author: Mr. Justice Huffman

text:
    Mary Scott and Fred Scott, Appellees, v. Freeport Motor Casualty Company of Freeport, Illinois, Appellant.
    Gen. No. 9,966.

      Dove, P. J., concurring in result.
    Opinion filed September 19, 1944.
    Rehearing deMed January 18, 1945. Released for publication January 19, 1945.
    Burrell & Burrell, of Freeport, and Henry C. Warner, of Dixon, for appellant; David M. Burrell, of Freeport, of counsel.
    Franklin J. Stransky, of Chicago, and George Spitz, of DeKalb, for appellees; Franklin J. Stransky, of Chicago, of counsel.
   Mr. Justice Huffman

delivered the opinion of the court.

The issues in this case and upon this' appeal, are legal in character and relate to practice and procedure. The case was before this court upon a former appeal (310 Ill. App. 421). On petition for leave to appeal from the decision of this court, the case was reviewed by the Supreme Court (379 Ill. 155).'

In order to make this opinion intelligible to, one not involved in the litigation and without access to ■ the records in the appeals, it.is necessary to set out somewhat at length the history of the case.

This suit originated in the circuit court of Lee county, by Fred and Mary Scott filing their complaint against the Freeport Motor Casualty Company of Freeport, Illinois, on February 20, 1939. They had previously recovered judgments against one Bernard Eden, occasioned from a collision of an automobile driven by the said Eden with one driven by Fred Scott, with whom Mary Scott was riding.

For convenience, we shall hereafter refer to Fred and Mary Scott as plaintiffs, and to the Freeport Motor Casualty Company as defendant.

At the time of the accident wherein plaintiffs were injured by the collision between their car and that driven by Eden, the defendant had outstanding a policy of insurance with the said Eden, insuring him against liability for injuries he might cause to others by the operation of his automobile. Following the plaintiffs’ judgments against Eden, from which he took no appeal, they caused executions to issue thereon which were returned unsatisfied. Thereafter, they instituted this suit against the defendant to recover their judgments, under the policy of insurance which had issued to Eden.

The trial in that case was before a jury, which returned a verdict for the defendant. The court granted plaintiffs’ motion for a new trial. The defendant appealed to the Appellate Court from the order of the circuit court granting the motion for new trial. The Appellate Court reversed the order of the trial court granting motion for new trial, and entered judgment in the reviewing court for the defendant. (310 Ill. App. 421.) Thereafter, on petition for leave to appeal from the decision of the Appellate Court, the case was reviewed by the Supreme Court (379 Ill. 155), wherein it was held that the judgment of the Appellate Court reversing the order of the trial court granting a new trial, was within its jurisdiction; but that it exceeded its jurisdiction when it entered judgment on the verdict, and to that extent, its judgment was erroneous and void. The judgment of the Appellate Court entered on the verdict was reversed and the cause remanded to that court with directions to remand the case to the circuit court, with directions to overrule the motion for new trial.

Pursuant to directions of the Supreme Court in 379 111. 155, the mandate of the Appellate Court issued to the circuit court.

Plaintiffs filed objections to the entry of an order by the circuit court overruling the motion for new trial pursuant to mandate of the Appellate Court. The motion set up that such mandate was contrary to the judgment and opinion of the judge of the trial court who heard said cause and who granted said motion ; and further, that sec. 77 of the Civil Practice Act which provides for appeal from order of the trial court granting motion for new trial, was unconstitutional. The trial judge overruled the objections of plaintiffs and entered order overruling the motion for new trial, pursuant to mandate of the Appellate Court.

Thereafter, plaintiffs filed their motion in arrest of judgment, to arrest the entry of judgment in said cause in favor of the defendant. As grounds for such motion, plaintiffs set up that the sole issue of fact presented to the jury by the pleadings in the case, was predicated on affirmative pleas and other pleadings filed by the defendant and denied by plaintiffs; that the issue, so presented, was wholly immaterial and not determinative of the rights and interests of plaintiffs in the policy of insurance, nor of the liability of the defendant thereunder. It was further set up that no pleading filed by defendant presented a sufficient defense; that the affirmative plea the insured was engaged in operating his automobile as a salesman for a cattle company at the time in question, whereby the policy was rendered void and of no force and effect, was wholly insufficient to constitute a defense against plaintiffs’ suit; and that the cause was submitted to the jury without any issue of fact, which was determinative of the rights of the parties, wherefore the verdict of the jury was a nullity upon which no valid judgment could be rendered.

The trial court sustained the motion in arrest of judgment and held the verdict of the jury to be null and void and of no effect. The court further ordered that new pleadings should be filed which would raise issues of law and fact determinative of the rights of the parties under the policy. Thirty days were fixed as the time for such pleadings. The defendant excepted to the above order.

Defendant refused to plead further and on September 20, 1943, on motion of plaintiffs, was held to be in default for want of sufficient answer or other pleadings to the complaint as originally filed February 20, 1939, and as amended April 17, 1939, and June 17, 1943. Following the order finding defendant in default, plaintiffs on November 5, 1943, secured leave of court to amend their complaint. Pursuant to such leave granted, plaintiffs filed two additional counts, designated as counts 2 and 3, wherein new matters and new issues were for the first time presented. Count 2 is directed toward certain, alleged conversations between the insured' Eden, and defendant’s agent, Tucker, who solicited and sold the policy, in which it is set up that the said Tucker was the general agent of defendant company, and was fully advised by Eden before his making application for the policy, of his connections with the cattle company and of the services he performed for it, alleging that Tucker as general agent, stated such services by Eden on behalf of the cattle company would be all right, and proceeded to have the policy issued, all of which knowledge on his part was binding upon defendant. Count 3 alleges that a certain law firm defended the suit brought by plaintiffs against Eden, wherein they recovered their judgments, and were retained so to do by the defendant, and that this act was one of admission on the part of defendant that the policy in question was in full force and effect on the day in question. The court ruled defendant to plead or answer to the additional counts by November 30, 1943. Defendant filed no further pleadings.

On November 30, 1943, plaintiffs filed motion to strike the pleadings of the defendant as previously filed, upon the ground that they did not present issues determinative of the rights of, the plaintiffs in the policy of insurance or of the liability of the defendant thereunder. The court granted this motion. Jury was called on November 30, 1943, evidence submitted on behalf of plaintiffs, at the close of which, the court instructed the jury, and the jury returned a verdict in favor of Mary Scott for $6,228.80, and of Fred Scott for $2,803.12. Judgment was rendered on the verdicts.

Thereafter, defendant filed its motion setting up that all proceedings' and orders of the trial court subsequent to the filing of the mandate of the Appellate Court were void, except for the order of the trial court overruling the motion for a new trial; that the issues of fact were tried and concluded adversely to plaintiffs ’ contention and that the second trial was void; that the action of the court in striking all of defendant’s affirmative defenses and pleadings was error; and that by plaintiffs joining issue with such defenses in the first trial, an issue of fact was presented and concluded by verdict.

We shall now refer to the position of plaintiffs with respect to the action of the trial court in granting their motion in arrest of judgment. They base their right to this motion upon the grounds that the affirmative pleas filed by defendant presented an immaterial issue which was not determinative of the rights and interests of plaintiffs in. the policy of insurance, nor of the liability of the defendant thereunder; that no pleading filed by the defendant presented a sufficient defense; that its plea alleging the policy was rendered void and of no effect at the time in question by the then occupation in which Eden was engaged, was wholly insufficient to constitute a defense against plaintiffs ’ suit; and that therefore, the case was submitted to the jury without any issue of fact which was determinative of the rights of the parties, wherefore the verdict of the jury was a nullity upon which no valid judgment could be rendered.

A number of other points are argued by plaintiffs in their brief, and many cases and authorities are referred to. The brief and authorities have been studied with interest. However, its extent prevents any detailed reference to the authorities referred to. The first and primary thing to be considered is whether the court erred in sustaining plaintiffs’ motion in arrest of judgment. Should it be concluded' the court was in error in this respect, no reference is necessary to other points.

In considering the above question, it will be necessary to go somewhat into detail with respect to the pleadings as they existed at the time of the first trial. These we shall discuss later.

Much reference is made by plaintiffs on the question of arrest of judgment and the principle upon which the same operates, to Gould on Pleading (1887 ed.), ch. 10. The chapter of the edition referred to, and of the 1908 edition, to which reference is had herein, is devoted to the subject of arrest of judgment, and judgment notwithstanding the verdict. We find the author there states that a party who does not upon the whole record appear entitled to judgment, cannot have it, even though a verdict has been found in his. favor. This rule operates when the record discloses no right of action or no legal defense in his favor. This necessarily requires that the declaration or complaint be fatally defective in stating a cause of action and that the plea of the defendant be totally void of substance. The author recognizes that a general verdict cures many defects in the pleadings; and that if the pleadings of a party to whom a general verdict has been found are faulty in omitting some particular fact or circumstance without which he ought not to have judgment, but which is nevertheless implied in or inferable from the finding of those facts which are expressly alleged and found, the omission is supplied by a general verdict and motion in arrest of judgment will not lie. It is further observed that if an issue is so immaterial, that the court cannot discover, from the finding upon it, for which party judgment ought to be given, the judgment will be arrested. This rule is based upon the fact that no judgment can be rendered until the material issues of fact are determined. We find that whenever one of the parties to a suit, passing by what is material in the adverse pleading, tenders an issue upon a point which is wholly immaterial and not controlling, and obtains a verdict, the judgment on motion will be arrested. Under such circumstances, where the only fault lay in the issue, it was the general custom of the court on arresting judgment, to award a repleader in order that a better and proper issue might be framed.

However, such situations were not common and were usually confined to instances where the matter of fact found by the verdict was wholly immaterial and not decisive of the rights in controversy. Where we find the issues presented, decisive of the merits, a general verdict cures formal defects in 'the pleadings. It is only issues which are so immaterial, that they include nothing material upon which a verdict for either party can decide the merits of the controversy, that remain incurable after a general verdict.

The foregoing observations from Gould are stated by the author as intending to explain the object and effect of motions in arrest of judgment, when the only substantial defect in the pleadings, is in the issue on which the verdict has been found. A repleader can properly be awarded only after an issue in. fact is joined and tried. The rule for this is that a verdict may cure the fault in the issue and thus supersede the necessity of repleading.

From our study of ch. 10 of Gould on Pleading, we are of the opinion it is the conclusion of the author that if an issue is so immaterial, that the court cannot discover from the finding upon it, for which party judgment ought to be given, the judgment will be arrested. We are of the opinion this is the test that should be given the pleadings in this case.

Beferenceis also made to 3 Black. Com. These will be found confined to chapter XXIV, of Book 3, which discusses arrest of judgment and repleader. On page 394, the author observes that'where a verdict ascertains facts, which before from the inaccuracy of the pleadings might be dubious, that the law will not suppose a jury under the inspection of a judge would find a verdict for the plaintiff or defendant, unless he had proven the facts without which his general allegation would be defective. The author further observes that exceptions that are moved in arrest of judgment must be more material and glaring than such as would sustain a demurrer. In other words, many inaccuracies and omissions, which would be fatal if early observed, are cured by a subsequent verdict; and not suffered, in the last stage of a cause, to unravel the whole proceeding. The succeeding paragraph on p. 395, has to do with the issues being joined on a fact or facts totally immaterial and insufficient to determine the rights of the parties, so that the court upon the finding cannot know for whom judgment ought to be given. Here the author discusses repleader which upon issuance of motion in arrest was in Some instances granted in order that a proper and material issue might be framed. The matter of text between Black. Com. and Gould on Pleading is very marked.

Briefly stated, the rule as observed in Black. Com. appears to be that judgment will be arrested where the issue as found by the verdict does not determine the merits of the case, as they existed by the issues then made, providing such issues were material and decisive.

The right of either party to move for arrest of judgment is retained in the Civil Practice Act by subsection 1 of section 68 thereof (Ill. Rev. Stat. 1943, ch. 110, par. 192 [Jones Ill. Stats. Ann. 104.068]). The rule that pleading over after a demurrer does not waive innate defects in the declaration such as to render it insufficient to sustain a judgment, or preclude the right to raise such question on review, has long been established in this state. Chicago, R. I. & P. R. Co. v. People, 217 Ill. 164; Cottrell v. Gerson, 371 Ill. 174. However, unless the declaration or complaint is so defective as to fail to state a cause of action, pleading over after demurrer constitutes waiver of the right to assign such ruling as error, with certain exceptions as provided by rule 21 of the Illinois Rules of Practice and Procedure [Ill. Rev. Stat. ch. 110, par. 259.21; Jones Ill. Stats. Ann. 105.21],

• So we find the old and long established rule, that if • the plaintiffs’ declaration, or complaint, or the pleadings of the defendant, are so defective that no judgment can be rendered thereon, then judgment for plaintiff cannot stand and judgment for defendant may be stayed by arrest of judgment. However, as stated in Cottrell v. Gerson, 371 Ill. 174, at p. 179, “Defects . in pleading may be aided by the pleadings of the opposite party, or cured by the Statute on Amendments and Jeofails, or by intendment after verdict.” It is there noted that sec. 6 of the above statute (ch. 7, 1943 Ill. Rev. Stat. [Jones Ill. Stats. Ann. 107.031]), “pro- . vides, among other things, that a judgment upon a verdict shall not be arrested or reversed for any mispleading.” The sub-section here referred to is the fifth. It also includes insufficient pleading, misjoining of the issue, or want of a joinder of issue. It will now be necessary to review the pleadings in order that it may be determined whether under the foregoing observations, motion in arrest of judgment for plaintiffs was properly granted.

The complaint as originally filed consisted óf one count, divided into seven paragraphs. The first paragraph recited the corporate existence of the defendant; the second, the issuance of its policy of insurance to Eden; the third, that the policy was in full force and effect on the day in question; the fourth, that on the day in question, Eden while driving his automobile, collided with that driven by plaintiff Scott, and as result thereof, plaintiffs received injuries to their person and property; the fifth, that defendant had notice of the accident and injuries through proof of loss made by Eden; the sixth, here the judgments obtained by plaintiffs against Eden are set up; and seventh, that execution had issued upon the judgments and returned unsatisfied.

Motion by defendant to dismiss the complaint was sustained, and plaintiffs granted leave to file amended complaint. Pursuant to the above order, plaintiffs filed an amendment to the complaint. Defendant filed motion to dismiss the complaint and amendment thereto. This motion was sustained and plaintiffs granted leave to file a second amendment to the complaint.

The amendments to the complaint attached a copy of the policy issued by defendant to Eden, and the allegation that all conditions precedent in the contract of insurance had been fully performed.

Defendant’s pleadings consisted of four divisions. By the first, it admitted its corporate existence; the issuance of the policy to Eden; that Eden paid the premium thereon, but denied the policy was in full force and effect on the day in question; admitted the collision between Eden’s car and that of plaintiffs; admitted that following such accident, Eden submitted proof of loss to defendant, but denied the same was in conformity with the provisions of the policy for the reason that the policy was not in force and effect on the day in question, as alleged by plaintiffs; denied that Eden had performed all conditions precedent, but on the contrary, alleged that he was guilty of one or more violations of the provisions of the policy, which defendant then set out, alleging that at the time of the accident, Eden was operating his automobile for the purpose of selling cattle and livestock in the capacity as salesman for the Morris Cattle Company; that he was employed by the cattle company after the issuance of the policy and after its receipt by him, and before the accident, and was acting for the said cattle company in the capacity of salesman at the time, whereby the policy became wholly void and of no force and effect.

The second division of defendant’s answer set up that as a further separate and distinct defense: That at the time of the accident in question, Eden was driving and operating his automobile for the purpose of selling cattle or livestock as salesman for the Morris Cattle Company.

The third portion of the answer sets up as a further separate ahd distinct defense: That after the issuance of the policy and after its receipt by Eden and before the accident, he was employed by the cattle company and was acting in the capacity of salesman for it, whereby the policy became wholly void and of no force and effect.

As a fourth separate and distinct defense, the defendant alleged: That at the time of the accident, Eden was driving and operating his automobile for the purpose of selling cattle or livestock in the capacity of salesman for the Morris Cattle Company; that after the accident, Eden elected to receive workman’s compensation payments from the insurance carrier of the cattle company, and that he executed a final report and settlement receipt with the Industrial Commission of this State, wherein and whereby he acknowledged final payment of all sums due him in full settlement of compensation under provisions of the Illinois Workman’s Compensation Act, as an employee of the cattle company, and for injuries received in this accident, while acting in the capacity of employee of such cattle company.

The plaintiffs filed reply to the first three divisions of defendant’s answer, wherein they denied that Eden was guilty of any violation of the provisions of the policy, and denied specifically that he was driving and operating his automobile for the purpose of selling cattle or livestock as salesman for the Morris Cattle Company. They denied that after the issuance of the policy and its receipt by Eden, and before the accident, he was employed by the cattle company as salesman, and denied that the policy of insurance became void and of no force and effect.

To the second division of defendant’s answer, the plaintiffs denied that at the time of the accident, Eden was driving and operating his automobile for the purpose of selling cattle or livestock as salesman of the cattle company.

They replied to defendant’s third division of their answer, by denying that after the issuance of the policy and its receipt by Eden, and before the accident, that he was employed by the cattle company; denied that he acted for said cattle company in the capacity of salesman, whereby the policy became wholly void and of no force and effect.

The plaintiffs filed motion to dismiss the fourth division of defendant’s answer. This motion was overruled. Plaintiffs did not reply within the time fixed, whereupon defendant filed motion that plaintiffs be defaulted as to the fourth division of its pleadings. On motion, plaintiffs were granted leave to file reply instanter and the cause was continued at plaintiffs’ cost. By their reply to the fourth division of the defendant’s pleadings, they denied that at. the time of the accident Eden was using his automobile for the purpose of selling cattle or livestock as salesman for the cattle company; they denied that Eden elected to receive workman’s compensation payments as alleged by defendant; they stated they had no knowledge regarding same or whether he signed and filed with the Industrial Commission of this State a receipt for settlement in full of compensation under the act, for injuries received by him because of this accident, and while acting as the employee of the said cattle company, and demanded strict proof thereof.

Plaintiffs concluded their reply to the fourth division of the defendant’s pleadings by alleging that Eden was induced to accept compensation payments by an agent of the defendant and persons unknown to plaintiffs, and that such was done for the purpose of having it appear that Eden was violating the provisions of the insurance policy so as to defraud the plaintiffs in this case. On motion of defendant, this portion of plaintiffs’ reply was stricken.

Thereafter defendant secured leave of court to file additional answer indicated as the fifth division of its pleading. In this, they set out that Eden received personal injuries in the accident in question; that he received from a named insurance carrier compensation payments for such injuries under the act of this state, and that pursuant thereto, he signed a final settlement receipt pursuant to the provisions of the act, for the injuries received in this accident, as employee of the said cattle company. Plaintiffs replied thereto by admitting Eden received personal injuries; denying any knowledge with respect to the allegations regarding the payment of compensation, the relationship of employer and employee, or a final receipt for compensation due for such injuries; and demanded strict proof' thereof,

The provision of the policy with which defendant’s special defenses relate is as "follows:

‘ Special Farmer, Endorsement

In consideration of the reduced premium for insurance protection against the hazards specifically designated and covered by this policy, it is a condition of said insurance that the named Assured must reside on a farm outside of the limits of any village, town or city, and shall engage in no occupation other than farming throughout the term for which this policy is issued. In the event the named Assured, without the written consent of the Company endorsed hereon, changes his occupation or his place of residence or if the herein described motor vehicle is used for any other purpose other than ordinary farm and or pleasure purposes, or if the Assured violates any condition of this insurance or knowingly permits the violation of any such condition, then his policy shall cease automatically and immediately become null and void.”

Pursuant to section 42 of the Civil Practice Act (ch. 100, par. 166,1943 Ill. Rev. Stat. [Jones Ill. Stats. Ann. 104.042]), it is provided that if any pleading is insufficient in substance or form, the court may order a fuller or more particular statement; and that if the pleadings do not sufficiently define the issues, the court may order further pleadings. It is also provided by this section that no pleading shall be deemed bad in substance which shall contain such information as shall reasonably inform the opposite party of the nature of the claim or defense to which he is called upon to meet, and further, that all defects in pleadings, either in form or substance, not objected to in the trial court, shall be deemed to be waived.

From the pleadings of the parties in this case, it appears, that only one issue of fact was raised or submitted for the consideration of the jury, and that was whether the policy of insurance was in force and effect at the time in question. The answer to this question necessarily depended upon the evidence produced upon the trial. Defendant by its pleadings, repeatedly incorporated this as its defense to liability under the policy. We cannot escape the conclusion that the pleadings of the defendant contained sufficient information of its defense to reasonably inform the plaintiffs of the nature thereof, and of what issue they would be called upon to meet. We find that plaintiffs’ reply to the pleas of defendant denied that at the time in question, Eden was guilty of any violation of the provisions of the policy, and denied that he was at such time driving and operating his automobile for the purpose of selling cattle or livestock as salesman for the cattle company. In addition to these things, plaintiffs by their replies to defendant’s pleadings, joined issue by denying the allegations thereof. They denied that Eden elected to receive workman’s compensation payments; they stated they had no knowledge regarding his signing a receipt in settlement for such compensation for injuries received in this accident, while acting as employee of the cattle company, and demanded strict proof thereof.

We are of the opinion the case was tried, “on a clear cut issue whether the insured, Bernard Eden, had engaged in thé sale of livestock for the cattle company, and whether or not at the time of the accident in question, he was engaged in such business,” as stated in the previous opinion of this court in 310 Ill. App. 421, 427.

We find that the defendant filed several special pleas setting up special defenses, which presented the question of the effectiveness of the policy at the time in question. They denied its effectiveness and set out the reason why it was not in force and effect. Pleas of this character are intended to present and set out an isolated question, of point in issue, for determination. The office of a reply or replication to a plea is either to traverse the allegations therein contained, or to confess and avoid. The sufficiency of such pleas cannot be tested by a reply or replication thereto. It is generally considered that by filing a replication, the plaintiff admits the plea is good in law and raises an issue as to the facts alleged therein. People v. Walker Opera House Co., 249 Ill. 106, 109; Garden City Sand Co. v. Christley, 289 Ill. 617, 622.

It is our conclusion that the pleadings of the defendant upon the first trial contained such information as to reasonably inform the plaintiffs of the nature of the defense interposed; and that under the issues therein involved, such defense raised a material fact, which was decisive in character, and determined by verdict.

This case has been an unusual one in many aspects and has occasioned an opinion which is already too long. We are therefore precluded from making reference to many authorities that have been referred to and read with much interest. The brief of plaintiffs contains ninety-five pages of interesting data and argument, but as we just stated, it is impossible within the limits of an opinion to make discussion thereof.

The observations of Gould on Pleading are a very good resume of motions in arrest as dealt with by the old authors, who wrote with such clearness, brevity, force and elegance, as to make their work stand throughout the years. Chapter 10 of 1 Chitty on Pleading (1866 ed.) is devoted to the subject of defects in pleading and how the same are aided. Here we find the same general principles laid down as above noted. Likewise, in Stephens on Pleading, p. 185 (1894 ed.). Reference to early cases in this state will be found in Gould on Pleading, and in vol. 2 of Encyc. of Plead. & Prac., p. 793, in the chapter on Arrest of Judgment. In vol. 1, Tidds Prac. (1840), beginning at p. 918, we find the chapter on the subject of Arrest of Judgment. Here the author observes that a party cannot move in arrest of judgment, for anything that is aided after verdict, at common law; or by the statute of amendment; or cured by the statutes of Jeofail. On the question of immaterial issues, the author states that an immaterial issue is, when that which is materially alleged by the pleadings is not traversed, and an issue is taken on such a point as will not determine the merits of the cause.

In view of the foregoing, we are of the opinion the trial court erred in granting the motion in arrest of judgment. Therefore, the judgment in this present appeal is reversed and the cause remanded with directions to overrule the motion in arrest of judgment.

Reversed and remanded with directions.

Dove, P. J.: I concur in holding that the judgment appealed from should be reversed and the cause remanded with directions to the trial court to overrule the motion in arrest of judgment.


source: Caselaw Access Project

author: Presidinq Justice Dove.

license: Public Domain

text:
    Josiah Treharne, Appellee, v. Joseph E. Klint, Appellant.
    Gen. No. 9,945.
    opinion filed September 19, 1944;
    rehearing denied January 18, 1945; released for publication January 19, 1945.
    Frank J. Jones, for appellant; Barr & Barr, for appellee.
   Opinion by

Presidinq Justice Dove.

Not to be published in full.


author: Presiding Justice Sullivan.

text:
    In re Estate of Oscar J. Ruh, Deceased. First National Bank of Chicago, Executor, Appellant, v. Wally Rexhausen Ruh, Appellee.
    Gen. No. 42,990.
    opinion filed December 19, 1944;
    rehearing denied January 9, 1945; additional opinion filed January 9, 1945; released for publication January 9, 1945.
    Hubbard, Baker & Rice, Sheehan & Egan and Harold C. Osburn, for appellant; Alvin Glen Hubbard and Roy J. Egan, of counsel; George R. Faust and Musgrave, Oppenheim, Price & Ewins, for appellee.
   Opinion by

Presiding Justice Sullivan.

Not to be published in full.


author: Mr. Justice Hates

text:
    Harry Hudnut, Administrator of Estate of Hale Montgomery Hudnut, Deceased, Appellant, v. Edwin F. Schmidt, Appellee and Cross Appellant.
    Gen. No. 9,438.
    Opinion filed October 26, 1944.
    Rehearing denied February 6, 1945. Released for publication February 6, 1945.
    C. E. Tate, of Champaign, for appellant.
    John Alan Appleman and F. T. Carson, both of Urbana, for appellee and cross appellant.
   Mr. Justice Hates

delivered the opinion of the court.

This is an appeal from the judgment of the circuit court of Champaign county in an action for wrongful death, finding the defendant guilty of negligence but assessing the damages at one dollar. The case was tried before the court without a jury. The death occurred at an intersection in the business district in the city of Champaign, at night. The decedent Hale Montgomery Hudnut was, at the time of his death, a pedestrian walking south across University avenue, an east and west street, at the intersection of First street, when he was hit by defendant’s automobile which resulted in his death.

The trial court found in favor of the plaintiff on the issues of negligence, due care and contributory negligence but limited the recovery to nominal damages.

The principal question involved on this review of the judgment is whether, under the proofs in this record, the lower court was correct in its holdings that no substantial damages could be allowed.

The wrongful death statute under which this action was brought provides that suit may be brought by a personal representative of the deceased for damages for, “the pecuniary injuries resulting from such death to the wife and next of kin.” Ill. Rev. Stat. 1943, ch. 70, pars. 1, 2 [Jones Ill. Stats. Ann. 38.01, 38.02]. Interpreting this provision, the Supreme Court has decided where the next of kin are collaterals, proof must be furnished that the deceased did or could reasonably be expected to contribute to their support, where the next of kin are lineal descendants, the fact of pecuniary loss is presumed. Wilcox v. Bierd, 330 Ill. 571; Chicago, P. & St. L. R. Co. v. Woolridge, 174 Ill. 330.

Here the decedent left surviving three adult children as next of kin, and under the proofs it appears they were self-supporting. The defendant contends that under these circumstances the presumption normally arising where lineal descendants are involved, should not prevail. The court below apparently took this position. Although the decedent was the father, under our law the next of kin stood in the relationship of lineal descendants and not as collaterals. The trial court apparently put them in the classification of col-laterals. While it is true that the evidence in the record to establish pecuniary loss of the next of kin is very meager, the evidence does show that the deceased, at the time of his death, was a man of 64 years of age who had been employed as an elevator manager in the city of Chicago up to a period of one year prior to his death, that he was sober, industrious, cautious and in good health and that he left surviving his death three children, — one son and two daughters.

The proofs as to his age, physical and mental capacity, industry and habits stand uncontradicted. At the present time with manpower shortage many men' over 64 years of age are rendering good service, and are producers and bread winners.

The pecuniary loss as to lineal kindred means what the life of the deceásed was worth in a pecuniary way to them. It can easily be determined by proof of the personal characteristics of the deceased, his mental and physical capacity, his habits of industry and sobriety, his age, the amount of his usual earnings by proof of what he might in all probability earn in the, future and is to be estimated by the jury or by the court in sitting in place of a jury, in passing on questions of fact from all the facts and circumstances proved. Chicago, P. & St. L. R. Co. v. Woolridge, supra; North Chicago St. R. Co. v. Brodie, 156 Ill. 317 ; Chicago & A. R. Co. v. Shannon, 43 Ill. 338; Quincy Coal Co. v. Hood, 77 Ill. 68.

This exact question was passed on by the Supreme Court in the case of Chicago & W. I. R. Co. v. Ptacek, 171 Ill. 9. The decedent Rosalie Pruka was survived by adult children who were not dependent upon her and the defendant there, as here, insisted that the recovery, as a matter of law, should be restricted to nominal damages but the court in passing on this question said: “We cannot say, as a matter of law, that plaintiff was not entitled to recover substantial damages. Whether he was or not can only be determined by reviewing the evidence and determining its weight as establishing or failing to establish the facts which-go to the question of damages. . . . Conceding the relationship between the deceased and her children was such as no pecuniary interest in her life would' be presumed, they being adults, yet there is certainly some evidence tending to prove that the children derived a benefit from her life. The pecuniary value of that benefit was a question for the jury, ... In this class of cases it is not necessary that damages be proved in dollars and cents, but having proved such kinship as raises a presumption of pecuniary loss, or offered proof of loss in cases of collateral kindred or adult children, the jury must, from age, health, etc., fix the damages sustained.”

We find that the court should have passed on the evidence offered and fixed the damages based on such evidence. In place of so doing it is apparent from the opinion filed in the case that it found, as a matter of law, that it could award only nominal damages for in said opinion it stated: “If I were trying this case with a jury the only verdict I would submit to the jury for the plaintiff would be a verdict of guilty and fixing the damages at a nominal amount, and that being the situation that is the reason I have arrived at my decision that the plaintiff is entitled to a finding and to a judgment for nominal damages only.”

We find that the lower court was warranted in its findings in favor of the plaintiff on the questions of negligence and due care. We also find that the cross-error assigned on the cross-appeal by the defendant is not tenable.

The trial court committed reversible error in refusing to assess actual damages and in limiting the recovery to nominal damages. Therefore the judgment is reversed and cause remanded for a new trial.

Reversed and remanded.


author: Mr. Presiding Justice Niemeyer

text:
    John J. Moser et al., Appellants, v. Marie Feciura et al., Appellees.
    Gen. No. 43,191.

      Opinion filed January 8, 1945.
    Released for publication January 29, 1945.
    John A. Blake and John J. Moser, both of Chicago, for appellants.
    Frank R. Schneberger and Edwin T. Schneberger, both of Chicago, for appellees.
   Mr. Presiding Justice Niemeyer

delivered the opinion of the court.

Plaintiffs as creditors of S. George Feciura, deceased, appeal from an order dismissing their suit to set aside certain conveyances whereby real estate belonging to the deceased became vested in Claire and Margaret Feciura, his daughters.

The defendants are the two daughters, Marie Feciura, their mother and widow of the deceased, and the Chicago Title and Trust Company, trustee under a trust deed given to secure a $5,000 indebtedness. The motion to dismiss was under section 45 of the Practice Act [Ill. Rev. Stat. 1943, ch. 110, par. 169; Jones Ill. Stats. Ann. 104.045], setting up the alleged deficiency of the complaint, and under section 48 [Ill. Rev. Stat. 1943, ch. 110, par. 172; Jones Ill. Stats. Ann. 104.048], setting up an order of the probate court of Cook county in a citation proceeding in the estate of the deceased instituted by one of the plaintiffs as res judicata of the matters presented by the complaint. The case was disposed of on the latter ground, with no consideration given to the first ground urged for dismissal.

Anna Drauschak, one of the plaintiffs, filed her petition in the probate court stating that her claim had been allowed in the sum of $1,577.61; that she believed Arthur G-. Bssert, Marie Feciura, widow of the deceased, S. A. Taeger, trust officer of Prairie State Bank, and R. F. Crowley, one of the officials of Home Owners Loan Corporation, had knowledge or information concerning property belonging to the estate and that they or some of them “have in their possession or control certain property belonging to S. George Feciura, deceased, or to his estate, consisting of certain beneficial certificates representing the beneficial interests in the real estate located at 2330 N. Lowell Ave., Chicago, and that said persons wrongfully refuse to deliver the same to the administrator of this estate,” and praying that each of said individuals be cited to appear before the court and be compelled to answer interrogatories touching the beneficial interests in the property mentioned, and that “the proper order of this court be entered upon such examination if it be found that such beneficial certificates are the property of the said S. George Feciura, or of the estate of the said S. George Feciura, deceased or of the administrator thereof.” A citation was issued on the petition directed to S. A. Taeger, 1 W. Madison Ave., Oak Park, Illinois, care Prairie State Bank, and the return thereof shows service upon him personally. After hearing, an order was entered in the probate court finding that no assets of the estate, either real or personal, were in the possession of or under the control of the respondents or either of them; that the estate had no right, title or interest in the real estate located at 2330 N. Lowell Ave., Chicago, and that title to said real estate “is now held by Prairie State Bank, Oak Park, Illinois, a corporation of Illinois, in Trust, and that the beneficial interests and right of ownership in said real estate is vested in Claire Feciura and Margaret Feciura.” It was therefore ordered that “all the respondents named in said petition, being Marie Feciura, Arthur Q-. Essert, Prairie State Bank, a corporation, Home Owners Loan Corporation, be, and they are hereby discharged,” and that “Prairie State Bank, Oak Park, Illinois, a corporation of Illinois, Trustee as above set forth, is hereby authorized and empowered to transfer and convey to said Claire Feciura and Margaret Feciura, upon their joint request and demand, all its right, title and interest, as Trustee, in and to said above described real estate.” In the trial court counsel for plaintiffs contended that “a judgment such as was entered in the probate court was an absolute nullity, was not binding upon the plaintiffs in this case and that the probate court never had jurisdiction of the subject matter or the parties.”

On appeal plaintiffs take the position that Claire and Margaret Feciura and the Prairie State Bank, named in the order of the probate court, were not parties to that proceeding and that the court had no jurisdiction of them, and that the judgment entered therein cannot be interposed in bar of this action. It is plain that the order of the probate court was a nullity for want of jurisdiction of the subject matter and of the persons of Claire and Margaret Feciura and the Prairie State Bank. The petition for citation is directed against S. A. Yaeger, an individual who is described as a trust officer of the Prairie State Bank; the citation was served upon Yaeger individually; Claire and Margaret Feciura were not mentioned in the petition and neither they nor the bank appeared in that proceeding. An adverse judgment or order would not bind them. A favorable order cannot bind plaintiffs. Schafer v. Bo billard, 370 Ill. 92,100; Chicago & A. R. Co. v. Keegan, 152 Ill. 413, 423; Robinson & Co. v. Marr, 181 Ill. App. 605, 613. Furthermore, the present Prohate Act governing citation proceedings (sections 183,184 [Ill. Rev. Stat. 1943, ch. 3, pars. 335, 336; Jones Ill. Stats. Ann. 110.432, 110.433]) is limited to “any personal property, books of account, papers, or evidences of debt or title to lands which belonged to a person whose estate is being administered in that court or which belongs to his estate or to his executor, administrator. . . .” In construing similar provisions in sections 81 and 82 of the Administration Act, which the present Probate Act superseded, it was held in In re Estate of Miller, 311 Ill. App. 280, that the probate court was without jurisdiction in a citation proceeding to adjudicate title to real estate and that the sections referred to do “not purport to confer upon probate courts general equity jurisdiction which general equity jurisdiction probate courts do not possess,” citing in support of its conclusion Johnson v. Nelson, 341 Ill. 119, Wilson v. Prochnow, 359 Ill. 148, In re Estate of Shanks, 282 Ill. App. 1, and Dixon v. Nefstead, 285 Ill. App. 463. Under the present statute (section 184) it is provided that “. . . the petition shall contain prayers for the relief sought by the petitioner as in other cases.” The petition before us recites that petitioner believes that the respondents have possession or control of certain property “consisting of certain beneficial certificates representing the beneficial interests in the real estate located at 2330 N. Lowell Ave., Chicago,” and the prayer asks for a proper order of the court “if it be found that such beneficial certificates are the property of the said S. George Feeiura, or of the estate of the said S. George Feeiura, deceased, or of the administrator thereof.” The matters relating to the title of the real estate which the order of the probate court purported to determine were therefore beyond the issues made by the petition, and a nullity. Fineman v. Goldberg, 329 Ill. 507, 511; Yeates v. Briggs, 95 Ill. 79, 83. The order being a nullity, it can be attacked collaterally and plaintiffs were not obliged to appeal from it. Baker v. Brown, 372 Ill. 336, 342, 343; Schnur v. Bernstein, 309 Ill. App. 90, 97; Schillinger v. O’Connell, 289 Ill. App. 271, 274.

The judgment is reversed and the cause remanded.

Reversed and remanded.

Hatchett and O’Connor, JJ., concur.


author: Mr. Justice Matchett

text:
    John L. Church, Appellant, v. Juliet Church, Appellee.
    Gen. No. 43,230.

      Opinion filed January 8, 1945.
    Rehearing denied January 29, 1945. Released for publication January 29, 1945.
    E. A. Biggs, of Chicago, for appellant.

      Cantwell & Cantwell, of Chicago, for appellee; Robert E. Cantwell, Jr. and Louis Yager Cantwell, both of Chicago, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.

John L. and Juliet Church are husband and wife. January 28,1944, John L. filed his complaint, averring they were married May 30, 1929, lived together up to December 5, 1942, and had two children, daughters; that without cause, on December 5, she deserted him and has persisted in such desertion. He prayed divorce and custody of the children. She answered, admitting the marriage and separation but denied'that he had conducted himself as a kind and indulgent husband and denied that she had deserted him regardless of their marriage vows, etc. She filed a counterclaim, praying for separate maintenance, custody of the children and attorney’s fees.

The causes were put at issue, the evidence taken, the court entered a decree dismissing his bill for want of equity and granting her counterclaim for separate maintenance, custody of the children and attorney’s fees.

The case is in some respects quite unusual. We have read the entire record.

Plaintiff insists there should be a reversal in the first place because the court “allowed prejudicial statements to enter into the record based upon the customs of the church to which the parties belong.” Both parties were members of the Catholic Church. Differences had existed between the parties for some time prior to the separation and the filing of the bill. It appears from the evidence a written agreement with reference to their living separate and apart had been prepared and signed and that Mrs. Church had gone to what was known as the “Chancery Office” of the church in the hope of getting their domestic troubles settled. Mr. Church testified that Father Fitzgerald called him on the telephone and asked him if he was the plaintiff in a divorce case; that he replied he was; that he was then asked if he had any authority of the church to file the suit, to which he replied “No.” He was then asked to come to the office and talk the matter over but refused to do so.

The introduction of this evidence was material to the issues. Plaintiff charged his wife with wilful desertion. They were married in the Catholic Church and according to its customs. When differences arose tending to break the marriage ties the wife appealed to the church in the interest of family unity. Its officers offered their services in an attempt to effect a reconciliation. Plaintiff declined to accept those services. This was competent evidence for the purpose of showing the attitude of mind of the parties at that time. The introduction - of this evidence was not for the purpose of arousing religious prejudice nor would it tend to do so. Had the parties been members of the Synagogue or of a Protestant organization, like evidence would have been admissible for a like purpose and would have been quite material as tending to show the attitude of mind of both the parties. This is far indeed from attempts to stir up religious prejudice, which the courts always condemn, such as attempts to influence a jury by appeals to the racial or religious views of the parties.

It is contended in the second place that the findings of the court were manifestly against the weight of the evidence. It is said for plaintiff that he provided a good home for his family; that he was a hard worker, held a responsible position and loved his children. The brief of plaintiff states that he “in every important respect was a good husband and father.” As already stated, we have read the whole record. We do not agree with this commendation. The uncontradieted evidence shows that on several occasions plaintiff beat his wife, and he admits that on one occasion, because the young daughter gave to her mother information in regard to his conduct, which he did not wish her to have, plaintiff struck the child also. That the wife may have condoned this does not exonerate him, for condonation is always conditional upon an implied promise that the same or similar offenses will not be repeated. By agreement of the parties the elder daughter was permitted to be questioned in chambers without either party or attorneys present. The trial judge said, “ The little girl . . . came into my chambers and told me about the conduct of her father towards her mother, and that her father struck her.” Of course, the root of the whole matter was the undenied fact that plaintiff, husband and father, had become infatuated with his secretary. Mrs. Church says she got on her knees and begged her husband on behalf of the children to save their home; that he refused, saying he didn’t love her; that she said, “Let us go hack and start all over”; that she put her arms around him, and he pushed her away. , She says she begged him to quit his job and go to some other place with the family and he refused. She called the secretary’s mother and father. The father called plaintiff and told him to stay away from his daughter and leave her alone. Before she left on December 5, Mrs. Church called her husband up and received from him the statement that he had not been in love with her for two years, since the secretary started in the office. In contrast with the attitude of the wife and mother is that of this plaintiff, who says that after December 7,1942, he had no occasion to ask her back and admitted he never asked her to come hack and never made any such overture to her. Indeed, the uncontradicted evidence shows that from August 1942, until she left, they occupied separate bedrooms. There is absolutely no doubt from the reading of the record what the state of his mind is. To give him a divorce for alleged desertion would be a travesty on justice.

The record shows that in the course of the trial the attorney for defendant asked the daughter, Patricia, to take the stand, whereupon attorney for Mr. Church said: “If your Honor please, as a family man you know what will occur here if we go through with the cross-examination of this little girl, which I will want to do, so I make the suggestion, if it is agreeable to Mr. Cantwell and your Honor, that you take the little girl in chambers and I will be bound by what she says. I do not think we ought to subject her to this cross-examination in open court.”

“The Court: Let the record show that at the suggestion of both counsel the Court interviewed Patricia Church, the daughter of the parties to this divorce proceeding, and that both counsel stipulated they will be bound by this testimony or statement so.made to the Judge, the same as if heard on the witness stand on direct and cross-examination. Is that correct?
Mr. Cantwell: That is correct.
Mr. Clancy: Correct, yes.
The Court: Very well. Call your next witness.”

The record contains a statement that “the child, Patricia, was then interrogated privately by the court with the consent of both parties.” We realize the temptation to indulge in practice of this kind in a case of this sort but we think it ought not to be commended. The rule applicable to the review, of decrees' in equity has been materially affected by section 64 (3) of the Civil Practice Act (Smith-Hurd Ill. Ann. Stat., ch. 110, par. 188, p. 548 [Jones Ill. Stats. Ann. 104.064]). It provides:

“No special findings of fact or certificate of evidence shall be necessary in any case in equity to support the decree.”

This subsection would seem to give to decrees in equity upon review the same qualities possessed by judgments at law and to relieve the party in whose favor the decree is rendered from preserving facts sufficient to support the decree. First Nat. Bank of Chicago v. 10 West Elm St. Bldg. Corp., 277 Ill. App. 337; Eick v. Eick, 277 Ill. App. 329. Plaintiff seems, therefore, to be put in the position of attacking a decree as not supported by the evidence when the record shows that all the evidence taken is not before the reviewing court. The defendant, however, does not urge this point. As before stated, we have read the entire evidence. While plaintiff in a general way denied any improper relations with his secretary, he does not deny the specific testimony of his wife that he struck her and beat her and that he told her he had ceased to love her and did love his secretary. He also admitted he struck Patricia because she told her mother that he had been out with his secretary. There is abundant evidence in this record tending to show the defendant has been a loyal wife and a good mother. The decree on the merits is justified by this record.

Plaintiff argues it was error to enter an order allowing defendant additional solicitor’s fees without taking evidence as to the value of the services rendered. Several cases are cited, such as Blake v. Blake, 80 Ill. 523; Hunter v. Hunter, 121 Ill. App. 380; Hopper v. Hopper, 314 Ill. App. 572, and Knol v. Knol, 171 Ill. App. 412. While the safe rule is to offer evidence, we hold there was no reversible error in entering this order. The amount is not large and the judges of this court are not without knowledge as to the actual value of services here rendered nor of the extent of such services, which appear from the record. Plaintiff does not urge the amount allowed is, in fact, unreasonable. In Wesselhoeft v. Wesselhoeft, 369 Ill. 419, the Supreme Court allowed a much larger sum as fees, without opinion evidence of value under circumstances not unlike those disclosed by this record, although it was there urged the amount allowed was, in fact, unreasonable. The decree will be affirmed.

Affirmed.

Niemeyer, P. J., and O’Connor, J., concur.


author: Mr. Justice 0’Cohhor

text:
    Hillieve Lantz, Appellant, v. Henry Dortman et al., Appellees. Sylvan Rembold, Appellant, v. Henry Dortman et al., Appellees.
    Gen. No. 43,157.

      Opinion filed January 8, 1945.
    Rehearing denied January 29, 1945. Released for publication January 29, 1945.
    Feed E. Inbau, of Chicago, for certain appellant.
    Stoffels & Stoffels, of Chicago, for certain other appellant.
    Barrett, Barrett, Costello & Barrett, of Chicago, for certain appellees.
    Otto M. Hamer, of Chicago, for certain other appellee ; Chester D. Kern, of Chicago, of counsel.
   Mr. Justice 0’Cohhor

delivered the opinion of 'the court.

November 12,1942, plaintiffs each filed a suit against defendants, Dortman and Kummel to recover damages for personal injuries sustained as a result of a collision between an automobile driven south in Oalc Park avenue by plaintiff, Bembold, in which plaintiff Lantz, was riding as a guest, and an automobile driven west in Belmont avenue by defendant, Dortman. Afterward the complaints were amended making the Paramount Theatre Building Corporation an additional defendant. The suits were consolidated and tried as one; verdicts were returned in favor of all the defendants and plaintiffs appeal.

The record discloses that about 5:45 o ’clock on Sunday afternoon, September 27,1942, plaintiff, Bembold, about 34 years of age, was driving his automobile south in Oak Park avenue; Miss Lantz was with him; that they were going to his parent’s home where he lived, for dinner. As they were crossing Belmont avenue, the left rear fender of the automobile was struck by Dortman’s westbound automobile, headon and plaintiffs were severely injured. There were stop signs at each of the four corners of the intersection. In each complaint, in separate counts, Dortman was charged with negligently driving his automobile and with wilfull and wanton misconduct in that he was intoxicated. The third count charged that defendant, Kummel, owned and operated a tavern located at 2638 Milwaukee avenue, Chicago, and sold intoxicating liquors to Dortman, as a result of which he became intoxicated, in violation of the Liquor Control or Dram-shop Act.

April 29, 1943, plaintiffs amended their complaints making the Paramount Theatre Building Corporation an additional defendant, alleging that it owned the building in which the tavern was being operated by Kummel, and damages were claimed against it based on the Liquor Control or Dramshop Act. Defendants denied liability and on September 24, 1943, the court on motion of plaintiffs entered an order consolidating the two cases to be tried as one.

As is usual, the evidence was conflicting; the evidence on behalf of plaintiffs was to the effect that plaintiff, Rembold, stopped his automobile in Oak Park avenue at the north side' of Belmont avenue, in obedience to the stop sign, then proceeded across the intersection, and that defendant, Dortman, drove his car west. in Belmont avenue at a speed, as one witness testified, of about 45 or 50 miles per hour without stopping, before entering the intersection, contrary to the signs. As above stated, the cars collided and plaintiffs were thrown out of the car and severely injured. On the other side, defendant, Dortman’s testimony was that he was not driving at an excessive rate of speed; that he stopped at the east side of Oak Park avenue and then proceeded.

A few minutes after the collision police officers of the Accident Prevention detail, and other persons came to the scene of the accident. One of the police officers testified that Dortman was intoxicated and the other testified in effect that Dortman gave evidence that he had been drinking too much. A number of witnesses testified, including Dortman, that after the accident and while the two plaintiffs were being taken care of in the street, Dortman got a sandwich from his automobile and was eating it; he testified that he was on his way home, having worked that day for the Belmont Coal Company where he was employed; that he worked from 7 o ’clock in the morning until about 5 in the afternoon and did not have any lunch until just after the accident. That “I worked straight on through;” that he was a truck driver and drove the truck all that day until he quit about 5 o’clock. He gave this testimony when called by plaintiffs as an adverse witness. He further testified that after he quit work he stopped at a tavern on Milwaukee avenue near Kimball avenue, where he followed Stanley Wysocke, another employee of the Belmont Coal Company, into the tavern, and each had two bottles of beer. That he then started home and the collision occurred. He was called as an adverse witness by the plaintiffs and later as plaintiffs’ witness when he said he could not recall the street number of the tavern. He was afterward called by defendant, Paramount Building Corporation as an adverse witness.

Wysocke, called by the defendant, Building Corporation, testified about his working that day for the Belmont Coal Company and afterwards driving to the tavern, which he said he believed was at 2898 Milwaukee avenue; that Dortman was with him in the tavern, both having parked their cars nearby. That each drank two bottles of beer; that they were in the tavern which was called the “Windy City Tavern” about half an hour; that he and Dortman left at the same time and he saw Dortman drive away in his car.

On cross-examination he testified “We ordered our beers as soon as we could get waited on. It was pretty crowded in there.” That “Dortman didn’t have any more drinks while he was with me.”

The evidence is further to the effect that plaintiffs were taken to a nearby hospital, as was Dortman. Dortman was later taken to the police station where he made a statement to one of the officers, which was apparently filed as part of the police records, and at that time, which was about 7:10 o’clock, other police officers at the station made certain tests to ascertain whether Dortman was intoxicated and these officers testified that he was not intoxicated at that time.

A witness who was employed in the Illinois Liquor Control Commission, and another witness who was the principal clerk in the office of the City Collector, both testified that on September 27, 1942, the day of the accident, there was in effect, a license issued to defendant, Kummel, to conduct a tavern at 2638 Milwaukee avenue and it was stipulated that the records of the City Clerk’s office would also show that there were three tavern licenses in effect on the day in question, issued for taverns on the south side of Milwaukee avenue, between Kedzie and Kimball avenue. And it was further stipulated that on September 27, 1942, Kummel operated a tavern at 2638 Milwaukee avenue.

Defendant, Kummel, called by plaintiffs as an adverse witness, testified that on the day of the accident he conducted a liquor store and tavern at 2638 and 2638% Milwaukee avenue, both in the same building which was located at about the middle of the block between Kedzie and Sawyer; that “To my knowledge there were no liquor stores [at the time] on the south side of the street,” [Milwaukee avenue] between Kim-ball and Kedzie avenue but there was a tavern across the street from the tavern of the witness, on the north side of Milwaukee avenue. Afterward Kummel was called by defendants and testified: “I never saw Mr. Dortman before in my life. He was not in my place that afternoon. The first time I saw him was when I came into this court room last Thursday.” On cross-examination he testified: “I don’t say that I remember everyone I served in September, 1942. At this particular hour on Sunday afternoon we are very quiet. The better hour starts about 8:00 o’clock in the evening. ’ ’

The evidence as to whether the beer was purchased in Kummel’s tavern leaves this question somewhat uncertain. There are six street corners near where the tavern was located. Three interrogatories were submitted to the jury, one by the plaintiffs and two by defendants. By the first the jury were asked if they found Dortman was gufity of wilfull and wanton misconduct and whether malice was the gist of the action; the second — was Dortman intoxicated? And the third • — did Kummel sell or give intoxicating liquor to Dortman? Each was answered in the negative.

Counsel for plaintiffs contend that the court erred in denying them the right to examine Dortman as an adverse witness respecting the allegations of the complaint as to his intoxication, and from whom the liquor which he consumed was purchased. The objection to this line of inquiry was made by counsel for defendants, Kummel and the Building Corporation, on the ground that Dortman was not a party defendant to the counts of the complaint charging Kummel with selling him the liquor — that these counts against Kummel and the Building Corporation were based on violation of the Dramshop Act. But counsel for plaintiffs say that what they sought to elicit from Dortman, as an adverse witness, tended to prove the case against him and therefore the ruling of the court sustaining defendants’ objection was erroneous and that the testimony of this witness might have been limited to the question of Dortman’s liability.

The two cases were consolidated on motion of counsel for plaintiffs. It was difficult to keep the two issues separate, the one for personal injuries and the other for violation of the Dramshop Act. The record discloses that the matter was very much confused on the hearing. And we think it clear the jury were confused. We think the court did not err in sustaining the objection to this line of inquiry.

Complaint is also made that the court erred in refusing to admit in evidence a written statement dated October 28, 1942, signed by defendant, Dortman. When Dortman was being interrogated as an adverse witness by counsel for plaintiffs as to the location of the tavern, he testified that he did not know the exact street number of the tavern but it was located at about the middle of the block on the south side of Milwaukee avenue, east of Kimball avenue; that if he was over at the vicinity he could locate the place. He was then shown the document, which the court later refused to admit in evidence, which is in the handwriting of counsel for plaintiff, Lantz, at the bottom of which is written the name, “Henry Dortman.” He admitted that this was his signature but that when he signed it the page was blank. This latter statement was made in chambers, out of the presence of the jury. That he signed the document in front of the tavern on Milwaukee avenue and that counsel for each of the plaintiffs was present; that these counsel drove with the witness in a cab to the tavern, and the document was signed in front of the tavern using a brief case to rest it on.

In chambers it further appeared that the two counsel who were present at the time the document was signed, stated that one would testify in one of the cases and the other in the other to the effect that the document was then in the same condition as when it was signed by Dortman but upon discussion between court and counsel it was thought that it might be improper for counsel who were trying the case to testify, so they did not do so. In the document it is stated in substance that in addition to drinking the two bottles of beer at the tavern, 2638 Milwaukee avenue, each of the two men had “two shots of whiskey apiece.” We think it clear that the document was not admissible in evidence. The only witness who testified was Dortman, whose testimony as above stated, was that he signed a blank sheet of paper. Before it would be admissible there must be some evidence tending to show that Dortman signed it as it appeared when offered. Obviously it was not admissible as to defendants Kummel and the Theatre Building Co.

Complaint is also made that the court erred in giving certain instructions on behalf of defendants and in refusing instructions tendered by plaintiffs. The court gave four instructions requested by plaintiffs and refused two, and gave 25 instructions on behalf of defendants. Without considering the 25 in detail, we think it obvious that too many were given. Most of the instructions complained of were on the question of negligence or what is designated, “wilfull and wanton conduct.” In attempting to enlighten the jury on these questions, one of the instructions said there was a fundamental difference between negligence and wilfull and wanton conduct, that “A charge of wantonness implies an act intentionally done in disregard of another’s rights.” We think it obvious that this instruction was wrong and ought not to have been given because there is no contention that Dortman intended to injure plaintiffs. The only contention on the trial was that Dortman negligently drove his automobile and that he did so in utter disregard of the rights of plaintiffs, in which case if the verdict was against him he would be guilty only of ordinary negligence or gross negligence. Walldren Express Co. v. Krug, 291 Ill. 472; see also Price v. Bailey, 265 Ill. App. 358-367, where we discuss the Krug case. As we said in Schoenbacker v. Kadetsky, 290 Ill. App. 28, where a similar question was involved: “We think the evidence was wholly insufficient to show an intent or purpose by defendant to injure plaintiff, but an intent is not necessary under the law. We may surmise a case of an automobile collision at a street intersection where the defendant intended to injure the plaintiff, but those cases do not happen in actual practice. We have never had any such case in this court. The term ‘wilful’ as used in such cases implies intent or purpose, while the term ‘wanton’ expresses a reckless disregard of consequences. Trucking Co. v. Fairchild, 128 Ohio St. 519.”

We refrain from discussing the authorities on the attempted distinction between negligence and wilfullness or wantonness for we are of opinion that the language used in many of the opinions of this court, and probably other courts, would only “plunge this branch of the law into a Serbonian Bog.” Landress v. Phoenix Mut. Life Ins. Co., 291 U. S. 491, 499.

Since we have reached the conclusion that the evidence at most, was almost negligible as to the defendants, Kummel and Paramount Theatre Building Corp., Inc., and the verdict in their favor upon which judgments were entered must stand and since we are of opinion that the verdict in favor of defendant, Dortman, is against the manifest weight of the evidence and the cause as to him must be reversed, we refrain from discussing in detail the several instructions for we are of opinion that with Kummel and the Paramount Corp. out of the cases there will be no difficulty in instructing the jury when a retrial is had as against Dortman.

The judgments of the Circuit court of Cook county in favor of defendants Kummel and Paramount Theatre Building Corp., Inc., are affirmed, and the judgments in favor of defendant Henry Dortman are reversed and the cause remanded for a new trial.

Judgments affirmed as to certain defendants and reversed as to defendant Dortman.

Niemeyer, P. J., and Hatchett, J., concur.


author: Mr. Justice O’Connor

text:
    People of State of Illinois ex rel. Henry J. Sandusky, Appellee, v. Joseph S. Kral, Appellant.
    Gen. No. 43,212.
    Opinion filed January 8, 1945.
    Beleased for publication January 29, 1945.

      Markman, Donovan & Sullivan and Nicholas Berkos, all of Chicago, for appellant; Thomas C. Donovan and Nicholas Berkos, both of Chicago, of counsel.
    Thomas J. Courtney, State’s Attorney and Francis S. Clamitz, Assistant State’s Attorney, for appellee; Francis S. Clamitz, Arthur A. Sullivan, Jacob Shamberg and Joseph Lustfield, all of Chicago, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

In April, 1944, the Board of Trustees of the town of Cicero passed a resolution over the veto of the president of the town, appointing defendant, Joseph S. Krai, superintendent of police. Quo warranto proceedings were brought against him resulting in a judgment of ouster from which he appeals.

May 4, 1944, a complaint in quo warranto was filed by Thomas J. Courtney, State’s Attorney of Cook County, on behalf of the people on the relation of Henry J. Sandusky, against Joseph S. Krai who, it was alleged, was acting as chief of police of the town of Cicero without lawful authority. The prayer was in the usual form. Defendant filed an amended answer in which he set up that the.town of Cicero was organized under a special charter granted by the state pursuant to the act of the General Assembly, approved March 25, 1869. That by § 3 of the charter the corporate powers of the town were vested in a board of •seven trustees which had the power to appoint and remove any officer or employee of the town. That pursuant to an ordinance passed December 5,1927, a police department of the town was created and established which included a superintendent of police and other police officers; and that the ordinance was still in full force and effect. That on April 18, 1944, a vacancy existed in the office of superintendent of police and on that day the Board of Trustees passed a resolution appointing Joseph S. Krai superintendent of police. That he accepted and qualified.

Plaintiff filed a motion to strike certain parts of the amended answer and replied to others. Defendant moved to strike the reply, plaintiff’s motion to strike the amended answer was sustained and defendant’s motion to strike plaintiff’s reply overruled. Defendant elected to abide by its amended answer and the court entered judgment of ouster.

Defendant’s position as stated by its counsel is that the power to appoint a superintendent of police is vested in the Board of Trustees and that defendant, Krai, was appointed by resolution passed by the Board of Trustees in April, 1944. To sustain this position counsel say that “the Town of Cicero is incorporated under a special charter granted by the Legislature and has superseded a civil township; that under the provisions of the Revised Cities and Villages Act of 1941 the Legislature has specifically excepted municipalities such as the town of Cicero from the provisions of this act.” That the Fire and Police Commissioners Act of 1903 as amended did not repeal the power of appointment by the Board of Trustees but merely afforded an optional method of appointing members of the fire and police department if the electors chose to bring the town within the provisions of the act; that the Fire and Police Commissioners Act of 1903 as amended was repealed by the Cities and Villages Act of 1941, whereupon the provisions of the charter again became operative, which authorized the appointment of the superintendent of police by the Board of Trustees. The further position of counsel is that the ordinance of December 5, 1927, by virtue of which a police department was established for the town and which provided that the superintendent of police should be appointed by the president of the town, by and with the consent of the trustees, was repealed by an ordinance adopted November 9, 1934, (although as above stated defendant’s answer averred the 1927 ordinance was still in force) and the power now to appoint the superintendent of police is vested by the charter of 1869 in the Board of Trustees.

The question for decision is — Does the president of the board of trustees of the town of Cicero by and with the advice and consent of the board of trustees have the power to appoint the superintendent of police or is that power vested in the board of trustees Í

In support of defendant’s position counsel say that “An Act concerning cities, villages, and incorporated towns, and to repeal certain Acts herein named,” effective January 1, 1942 (Ill. Rev. Stat. 1943, ch. 24 [Jones Ill. Stats. Ann. 21.1111 et seq.]) has no application to the town of Cicero, except as provided in § 87-1.1. And they point to Par. 1, 11-2. That paragraph defines “municipal” or “municipality” as used in the act as follows: “ ‘Municipal’ or ‘municipality’ means a city, village, or incorporated town in the State of Illinois. ‘Municipal’ or ‘municipality’ does not include a township, town when used as the equivalent of a township, incorporated town which has superseded a civil township.” And they say that the Supreme Court of this State, as well as this court, holds that the town of Cicero is an incorporated town which has superseded a civil township, citing People ex rel. Toman v. Edward Hines Lumber Co., 385 Ill. 365, and People ex rel. Jaros v. Jarecki, 299 Ill. App. 384. We are unable to agree with the contention that the paragraph excludes the Town of Cicero from the Act but are of opinion that the power to appoint the superintendent of police is vested in the president of the town by and with the advice and consent of the board of trustees. Sec. 1-5 of the act, after providing that the act shall apply generally to all municipalities which are incorporated under the act continues: ‘ ‘ This Act shall also apply generally to all municipalities which are treated as properly incorporated under this Act as provided in the first paragraph of section 1-3 and to all municipalities which are incorporated under this Act.

“This Act shall also apply generally to all municipalities incorporated and now existing under a special charter except to the extent that this Act is in conflict with any provision in a special charter, and except as otherwise provided in sub-section (1) of Section 1-2. In this latter event, the special charter shall govern except where a provision in this Act is stated to apply to municipalities incorporated under a special charter, or to municipalities whether incorporated under a general or special act, or words to that effect, or where it is otherwise made manifest that this Act or any other Illinois statute is intendud to govern despite the inconsistent provisions in the special charter.

“However, if a particular section of this Act is limited to cities or villages or incorporated towns or any combination thereof, or to cities, villages, or incorporated towns of a specified type or any combination thereof, that intention shall prevail. ’ ’

Sec. 9-75 provides: “In every village and every incorporated town, whether incorporated under a general or special law, a president shall be elected by the electors of that village or town. . . .

“The president of any village or incorporated town shall be president of the board of trustees thereof and shall preside at all meetings of the Board, and, except as otherwise provided in this Act, shall have the same powers and perform the same duties as the mayor of a city.” And by § 9-16 it is provided that “Except as otherwise provided in the Illinois Statutes all officers of any city shall be appointed by the Mayor by and with the advice and consent of the city council.”

Sec. 9-75 gives the same powers to the president of a village or incorporated town as a mayor of a city “except as otherwise provided in this Act.” Such powers are not limited by the definition of “municipal” or “municipality” in Par. 1, § 1-2, nor have we been able to find any provision that would take the power of appointing a superintendent of police from the president of the town.

Another point made is that the power of appointment of a superintendent of police was, by an ordinance of the town of Cicero (approved December 5, 1927) vested in the president of the town by and with the advice and consent of the board of trustees. By that ordinance the department of police was established for the town of Cicero. The offices of superintendent of police and other police officers were created and section 4 of that ordinance ordains: “ Section 4. Superintendent — Appointment. The Superintendent of Police shall be appointed annually for a period of one year, by the President of the Town of Cicero, by and with the advice and consent of the Board of Trustees, as soon after the first meeting of the Board of Trusteés in the month of April of each year practical.” But counsel for defendant say that this ordinance was repealed by an ordinance passed by the president and board of trustees of the town of Cicero November 5, 1934. As stated, by counsel: “Defendant further maintains that the provision contained in the ordinance creating the Department of Police, to the effect that the Superintendent should be appointed by the President by and with the consent of the Board of Trustees, was repealed by an ordinance adopted November 5, 1934.” We are unable to agree with this contention. That ordinance specifically states that it amends chapter 8 of the revised ordinances of the town of Cicero, passed April 9, 1917, by adding a section to be known as 578a. That chapter has to do with meetings, etc., of the board of trustees and contains no provision in relation to the police department of the town. (Municipal Code of the Town of Cicero, adopted April 9, 1917, pp. 178-179.) The subject of the police department is found in chapter XLII of the same volume, pp. 524-529.

We hold that the act “concerning cities, villages and incorporated towns” effective January 1,1942, authorized the president of the town by and with the advice and consent of the board of trustees to appoint the superintendent of police. For this reason, the board of trustees of the town of Cicero did not have authority to appoint Mr. Krai superintendent of police and the judgment of the Superior court of Cook county is affirmed.

Judgment affirmed.

Niemeyer, P. J., and Matchett, J., concur.


author: Justice Lupe.

text:
    Dr. William H. Benson, Appellee, v. Earl M. Williams, Appellant.
    Gen. No. 43,218.
    opinion filed January 26, 1945;
    released for publication February 6, 1945.
    Howard D. Geter, for appellant; Sonnenschein, Berkson, Lautmann, Levinson & Morse, for appellee; Isaac E. Ferguson and Ben Liss, of counsel.
   Opinion by

Justice Lupe.

Not to be published in full.


text:
    Carl Goranson, Appellant, v. Yellow Cab Company, Appellee.
    Gen. No. 43,059.
    opinion filed February 13, 1945;
    released for publication March 5, 1945.
    Thomas C. Hollywood and Lloyd T. Bailey, for appellant; Barrett, Barrett, Costello & Barrett, for appellee; Marion J. Hannigan, of counsel.
   Opinion by

Presiding Justice Sullivan.

Not to be published in full.


text:
    Samuel Mesirow, Appellee, v. Rae Mesirow, Appellant.
    Gen. No. 43,151.

      opinion filed February 13, 1945;
    released for publication March 5, 1945.
    Aaron Soble, for" appellant; Ehrlich & Cohn, for appellee; Aaron H. Cohn, of counsel.
   Opinion by

Presiding Justice Sullivan.

Not to be published in full.


text:
    Anthony Zazkowski, Minor, by Rose Zazkowski, his Mother and Next Best Friend, Appellant, v. John Choyce, Appellee.
    Gen. No. 43,259.
    opinion filed February 13, 1945;
    released for publication March 5, 1945.
    Louis Z. Grant, Krohn & MacDonald and Jack L. Sachs, for appellant; Stuart B. Krohn and Ian P. MacDonald, of counsel; Stanley T. Gross, for appellee.
   OpiMon by

Presiding Justice Sullivan.

Not to be published in full.


author: Presiding Justice Burke.

text:
    Hamburger Company, Appellee, v. L. J. Mayer, Appellant.
    Gen. No. 43,228.

      opinion filed February 14, 1945;
    released for publication March 5, 1945.
    Alexander J. Ross, for appellant; Ader & Ader and Zeamore A. Ader, for appellee; Zeamore A. Ader, of counsel.
   Opinion by

Presiding Justice Burke.

Not to be published in full.


text:
    Martha Rakowski and Helen Langowski, Appellees, v. Metropolitan Life Insurance Company, Appellant.
    Gen. No. 42,451.
    opinion filed February 14, 1945;
    released for publication March 5, 1945.
    Hoyne, O’Connor, Rubinkam & Melaniphy, for appellant; Nathaniel Rubinkam and John C. Melaniphy, of counsel; S. J. Krzeminski, for appellees; E. C. F. Meier, of counsel.
   Opinion by

Justice Lupe.

Not to be published in full.


text:
    John A. Demerath, Appellant, v. Arthur C. Schennum, Appellee.
    Gen. No. 42,716.
    opinion filed February 14, 1945;
    rehearing denied March 5, 1945; released for publication March 5, 1945.
    Milton K. Joseph, for appellant; Waller & Nedow and Henry W. Kenoe, for appellee.
   Opinion by

Justice Lupe.

Not to be published in full.


text:
    In re Estate of Lucian E. Williams, Deceased. Philip S. Allen, Executor of Will of Lucian E. Williams, Deceased, et al., Appellants, v. Lucile S. Williams et al., Appellees.
    Gen. No. 42,922.

      Heard in the third division, first district, this court at the December term, 1943;
    opinion filed February 14, 1945;
    released for publication March 5, 1945.
    Thomas H. Fisher and Norman Crawford, for appellants; Poppenhusen, Johnston, Thompson & Raymond, I. B. Lipson and Joseph A. Golde, for appellees ; Edward R. Johnston, of counsel.
   Opinion by

Justice Lupe.

Not to be published in full.


text:
    People of State of Illinois, Defendant in Error, v. Ridgeway Drug Company, Plaintiff in Error.
    Gen. No. 43,260.
    opinion filed February 14, 1945;
    released for publication March 5, 1945.
    John D. Vosnos, for plaintiff in error; Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, John T. Gallagher, Melvin S. Rembe and Joseph A. Pope, Assistant State’s Attorneys, of counsel.
   Opinion by

Justice Lupe.

Not to be published in full.


author: Justice Kilby.

text:
    Marion O. Kane and George Ortseifen, Appellants, v. City of Chicago, Appellee.
    Gen. No. 42,982.

      opinion filed February 14, 1945;
    rehearing denied March 5, 1945; released for publication March 5, 1945.
    The case was transferred from the Supreme Court, 384 Ill. 361. Urion, Bishop & Sladkey, for appellants; Howard F. Bishop and George P. Novak, of counsel; Barnet Hodes, Corporation Counsel, for appellee; J. Herzl Segal and L. Louis Harton, Assistant Corporation Counsel, of counsel.
   Opinion by

Justice Kilby.

Not to be published in full.


author: Presiding Justice Niemeyer.

text:
    Standard Discount Company, Inc., Appellee, v. Metropolitan Life Insurance Company, Appellant.
    Gen. No. 43,053.
    opinion filed January 8, 1945;
    released for publication January 29, 1945.
    Hoyne, O’Connor & Rubinkam, for appellant; Nathaniel Rubinkam and Melvin L. Gibbard, of counsel; Victor H. Bloom, for appellee.
   Opinion by

Presiding Justice Niemeyer.

Not to be published in full.


text:
    Great Northern Store Fixture Manufacturing Company, Appellee, v. Maurice M. Lamm, Appellant.
    Gen. No. 43,202.
    opinion filed January 8,1945;
    released for publication January 29, 1945.
    David E. Silverzweig, for appellant; Teller, Levit & Silvertrust, for appellee.
   Opinion by

Presiding Justice Niemeyer.

Not to be published in full.


author: Presiding Justice Niemeyeb.

text:
    David Gottlieb et al., Trading as D. Gottlieb and Company, Appellees, v. Aridor Company, Appellant.
    Gen. No. 43,225.

      opinion filed January 8, 1945;
    released for publication January 29, 1945.
    Taylor, Miller, Busch & Boyden, for appellant; Charles B. Sprowl and Paul Oberndorf, óf counsel; Melnerney, Epstein & Arvey, for appellees; Louis M. Mantynband, George L. Siegel and Melvin A. Garretson, of counsel.
   Opinion by

Presiding Justice Niemeyeb.

Not to be published in full.


text:
    L. R. Miller, Appellee, v. Frank Arliskas, Trading as A. & A. Motors, Appellant.
    Gen. No. 43,236.
    opinion filed January 8, 1945;
    released for publication January 29, 1945.
    Jaffe & Jaffe, for appellant; William Jaffe, of counsel; Bernard McDevitt, Jr. and Fred J. O’Connor, for appellee; Bernard McDevitt, Jr., of counsel.
   Opinion by

Presiding Justice Niemeyeb.

Not to be published in full.


author: Justice Matchett.

text:
    Andrew Paciorek, Appellee, v. Walter J. Cummings, Trading as Chicago Surface Lines, Appellants.
    Gen. No. 43,138.
    opinion filed January 8, 1945;
    rehearing denied January 29, 1945; released for publication January 29, 1945.
    Frank L. Kriete, Charles C. Cunningham and Arthur J. Donovan, for appellants; Wm. J. Flaherty, of counsel; Kamin, Gleason & Kamin, for appellee.
   Opinion by

Justice Matchett.

Not to be published in full.


text:
    B. H. Molner, Appellant, v. John W. Schaefle et al., Appellees.
    Gen. No. 43,255.

      opinion filed January 8, 1945;
    released for publication January 29, 1945.
    Maurice Weissman, for appellant; Hummer, Van Hess & Yowell, for appellees; John J. Yowell, of counsel.
   Opinion by

Justice Matchett.

Hot to be published in full.