v. Harris, 116 Ill. App. 537, the court said (p. 538): that Harris having died, no action conld be had against his estate upon such judgments; that it was therefore the duty of appellee to have interposed a defense to the claim in the County Court, and that had she done so the claim could not have been legally allowed. Waiving the question as to whether when a joint judgment is obtained against both principal and surety, and the surety dies, the estate of the surety is released, we are of opinion that the judgment of the Circuit Court should be affirmed. By virtue of section 3, chapter 27 [76], of the statutes, appellant and Harris were jointly and severally liable upon the original undertaking. Notwithstanding the notes ivere merged in the judgments so as to bar further actions at law upon the same, the County Court, in the exercise of its equitable powers in passing upon claims against estates, had a right to look beyond the judgments to the original undertaking, and allow the claim as an equitable money demand. People v. Harrison, 82 Ill. 84; Trust Co. v. McGlew, 193 Ill. 457; Wolf v. Beaird, 123 Ill. 585; Matthews v. Kerfoot, 167 Ill. 313; Thomson v. Barker, 102 App. 304, and cases cited; Carter v. Pierce, 114 Ill. App. 589.” (Italics ours.)

. “Counsel for appellant contends that, although Harris and appellant may have been jointly and severally liable upon the notes, when the same were merged in joint judgments their liability became joint only;

Appellants state that the Probate court in the exercise of its equitable powers had the right to look into the circumstances surrounding the making of the note for the purpose of determining whether Cunningham received the real consideration for the note or was merely an accommodation maker. The nature of the defense to the claim requires the appellants to take that position.

For the purposes of this appeal we will assume that the Probate court, in the exercise of its equitable powers, in passing upon the instant claim had a right to look beyond the judgment to the original undertaking and to pass upon the claim from the equitable standpoint and that in passing upon the claim the court was bound to consider the questions raised and determined by this court and the Supreme court in the original suit.

In the original suit the two questions raised and passed upon by this court and the Supreme court were, (a) the question of consideration set up in defendants’ fourth plea, and (b) the defense set up in defendant Cunningham’s special additional plea to the effect that the note cannot be enforced against Cunningham or the other makers of the note because the note was executed by the defendants and the money was obtained from the bank in furtherance of an illegal conspiracy to carry out a contract that violated the public policy of the United States and the State of Illinois. The able counsel who represented the defendants in the original suit in this court, in their brief, stated their principal defense to the note in the following language : 6 ‘ The note sued on was given in pursuance of an unlawful conspiracy to engage in branch banking in violation of Section 9 of the Illinois Banking Act [Ill. Rev. Stat. 1943, ch. 16½, par. 9; Jones Ill. Stats. Ann. 10.09] and of Section 5155 of the Federal Banking Act and a cause of action cannot be maintained thereon. The note sued upon was given in pursuance of an unlawful conspiracy to violate the public policy of Illinois, and is, therefore, uncollectible.” The special additional plea filed in the original proceeding by Cunningham, and adopted by the other defendants, alleges that all of the defendants were parties to the conspiracy. As to point (a), we specifically held (p. 643) that there was no merit in defendants ’ contention that there was no valid consideration for the note and therefore no liability upon the note. As to Cunningham’s special plea we held (pp. 641, 642, 643): cerned, would be clearly against public policy and void (see Knass case, supra) [Knass v. Madison and Kedzie Bank, 354 Ill. 554]. There is nothing in the record to show that the board of directors authorized Wood-ruff to make the alleged promises. But even a resolution of the board of directors authorizing the promises could not bind the bank. Defendants, experienced bankers, knew, or should have known, that the alleged promises of Woodruff were, as to the bank, void, and could not absolve them from the payment of the note. The note is a valid instrument upon its face and its validity is not changed by the void promises of Wood-ruff. The defense interposed, assuming it to be based upon facts, is entirely devoid of equity, and it would be a -serious reflection upon the administration of justice if the participants in an illegal conspiracy could, in furtherance of said conspiracy, obtain $210,000 of the funds of the bank by means of a note, valid upon its face, which funds were used for the purpose of bolstering the financial condition of Madison Square State Bank, which defendants controlled, arid be absolved from the payment of the note. To adopt defendants’ position would be to penalize the innocent stockholders, depositors, and creditors of the bank, in order to protect the guilty participants in the alleged illegal scheme. If defendants’ theory of law is sound, then Woodruff had the power to dissipate the entire cash assets of the bank by means of conspiracies akin to the one alleged by defendants, and the bank would have no redress against the guilty conspirators. In this connection it must be noted that in furtherance of the alleged1 conspiracy of Woodruff and defendants the latter placed in the bank an instrument purporting on its face to be a promissory note, which they knew would be held out to the national bank examiners to be an ordinary promissory note and an asset of the bank. Defendants, at the time of the execution of the note, also delivered to the bank statements of their financial condition, which they well knew would he considered by the examiners in determining the value of the note as an asset of the bank. That the rule defendants seek to have sanctioned would work against the ‘well being’ of the bank, as defined in the Knass case, is obvious. How long would banks retain the confidence "of the public if defendants ’ contention as to what constitutes the public policy of the State were sustained?

. . In the instant case Woodruff was utterly without power to bind the bank by the alleged promises made by him to defendants and which the latter claim were made in furtherance of the alleged conspiracy. The said promises, so far as the bank was con-

“The fact that The National Bank of The Republic was a federal bank in no way changes the situation, as the Supreme Court of the United States has held that the policy of the National Banking Act is to promote the security and strength of the national banking system.” (Italics ours.)

The Supreme court, in its opinion, after citing the facts bearing upon the fourth plea and the law in reference thereto, held that there was a valid consideration for the note; that (p. 68) “There was no evidence in the record to sustain the contention that the National Bank of the Republic was the accommodated party under the fourth plea, nor that there was a lack of consideration for the note in controversy.” That court also held, in plain and unmistakable language, that there was no merit in the additional plea filed by Cunningham and adopted by the other defendants; that it would be against public policy to sustain such a plea; that the defendants were involved in the conspiracy, and that under the circumstances of the case the law would not permit the creditors of the bank to be injured.

That we held that the defense interposed was entirely devoid of equity seems to be conceded by the appellants, for their contention is that the Supreme court did not pass “on the question of who received the actual consideration in the equitable sense — a question which now arises for the first time. That, accordingly, the trial court erred in rejecting the .offer of proof made by the Executor to further support his conten tion that Cunningham was an accommodation party or a suretyAside from the fact that the points raised by the defendants in the original suit were passed upon by this court and by the Supreme court, the argument of appellants that if the question as to who received the actual consideration for the note “in the equitable sense” be now considered, they would prevail in the instant proceedings, does not appeal to our sense of justice. As we stated in our opinion (307 Ill. App. at page 642): “The defense interposed ... is entirely devoid of equity.” Cunningham verified the special additional plea and stated therein all of the facts and circumstances surrounding the making of the note and what occurred after the money was obtained, and the facts set up in that plea and the facts in evidence in the original case show that all of the defendants, in furtherance of the criminal conspiracy, executed the note in question and thereby $210,000 of the funds of the bank were obtained, and that the money so obtained was used in furtherance of the conspiracy. Even if it be assumed as a fact that Cunningham did not personally receive any part of the money thus obtained and did not personally handle any of it, such fact would avail appellants nothing. The act of one conspirator done in furtherance of the conspiracy is the act of all of the conspirators. To repeat what we have heretofore stated: We held, and the Supreme court held, that public policy would not permit the bank or its creditors to be injured under the facts of that case. We feel impelled to state that in view of the facts and the record in this case it is not surprising -that the able attorneys for appellants daily searched the law for a long time in an effort to find a defense to the claim. It would be, in our considered judgment, a serious reflection upon the administration of justice if the defense interposed in the present proceeding were to prevail.

As to the contention of appellants that the trial court erred in rejecting the offer of proof made by the executor to further support his contention that Cunningham was an accommodation party, or a surety: Counsel for the appellants, in making the offer, said: “In short, the net of the offer is that the makers of this note were accommodation makers who for the purposes of this type of proceeding did not receive and cannot be considered to have received the proceeds or the real consideration which was designed to go and which in fact did go to the benefit of the Madison Square State Bank which under the provisions of the negotiable instruments act and again in contemplation of equity here was the accommodated party.” The evidence offered pertained to matters that were raised by Cunningham in the special additional plea and that were passed upon by this court and the Supreme court and adversely to the appellants. That plea states at great length all of the facts upon which Cunningham based his defense to the suit upon the note. The statement made by the attorney for the estate at the time the offer was made, and the offer itself, show that the appellants were seeking to relitigate issues that were determined in the original case.

Reconstruction Finance Corporation, in support of its contention that the judgment should be sustained, has advanced a number of points that we do not deem it necessary to pass upon in deciding this appeal. The said corporation has heretofore filed a motion in this court to affirm the judgment of the Circuit court and to allow to it statutory damages upon the ground that the instant appeal was taken merely for delay. The motion is denied.

The judgment of the Circuit court of Cook county should be and it is affirmed.

Judgment affirmed.

Sullivan, P. J., and Friend, J., concur.


source: Caselaw Access Project

author: Presiding Justice Bristow.

license: Public Domain

text:
    Ann Boyd, Appellant, v. People of State of Illinois, Appellee.
    opinion filed October 27, 1944;
    released for publication Hovember 27, 1944.
    Henry B. Baton, for appellant; C. W. Burton, State’s Attorney, for appellee; B- G. George, Assistant State’s Attorney, of counsel.
   Opinion by

Presiding Justice Bristow.

Not to be published in full.


author: Justice Culbertson.

text:
    Florence L. Nash, Administratrix of Estate of Walter H. Nash, Deceased, and Guardian of Estate of Dorothy Nash, Minor, Appellee, v. James Ira Welch, Appellant.

      opinion filed October 27, 1944;
    released for publication November 27, 1944.
    Green & Hoagland, for appellant; Kenneth F. Kelly, of counsel; Francis J. Manning, for appellee.
   Opinion by

Justice Culbertson.

Not to be published in full.


text:
    Alfred DeSautels, Appellee, v. Alvin Smith et al., Appellants.
    opinion filed October 27, 1944;
    released for publication November 27, 1944.
    R. F. Taylor, Chas. Durfee and Grover E. Holmes, for appellants; Clarence E. Soward and James A. Watson, for appellee.
   Opinion by

Justice Culbertson.

Not to be published in full.


text:
    Nell M. Belcher, Appellant, v. Citizens Coach Company, Inc., and Elizabeth Keiser, Appellees.

      opinion filed October 27, 1944; released for publication November 27, 1944.
    Whitnel, Browning, Listeman & Walker, for appellant; 'Lloyd Middleton, of counsel; Green & Hoagland, for appellees; Kenneth F. Kelly, of counsel.
   Opinion by

Justice Culbertson.

Not to.be published in full.


author: Justice Friend.

text:
    William J. Sheppard, Appellee, v. Walter J. Cummings et al., Trading as Chicago Surface Lines, Appellants.
    Gen. No. 42,401.
    opinion filed November 6, 1944;
    rehearing denied November 21, 1944; released for publication November 24, 1944.
    Frank L. Kriete, Frederick O. Floberg and Arthur J. Donovan, for appellants; William J. Flaherty, of counsel; Owens & Owens, for appellee; Thomas L. Owens, of counsel.
   Opinion by

Justice Friend.

Not to be published in full.


text:
    Ray Langen, Appellant, v. Merchants Acceptance Corporation, Appellee.
    Gen. No. 42,634.
    opinion filed November 6, 1944;
    released for publication November 24, 1944.
    Harry G. Pins, for appellant; M. Robert Sturman, for appellee.
   Opinion by

Justice Friend.

Not to be published in full.


author: Justice Scanlan.

text:
    Trust Company of Chicago, Administrator of Estate of Alfonso Desiderio, Deceased, Appellee, v. Public Service Company of Northern Illinois, Appellant.
    Gen. No. 42,217.

      opinion filed November 6, 1944;
    rehearing denied November 21, 1944; released for publication November 24, 1944.
    Gardner, Morrow, Fowler & Merrick, for appellant; Walter M. Fowler, of counsel; Samuel J. Andalman, for appellee.
   Opinion by

Justice Scanlan.

Not to be published in full.


text:
    W. H. Goodstein Millinery Company, Inc., et al., Appellants, v. Berkley, Inc., et al., Appellees.
    Gen. No. 42,696.
    opinion filed November 6, 1944;
    rehearing denied November 21, 1944; released for publication November 24, 1944.
    Lowitz & Lowitz, for. appellants; Leo H. Lowitz and Raymond Lowitz, of counsel; Hoffman & Golder, for appellees; Calmon R. Golder and Max M. Fleisher, of counsel.
   Opinion by

Justice Scanlan.

Not to be published in full.


author: Justice Scánlan.

text:
    Mae Keniry, Appellant, v. Harry E. Costello, Individually and Executor of Last Will, Testament and Codicil of John M. Costello, Deceased, et al., Appellees.
    Gen. No. 42,997.
    opinion filed November 6, 1944;
    rehearing denied November 21, 1944; released for publication November 24, 1944.
    John D. Vosnos, for appellant; Joseph P. Hector, for appellees.
   Opinion by

Justice Scánlan.

Not to be published in full.


text:
    Apple-Cole Company et al., Appellants, v. Frank Shackel et al., Appellees.
    Gen. No. 43,078.
    opinion filed November 6, 1944;
    released for publication November 24, 1944.
    Blech & Herson and D. J. Rizzio, for appellants; Herman Herson, of counsel; Ramlose & Edwards, for appellees.
   Opinion by

Justice Scanlan.

Not to be published in full.


text:
    Charles Wachta et al., v. Russell V. Judson, Also Known as R. V. Judson et al. Robert L. Stauber and Irving Heinzel, Appellants, v. Russell V. Judson, Also Known as R. V. Judson et al., Appellees.
    Gen. No. 43,087,
    opinion filed November 6, 1944;
    rehearing denied November 21, 1944; released for publication November 24, 1944.
    Chancellor & Chancellor, for appellants, Chritton, Wiles, Davies, Schroeder & Merriam, for appellees; Charles J. Merriam and William B. Gilmore, of counsel.
   Opinion by

Justice Scanlan.

Not to be published in full.


text:
    People of State of Illinois, Defendant in Error, v. John H. Coleman, Plaintiff in Error.
    Gen. No. 43,115.

      opinion filed November 6, 1944;
    released for publication November 24, 1944.
    Prescott, Burroughs & Taylor and Clayton So Weller, for plaintiff in error; Patrick B. Prescott, Jr. and Joseph E. Clayton, Jr., of counsel; Thomas J. Courtney, State’s attorney, for defendant in error; Edward E. Wilson, John T. Gallagher, Melvin S. Bembe and Joseph A. Pope, Assistant state’s attorneys, of counsel.
   Opinion by

Justice Scanlan.

Not to be published in full.


text:
    Bert Heafner, Appellee, v. George Hill, Appellant.
    Gen. No. 43,126.
    opinion filed November 6, 1944;
    released for publication November 24, 1944.
    Otto A. Kralik, for appellant; Sumner C. Palmer, of counsel; Balph S. McFarland, for appellee.
   Opinion by

Justice Scanlan.

Not to be published in full.


author: Me. Justice Friend

text:
    Paul Serletic et al., Appellees, v. Rudolph Jeromell, Appellant.
    Gen. No. 42,888.

      Opinion filed November 30, 1944.
    Released for publication December 12, 1944.
    Hinshaw & Culbertson, of Chicago, and Mark O. Roberts, of Springfield, for appellant; Mark O. Roberts, of Springfield, of counsel.
    George E. Uretz and F. Patrick Conlon, both of Chicago, for appellees; F. Patrick Conlon, of Chicago, of counsel.
   Me. Justice Friend

delivered the opinion of the court.

While driving his Chevrolet car in a northerly direction on Blackstone avenue at about 5:00 o’clock in the afternoon on June 4, 1941, Paul Serletie, accompanied by Ms wife Elizabeth and their fonr-month-old minor son Guy, collided with defendant’s truck at the intersection of 72nd street, damaging Ms car and injuring Mrs. Serletic and the child. Their respective causes of action were combined in one count, charging negligence or in the alternative wilful and wanton conduct. Trial by jury resulted in general verdicts and judgments for each of the plaintiffs as follows: for Paul Serletic, $125; for Elizabeth Serletic, $150; and for the minor child Guy, $7,000. Thereafter defendant’s motion for judgment notwithstanding the verdict as to plaintiff Paul Serletic was sustained, presumably because no evidence was offered as to damages to the car, and judgment of not guilty as to that claim was entered, from which no appeal was taken. Motions for judgment notwithstanding the verdict and for a new trial as to Elizabeth Serletic were overruled, and judgment for $150 was entered in her favor. As to the minor, Guy, whose cause of action was brought by his mother and next friend, it was ordered that a remittitur of $2,000 be filed, and thereafter defendant’s motions for judgment notwithstanding verdict and for a new trial were denied, and judgment was entered in his favor for $5,000. Defendant appeals.

The record discloses that the accident occurred in a residential neighborhood, with apartment buildings on all but the southwest corner of the intersection. There were no traffic signs or signals at any of the corners. The weather was fair, dry and warm, and the visibility clear. As usual in such cases, there was contradictory evidence as to the speed of the respective vehicles and their distance from the intersection. Paul Serletic testified that immediately preceding the collision he was driving north on Blackstone avenue toward 72nd street, with no traffic ahead and none to the south of the intersection, at approximately 20 miles an hour; that as he approached 72nd street he reduced Ms speed to about 10 miles, and just before reacMng the intersection he put his car in second gear and “made a short stop.” He was then about 10 feet from the building line along 72nd street, and looking toward the east he observed defendant’s truck approaching about 150 feet away. There was no other traffic in either direction at the time. He then started to cross the street rather slowly, as he testified, and when he had passed about three feet beyond the center of the intersection, defendant’s truck struck his car near the right rear wheel, knocked it across the west half of Blackstone avenue up over the northwest corner and overturned it so that it rested on its left side. Guy Serletie was thrown out of his mother’s arms and severely injured. Mrs. Serletie, who was badly bruised, and the baby were taken to a hospital, where she remained four days and was then confined to bed at home for a week.

Carl A. Carlson, plaintiffs’ only other occurrence witness, testified that he was walking east on the north side of 72nd street, and was about 150 feet from the corner of the intersection just before the accident; that there were no cars parked along the street on either side; that he noticed the Chevrolet just as it was pulling up to 72nd street, going north, and about the same time he observed defendant’s truck about 150 feet east of 72nd street traveling in a westerly direction. He stated that “the Chevrolet northbound car slowed down as it came up to the intersection. He didn’t come to a dead stop, but he slowed up, then he went across 72nd street. After he started up to cross 72nd I imagine, oh, I will say he was traveling about 10 miles an hour, around that. And then I saw a vehicle proceeding west on 72nd street. I saw the northbound Chevrolet car struck by this truck. The Chevrolet car at the time of the impact was past the center of 72nd street when the truck hit him. The front of the truck came in contact with it. I kept the truck in view from the time I first saw it up until the time of the collision. The truck was pretty close up to the curb when it started to decrease its speed. I am able to estimate speed of an automobile and truck. From the time I first saw the truck up to the time it slowed down, it was traveling well, 40 to 45 miles an hour. From that point to the point of impact, in my judgment, he was trying- to stop. He was putting on his brakes. He was skidding right into the other fellow that hit him.”

Defendant was called by plaintiffs as a witness under section 60 of the Practice Act [Ill. Rev. Stat. 1943, ch. 110, par. 184; Jones Ill. Stats. Ann. 104.060]. He did not testify again, and this was the only evidence on the facts as to his version of the accident. He stated that he was operating a 1936 Dodge panel one-ton truck, in good mechanical condition, with four-wheel brakes; that as he approached Blackstone avenue he was driving between 25 and 30 miles an hour but diminished his speed as he approached the intersection, and first observed the Chevrolet car when he (defendant) was about 50 feet east of Blackstone avenue. “He came up there a little ahead of me. At that time the other car was going north. He was not over the center line. His car at that time was about even with the building line, that is, about the center line of the street — came up to it to make a stop. The building line is about ten feet back of the intersection, so at the time I diminished my speed I was about twenty-five to thirty feet back and he was about ten feet back. When I was fifty feet away from the intersection I didn’t have any trouble seeing this other car, we were both np close to the intersection. I saw him proceeding slowly there, he didn’t come to a dead stop, according to me. When I saw him he was fifty feet away, Mr. Serletie was going around twenty-five miles an hour and I was going twenty-five to thirty. I saw him slow up to stop, to almost a stop. The Chevrolet diminished its speed and slowed down to about eight to ten miles per hour. My truck came in contact with the Chevrolet as it was crossing the intersection. I hit the right rear wheel of the Chevrolet. He was not over the center line at the time of the impact. When I hit him that was not on the south side of 72nd street. He wasn’t across the center line.”

Defendant argues that plaintiff’s negligence was the proximate cause of the collision, and that the verdicts were therefore contrary to the manifest weight of the evidence. He relies principally on section 68 of the Motor Vehicle Law (Ill. Rev. Stat. 1943, ch. 95½, par. 165 [Jones Ill. Stats. Ann. 85.197]) as entitling him to the right of way. The interpretation of the right-of-way rule has frequently received the attention of courts in this and other states, and the rules applied, as we understand them, are now fairly well settled in Illinois, whose courts invariably emphasize the consideration of two elements: (1) the relative position of the two cars with respect to the intersection; and (2) the relative rates of speed. Heidler Hardwood Lumber Co. v. Wilson & Bennett Mfg. Co., 243 Ill. App. 89, reviewed the authorities in this State on the subject and pointed out that the true construction of such a statute was laid down in Ward v. Clark, 232 N. Y. 195, 133 N. E. 443, an opinion by Judge Cabdozo. Other decisions to the same effect are Salmon v. Wilson, 227 Ill. App. 286; Darling & Co. v. Yellow Cab Co., 238 Ill. App. 326; Schwarts v. Lindquist, 251 Ill. App. 320; Coleman v. Hait, 293 Ill. App. 615; and Edwards v. Hill-Thomas Lime & Cement Co., 309 Ill. App. 168. These decisions and other cases cited therein all recognize the fact that the statute affords no absolute right of way but that the element of speed and the relative position of the parties with respect to the intersection must be given consideration.

In Ward v. Clark, plaintiff was traveling east on the left, defendant north on the right. At 75 feet from the intersection plaintiff saw defendant 150 feet from the intersection. The speed of both cars seemed to be the same. When plaintiff was 40 feet from the intersection he saw the defendant 80 feet away, increased his speed and went almost across the street before he was struck in the right rear by defendant’s bumper. Judge Cardozo, speaking for the court, observed that ‘ ‘ The privilege thus conferred is not inflexible and absolute. A right of way, like a burden of proof, will establish precedence when rights might otherwise be balanced. It helps us little when without it the balance would be unequal. A right of way might turn the scales if, when the plaintiff started to cross, the cars had been equidistant, or nearly so, from the point of the collision, due regard being had also for the speed of their approach. Even with the distances what they were, it was an element which the triers of the facts were to consider in their estimate of conduct. That, in the circumstances of this case, is, we think, the extent of its significance. The plaintiff was not to wait until there was no other car in sight. Such a rule would be unworkable in. crowded cities. He was to wait until it was reasonably safe to start. Whether he started when there was danger was a question for the jury. ’ ’ The same reasoning and construction was followed in the recent case of Krawitz v. Levinstein, 320 Ill. App. 618, and we think it represents the prevailing rule in Illinois.

The elements of speed and the relative position of the parties disclosed by the record in the case at bar were questions for the jury, who resolved the issues against defendant, and we would not be warranted in disturbing the verdicts as being contrary to the manifest weight of the evidence.

The only parties before the court on this appeal are Mrs. Serletic and Guy. Nevertheless a verdict was returned in favor of Paul Serletic, from which it would be fair to assume that the jury were of opinion that Paul Serletic was free from any negligence. There is, however, another circumstance to be considered. Elizabeth Serletic was sitting in the car with the baby in her arms. Guy was an infant, four months old, and obviously, no negligence was imputable to either the baby or his mother.

Even if it could be assumed that Paul Serle tic’s negligence was the proximate cause of the accident, we fail to see how his conduct could be imputed to a four-month-old minor. Defendant contends that “the law of the case, as fixed by the issues on the pleadings, determines whether the established negligence of the husband and father shall be imputed to the wife and son,” and his counsel argue that “it depends upon agency rather than family relationship,” and since the averment in his answer “that at the time of the occurrence plaintiff Paul Serletie was agent or servant of the plaintiffs, or each of them, in the operation of the vehicle then and there operated by him,” was not traversed by plaintiff, it stands admitted as a matter of law. We think it a sufficient answer to this contention that a four-month-old infant is incapable of creating an agency relationship as a matter of law or otherwise. Defendant’s counsel cite no cases to support their contention, but we find in the recent case of Palmer v. Miller, 380 Ill. 256, an effective answer to the question. It was there held that while a minor who lacked only two months of attaining his majority may be held liable for his personal tort, he cannot establish the contractual relationship of master and servant or principal and agent, and therefore cannot be held liable for the tort of another under the doctrine of respondeat superior. See, also, McDonald v. City of Spring Valley, 285 Ill. 52, holding that “while the parent of a minor is its natural .guardian he cannot be said to be the agent or attorney for the child.” With respect to Mrs. Serletie no agency relationship to her husband was established either by admission or otherwise. The averments of defendant’s answer were merely com elusions of law without any allegations or evidence to support them. Nor can it be contended that she was not in the exercise of care for her own safety. Her testimony on the subject is brief. She testified that she was riding in the front seat of the automobile, holding the baby in her left arm, observing the traffic as they rode along; that just before they came to the intersection she was looking straight ahead; that her husband slowed up a little, almost to a stop, and then started out again, and all she could remember thereafter was that ‘ ‘ something hit us. ’ ’ On this evidence the jury would not have been warranted in holding that she was either contributorily negligent or that her husband was driving the car as her agent.

As an additional ground for reversal it is urged that since the complaint consists of one count alleging negligence and wilful and wanton conduct in the alternative, and the verdicts being general and not specifying the count or theory upon which they are based, the presumption is that they are predicated upon the cause of action of which malice is the gist; and counsel say that since there is no evidence to support the wilful and wanton charge, the court should have allowed defendant’s motion for judgment notwithstanding the verdicts on that ground. Defendant did not raise this question on the trial. He presented only a general motion to find him not guilty and submitted the following instruction in support thereof: “The court instructs the jury to find the defendant not guilty, ’ ’ The court’s attention was never called to the wilful and wanton charge, evidence of which is said to be inadequate, and therefore defendant cannot raise the point for the first time on review. Under sections 45 and 68 (2) of the Civil Practice Act [Ill. Rev. Stats. 1943, ch. 110, pars. 169, 192, subpar. (2); Jones Ill. Stats. Ann. 104.045, 104.068, subsec. (2)] he could have made a motion to withdraw the wilful and wanton charge, or have requested a separate verdict thereon, but failing to do either he is not in a position to lodge a complaint at this time. In Smithers v. Henriques, 368 Ill. 588, wherein both negligence and wilful and wanton charges were combined in the complaint, a general motion for a directed verdict in favor of defendant was overruled and a general verdict was returned in favor of plaintiff. The Supreme Court aErmed the Appellate Court ruling in afirming plaintiff’s judgment and said: “The claim is that the general verdict cannot support a judgment because- of the want of any evidence to support the wilful and wanton count. ’ ’ The court then referred to section 68 (2) of the Civil Practice Act (Ill. Rev. Stat. 1937, ch. 110, par. 192 [, subpar. (2); Jones Ill. Stats. Ann. 104.068, subsec. (2)]) and pointed out that defendant filed only a general motion for directed verdict,- that he could have availed himself of the provisions of the statute by demanding separate verdicts on the different counts, or he could have moved for the withdrawal of the wilful and wanton count, and concluded by saying that because of his failure to do either he was not in a position to complain.

Criticism is leveled at various instructions given and refused. We have examined them with considerable care but find them free of such errors as would justify a reversal. The case was fairly tried. The evidence amply supports the verdicts as to Mrs. Serletie and as to her son, who was seriously and perhaps permanently injured. We find no convincing reason for reversal, and therefore the judgments of the superior court are aErmed.

Judgments affirmed.

Sullivan, P. J., and Scánlan, J., concur.


author: Mr. Presiding Justice Niemeyer Hatchett, J.,

text:
    Mabel T. Hart, Administratrix of Estate of Robert S. Hart, Deceased, Appellant, v. William F. Sullivan, Appellee.
    Gen. No. 43,110.

      Opinion filed December 11, 1944.
    Released for publication December 27, 1944.
    Aiken, McCurry, Bennett & Cleary, of Chicago, for appellant; Charles R. Aiken, of Chicago, of counsel.
    Erwin W. Roemer, of Chicago, for appellee; Gardner, Carton & Douglas and James A. Velde, all of Chicago, of counsel.
   Mr. Presiding Justice Niemeyer

delivered the opinion of the court.

Plaintiff, administratrix of the estate of her deceased husband, appeals from a judgment entered upon a verdict directed for the defendant at the close of plaintiff’s evidence in an action for the wrongful death of the deceased.

Joseph Donati, a tenant, lived with his family on the third floor of defendant’s building; the second floor was occupied as living quarters by another tenant; the first floor was used commercially; access to Donati’s flat was through a door at the street level into a small hall, then to the west, up a flight of stairs consisting of 12 or more steps to the first landing, then to the right or north up 4 or 5 steps to the entrance to the quarters on the second floor, then to the east up a stairway to the third floor; across the first landing to the west was a door opening on a stairway running downward' to the west, into the basement; the only light in the hall, along the stairs or upon the landing, was a small electric light at the entrance to the second flat which was controlled from the inside of that flat. One evening, around 10 o’clock, plaintiff and deceased while walking in the vicinity of the building were accosted by Guido Paoletti, whom they had known for a number of years; he asked for the address of Donati; being unable to tell exactly where Donati lived, the deceased and plaintiff took Paoletti to the building; they entered the unlighted hallway from the street and, lighting a match, found Donati’s name on the mail box; Paoletti lighted another match and deceased started up the stairs, followed by Paoletti and plaintiff; the match was extinguished before deceased reached the first landing; it was pitch dark — so dark you couldn’t see; they continued up the stairs in the darkness, hugging the bannister on the right; on reaching the landing deceased stepped across, pushed open the door to the west and fell down the stairway leading to the basement, receiving injuries from which he died about 10 days later.

The only negligence charged against the defendant is his failure to keep and maintain the passageway, halls, stairways, steps, landings, etc., safely and properly lighted, and in permitting and allowing them to be and remain dark and insufficiently lighted. In directing the verdict for the defendant the court placed his ruling upon two grounds: “First, that it believes the deceased was a mere licensee at the time of the accident and, second, that even if he, were not and were an invitee, he was guilty of contributory negligence amounting to practically gross negligence.”

Plaintiff contends that the determination of these questions was for the jury, and acquiesces in defendant’s position that if the deceased was a mere licensee and was not an invitee on defendant’s premises the only duty owed to plaintiff was not to injure deceased wilfully or wantonly. There is no charge of wilfulness or wantonness against defendant. In Milauskis v. Terminal Ry. Ass’n of St. Louis, 286 Ill. 547, 555, the court said: “If a person is upon the premises of the owner by an invitation, expressed or implied, and not by mere permission, then such owner owes Mm a duty to exercise ordinary care to keep the premises in a reasonably safe condition. (Purtell v. Philadelphia Coal Co., 256 Ill. 110.) 'To come under an implied invitation as distinguished from a mere license, the visitor must come for a purpose connected with the business in which the occupant is engaged or which he permits to be carried on there. There must be at least some mutuality of interest in the subject to which the visitor’s business relates, although the particular thing which is the object of the visit may not be for the benefit of the occupant.’ ”

The duty which a landlord owes to a business invitee extends also to those who have lawful occasion to visit the tenant for social purposes. 32 Am. Jur., Landlord and Tenant, § 691, page 568; Reardon v. Shimelman, 102 Conn. 383, 386; Gallagher v. Murphy, 221 Mass. 363; Coupe v. Platt, 172 Mass. 458. The burden of proving that deceased was upon the premises as an invitee rested upon plaintiff. In passing upon the right of the trial court to direct a verdict at the close of plaintiff’s case this court cannot weigh the testimony but must consider plaintiff’s evidence in its aspect most favorable to her. Plumb v. Getz, 366 Ill. 273. The only purpose of plaintiff and deceased: in entering defendant’s premises was to show or take Paoletti to Donati’s living quarters. The record is absolutely silent as to the purpose of Paoletti in seeking to visit Donati. Donati and Paoletti were waiters. So were deceased and plaintiff. Beyond the several statements of Donati that at the time of the accident as well as at the time of the trial he knew Paoletti by the name of Gruido but did not know his last name, there is nothing in the record to indicate the relationship between Donati and Paoletti. Beyond acquaintance for a number of years, there is nothing to show the relationship between Donati and plaintiff and the deceased. That Donati did not expect anyone to call upon him that evening is evidenced by the fact that he had retired for the night when the accident occurred. Paoletti and Donati were called as witnesses by the plaintiff. Neither of them was asked any question tending to throw any light upon the nature of Paoletti’s proposed visit to Donati. There were no facts before the court from which any inference could be drawn as to the nature of this visit. As already stated, the burden of proving plaintiff to be an invitee rather than a licensee rested upon plaintiff, and in the absence of any evidence tending to prove that point the court properly directed a verdict. •

It is not shown by the evidence that plaintiff or deceased had. ever been upon defendant’s premises before. Without familiarity with the premises and without any urgent necessity to do so, deceased persisted in ascending the steps, crossing the first landing and advancing through the door to the west in utter darkness. Such conduct has been held to be contributory negligence as a matter of law. Bentley & Gerwig v. Loverock, 102 Ill. App. 166, 171; Sauter v. Hinde, 183 Ill. App. 413; Swanson v. Peter Schoenhofen Brewing Co., 215 Ill. App. 185; Wesbrock v. Colby, Inc., 315 Ill. App. 494; Brugher v. Buchtenkirch, 167 N. Y. 153.

The judgment is affirmed.

Affirmed.

Hatchett, J.,

concurs.

O’Cohhor, J., specially concurring: I am unable to agree with the statement in the opinion that the deceased was guilty of contributory negligence as a matter of law. It has long been settled law of this state, that the landlord, who rents various parts of a building to tenants and maintains control of stairs, hallways, etc., or other means of approach to the several parts of the building for the common use of the tenants, has the duty to use reasonable care to keep the premises in a reasonably safe condition. The B. Shoninger Co. v. Mann, 219 Ill. 242; Mueller v. Phelps, 252 Ill. 630; Wells v. Wise, 298 Ill. App. 252; Murphy v. Brichler, 305 Ill. App. 6. It has also been held that “The rule that a landlord, at common law, is not under obligation to keep lighted hallways and stairways, reserved by him for use of tenants, does not apply where, owing to some unusual construction of a hallway or passageway, a light is necessary to render it reasonably safe to persons lawfully using it.” 25 A. L. R. p. 1314, citing Brugher v. Buchtenkirch, 29 App. Div. 342, 51 N. Y. Supp. 464. This same rule is stated in 32 Amer. Juris. § 701, p. 576. It is there said: “The common-law liability of a landlord for the safe condition of approaches to, and the stairs and hallways in, premises used in common by different tenants, does not ordinarily require him to keep the ordinary halls and stairways lighted, and hence he is not ordinarily liable for injuries received by reason of the unlighted condition of this portion of the premises. However, if the construction of a stairway is such as to require artificial light, even in ordinary times, in order to make the use of the hall and stairway safe, the landlord may be held liable for negligence in failing to keep it lighted.”

It has often been stated by this and some other courts that where there is no dispute in the evidence, the question is one of law for the court to decide. And in Sauter v. Hinde, 183 Ill. App. 413, cited in the opinion, the court said: “There is no dispute about the facts concerning her care and caution and the case rests solely upon her statements and the surrounding circumstances, that are not in dispute, as to whether she was exercising such care, and under such state of facts it becomes the duty of the court to determine as a matter of law as to whether she was in the exercise of such care.” And in Costello v. Farmers’ Bank of Golden Valley, 34 N. D. 131, 157 N. W. 982, the Supreme Court of North Dakota said: “While the question of contributory negligence is usually one of fact for the jury, yet where — as in the case at bar — the facts are not in dispute it becomes a pure question of law for the court.” There is no such orthodox rule. The language quoted from the two case's would be a correct statement of the law if but one reasonable conclusion could be drawn from the undisputed evidence. But where different conclusions might reasonably be drawn from the undisputed evidence, the question is one for the jury and not one of law for the court.

In the instant case I am of opinion that two reasonable conclusions could be drawn from the undisputed evidence — one to the effect that the deceased was guilty of contributory negligence and another that he was not. But it was for the jury to draw the conclusions. Chicago & N. W. Ry. Co. v. Hansen, 166 Ill. 623; Best v. District of Columbia, 291 U. S. 411; Plodzien v. Segool, 314 Ill. App. 40; Turner v. Cummings, 319 Ill. App. 225, and other authorities there cited.

In the Hansen case, Mr. Justice Cartwright, in delivering the opinion of the court in discussing the question of negligence said: “If there is no fixed rule of law applicable to all cases, yet the question of negligence in each particular case may become a question of law and come within the province of the court, so that a particular verdict may be directed, if the evidence in the case irs such that all reasonable men would be agreed in their conclusion from it. Where the facts are such that reasonable men of fair intelligence may draw different conclusions, the question of negligence must be submitted to the jury; but if the court can say that but one reasonable inference can be drawn from the facts, the court should act accordingly,” citing a number of Illinois cases.


author: Mr. Presiding Justice Niemeyer

text:
    Walter Skiras, Appellee, v. Thomas Magenis et al., Defendants. Appeal of Catherine Mazenis Edgar, Administratrix of Estate of Thomas Mazenis, Deceased, Appellant.
    Gen. No. 43,161.
    Opinion filed December 11, 1944.
    Rehearing denied December 26, 1944. Beleased for publication December 27, 1944.
    Kasimir P. Gugis, of Chicago, for appellant.
    John D. Vosnos, of Chicago, for appellee.
   Mr. Presiding Justice Niemeyer

delivered the opinion of the court.

The administratrix of the estate of Thomas Mazenis, deceased, appeals from an order denying her motion to set aside a judgment by default entered against Thomas Mazenis and Vironika Mazenis, under the names of Thomas and Vironika Magenis.

From the record it appears that at one time Thomas Mazenis and his brother, the husband of Vironika Mazenis, were the owners of certain improved real estate on, which Thomas conducted a tavern. The brother died and his interest vested in his widow, Vironika, and Ms daughter, Genevieve. On January 17, 1937, plaintiff was injured, as he claimed, through the negligence of an intoxicated driver of an automobile. Shortly thereafter he brought suit under the Dram Shop Aqt against Thomas, as the owner of the tavern and seller of intoxicating liquors to the driver of the car which injured plaintiff, and against Thomas, Vironika and Genevieve as owners of the premises on which the tavern was conducted. After appearance and answer by the defendants this suit was dismissed for want of prosecution on the order of the court on March 5, 1940. On March 3, 1941 the action now before us was commenced by the filing of a complaint identical with that filed in the former action. Service of summons was had upon Thomas personally, and upon the remaining defendants by leaving a copy of the summons with Thomas as . a member of the household. No appearance was entered by any of the defendants and on October 27, 1941, they were defaulted and judgment for $21,000 was entered against them. August 4, 1943-, upon the petition of Genevieve, an infant, by Vironika, her mother and next friend, alleging that at the time of the institution of the suit Genevieve was an infant of the age of 10 years and that no guardian ad litem had been appointed to represent her, the judgment and default theretofore entered were vacated and set aside as to Genevieve, a guardian ad litem to represent her was appointed and leave given to plead, etc. September 10,1943, ViroMka and the admiMstratrix of the estate of Thomas, who had died, moved the court to vacate and set aside the judgment and defaults theretofore entered against Vironika and Thomas and to give leave to enter an appearance and plead, etc., upon the ground that the legal effect of setting aside and vacating the judgment as to Genevieve was to vacate the judgment against her codefendants, Thomas and Vironika, “for the reason said judgment- and the verdict upon which it was entered were a unit as against all three defendants.” The court denied the motion. The only question presented is whether the vacation of the judgment as to Genevieve vacated the judgment and default as to Thomas and Vironika.

The liability of the defendants is based upon the statute which makes the owners of the property, on which they permit the sale of intoxicating liquor, liable for certain damages resulting therefrom, and where the property is owned by several, each of the owners by reason of his title is liable and may insist that his co-owners be made parties defendant. Tandrup v. Sampsell, 234 Ill. 526, 530; 39 Am. Jur., Parties, § 40, page 911. The default judgment was a unit as to all defendants. In Livak v. Chicago & E. R. Co., 299 Ill. 218, 226, the court said: ‘ ‘ This court has held for about seventy years, beginning with McDonald v. Wilkie, 13 Ill. 22, that a judgment against several defendants, whether rendered in an action for tort or on a contract, is a unit and cannot be reversed as to one or more defendants and affirmed as to the others. ’ ’ In Fuller v. Robb, 26 Ill. 246, where judgment by default was vacated as to one defendant, it was held that the court should have set aside the judgment as to both defendants. Gould v. Sternburg, 69 Ill. 531; Earp v. Lee, 71 Ill. 193; Williams v. Chalfant, 82 Ill. 218; Claflin V. Dunne, 129 Ill. 241, 248; Merrifield v. Western Cottage Piano & Organ Co., 238 Ill. 526, 531. In some of the cases attention is called to an exception to the rule, permitting the vacation or reversal of a judgment as to one of several defendants where the defense raised is personal to the defendant, such as infancy, etc. In the present case Genevieve was not pleading her infancy as a bar to the action. Her objection was to the procedure by which the judgment was obtained without protecting her interest by the appointment of a guardian ad litem for her. The judgment thus obtained was not void but merely voidable. Simpson v. Anderson, 305 Ill. 172.

In Fredrich v. Wolf, 383 Ill. 638, published after the ruling appealed from, the court had under consideration the effect of the vacation of a judgment by confession as to one of two makers of a note, and said (pp. 641-642): “The judgment entered against Wolf and Margaret Thiele was a unit as to both defendants. The power of attorney which authorized the confession of the judgment was joint. The rule has long been established that if a judgment entered as a unit against two or more defendants is so defective as to necessitate its vacation as to one defendant, it must be set aside as to all. (Claflin v. Dunne, 129 Ill. 241.) Plaintiff concedes this principle of law but refers to section 50 of the Civil Practice Act [Ill. Rev. Stat. 1943, ch. 110, par. 174; Jones Ill. Stats. Ann. 104.050] as authorizing a procedure of severing a judgment as to two or more defendants. Section 50 provides for the entry of a judgment for or against one or more of several plaintiffs and for or against one or more of several defendants, but there is no authority in that section which authorizes the setting aside of a unit judgment as to one defendant and permitting it to stand as to another. There is nothing in section 50 or any of the other provisions of the Civil Practice Act to which our attention has been called that permits the separation of a unit judgment in the manner contended for by plaintiff. After a judgment has been set aside and a new trial granted, separate judgments may then be entered against the several defendants pursuant to section 50, but when it has been entered as a unit to all the defendants, it stands or falls as to all. The order vacating the judgment was erroneous in that it did not set it aside as to both defendants.”

The order of the trial court is reversed and the cause remanded with directions to vacate the judgment as to Thomas and Yironika and to grant leave to plead, etc.

Reversed and remanded with directions.

Matchett and O’Cohhob, JJ., concur.'


text:
    Life Printing and Publishing Company, Inc., Appellant, v. Marshall Field III, The Chicago Sun Syndicate, Inc., Trading as the Chicago Sun et al., Appellees.
    Gen. No. 43,167.

      Opinion filed December 11, 1944.
    Released for publication December 27, 1944.
    Irving Breakstone, of Chicago, for appellant.
    Mayer, Meyer, Austrian & Platt, of Chicago, for appellees; Jacob X. Schwartz, of Chicago, of counsel.
   Mr. Presiding Justice Niemeyer

delivered the opinion of the court.

Plaintiff appeals from an order dismissing its action for libel upon motion of defendants, charging the insufficiency of the amended complaint on wMch plaintiff elected to stand.

This complaint alleges that plaintiff is engaged in the business of publisMng three community newspapers, having an average circulation of 32,000 copies per issue and doing circular printing; that its office and principal place of business is at No. 5304 W. 25th street, Cicero, Illinois; that one of the papers published is the Cicero Life, a tri-weekly newspaper wMch did an annual gross business of $261,232.50 in 1943; that the plaintiff had a good name, credit and reputation and deservedly enjoyed the esteem and good opinion of those with whom it did business and of other worthy citizens of the state,'as well as the patronage and good will of a large number of advertisers and persons requiring circular printing, including among its patrons and heaviest advertisers many merchants of Jewish descent and members of that faith owning and controlling business firms and corporations doing business with plaintiff; that between plaintiff and its customers existed mutual esteem, good credit and profitable business relations; that plaintiff’s property, affairs and concerns were conducted and managed by directors and officers (none of whom are named), including its president, secretary and vice president, who along with plaintiff were in high and deserved repute, estimation and credit with the public, and were doing a profitable and increasing business and were then and there daily acquiring and had acquired large gains and profits from the business; that the defendant Marshall Field III, owner and editor, along with The Chicago Sun Syndicate, Inc., and Silliman Evans, publisher, printed and published The Chicago Sun, a newspaper of large circulation; that on February 4, 5 and 7,1944, defendants, with the intent of exposing the Gentile Cooperative Association and to impair and damage plaintiff in its business, affairs and concerns, and more especially with its patrons of Jewish descent, and to discourage advertisers, especially those merchants of Jewish descent, from extending their patronage to the plaintiff, and the public from subscribing to and reading its newspapers and from having printing done in its plant, published certain articles (set out verbatim) charging that the publisher of the Cicero Life, meaning plaintiff, caused to be incorporated a nefarious and despicable organization known as Gentile Cooperative Association; that the defendants maliciously and recklessly published said articles of and concerning the plaintiff in its business, and that such publications were understood by the readers thereof and the public as identifying the plaintiff and meaning that the plaintiff was engaged in a conspiracy with Fliteraft, Forree and Nolen, incorporators of the Gentile Cooperative Association, and others behind it, as “fellow conspirators to spread the described propaganda therein set forth over the United States, in violation of the criminal law against conspiracy, seeking to undermine the faith of the people in their leaders, and to cause unrest and lack of faith in democracy among the members of the armed forces, ... so that when the proper economic and political disintegration had been accomplished, selected persons in strategic positions would, then acting together, seize power and establish their ‘ new order, ’ to-wit a national socialist or fascist form of government”; that by reason of the text of the foregoing publications and the libel therein contained, large numbers of advertisers, actual and potential, and especially those of Jewish descent and firms and corporations- controlled by persons of Jewish descent, of plaintiff’s publications and more especially the Cicero Life, and the subscribers and patrons thereof, believed on the reading thereof that plaintiff was identified therewith and was one of the founders and promoters of the Gentile Co-operative Association and one of its incorporators, and that as a result of the acts of the defendants, plaintiff has been and is greatly injured in its good name, credit, reputation and in its business, trade and occupation, and “as special damages, it has as a result of said libel suffered in that many advertisers and persons have been hindered and prevented from advertising in the publications of the plaintiff, and especially Cicero Life, and from having printing done in plaintiff’s plant and from subscribing to and reading its newspapers, and have declined and refused to have any transactions with the said plaintiff in the way of its business, and more especially persons of Jewish descent, and from all of whom the plaintiff would, have and except for said libel, have obtained great gains and profits,” and demands judgment in the sum of $100,000 special damages, $100,000 punitive damages, and compensatory damages of $100,000, or a total of $300,000.

The several publications complained of appeared under the following headings: “Promoter Would 6Protect’ Gentiles at $100 a Head. Anti-Semitic Pur-' poses Hidden in State Charter, But Opposition to ‘Jewish Control’ is Admitted”; “Leaders of all City Groups Blast Gentile Association. Everyone Denounces ‘Screwball’ Promotion Aimed at Halting ‘Rising Jewish Power’ ”, and “McMahon Flails ‘Gentile’ Society. Mayor Indignant Over Aims of Group,” and said in substance that an ambitious new scheme, described by the promoters as aimed at getting up to as much as $100 from as many as 5,000,000 Americans, has been launched1 in Chicago in the form of a Gentile Co-operative Association; that the first application for the charter was turned down by the Secretary of State, but a charter was granted on a new application defining the purposes of the group as promoting various “gentile objectives”; that Eugene F. Flitcraft, the organizer, is a director of several printing and advertising firms and was formerly secretary and treasurer of Contemporary Publications, which published the National Magazine for Young Republicans until 1936, when it went out of business; that Marvin Ferree, named as an incorporator living at 915 Carmen avenue, actually lives at 5304 W. 25th street, Cicero, and is publisher of Cicero Life, a community newspaper; that the owner of the apartment building at 915 Carmen avenue says that Ferree never lived at that address; that John M. Nolen, the third incorporator, resides at 316 Madison street, Maywood, and is publisher of the Maywood newspaper New Era; that Flitcraft said he started the movement to “halt growing Jewish power” in the Hnited States; that he expects to step out of the directorship as soon as the movement gets going, and that “others are behind it” and would keep it going; that a hurry-up appeal for funds would be sent ont and the recipients of the appeal urged to act fast for the preservation of gentiles; that no more than $100 would be taken from any person and memberships were as low as $2; that everyone who joins will get a copy of the Gentile News, publication of which has not started; that they plan to help ex-soldiers, to start a lending pool to help businessmen who might otherwise have to sell out to Jewish interests, to correct the business practice of gentiles, promote a “gentile peace,” with special aid in getting jobs back for gentiles after the war, and promote gentile control of “business, social and cultural responsibilities”; that ministers, public officials, labor and civic leaders who were interviewed charged the organization with playing Hitler’s game and being a dangerous expression of distorted and un-American thinking, a vicious and dangerous racket, representing the ideologies of our enemies, the Nazi and the Japs, and that the fellows running it should be “salted away as traitors to America.”

Plaintiff says that these articles in substance “charge the plaintiff with being one of the incorporators and founders of an anti-Semitic organization formed for the purpose of opposing 6 Jewish Control’ and ‘to halt growing Jewish power’ and ‘Protect Gentiles at $100 a Head, ’ ” and contends that the articles are libelous per se, or, in the alternative, that plaintiff has sustained special damages by reason of their publication and that these damages are properly pleaded. In support of its contention that the publications are libelous per se plaintiff relies principally upon the case of Sweeney v. Schenectady Union Pub. Co., 122 F.2d 288, decided by U.S.C.C.A., 2nd Cir. (Justice Clark dissenting), and affirmed without opinion by an equally divided court in' 316 U. S. 642. The publication complained of was a syndicated article published in many newspapers throughout the country. It charged the plaintiff, a congressman, with opposing the appointment of a United States District Attorney at Cleveland, Ohio, to a federal judgeship because he “is a Jew, and one not born in the United States.” . The plaintiff instituted a number of actions and, so far as we are advised, it was only in the case cited that the article was held to be libelous per se. In the following cases Sweeney’s contentions were denied: Sweeney v. Patterson, 128 F.2d 457; Sweeney v. Philadelphia Record Co., 126 F.2d 53; Sweeney v. Newspaper Printing Corp., 177 Tenn. 196; Sweeney v. Beacon Journal Pub. Co., 66 Ohio App. 475; Sweeney v. Caller-Times Pub. Co., 41 F. Supp. 163; Sweeney v. Capital News Pub. Co., 37 F. Supp. 355. We are not required to choose between these conflicting positions. Plaintiff being a corporation, no question of personal reputation can be involved, and the defamation must assail its financial position, its business methods, or accuse it of fraud or mismanagement. 33 Am. Jur., Libel and Slander, § 193, pages 183, 184, citing National Refining Co. v. Benzo Gas Motor Fitel Co., 20 F.2d 763, and Axton-Fisher Tobacco Co. v. Evening Post Co., 169 Ky. 64. Words spoken or written of a stockholder or officer give no -right of action to the corporation unless spoken or written in direct relation to the trade or business of the corporation. If they relate solely to the stockholder, officer or employee in his private or personal capacity, only the individual can complain. Brayton v. Cleveland Special Police Co., 63 Ohio St. 83; Adirondack Record, Inc. v. Lawrence, 202 App. Div. 251, 195 N. Y. S. 627; Midland Pub. Co. v. Implement Trade Journal Co., 108 Mo. App. 223; Memphis Tel. Co. v. Cumberland Tel. & Tel. Co., 145 Fed. 904; Willfred Coal Co. v. Sapp, 193 Ill. App. 400, 405, 414. In the case last cited the alleged libel stated that the mine of plaintiff had been closed by a state inspector for failure to comply with the safety statutes;' that Jones, the president, had been made defendant in a criminal action charging him with operating the mine without proper hoiler inspection and was in hiding; that the business of the company had been wrecked; that it was unable to meet its payrolls and an employee had brought suit for his wages; the declaration alleged plaintiff’s employment of Jones as president and manager, and that Jones “had and enjoyed among the said customers of said plaintiff a good reputation for honesty and fair dealing and skilful management of the business of said plaintiff, and the said confidence and esteem in which the said Jones was held by the said customers of the plaintiff increased and extended and maintained the business of the said plaintiff, as aforesaid, and thereby greatly increased the profit which said plaintiff derived from the said business....” A demurrer to the declaration was sustained. In an opinion citing and examining many cases the court reversed the judgment and held that the statements relating to Jones, as well as those relating to the corporation, were libelous per se as to the corporation, and said (414): “Defendants in error treat the case as though the defamatory statements complained of related solely to the president and manager of the plaintiff in his private or personal capacity. If this were true, their position would be well taken, as held in Brayton v. Cleveland Special Police Co., 63 Ohio St. 83, and Midland Pub. Co. v. Implement Trade Journal Co., 108 Mo. App. 223. But here the article complained of not only relates to the corporation itself, and its trade, business and credit, but many of its statements in regard to the president and manager are in direct relation to the trade or business of the corporation and its control and management by him as such officer and manager. ’ ’

The alleged libelous publications before us do not mention the plaintiff. It is identified only by the innuendoes in the amended complaint. Where Flitcraft, organizer of the Gentile Co-operative Association, is described as “director of several'printing and advertising firms,” plaintiff adds, “meaning, of the plaintiff corporation printing firm.” And where Flitcraft is reported as saying “others are behind it,” plaintiff supplies by way of innuendo, “meaning, the plaintiff and the Cicero Life.” In respect to Ferree, the innuendoes appear in parentheses in the following quotation from one of the articles: “Ferree actually lives at 5304 W. 25th St., Cicero (meaning and being the office and plant of the plaintiff herein), and is the publisher of Cicero Life, a community newspaper (meaning the plaintiff corporation doing business as Cicero Life; meaning that said odious Ferree was the publisher of Cicero Life, an employee of plaintiff as such publisher, and in his managing capacity in behalf of plaintiff an incorporator of said odious Gentile Co-operative Association and the promotion of its affairs in line with the business activities of the plaintiff herein ánd so understood by the public). ’ ’ Except for the allegations that plaintiff’s office and principal place of business is at 5304 W. 25th St., Cicero, and that it publishes the Cicero Life, there are no averments of facts to support these innuendoes connecting plaintiff with the alleged libelous publications. The limitations of an innuendo are stated in McLaughlin v. Fisher, 136 Ill. 111, 116, as follows: “It is not permissible to enlarge and extend the meaning of the words spoken, beyond their natural import, by the innuendo, except so far as such enlarged meaning is warranted by prefatory matter set forth in the inducement or colloquium. An innuendo is properly used to point the meaning of the words alleged to have been spoken, in view of the occasion and circumstances, whether appearing in the words themselves, or extraneous prefatory matters alleged in the declaration. It is explanatory of the subject matter sufficiently already stated, and it cannot extend the natural meaning of the words unless there is something averred in the prefatory part of the declaration for it to explain, or to which it may properly extend them. Starkie on Slander, (Wood’s notes,) *355; Townshend on Slander, 161, note, and authorities cited.” Kimball v. Ryan, 283 Ill. App. 456, 465-466; Campbell v. Morris, 224 Ill. App. 569. Plaintiff’s claim must rest upon the statements relating to Ferree’s residence and his engagement and occupation as publisher of Cicero Life. The language used by defendants is plain and unambiguous, and it was a question for the court whether the language is capable of bearing the meaning assigned, by the innuendoes. Herrick v. Tribune Co., 108 Ill. App. 244 (citing Townshend on Slander and Libel, § 342); Hylsky v. Globe Democrat Pub. Co., 348 Mo. 83; Kee v. Armstrong, Byrd & Co., 75 Okla. 84, 182 Pac. 494, 499; Mellen v. Times-Mirror Co., 167 Cal. 587. The articles complained of were published to expose and denounce the Gentile Co-operative Association and its founders and promoters. Plaintiff concurs in the denunciations. The statements as to the residence of Ferree and his occupation as publisher of Cicero Life were merely incidental and for the purpose of identifying him. On the motion to dismiss and on this appeal these statements must be regarded as untrue. However, there is not the slightest intimation of any wrongdoing or impropriety of conduct at the alleged residence or in connection with his alleged occupation as publisher of the Cicero Life. Whatever is said derogatory to Ferree is in connection with the Gentile Co-operative Association and his part as an incorporator of it. Nothing is said of Ferree or of Flitcraft in relation to the business of plaintiff corporation, and the publications complained of are not libelous per se as to plaintiff.

Plaintiff cannot recover on its theory of special damages, which as shown above are based on general allegations that many advertisers and other persons, and especially persons of Jewish descent, have, because of the publications complained of, declined and refused to have any business transactions with plaintiff, and loss has resulted, to plaintiff. This is not a sufficient allegation of special damages. Such damages must be alleged with particularity. Parker v. Kirkland, 298 Ill. App. 340; Wright v. F. W. Woolworth Co., 281 Ill. App. 495; Thorner v. Samuels, 122 Misc. 139, 203 N. Y. S. 316; Erick Bowman Remedy Co. v. Jensen Salsbery Laboratories, Inc., 17 F.2d 255, 259; Denney v. Northwestern Credit Ass’n, 55 Wash. 331; Shaw Cleaners & Dyers v. Des Moines Dress Club, 215 Iowa 1130; Wilson v. Dubois, 35 Minn. 471; Maas v. National Casualty Co., 97 F.2d 247; Newell on Slander & Libel (4th ed.), page 841.

The amended complaint sufficiently charges responsibility of The Chicago Sun Syndicate, Inc., and Silliman Evans, defendants, for the several publications complained of in that it charges all the defendants with publishing and causing to be published each of the publications (Hots v. Alton Telegraph Printing co., 324 Ill. App. 1), and is unlike the complaint in Kulessa v. Chicago Daily News, Inc., 311 Ill. App. 117.

The judgment is affirmed.

Affirmed.

Matchett and O’Connor, JJ., concur.