text:
    Sallie R. Kahn, Appellee, v. Arthur S. Kahn, Appellant.
    Gen. No. 43,317.

      Heard in the second division of this court for the first district. Interlocutory order entered November 18, 1944,
    Opinion filed February 13, 1945.
    Released for publication March 5, 1945.
    Poppenhusen, Johnston, Thompson & Raymond, of Chicago, for appellant; Floyd E. Thompson, Frederick Mayer and Adolf Lobe, all of Chicago, of counsel.
    Benjamin B. Davis, of Chicago, for appellee; Harry J. Lurie, of Chicago, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.

Defendant appeals from an interlocutory order entered November 18, 1944, denying his motion to dissolve a temporary injunction, which restrained defendant from in any way, manner or form instituting or filing a complaint, petition or proceeding for a divorce or other domestic or matrimonial relief against plaintiff in any court of the State of Nevada or of any other state or country other than the State of Illinois, until the further order of the court. The temporary injunction was entered by Judge Sabath on October 3, 1944, the cause was assigned to Judge Lindsay on October 6, 1944, and on the latter date the motions of defendant to dissolve the injunction and to dismiss the complaint were filed.

Plaintiff’s verified complaint prayed that she be awarded a decree for separate maintenance; that she be awarded the care, custody, control and education of the minor children of the parties; that during the pendency of the cause and permanently thereafter defendant be ordered to contribute toward the maintenance of plaintiff and the minor children; that the writ of injunction issue without notice and without bond, enjoining and restraining defendant from in any way, manner or form instituting or filing a complaint, petition or proceeding for a divorce or other domestic or matrimonial relief against plaintiff in any court of the State of Nevada, or of any other state or country other than the State of Illinois, until the further order of the court.

The complaint, filed October 3, 1944, alleges that the parties have been actual residents of Chicago for many years last past; that they were married November 24, 1927, and lived together until October 2, 1944; that two children, Arthur S. Kahn, Jr., and Betty Kahn, both minors, were legally adopted by the parties, that they are in the care and custody of plaintiff and that she is a fit and proper person and entitled to retain their care and custody; that defendant, without any reasonable cause, wilfully deserted plaintiff on October 2, 1944, and has since persisted in said desertion; that since that date she has lived separate and apart from defendant without any fault on her part; that prior to April 1, 1944, the parties were engaged in an enterprise known as the “Sally Chain Stores,” which business was an outgrowth of a prior business organized and developed by plaintiff; that said stores were operated in many cities in the country ; that the parties, on April 1, 1944, sold said enterprise and received a substantial consideration from said sale; that on-April 16, 1944, defendant informed plaintiff that he desired a divorce; that she was surprised, shocked and terribly distressed at the announcement and reminded defendant that there -was no reason whatsoever justifying his demand for a divorce, and she pleaded with him to reconsider his decision; that from time to time thereafter he repeated his demands for a divorce and advised plaintiff that he was determined to go to Nevada and obtain a divorce in that state, that although he had no cause to obtain a divorce in Illinois he was advised that he could establish a six weeks’ residence in Nevada and could obtain a divorce there without the assistance of plaintiff and regardless of any opposition she might present; that said threats have caused plaintiff great distress, misery and unhappiness, and although she has repeatedly pleaded with defendant to reconsider Ms position and refrain from such action, he has informed her that he is determined to carry through his plans; that defendant, in furtherance of his plans, on September 5, 1944, and on several occasions since, removed his clothes from the apartment in which the parties were living at the Shoreland Hotel, Chicago, and on October 2, 1944, he removed from the apartment, at the same time warning plaintiff that he was on his way to Nevada for the purpose of obtaining a divorce; that since October 2, 1944, only plaintiff and her children have been occupying the said apartment ; that defendant plans to. go to Nevada and establish there a fictitious and colorable residence for the purpose of fraudulently obtaining a divorce, because of the fact that he is unable to obtain a divorce in the State of Illinois under any existing' statute; that he has been advised and believes that the courts of Nevada are disposed to grant divorces to applicants regardless of the merits of the particular case or the validity of the defense interposed; that defendant is an actual and Iona fide resident and citizen of the State of Illinois and has been such resident for many years; that if he is permitted to institute an action for divorce in another state such attempt will be in furtherance of his plans to evade the statutes of the State of Illinois and in defiance of the laws and public policy of this state; that such action will be a fraud upon plaintiff and she will be compelled to go to great expense, inconvenience and effort in defending such litigation; that she will be compelled to travel and transport witnesses across the country and in various ways will be burdened with great physical and financial hardships; that she would be compelled to defend such action in the courts of a state whose announced and invariable policy is to grant and not refuse divorces; that if said defendant is permitted to carry through his plans and intentions irreparable harm and injury will be done plaintiff; that a writ of injunction should issue out of this court restraining such action and that notice to defendant of the application for said injunction should be waived in order to make effective said injunction; that if notice is given, defendant will be enabled to evade service of said injunction upon him; that said injunction should also issue without bond; that defendant is a man of great wealth; that he is well able to contribute toward the support of plaintiff and the minor children of the parties hereto in a fashion consistent with their station in life, and to pay the expense of this litigation.

In the verified answer of defendant, filed October 7, 1944, he admits that the parties are now and for many years last past have been actual residents of Chicago; that they were married as alleged by plaintiff, “but he denies that plaintiff has lived with him as his wife from the time of their marriage until October 2,. 1944.” He denies that he deserted plaintiff without reasonable cause and that he is living apart from her without fault on her part, and avers that for over seven or eight years plaintiff has repeatedly threatened to leave him, has violently abused him, has subjected him to gross indignities, and has designedly made living with her unbearable with the purpose of driving him from Ms home; that he has suffered said indignities and ill treatment for the sake of their children and that he left the home only when conditions reached the point where his health was being undermined and plaintiff’s violent treatment of him was making life unhappy and disagreeable for their children. He denies that the divorce between the parties was first discussed after the sale of Sally Chain Stores and hé avers that more than four years ago plaintiff demanded that he consult a lawyer and arrange for their divorce, and that she repeated this demand many times thereafter. He denies that plaintiff was surprised when he recently told her that he could not bear living with her any longer, and denies that she pleaded with him to reconsider his decision. He “denies that his announcement to plaintiff of Ms conclusion that divorce seemed to be the only solution of their problem has caused plaintiff any misery and unhappiness except that she sees an end to her opportunity to abuse and harass Mm and she will be denied the satisfaction of making his life miserable and impairing his health. He admits that he left the family apartment at the Shoreland Hotel October 2, 1944, and he avers that he moved to quarters at the Standard Club in Chicago. He denies that plaintiff occupied the apartment at the Shoreland Hotel with their children between October 2, 1944, the date he left the apartment, and October 3,1944, the date the complaint was filed, and he avers that said children were in Lake Forest, Illinois, at school as aforesaid. He demes that he plans to establish a fictitious resi- - deuce at any place for any purpose, and he avers that if he does change his residence from Chicago, Illinois, it will be a genuine and legal change of residence for a proper and lawful purpose. He denies that plaintiff has any right to restrain him by injunctive process or otherwise from freedom of action which is within his legal rights. He admits that he is a man of substantial means and that he is well able to support his children, and he avers that he is supporting them and will continue to do so as long as he and they live and they require his care. He avers that plaintiff’s wealth exceeds his by not less than $250,000 and that plaintiff for many years has had and now has an annual income in excess of $30,000 and that she is well able to take care of herself and to pay her own expenses of litigation.”

On October 27,1944, plaintiff filed a reply to defendant’s answer in which she denies that the children are in the care and custody of defendant or that he is a fit and proper person to have the care and custody of them. She admits that the children are attending schools at Lake Forest, Illinois, but avers that their home is the apartment of plaintiff in the Shoreland Hotel. She denies that for the past seven or eight years she has threatened to leave defendant or that she violently abused him or subjected him to gross indignities, or that she has ever designedly made living with her unbearable with the purpose of driving defendant from his home or for any other reason. She avers that defendant left the home, plaintiff and their children without any reason, cánse or provocation on the part of plaintiff, and solely in furtherance of his plan of attempting to obtain a false and fraudulent divorce from her. She denies that four years ago or at any other time she demanded that defendant consult a lawyer and arrange for a divorce and avers that the first time a divorce was discussed between them was after the sale of the Sally Chain Stores, in April, 1944. She avers that she was surprised when defendant told her that he would not live with her any longer, and that he insisted upon a divorce; that she has never given defendant any reason or cause to want a divorce, “and that the possibility of a termination to many years of marriage with the defendant, caused her great distress.” She avers that the two children lived in the home at the Shoreland Hotel “at such times as they were away from school.” She denies that if defendant changes his residence from Chicago, Illinois, it will be a genuine and legal change of residence for a proper and lawful purpose, and avers that if he changes his residence it will be only for the purpose of establishing a fictitious residence elsewhere, in furtherance of his unlawful and improper purpose of evading the laws of Illinois, and of obtaining a fraudulent divorce from plaintiff. She admits that prior to the separation defendant did contribute from his income a fair proportion toward the maintenance of the family home and the children, but that since his desertion of plaintiff, although able, he has refused partly so to do. She believes that defendant is possessed of assets upward of $750,000. She admits that she has an income but states the fact to be that defendant’s income is greatly in excess of her own.

Defendant contends: “The complaint does not state a cause of action for injunctive relief.' A. Equity will not enjoin a mere threat to sue in a foreign State. This is particularly true if the suit could not be legally prosecuted in the foreign jurisdiction. B. A threatened act, to be enjoined, must not be imaginary or trivial but must be one which would cause the plaintiff irreparable injury. An injunction is never granted to correct social evils. C. A person who is sui juris has a natural right to change his domicile and to use the courts of his new domicile for any lawful purpose. Equity will not enjoin the free exercise of this right.” Two other grounds for reversal are urged by defendant, but his counsel state in his brief and upon the oral argument that “the first ground urged is the important ground, not only to this defendant but to the public, and it should be decided.” Both parties agree that there is no case in this state that presents the exact question now before the court. Defendant’s theory is, “that equity is without jurisdiction to restrain a mere threat to institute a suit for divorce in another jurisdiction at some uncertain time in the future. He contends that he has an absolute right to change his residence and to invoke the jurisdiction of the courts of his new domicile. He contends that if he institutes a divorce proceeding in a court that is without jurisdiction, such action would be void and could not injure plaintiff.” Plaintiff states her theory as follows: ‘ ‘ That a court of equity has, and freely exercises, the power to maintain a status■ quo, through the instrumentality of an interlocutory injunction, in a separate maintenance suit, until the court determines the separate maintenance issue and that the court should unhesitatingly grant that relief to prevent interference with its jurisdiction to determine that issue in a case where the purpose and threat of the defendant, undenied in the record, is immediately to establish a domicile in a foreign jurisdiction for the purpose of obtaining a divorce, to which he knows he is not entitled under the laws of Illinois.” Her counsel approves the statement made by counsel for defendant that the right of plaintiff to a temporary restraining order like the instant one is the important issue upon this appeal.

At the outset, it is necessary to note that the injunction does not prevent defendant from changing his domicile and that plaintiff in her complaint seeks a decree for separate maintenance and the custody and support of the two minor children, and that the injunctive relief sought is merely ancillary to the main purposes of the complaint.

If plaintiff, in her complaint, had alleged, inter alia, that her husband had commenced divorce proceedings against her in Nevada, the law is settled that she would then have the right to a temporary injunction to prevent defendant from further prosecuting the Nevada proceeding, defendant being a citizen of this state and within it, and subject to the jurisdiction of the court in the instant proceedings, that concerns the marital relations of the parties. To cite certain of the cases that sustain this statement of the law: Miller v. Miller, 66 N. J. Eq; 436; Huettinger v. Huettinger (N. J. Ch.), 43 A. 574; Streitwolf v. Streitwolf, 58 N. J. Eq. 563; von Bernuth v. von Bernuth, 76 N. J. Eq. 177; Selkowitz v. Selkowitz, 40 N. Y. S. 2d 9; Ashkenaz v. Ashkenaz, 41 N. Y. S. 2d 388; Usen v. Usen, 13 A. 2d 738; Borda v. Borda, 44 R. I. 337; Gwathmey v. Gwathmey, 190 N. Y. S. 199, affirmed, 193 N. Y. S. 935; Jefe v. Jeffe, 4 N. Y. S. 2d 628; 32 C. J. 118; Gross v. Gross, 180 A. 204; Knapp v. Knapp, 173 A. 343. Defendant states: “It is not defendant’s position that equity at no time has the power to enjoin the prosecution of a foreign suit . . . It is defendant’s position, however, that equity is without power to enjoin the carrying out of a mere threat to commence a suit at some future time in some state other than that of defendant’s present residence, and that the prosecution of a suit already commenced will not be enjoined unless the prosecution of such suit would cause irreparable injury to plaintiff.”

It might be well, at the outset, to state the general rule of law of this state as to when a court has the right to restrain a person over whom the court has jurisdiction from bringing a suit in a foreign state. In Royal League v. Kavanagh, 233 Ill. 175, the proceeding did not involve a divorce or separate maintenance action, but the general principles stated by the court are helpful. The court states (p. 183) :
“There is no question as to the right to restrain a • person over whom the court has jurisdiction from bringing a suit in a foreign State. (Harris v. Pullman, 84 Ill. 20.) The courts do not; in such cases, pretend to direct or control the foreign court but the decree acts solely upon the party. The jurisdiction rests on the authority vested in courts of equity over persons within the limits of their jurisdiction and amenable to process, to stay acts contrary to equity and good conscience. The State has power to compel its own citizens to respect its laws even beyond its own territorial limits, and the power of the courts is undoubted to restrain one citizen from prosecuting in the courts of a foreign State an action against another which will result in a fraud or gross wrong or oppression. (Snook v. Snetzer, 25 Ohio St. 516; Keyser v. Rice, 47 Md. 203; Teager v. Landsley, 69 Iowa, 725; Wilson v. Joseph, 107 Ind. 490; Dehon v. Foster, 4 Allen, 545.) But the court will not restrain the prosecution of a suit in a foreign jurisdiction unless a clear equity is presented requiring the interposition of the court to prevent a manifest wrong and injustice. It is not enough that there may be reason to anticipate a difference of opinion between the two courts, and that the courts of the foreign State would arrive at a judgment different from the decisions of the courts in the State of the residence of the parties. (Carson v. Dunham, 149 Mass. 52.) It is not inequitable for a party to prosecute a legal demand against another in any forum that will take legal jurisdiction of the case, merely because that forum will afford him a better remedy than that of his domicile. To justify equitable interposition it must be made to appear that an equitable right will otherwise be denied the party seeking relief. Thorndike v. Thorndike, 142 Ill. 450.”

Defendant contends that the only Appellate Court decision that passes upon the instant question is DeRaay v. DeRaay, 255 App. Div. 544, 8 N. Y. S. 2d 361, filed December 23, 1938. In that case the suit was instituted for the sole purpose of restraining the'defendant from prosecuting any suit for divorce against the plaintiff in a foreign jurisdiction, and the complaint contained no prayer for any other relief. The court states the facts in the case as follows (p. 362):

“The parties were married in New York, September .3, 1929, and have remained residents of this State. There is an infant daughter, issue of the marriage. On March 26, 1936, the defendant is alleged to have wrongfully deserted the plaintiff. On July 17, 1936, the parties entered into a separation agreement providing for the custody of the child and for the payment of $87.50 per week to the plaintiff so long as she shall remain alive or until she remarries.’ Summarized, the gravamen of the complaint is as follows: At numerous times the defendant sought to induce and coerce the plaintiff into bringing an action against him for divorce and, if she refused, he threatened to leave the state and to establish a domicile in a foreign state. Defendant also threatened to breach the separation agreement. Defendant further stated that he had established a domicile and residence within the state of New Jersey on advice of counsel and that he intended to bring a suit in the courts of the state of New Jersey against the plaintiff for absolute divorce, and that, if he were unable to establish the existence of a bona fide residence in the state of New Jersey so as to maintain a suit, he would go elsewhere and pretend to establish a residence and domicile, so that he might there bring an action for divorce. . The conclusion is that the threats establish that the defendant is about to perpetrate a fraud upon the courts of this State and courts of foreign jurisdiction for the purposes of carrying out his nefarious scheme to rid himself of the plaintiff and marry his paramour. It.is then alleged that all the persons competent to testify as to knowledge concerning the facts reside within the State of New York and that the threatened acts would impede, impair, prejudice and destroy the rights of the plaintiff in her marital status as well as in her property and contractual rights, and subject her to great expense to, defend such threatened suit.”

The court concludes (p. 363):

“From the complaint here, it appears that the defendant has so far done nothing but talk and has taken no steps which in any way affect plaintiff’s property rights. If he had actually instituted an action in some jurisdiction, there might be justification for equitable interference. Until some affirmative act is taken, the court should not interfere to grant the relief asked. Even in the case of Greenberg v. Greenberg, 218 App. Div. 104, 218 N. Y. S. 87, assuming that the decision in that case was not overruled by Baumann v. Baumann, supra [250 N. Y. 382, 165 N. E. 819], the defendant had actually instituted an action in Mexico for a divorce. We find no precedent for equitable interference to prevent mere threats from possibly ripening into action. ’ ’

Plaintiff contends that the DeBaay case is not an authority that bears upon the question before us for the reason that the sole purpose of the complaint in the DeBaay case was to obtain an injunction; that the injunction sought by plaintiff is merely ancillary to a suit for separate maintenance in which the custody and support of children is also involved, and that the Illinois court has jurisdiction of the subject matter and the parties.

In Johnson v. Johnson, 261 N. Y. S. 523 (a nisi prius decision), the wife started an action against her husband for a judicial separation on the grounds of abandonment, without cause or provocation, and also to obtain a decree permanently and perpetually restraining and enjoining defendant from instituting or prosecuting a divorce against her in the courts of Nevada or in the courts of any foreign state. To quote from the opinion of the court (p. 525): “The complaint charges the abandonment and also alleges that defendant has threatened to, and is about to go to the state of Nevada, or to some foreign jurisdiction, there to establish a fictitious residence in bad faith and obtain a decree of absolute divorce against the plaintiff upon grounds not recognized in this state.” The plaintiff applied to the court for a temporary injunction order restraining defendant pendente lite from instituting legal proceedings, involving the matrimonial status, against her in any other jurisdiction. The complaint in that case alleges facts very similar to those alleged in the instant complaint. To further quote from the opinion of the court (pp. 526, 527, 528):

“Counsel for defendant contend that the court is powerless to protect plaintiff by injunction against defendant’s threatened wrong, on the theory that she is not damaged financially. That argument is readily refuted. Defendant is attempting to annul plaintiff’s status as his wife and thereby invade her personal rights. There are other things in life beside mere money damages. Not every element of wrong can he estimated and ascertained in dollars and cents. Because the pecuniary injuries which plaintiff may sustain, if defendant should accomplish his purpose, cannot be measured with mathematical accuracy is no reason for holding that she is outside the pale of the court’s protection.

“In our state adultery is the only ground which works a dissolution of the marriage bond. It is the public policy of this state to refuse to recognize as binding a decree of divorce obtained in a court of a sister state, not the matrimonial domicile, upon grounds insufficient for that purpose in this state, when the divorced defendant resides in this state and was not personally served with process and did not appear in the action. [Citing cases.]

"There cannot he the slightest doubt that a court of equity upon a proper case being shown has authority to restrain persons within its jurisdiction from proceeding in suits in the courts of other states. 32 C. J. 115; 14 R. C. L. 412; Greenberg v. Greenberg, 218 App. Div. 104, 115, 218 N. Y. S. 87, 97. It is the general rule that, where a party is within the jurisdiction of the court, he may, on a proper showing, be enjoined from prosecuting an action in a court of another state. The question, however, as to when this jurisdiction may be exercised is often one of great delicacy, owing to the fact that it may frequently lead to a conflict of jurisdiction. Hence the power is used sparingly, and the applicant must show good equitable grounds, or the injunction will not issue. The jurisdiction rests on the authority vested in courts of equity over persons within the limits of their own jurisdiction to restrain them from doing inequitable acts to the wrong and injury of others, and on the power of the state to compel its own citizens to respect its laws even beyond its own territorial limits. 14 R. C. L., pp. 412, 413. All that is necessary to sustain jurisdiction is that plaintiff should show .a clear equity and that defendant is subject to the authority and within the reach of the process of the court, and this requirement is satisfied when it is shown that the institution of the suit in another state is for the purpose of securing to the plaintiff some unfair, unconscionable, or inequitable advantage, or that the prosecution thereof will result in fraud, gross wrong, or oppression, and that the prosecution of the suit in another state is against equity and good conscience, or that the suit is against the public policy of the state in whose court the injunction is sought. 32 O. J., pp. 116, 117. The most frequent ground for granting an injunction of this character is to prevent a citizen of one state from prosecuting an action against another citizen of the same state in a foreign jurisdiction for the purpose of avoiding the laws of his own state. 32 C. J. 117.

“Plaintiff’s position makes a responsive appeal to the conscience and the discretion of the court. She is entitled to the fullest measure of protection against defendant’s proposed act. For no apparent reason, except the gratification of his own desires, he is seeking to discard a wife who has done. no wrong. He should not be permitted to consummate his scheme of evasion of the laws of his own state and place his aggrieved wife in a situation where she must defend herself against a judgment fraudulently obtained. The fact that plaintiff has a legal defense available in the court in which the contemplated action is brought is no answer to this application and does not affect her right to an injunction. 32 C. J. 118. As a wife she has rights other than mere property rights which can be enforced in a court of equity. I realize tliat courts should not seek to regulate the morals of their citizens by injunction; neither should they hesitate to protect a wife and mother in her status as such before the public. As was well said by Mr. Justice Dowling in Greenberg v. Greenberg, supra: ‘Furthermore, the mere fact that a husband has secured a divorce from his wife gives ground for suspicion at least of the virtue and fidelity of the latter, on the part of the general public, in the domicile of both parties, who are unacquainted with the infinite variety of causes for which divorces may be granted in other jurisdictions and have heard only of the usual statutory ground for divorce in this State. A wife who has given no ground for divorce in this State where she and her husband have always lived during their married life, should not be exposed to the humiliation and doubt as to her status raised by a judgment of divorce in another State, even if fraudulently obtained and invalid here. ’

“Then too, while a decree of divorce obtained in a foreign jurisdiction would be void here, it would be valid there. Defendant might legally remarry there and flaunt the second wife in the face of the plaintiff and her children. ■ To permit such a contingency is intolerable, violative alike of the principles of morality and the public policy of our state. The court should not hesitate to assert its power in order to protect a wife whose rights are sought to be destroyed.

“The application for a temporary injunction order is therefore granted.”

Jeffe v. Jeffe, supra (4 N. Y. S. 2d 628), was an action by the wife against the husband to enjoin him from further prosecuting an action of divorce against her commenced by him in Mexico and from instituting any action for divorce outside of the state of New York. The opinion states that after the commencement of the action by the wife the Mexican divorce action had been discontinued. The Jeffe case is important, therefore, because the temporary injunction issued had only force to prevent the defendant “from instituting any action for divorce outside of the state of New York.” In awarding the wife the injunction the court said (p. 629): “To deprive the plaintiff of her status by fraudulent resort to a foreign jurisdiction ; to impose upon her the burden of defending her rights in any part of the country which the defendant may select as a forum; to cast upon her the suspicion that she was guilty of misconduct justifying a divorce in this state, all point to a direct and immediate invasion of her rights, to protect which equity will award injunctive relief (Greenberg v. Greenberg, 218 App. Div. 104, 218 N. Y. S. 87; Johnson v. Johnson, 146 Misc. 93, 261 N. Y. S. 523; Gwathmey v. Gwathmey, 116 Misc. 85, 190 N. Y. S. 199, affirmed 201 App. Div. 843, 193 N. Y. S. 935).” In Oltarsh v Oltarsh, 43 N. Y. S. 2d 901 (a nisi prius decision), the wife filed an action to restrain her husband from starting an action for divorce in Nevada. The following is the opinion of the trial court, filed nearly five years after the opinion in the DeRaay case was filed:

“Substantial rights already vested'under a decree of this court may be nullified by the defendant’s impending action in view of the holding in Williams v. North Carolina, 317 U. S. 287, 63 S. Ct. 207, 87 L. Ed. 279,143 A. L. R. 1273. Under such circumstances the court may intervene to ward off threatened harm. Greenberg v. Greenberg, 218 App. Div. 104, 218 N. Y. S. 87.
“Nor is the holding in Goldstein v.. Goldstein, 283 N. Y. 146, 27 N. E. 2d 969, determinative of this application. That decision was reached prior to the holding-in the Williams case and depended for its authority upon the validity of Haddock v. Haddock, 201 U. S. 562, 26 S. Ct. 525, 50 L. Ed. 867, 5 Ann. Cas. 1. Inasmuch as the Williams case has overruled the jurisdictional principles laid down in the Eaddoclc case, the threatened injury is no longer illusory. Equity may fashion its remedy to guard against the reality of harm.
“The fact that no action is yet pending in Nevada does not militate against injunctive relief. The imminence of harm is no less real because impending danger has not yet ripened into a destruction of rights. Where peril exists, there the court may intervene to offer its protection.
“The behavior of the defendant gives force to the plaintiff’s fear that her husband intends to create a condition which may impair her rights under the decree of separation. The dubious explanation of defendant’s presence in Eeno, Nevada; the correspondence of the lawyers and other circumstances warrant the conclusion that the plaintiff’s fears are based on more than mere suspicion. Upon a trial these fears may prove to be unfounded. At all events, until then, the defendant cannot be prejudiced by a formal restraint of conduct which he professes no desire to pursue.
‘6 The motion is granted. Settle order. ’ ’

Defendant cites the case of Goldstein v. Goldstein, 283 N. Y. 146, in support of his contention that “the courts of Illinois have long followed the sound rule that a divorce secured upon colorable residence in a foreign State is a nullity. ... A void decree, of course, could not injure the plaintiff in any manner whatsoever. The fact that the foreign decree will not be enforced is sufficient reason for denying an injunction restraining the suit.” In the Goldstein case the sole relief sought by the plaintiff was a judgment permanently restraining the defendant and his agent from prosecuting or going forward with an action against her in a Florida court. She obtained a temporary order in the nisi prius court. The Appellate Division of the Supreme Court affirmed the order of the lower court denying a motion by the defendant for a dismissal of the complaint and granting a motion by plaintiff for a temporary injunction. The Court of Appeals, in holding that under the facts of the case the courts of the State of Florida were wholly without jurisdiction to render a valid divorce against the plaintiff, after citing Haddock v. Haddock, 201 U. S. 562, in support of that holding, said (p. 148): “The plaintiff has nothing to fear from the action which her husband has sought to bring against her in Florida for on her statement a judgment entered therein would be a nullity. She might be annoyed thereby,” but that for such a situation an injunction should not be granted. Two strong dissenting opinions were filed in that case, in which the dissenters contended that under all of the circumstances of the case the injunction was properly granted. In our opinion the dissenting opinions are far more persuasive than the opinion of the majority of the court. Moreover, Haddock v. Haddock, supra, upon which the opinion of the court was practically based, was overruled in Williams v. North Carolina, 317 U. S. 287, 299. We cannot agree with the conclusion of the majority of the court that all that an innocent wife could suffer from a void decree entered against her in another state would be annoyance and injury to her feelings. The instant point raised by defendant was also raised in the case of Usen v. Usen, supra (13 A. 2d 738), where the court stated (pp. 746, 747):

“Even a void decree of divorce would necessarily affect the libelee. Undoubtedly it would cause not only confusion and uncertainty as to the status of both parties, but may well cause this plaintiff embarrassment, humiliation and suffering, as alleged, resulting in irreparable injury to her.
“A valid decree of divorce necessarily carries with it the information that it has been judicially determined that the libelee has violated her marriage vows, and that, within the scope of the allegations in the libel, she has been found guilty of some wrong against the libelant; but a void decree stamps ‘her name, it may be, with an unmerited disgrace.’ Holmes v. Holmes, supra [63 Me. 420]. See, also, Greenberg v. Greenberg, supra; and Johnson v. Johnson, supra.
“In Forrest v. Forrest, supra [2 Edm. Sel. Cas., N. Y., 180], the court said: ‘It is manifest from the facts as they are spread before me, that the defendant cannot obtain, in his suit in Pennsylvania, a decree which can be binding on his wife here. Would it be right to subject her unnecessarily to the harassing evils of even an invalid decree, or compel her to expend the allowance made to her by her husband, In resisting the granting of such a decree ? ’
“The court, in Jeffe v. Jeffe, supra, says [168 Misc. 123, 4 N. Y. S. 2d 629]: ‘ To deprive the plaintiff of her status by fraudulent resort to a foreign jurisdiction; to impose upon her the burden of defending her rights in any part of the country'which the defendant may select as a forum; to cast upon her the suspicion that she was guilty of misconduct justifying a divorce in this state, all point to a direct and immediate invasion of her rights, to protect which equity will award injunctive relief . . .’
“As pointed out by Mr. G-reenleaf, it is ‘. . . essential to the peace of 'society that questions of this kind should not be left doubtful, but that the domestic and social relations of every member of the community should be clearly defined and conclusively settled and at rest.’ 1 Greenleaf on Evidence, sec. 525.
“And if a divorce should be granted in Florida which would be valid there and void in Maine, so that the parties might lawfully remarry in one state and not in the other, the status of the parties would not only be definitely unsettled, but actually intolerable. Johnson v. Johnson, supra.”

In Freundlich v. Freundlich, 47 N. Y. S. 2d 251, the sole purpose of the complaint was to restrain the husband from instituting an action for divorce in another state. The court refused the temporary injunction upon the authority of DeRaay v. DeRaay, supra, but the court said (pp. 252, 253):

‘ ‘ Therefore, this application being predicated ostensibly upon the nature of the action alleged in the complaint is technically defective. However, a complaint setting forth the marital status and demanding judgment for separation or some other relief, possibly within the ruling of DeRaay v. DeRaay, supra, may warrant equitable relief if it is established that under Section 878, subdivision 1, Civil Practice Act, that the essential marital status alleged in the amended complaint is in imminent danger of being affected by virtue of the defendant’s acts and that his conduct would affect the plaintiff’s rights respecting the subject of the action to an extent that would render the judgment sought in New York State ineffectual. Under such circumstances equity could grant relief specifically provided for by law and would not be summarily and primarily enjoining a person from changing his domicile.” The motion for a temporary injunction was denied (p. 253) “without prejudice to the plaintiff’s right to serve an amended complaint within twenty days after service of a copy of this order, with notice of entry.”

In 27 C. J. S. 690 the author of the article, Divorce, states: “Also, where both parties are domioiled within the state, an injunction may issue to restrain one of them from instituting divorce proceedings in another state, but such an injunction will not be issued against a nonresident spouse.” As counsel for defendant points out, in the case cited by the author in support of the text, Usen v. Usen, supra, the defendant had commenced a proceeding in another state when the application for an injunction was made. In High on Injunctions, Vol. 2, page 1394, the author states: “Where a husband or wife leaves the state of their domicile and goes to a foreign state and there secures a mere nominal or colorable residence for the purpose of bringing divorce proceedings, such a case of injustice and irreparable injury is made out as to entitle the aggrieved spouse to an injunction restraining the other from prosecuting divorce proceedings in that state based upon such pretended domicile.” In the case cited in support of this text, Kempson v. Kempson, 63 N. J. Eq. 783, 52 A. 360, the defendant had commenced divorce proceedings in another state. However, it is a reasonable assumption that the author of the article in C. J. S. and the distinguished law writer High, were of the opinion that as an injunction would lie to prevent a husband from prosecuting an action for divorce commenced in another state it would follow that an injunction should issue where he had threatened such procedure.

In the instant case the Superior court of Cook county has jurisdiction of the subject matter and the parties, and the defendant is contesting therein the right of plaintiff to separate maintenance. He has the right to file, in the instant proceeding, a cross-complaint for divorce, but he has not seen fit to do so. He left his home, wife and children shortly after the parties had sold an extensive and valuable business, in which they had been engaged for many years, and had received payment for the same. The complaint alleges that shortly thereafter defendant stated to plaintiff, for the first time, that he desired a divorce. He does not deny, in his answer, that he intends to go to Nevada for the purpose of obtaining a divorce there. “He denies that he plans to establish a fictitious residence at any place for any purpose, and he avers that if he does change his residence from Chicago, Illinois, it will be a genuine and legal change of residence for a proper and lawful purpose. He denies that plaintiff has any right to restrain him by injunctive process or otherwise from freedom of action which is within his legal rights.” In other words, defendant states, in effect, that if he changes his residence and sues for a divorce it will be a genuine and legal change of residence and that, therefore, such a suit would be within his legal rights. All that he directly denies is that he plans to establish a fictitious residence. Not only the answer of defendant, but his brief, plainly indicate his purpose. If he defends the separate maintenance proceeding successfully the temporary injunction will be dissolved, and when he acquires a legal residence at Reno, or any other like place, he will then be in a position, to quote his own words, ‘ ‘ to use the courts of his new domicile for any lawful purpose.” If, on the other hand, plaintiff is awarded a decree of separate maintenance, it would then be manifest that the allowance of the temporary injunction was justified. We' have given time and consideration to the question presented by this appeal and we have reached the conclusion that it would be against equity and good conscience to deny plaintiff the right to the temporary injunction granted by the trial court.

The order appealed from, entered October 3, 1944, reads as follows:

“It Is Ordered that the motion to dissolve the injunction issued in this cause on October 3,1944 be and the same is hereby denied.
“It Is Further Ordered that the motion to dismiss the complaint be and the same is hereby sustained, and leave be and the same is hereby given the plaintiff to file an amended complaint within five days from the date of the entry of this order.”

Defendant contends: “The order dismissing the complaint left nothing to support the injunction. The contradictory character of the order leaves defendant in doubt as to his position.” Several cases cited by defendant in support of this contention are not in point. In the instant case it will be noted that plaintiff was given five days in which to file an amended complaint. In Rickerman v. German Mutual Life Ins. Co., 172 Ill. App. 189, the court says (p. 191): “Whatever may formerly have been the rule, the prevailing doctrine is that whenever, pending an injunction, an amendment is allowed to the bill, it is without prejudice to the injunction, which still stands, although the order granting leave to amend is silént as to its effect upon the injunction. So a complainant may amend even after demurrer filed, and the amendment will not prejudice the injunction. High on Injunctions, section 1594; Selden v. Vermilya, 4 Sandf. Ch. 573; Warburton v. London & B. R. Co., 2 Beav. 253.”

We have considered the further contentions of defendant that “The allegations of the complaint do not warrant the issuance of an injunction without notice;” and “There is no finding of facts showing ‘good cause’ in the injunction order, as required by statute, to justify awarding an injunction without bond,” and we find them without merit.

The interlocutory order of the Superior court of Cook county, entered November 18, 1944, denying defendant’s motion to dissolve the temporary injunction, entered October 3, 1944, is affirmed.

Interlocutory order entered November 18, 1944, affirmed..

Sullivan, P. J., concurs.

Friend, J., took no part in the consideration of this cause.


source: Caselaw Access Project

author:
Mr. Presiding Justice Burke
      Kiley, J.,

license: Public Domain

text:
    John F. Elliott, Administrator of Estate of Freeman P. Elliott, Deceased, and Raymond Mattox, Administrator of Estate of James R. Mattox, Deceased, Appellees, v. Elgin, Joliet & Eastern Railway Company, Appellant.
    Gen. No. 43,026.

      Heard in the third division of this court for the first district at the April term, 1944.
    Opinion filed February 14, 1945.
    Rehearing denied March 5, 1945. Released for publication March 5, 1945.
    Knapp, Cushing, Hershberger & Stevenson, of Chicago, for appellant; Harlan L. Hackbert, of Chicago, of counsel.
    Krohn & MacDonald and Noble Stibolt, all of Chicago, for appellees; Stuart B. Kbohn and Ian P. MacDonald, both of Chicago, of counsel.
   Mr. Presiding Justice Burke

delivered the opinion of the court.

Separate complaints were filed in the circuit court of Cook county by John F. Elliott, administrator of the estate, of Freeman P. Elliott, deceased, and by Raymond Mattox, administrator of the estate of James R. Mattox, deceased, against the Elgin, Joliet and Eastern Railway Company, for damages under the Injuries Act because of the death of two boys, 16 and 17 years old, by the alleged wrongful neglect of defendant. The actions were consolidated for trial and for all further proceedings. A trial before the court and a jury resulted in verdicts in favor of each plaintiff for $10,000. Motions for judgments notwithstanding the verdicts and for a new trial, were denied, and judgments were entered on the verdicts, to reverse which defendant appeals.

The accident occurred on Friday, July 31, 1942, at about 8:15 p. m. at the intersection of defendant’s tracks and Main street in Matteson, Illinois, about 200 feet east of a viaduct by means of which defendant’s tracks passed under the elevated tracks of the Illinois Central Railroad Company. Defendant’s two main line tracks, the eastbound main and the westbound main, cross Main street (which runs north and south) approximately at right angles. To the south of the main line tracks, two tracks for delivery to the Illinois Central, cross the highway on a curve. Defendant’s combined oEce building and depot is north of the tracks and west of the highway. Defendant’s train was eastbound, operating over the more southerly of the two main line tracks. A traveler approaching the crossing from the north passes under the Illinois Central tracks in a southeasterly direction, then there is a curve in the road, after which the road runs straight north and south about 400 feet to the railroad crossing. A survey received in evidence and the testimony of Charles Boese, the surveyor who measured and computed the distances, established that from a point on the highway 87 feet north of the center line of the eastbound main, a traveler has an unobstructed view down the eastbound track to the edge of the viaduct, which is 197 feet from the center line of the highway. There are two two-way duplex automatic flasher signals at the crossing, the one on the north being west of the roadway, 24 feet north of the center line of the eastbound main, and the one to the south being on the east side of the highway and south of the delivery tracks to the Illinois Central. Each signal standard has two lights so arranged that they show both to the north and to the south on each standard. Above the lights on each signal standard there is the usual cross-arm with the words “railroad crossing” marked in large letters. At the crossing there is also an automatic bell warning signal. There are no gates at this crossing and no watchman is stationed there. The flasher and bell ringing signals are electrified so that when a train comes in contact with a certain spot on the rails it starts the signals, and as soon as the train clears the crossing and reaches a certain point on the other side, not electrified, the flasher and bell stop operating. The points at which the flasher and bell commence and cease operating may be fixed at any distance from the railroad crossing desired by the railroad. If a train occupies any space between these' points, the flasher and bell, if working, will keep on flashing and ringing. Although there was no positive evidence to show where the flasher contact point was located west of the crossing, there was evidence which shows that the two delivery tracks for the Illinois Central Railroad were in the circuit, and that on that evening there were ears on the delivery track located 300 feet east of a shanty, which was 100 feet east of the crossing, and that these cars were not within the circuit for the flasher signs, which would locate the circuit somewhere between 300 and 400 feet east of the crossing on the east side and presumably the same distance on the west side of the crossing.

It was daylight and the weather was good at the time of the unfortunate occurrence. The Elliott and Mattox boys were passengers in an automobile owned and driven by Donald Luebchow. The three boys were high school students, 16 or 17 years of age, and were on their way to a farmer’s sale at Crete, about six miles south, each intending to buy livestock or poultry to raise and thus earn some money during the summer vacation. The automobile was traveling south on Main street and it was struck in about the center of the highway by an eastbound freight train traveling on the more southerly of the main line tracks. The Elliott boy was killed almost instantly and the Mattox boy died later that night from his injuries. The Luebchow boy, the driver of the car, was injured. At the time of the trial he was in the Army. They were active, strong boys, in good health and hard working. One of the boys was earning $25 to $30 a week and the other boy worked on a farm during the summer vacation.

Lionel Ray Stoll, a schoolmate of the boys, testified that he was traveling on his bicycle south on Main street after the accident when his attention was attracted to the standing train and to the boys’ bodies about 28 yards east of Main street. He testified that the train was standing, blocking the crossing, and that the flashers were not working at that time. On cross-examination he testified that it was still daylight; that as he came down Main street he noticed that the train was standing there; that when he saw the train he glanced at the flasher signal; and that he was at the crossing before he noticed the bodies or the wreckage or that anything unusual had happened.

Mike Picchi testified that he was at the Mattox home when news of the accident reached there, and that he drove Mrs. Mattox to the scene in his automobile. Upon direct examination he testified that he was too excited to notice whether the train was'standing on the crossing; that he was just watching for the Mattox boy, whose body was in an ambulance when he got there; that he did notice the flasher; that “the flasher was not on when we got out there, because the train wasn’t standing there”; and that “when we got over there,: the flasher wasn’t going on.” On cross-examination he stated that the light was not on when he got there, but he didn’t pay much attention.

James Fox testified that he had been employed approximately 10 years by railroads as a fireman, engineer or switchman and that he was familiar with the automatic flasher signal used by defendant at the Main street crossing; that the flasher signal is electrified so that when a train comes in contact with a certain spot on the rails it starts the signal, and that the signal continues to operate until the train clears a point on the other side of the crossing. On cross-examination he admitted that his familiarity with' the signal at the crossing was based solely on the fact that he had worked six or seven months in 1925 installing signals for the Chicago & E. I. R. R.; that he had driven over the crossing about 15 times in the past seven years visiting relatives, and that on one occasion after the occurrence “at the request of some folks over there” he laid a bar across the rails. He admitted he was not able to tell from his knowledge of this crossing just where a train must be standing in order to set the flasher signal in motion. Over objection, the fathers of the two boys testified that their sons were of “ordinarily careful habits” in traveling upon streets and highways. Mr. Mattox also testified that the Luebchow boy went into the Army in March 1943; that he had talked to the boy’s father about three weeks before the trial, and was informed that he was stationed in Nebraska about five weeks before that, and that he didn’t know where he was to be sent from Nebraska. Defendant’s objection that the testimony as to careful habits was inadmissible because there was an eyewitness to the accident, the Luebchow boy, and that there had been no showing of any diligent attempt to obtain his presence at the trial, or his deposition, was overruled.

Walter L. Elwood, the engineer, testified that the train was traveling about 25 miles an hour; that he sounded the whistle from the whistling post, a quarter of a mile west of the crossing, and continued to sound the whistle to the crossing; that the engine bell was ringing from the time he left Frankfort, Illinois, about six miles west of Matteson, continuously until past the place of the occurrence. As engineer, he was seated on the right hand side of the locomotive, or the side away from the approaching automobile, and his first knowledge that there was going to be an “accident” was when the fireman jumped off the seat box. He made a service application of the brakes and brought the engine to a stop about 50 car lengths east of the crossing. The train consisted of 58 cars, all equipped with air, and when the crash came the air was applied to act with equal pressure on all the cars, and the front end of the locomotive came to a stop about 50 car lengths east of the crossing, or a distance of between 2,500 and 2,700 feet. Upon redirect examination he testified that the reason for making a service application of the brakes rather than an emergency application was that the “accident” had already occurred, his train contained 26 cars of explosives and he didn’t want to take a chance on doing more damage. After the train came to a stop he remained with the 'locomotive about 25 minutes, and when the fireman returned, he went back to the crossing and also into the depot. The flasher signals at the north side of the crossing were operating when he went back to the crossing, but he didn’t remember.whether the crossing bell was ringing.

Wendell Bishop, the fireman, testified that the engine whistle was blown continuously from a point about a quarter of a mile away from the crossing until the point of the mishap, and that the engine bell was ringing from the time the train left Frankfort. As they approached the crossing the train was traveling from 25 to 30 miles an hour. He was riding on the left or north side of the locomotive, the side from which the automobile approached. He saw the automobile when it was about 100 feet north of the crossing and when the front end of the locomotive was about 100 feet from the crossing. The automobile was traveling at about 35 miles an hour. Its speed did not decrease at all until the time of the collision. He saw one boy in the back seat of the automobile moving around, but did not notice what the boys in the front seat were doing. He did not notice any of the boys in the automobile looking west toward the approaching train. After the mishap he went back to where the boys were lying, but did not go back to the crossing itself. On cross-examination he testified that his estimates of the relative distances of the automobile and train from the crossing and their respective speeds were approximate, according to his best judgment.

Wilbur L. Cazel, the station agent, testified that from his position at the telegraph table in an alcove projecting from the south wall of the depot building, he saw the train approaching from the west. Prior to the time of the collision he heard the crossing bell ringing and he heard the engine whistle “very distinctly.” The whistle was blowing at the time the engine passed in front of the station. After the event he went out to the crossing and noticed that the flasher was working and the bell ringing. That was within five minutes after the impact and prior to the time that the ambulance arrivéd.

Merritt E. Cagwin, the head brakeman, testified that he was riding on the tender of the engine in the cabin for the head brakeman. His first knowledge of the mishap was when something flew up afld hit the first car back of the engine. After the train came to a stop he went back to the crossing and observed that the flasher signals on the north side of the track were working. He did not remember whether the crossing bell was ringing at that time or not.

O. A. Taylor, the conductor of the train, testified that he was riding on the engineer’s side, or the south side of the caboose at the rear of the train, with his head out the window; that his first knowledge that there had been an “accident” was after the train stopped; that the caboose was then about eight car lengths west of the crossing; that he got out on the north side of the caboose and went to where the boys’ bodies and the wreckage of the automobile were; that as he passed over the highway crossing he noticed that the flasher signals were working and the bell ringing. He testified further that when the caboose was about 10 or 15 car lengths west of the crossing before the train had come to a stop, as he was leaning out of the window, he noticed that the flasher signals at the south side of the crossing were operating, as he could see the light flashing through a peep hole in the side of the flasher light containers; and that the flasher lights continued to work until he had the train uncoupled. On cross-examination he testified that the flasher signal operates by electrical contact and that so long as there is anything on the rails between the two contact points the flasher will work.

Rueben Robertson, defendant’s car inspector at Matteson, testified that he came to work at 8 p. m. on the night of the occurrence; that he left the depot about 8:12 or 8:15 p. m. to walk down to his shanty, which was about 100 feet east of the crossing; that when he was about 50 feet east of the crossing he heard the train"whistle, stopped and looked back; that when he looked back he saw the automobile coming from the north, about 300 or 400 feet from the railroad crossing ; that he heard the engine whistle, saw the flashers going and heard the crossing bell ringing; that the crossing bell rang until after the collision; that the flasher signals worked continuously until the time of the impact; that the automobile did not swerve to the right or left; and that it was struck in the center of the highway, and in the center of the eastbound main tracks. On cross-examination, he testified that he heard the whistle when the train was between an eighth and a quarter of a mile west of the crossing; that he did not know how far the flasher circuit went west of the crossing, and that he noticed the flashers working on the south side of the crossing after he heard the blast of the whistle. He testified that there were cars for him to inspect east of the crossing on the No. 1 receiving track. On redirect examination, he testified that these cars were down in the yard and not within the circuit for the flasher signal. Defendant’s motion at the close of all the evidence to strike the testimony of Elliott and Mattox with respect to the habits of due care of the boys on the ground that there were at least two eyewitnesses, the fireman and the car inspector, was denied.

The first criticism leveled at the judgment is that plaintiffs ’ decedents were guilty of contributory negligence as a matter of law. Plaintiffs insist that their sons were in the exercise of due care for their own safety. The parties are agreed that contributory negligence is a question for the jury, except when the evidence of its existence is so clear that no reasonable minds could come to a contrary conclusion. In passing on defendant’s point we have in mind the oft repeated rule that when there is any evidence which, taken with its reasonable inferences in its aspect most favorable to the plaintiffs, tends to show the use of due care, the question of due care is one for the jury. Whether there is any such evidence is a question of law. In determining the question, this court can examine the record only to determine whether there is any evidence tending to support the cause of action.

In Dee v. City of Peru, 343 Ill. 36, the court said (p. 42):

“It is the duty of a passenger in a velycle, where he has an opportunity to learn of danger and to avoid it, to warn the driver of such vehicle of approaching danger, and he has no right, because someone else is driving, to omit reasonable and prudent efforts on his own part to avoid danger.”

In Opp v. Pryor, 294 Ill. 538, the court said (p. 547):

“The plaintiff sat at the right of the driver in front, with at least equal opportunity to observe danger and the approach of the train, and being bound to prove the exercise of ordinary care by herself, it was no 1 ts her duty than that of the driver to observe and avoid' danger, if practicable, and to warn the driver. ’ ’

The rule has long been settled in this State and is generally recognized, that railroad crossings are dangerous places, and that one crossing must' approach the track with the amount of care commensurate with the known danger, and when a traveler on a public highway fails to use ordinary precaution while driving over a railroad crossing, the general knowledge and experience of mankind condemns such conduct as negligence. Moudy v. New York, C. & St. L. R. Co., 385 Ill. 446, 452. One who has an unobstructed view of an approaching train is not justified in closing his eyes and failing to look, or in crossing a railroad track upon the assumption that warning will be given. The law will not tolerate the absurdity of the contention that a person looked but did not see the train when the view was not obstructed, and where, if he had properly exercised his sight, he must have seen it. Greenwald v. Baltimore & O. R. Co., 332 Ill. 627; Carrell v. New York Cent. R. Co., 384 Ill. 599. The fact that the flasher signals were not operating would not excuse plaintiffs’ decedents’ failure to look and see the approaching train. In Grubb v. Illinois Terminal Co., 366 Ill. 330, our Supreme Court said (p. 337):

“We believe the sound rule to be, that although the fact that a signal system is not operating is an indication to the traveler that it is safe to cross, nevertheless he is not thereby released of the duty of using reasonable care for Ms own safety. Where the surroundings at a particular crossing give to the traveler an unobstructed view of a dangerous highway crossing he is not justified in failing to look, or, on looking, failing to see'an approacMng train, merely acting in reliance upon an assumption that no train is approaching. The ■ law will not tolerate the absurdity of permitting one to testify that he looked and did not see, when, had he properly exercised his sight, he would have seen.”

We recognize that the negligence of Donald Luebchow, the driver of the car in which the boys were riding, cannot be imputed to them, if they were not in any way the cause of such negligence and omitted no ordinary care for their own safety. Thompson v. Atchison, T. & S. F. Ry. Co., 258 Ill. App. 123. In passing on the proposition urged by defendant that the boys were guilty of contributory negligence as a matter of law, we are excluding from consideration defendant’s contention that the boys were engaged in a joint enterprise. »

Plaintiffs attack the credibility of defendant’s witnesses Robertson and Bishop. As previously stated, in passing on defendant’s point we are considering only the evidence favorable to plaintiffs and the reasonable inferences to be drawn therefrom. Plaintiffs urge that when taking into consideration that the accident occurred on July 31, 1942, when foliage and trees were in full bloom, with a depot and freight house only 50 feet from the track, and a train emerging from a tunnel only 197 feet from the crossing and with a supposed automatic flasher not giving a warning signal, it is clearly a condition which left the matter of contributory negligence a fact question to be decided by the jury. Plaintiffs also state that there was evidence of a train going west passing the eastbound train only one half mile before the latter train collided with the automobile, which further obscured the train involved in the accident from the vision of the respective decedents, just prior to the collision. Plaintiffs ask us to bear in mind that we are dealing with passengers in an automobile; that there is no reliable evidence as to the speed of the automobile; that judging •from the distance the train went after applying the brakes (one half mile) “together with the impossible story of defendant’s fireman,” would justify the jury in disbelieving that the train was only going 25 miles an hour, especially when it was one hour late. Plaintiffs argue that even if the occupants of the automobile could see the entrance to the viaduct at a point 87 feet north of the crossing, it is still mathematically possible that at that time the train had not yet emerged from the viaduct; that with the automobile moving forward all the time the passengers would then, not seeing any danger to the west, turn their attention, in the exercise of due care, to the east for any westbound train, because that would be the first track they would have to cross, naturally claiming their prior attention to it as the first point from which a train would come; that being lulled into security by the open invitation to cross in safety (in the absence of any flasher warning) with implied assurance of, safety, together with the fact that only a few split seconds would elapse from the time the tunnel was in view until the time they were on the crossing, these passengers acted as any ordinarily prudent persons would act under the circumstances ; and that the conditions were such as ■ should present a question of fact for the jury.

In support of their contention that whether there was contributory negligence, presented a question for the jury, plaintiffs cite Lcmer v. Elgin, J. & E. R. Co., 305 Ill. App. 200; Taylor v. Alton & Eastern R. Co., 258 Ill. App. 293; Henry v. Cleveland, C., C, & St. L. R. Co., 236 Ill. 219; Elgin, J. & E. R. Co. v. Lawlor, 229 Ill. 621. These cases point out that whether the traveler on the highway could have seen the approaching train ‘ ‘ depends to some extent on the degree of light at the time” and that the circumstances of the particular case might excuse the failure to look and listen. We agree with defendant that the facts in this record show no circumstances to excuse a failure to look and listen like the facts in the cases cited. In the instant case the testimony is undisputed that there was daylight at the time of the occurrence; that the boys were familiar with the crossing; that the Mattox boy lived' about four blocks and the Elliott boy about a mile from the crossing; that the highway on which they were traveling was one of the main north and south thoroughfares in Matteson and was the main road to Crete, where the boys were going; that at a point 87 feet north of the point of the collision a traveler on the highway had an unobstructed view for 197 feet down the track to the mouth of the viaduct under the Illinois Central track; that from that point to the place where the eastbound main crosses the highway there were no obstructions of any kind to prevent a traveler on the highway seeing a train between the highway and the crossing; that neither the railroad office building 65 feet north of the eastbound track, nor the elevation supporting the Illinois Central tracks to the west could hide the train; that the train was traveling 25 to 30 miles an hour; that the whistle was sounded from the whistling post, a quarter of a mile west of the crossing, to the crossing; and that the engine bell had been ringing for six miles. The boys were not confused by darkness, nor by an unlighted or obstructed headlight. They were not misled by the absence of the whistle, or by failure to give the whistle and bell signals from the moving train. The facts show no circumstances to excuse a failure to look and listen. As to plaintiffs’ statement that there was evidence of a train going west, passing the eastbound train only one half mile before the collision with the automobile, and that this westbound train further ob-soured the eastbound train from the vision of plaintiffs’ decedents, it is obvious that any such westbound train would have been from one to three miles away at the time of the accident and could not have possibly hidden the train involved in the accident. As to plaintiffs’ contention that the vision of one approaching the crossing from the north was obstructed.by foliage and trees in full bloom and by the depot north of the track, the testimony of plaintiffs’ witness, the surveyor, the survey which he prepared and the photographs which he identified, show that there was no shrub or tree or structure of any kind between the depot and the crossing which could in any way interfere with the view down the tracks as far as the viaduct, when the occupant of a car proceeding in a southerly direction on Main street is within 87 feet of the crossing. Failure to stop within a much shorter distance has been held to establish contributory negligence as a matter of law. Greenwald v. Baltimore & O. R. Co., 332 Ill. 627; Robertson v. New York Cent. R. Co., 321 Ill. App. 313; Holt v. Illinois Cent. R. Co., 318 Ill. App. 436; Wuerz v. Southern Ry. Co., 318 Ill. App. 1; Purdy v. Sprague, 286 Ill. App. 17.

The undisputed testimony of the engineer and fireman was that the train was traveling 25 to 30 miles an hour. That the locomotive traveled a half mile beyond the crossing after the occurrence was due to the fact that the brakes were not applied until after the collision had occurred and with 26 cars of explosives in the train, the engineer made a gradual service application of the brakes so as to run no risk of doing any more damage by piling up the cars of explosives. As to the contention of plaintiffs that it was mathematically possible that the train had not yet emerged from the viaduct when the automobile reached the point of clear vision, 87 feet north of the crossing, defendants point out that the distance traveled by the train from the viaduct to the point of collision was two and one quarter times as far as the distance traveled by the automobile, and that in order to make plaintiffs’ hypothesis true, the automobile must have been approaching the dangerous railroad crossing at an average speed of more than 55 miles an hour; that if so, plaintiffs’ decedents were guilty of contributory negligence as a matter of law, or at least the speed at which the automobile was operated made the driver’s negligence the sole proximate cause of the accident. The argument of plaintiffs as to a mathematical possibility does not have any basis in the evidence. We find that there were no circumstances sufficient to excuse failure on the part of plaintiffs’ decedents to look and to see the clearly visible train,' or to hear and heed its signals, and that they were guilty of contributory negligence as a matter of law. As stated, the burden was upon plaintiffs to prove by a preponderance of the evidence, direct or circumstantial, that their decedents were in the exercise of due care for their own safety at the time of the occurrence. It was not incumbent upon defendant to prove that decedents were guilty of contributory negligence as the proximate cause of their injuries. In an endeavor to sustain the burden of proving due care, the two fathers testified that their sons were boys of ordinarily careful habits in traveling upon the streets and highways. We are of the opinion that it was error to admit this testimony.

In the recent case of Wilkerson v. Cummings, 324 Ill. App. 331, we reviewed the law on this subject. In Petro v. Hines, 299 Ill. 236, the court said (p. 239):

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

Lnebchow was an eyewitness. There was an attempt by plaintiffs to show that his testimony was unavailable because he was in the Army. There was no showing of any attempt to procure his presence at the trial, or to take his deposition. Defendant’s witnesses Robertson and Bishop testified as to what they saw as eyewitnesses of the occurrence. • At the close of all the evidence the court overruled defendant’s motion to strike the testimony of plaintiffs as to the careful habits of decedents. The court should have allowed this motion. Petro v. Hines, 299 Ill. 236. The allegation in each complaint that the decedent was in the exercise of due care and caution for his own safety at the time of the occurrence was a necessary and material allegation, and must be proved. There must be evidence from which the jury may determine this essential element. The jury cannot function without evidence. A jury will not be permitted to base a finding of fact upon conjecture or surmise. With the testimony of plaintiffs as to the careful habits of their sons stricken, and viewing the evidence, taken with its reasonable inferences in its aspect most favorable to plaintiffs, we find as a matter of law that plaintiffs failed to present any competent evidence to establish an essential element of their case, namely, that decedents were in the exercise of due care for their own safety at the time of the occurrence.

The second point urged by defendant is that the negligence of Donald Lnebchow, the driver of the automobile, was the proximate cause of the injuries resulting in the death of decedents.- Lnebchow drove his automobile onto the crossing despite the fact that the train was clearly visible; that the whistle and bell on the train were both being sounded; and when for at least 87 feet he had an unobstructed view of the train. In passing on this point we accept plaintiffs’ contention that the flasher signals and crossing bells were not operating. Nevertheless, there were other warnings of the approach of the train. In Briske v. Village of Burnham, 379 Ill. 193, an action brought by a girl who was a passenger in an automohile which ran into an obstruction, the court said (p. 201):

“Considering the evidence in its aspects most favorable to the plaintiff, the evidence demonstrates that the proximate cause of plaintiff’s injuries was the negligence of Jakuhcyk, the driver of the car. There is no substantial testimony to the contrary.! ’

In the Brishe case the Supreme Court sustained the judgment of the Appellate Court in reversing a judgment for plaintiff and entering judgment for defendants. We find that Donald Luebchow, in driving the automobile in which the sons of plaintiffs were riding, was guilty of negligence as a matter of law, and that such negligence was the proximate cause of the injuries which resulted in the death of the boys. Briske v. Village of Burnham, 379 Ill. 193; Trust Co. of Chicago v. Baltimore & O. R. Co., 315 Ill. App. 209; Greenwald v. Baltimore & O. R. Co., 332 Ill. 627; Provenzano v. Illinois Cent. R. Co., 357 Ill. 192; Moudy v. New York, C. & St. L. R. Co., 385 Ill. 446.

As the matters ruled upon dispose of the case, we will not lengthen the opinion by discussing the other points presented. For the reasons stated the judgments of the Circuit Court of Cook County are reversed and the cause remanded with directions to enter judgments for the defendant and against the plaintiffs.

Judgments reversed and cause remanded with directions.

Lupe, J., concurs.

(See next page.)

Kiley, J.,

specially concurring: The opinion seems to assume that because the car in which plaintiffs were riding did not stop, slow down or otherwise avoid the collision, under the circumstances, decedents were guilty of contributory negligence. The opinion states that the defendant’s contention of a joint enterprise was disregarded by the court.

I agree that the jury must have some evidence of decedents’ due care, upon which to decide whether plaintiffs'have made out a case; that plaintiffs had the burden of presenting that evidence; and that the court improperly admitted the testimony of the fathers of decedents that the latter had been of careful habits. I do not agree that because defense witnesses, Robertson and Bishop, were “eyewitnesses of the occurrence” the rule which precludes testimony of habits where there are eyewitnesses to the accident, operated here to bar that testimony. It is my view that the secondary evidence of decedents’ due care, that of their habits, should not have been admitted because the best evidence of that fact was not shown to be unavailable. The best evidence of that fact is in possession of Luebchow, the driver of the car. The rule barring evidence of habits where there are “eyewitnesses” (Wilkerson v. Cummings, 324 Ill. App. 331), undoubtedly applies where the person injured or killed was the driver, or where the person injured or killed was a passengér to whom the driver’s negligence was imputable. That is not the case here. The terms “eyewitness to the accident,” “eyewitness to the occurrence,” “eyewitness who saw the infliction of the injury” are misleading. ' The test is not whether a witness saw an accident, but whether he observed circumstances from which a fact or facts in question necessary to a plaintiff’s case may be inferred. The particular fact under question here is the due care of decedent; neither Robertson nor Bishop observed the behavior of decédents immediately before or at the time of the accident. It is not enough to bar the testimony of decedents’ habits that Robertson and Bishop observed the course of the car in which decedents were riding. That course suggests the inference of Luebchow’s conduct, not decedents; and Luebchow’s conduct is not imputable to decedents. Luebchow was in the automobile with decedents, the lone survivor, and he alone, under the circumstances here, could testify to their conduct. If plaintiffs had shown that he was unavailable, it is my opinion that the testimony of habits would have been admissible to give the jury some evidence upon which to determine decedents’ due care. The testimony of Robertson and Bishop presented no such evidence. The testimony of decedents’ habits being secondary evidence of their due care, was inadmissible in the absence of a showing that Luebchow was not available to testify. The objection to the testimony should have been sustained. Since that evidence is inadmissible, there is no evidence of decedents’ due care.

I have found no case of an Illinois court nor any foreign jurisdiction where the “eyewitness to the accident” rule has applied to bar testimony of the habits of a passenger killed in the accident, where there was no better evidence of his due care available and where the driver’s conduct was not imputable. Among others, I have read the following cases and have found nothing inconsistent with my reasoning on this point. Wallis v. Southern Pac. R., 15 A. L. R. 117, and note page 125; Chicago, B. & Q. R. Co. v. Gregory, 58 Ill. 272; Chicago, R. I. & P. R. Co. v. Clark, 108 Ill. 113; Chicago, B. & Q. R. Co. v. Gunderson, 174 Ill. 495 ; Chicago & A. R. Co. v. Wilson, 225 Ill. 50; Collison v. Illinois Cent. R. Co., 239 Ill. 532; Stollery v. Cicero & P. St. R. Co., 243 Ill. 290; Newell v. Cleveland, C., C. & St. L. R. Co., 261 Ill. 505; Moore v. Bloomington, D. & C. R. Co., 295 Ill. 63; Petro v. Hines, 299 Ill. 236, 132 N. E. 462; Wilkerson v. Cummings, 324 Ill. App. 331.


author: Mr. Presiding Justice Burke

text:
    David Harris, Appellee, v. Metropolitan Life Insurance Company, Appellant.
    Gen. No. 43,070.
    Heard in the third division of this court for the first district at the June term, 1944.
    Opinion filed February 14, 1945.
    Released for publication March 5, 1945.
    Hoyne, O’Connor & Rubinkam, of Chicago, for appellant; Nathaniel Rubinkam and. Melvin L. Gibbard, both of Chicago, of counsel.
    Edward W. Weiss and Nathan Einhorn, both of Chicago, for appellee.
   Mr. Presiding Justice Burke

delivered the opinion of the court.

On May 10, 1926 the Metropolitan Life Insurance Company issued its policy of insurance in the face amount of $2,500 upon the life of David Harris. His application shows that he was born in Philadelphia, Pennsylvania on September 22, 1893. Attached to the policy and forming a part thereof was a supplemental contract providing for total and permanent disability benefits of $25 a month, plus the waiver of the premiums. On December 26, 1941 he filed a claim for disability benefits. Part of the proofs submitted was a certificate of Dr. Harry Krauth, his attending physician, dated December 18, 1941. From that certificate it appears that the physician visited insured at his home on 12 occasions between September 24, 1941 and November 21, 1941, treated him for coronary thrombosis and that he was continuously confined to his home until November 22, 1941. In answering a question with respect to the patient’s exact condition as of December 18,1941, the physician stated, “markedly improved” and that the prognosis was “favorable.” As to whether the disability would be permanent, the physician answered, “undetermined.” The company refused to honor the claim and David Harris filed his statement of claim in the municipal court of Chicago, asking judgment for $200. Issue was joined. A trial before the court without a jury resulted in a finding and judgment for plaintiff for $200, to reverse which this appeal is prosecuted.

The disability provision in controversy reads as follows:

“The Company ‘hereby agrees that upon receipt by the Company at its Home Office in the City of New York of due proof on the forms which will be furnished by the Company, on request, that the insured has, while said policy and this Supplementary Contract are in full force and prior to the anniversary date of said policy nearest to the sixtieth birthday of the insured, become totally and permanently disabled, as the result of bodily injury "or disease occurring and originating after the issuance of said Policy, so as to be prevented thereby from engaging in any occupation and performing any work for compensation or profit, and that such disability has already continued uninterruptedly for a period of at least three months, it will, during the continuance of such disability, 1. Waive the payment of each premium falling due under said Policy and this Supplemental Contract, and, 2. Pay to the Insured ... a monthly income of $10.00 for each ■ $1,000.00 of insurance . . . . ’ Notwithstanding that proof of disability may have been accepted by the Company as satisfactory, the insured shall at any time, on demand from the Company, furnish due proof of the continuance of such disability, but after such disability shall have continued for two full years the Company will not demand such proof more often than once in each subsequent year. If the insured shall fail to furnish such proof, or if the insured shall be able to perform any work or engage in any business whatsoever for compensation or profit, the monthly income herein provided shall immediately cease, and all premiums thereafter falling due shall be payable according to the terms of said Policy and Supplemental Contract.”

In his statement of claim plaintiff alleged that on September 24,1941 he became totally and permanently disabled as a result of disease so as to prevent him thereby from engaging in any occupation or performing any work for compensation or profit; that his total and permanent disability within the purview of the total and permanent disability provision existed from September 24, 1941 for a period of seven months; and that there was due him a disability income of $25 per month, plus the amount of the premiums which should have been waived. Plaintiff’s theory is that “his total disability, although existing for a period of only seven months, entitles him to recover the disability benefits for those seven months in accordance with the legal interpretation of the total and permanent disability provision of the policy.” Defendant’s theory is that the policy provides for the payment of benefits only in the event the insured is totally and permanently disabled so as to be prevented thereby from engaging in any occupation and performing any work for compensation or profit; that the receipt of due proof of such total and permanent disability is a condition precedent to recovery; that the proof furnished by plaintiff showed his disability to be temporary; and that inasmuch as plaintiff recovered from the disability prior to the institution of suit, the disability was temporary and defendant did not become liable under the terms of the policy.

The case was tried on December 29, 1943. It was stipulated that plaintiff was totally disabled “so as to be unable to do any work or perform any work for compensation or profit” for a period of seven months commencing September 24, 1941. During that period he paid a premium of $29.39. By agreement the deposition of plaintiff was read into the record. In the deposition plaintiff admitted that after the seven-month period he fully recovered, was able to work and has worked since. He testified that he was working and that he “feels fine.” The only issue is whether plaintiff may recover the monthly disability payments provided by the total and permanent disability provisions for such time as he was totally disabled. Plaintiff calls attention to the clauses that the monthly total and permanent disability payments shall be made if the total disability continues for three months; that the company may at any time demand proof of the continuance of such total and permanent disability; and that if the insured' shall be able to perform any work or engage in any business whatsoever for compensation or profit, the company shall cease making disability payments. Plaintiff argues that our courts have held that the word “permanent” as used in this type of policy does not mean for a lifetime or everlasting; that the yardstick of three months placed against total disability due to illness of an apparently permanent nature, and the right of defendant to cease payments if the insured recovers, belie and contradict defendant’s argument that the disability must be permanent in the usual abstract sense of the word; that the law will not permit the use of the word “permanent” to have the effect of rendering meaningless the two provisions mentioned; and that if defendant intended that the disability clause should cover only “'permanent” disability in the sense of meaning for lifetime or unlimited duration, then the three-month yardstick and the right to cease payments in the event of recovery would be useless and facetious. With respect to the doctor’s statement that the illness was of “undetermined” duration, plaintiff suggests that this was the only true and honest opinion “any doctor could ever give as to the duration of such illness,” and that “because diseases of this nature are always of ‘undetermined’ duration and never become determined of duration until recovery or death; that the company by its own language sought to protect itself by providing the right to cease making payments upon recovery”; and that this is the only logical interpretation of the clause and is strictly in accordance with the construction given it by our courts. Plaintiffs rely on Greenberg v. Metropolitan Life Ins. Co., 379 Ill. 421; Johnson v. Mutual Trust Life Ins. Co., 269 Ill. App. 471; and Ginsburg v. Prudential Ins. Co., 294 Ill. App. 324. Defendant cites Sibley v. Travelers’ Ins. Co., Hartford, Conn., 275 Ill. App. 323; Buffo v. Metropolitan Life Ins. Co., 277 Ill. App. 366; Russell v. New York Life Ins. Co., 305 Ill. App. 619; Leibson v. Metropolitan Life Ins. Co., 297 Ill. App. 649; Ehrenreich v. Massachusetts Mut. Life Ins. Co., 305 Ill. App. 584; and numerous cases from other jurisdictions.

It will be noted that the contract under consideration does not protect the insured against the loss of ability to perform his usual occupation, nor does it insure against total disability and presume the latter to be permanent, for the purpose of the coverage after it has continued uninterruptedly for a specified period. In order to be entitled to payment, the policy in the instant case requires the insured to be totally and permanently disabled so as to be prevented thereby from engaging in any occupation or performing any work for compensation or profit. Plaintiff’s, statement of claim alleges that his total and permanent disability existed for a period of seven months. We agree with defendant that the words “permanent” and “temporary” are antonyms and readily occur to the ordinary mind as such, and that a disability that is “transient” or “temporary” cannot be a permanent one. It is reasonable to say that one has been “totally disabled” for a definite period, but it would be contradictory to speak of a “permanent” disability as being for a limited period. The clause “that such disability has already continued uninterruptedly for a period of at least three months” does not raise a presumptipn that the disability is or will be permanent because it existed for three months. It is merely a “waiting period,” which must intervene before the insured can claim the policy benefits if his disability is total and permanent. The obvious purpose of the provision is to allow a sufficient time to elapse after the inception of a total disability to secure a careful prognosis on the question of permanence. We agree with defendant that the provision for termination of benefits is entirely consistent with the requirement of permanence. Presumably, it was inserted because the progress of medical science has demonstrated that many maladies once considered incurable are responding to new techniques. In affirming a judgment for the plaintiff in a ease involving a policy with a similar provision for disability benefits, the court, in Johnson v. Mutual Trust Life Ins. Co., 269 Ill. App. 471, said (p. 475):

“It clearly indicates that the parties intended by this contract that whenever it should appear that the plaintiff was totally disabled and that such disability would, so far as it was possible to ascertain at the time, be permanent, the insured should receive the income and have the premiums waived as provided in his policy, from the time such fact is determined until the insured recovered or died. No other reasonable construction can be given the-provisions of the policy in this case, . . ..”

The record shows that plaintiff vas totally disabled during the seven-month period for which he seeks benefits. However, the contract of insurance obligated the defendant to make the payments and waive the premiums only if the disability was total and permanent. There is no proof that the disability was permanent. Clearly, it was only temporary. Failing to .prove, as alleged, that his disability was permanent, plaintiff did not make out a case. Therefore, the judgment of the municipal court of Chicago is reversed and the cause remanded with directions to enter judgment for the defendant and against plaintiff.

Judgment reversed and cause remanded with directions.

Kiley, J., and Lupe, J., concur.