author: JUDGE SCHWARTZ

text:
    Samuel R. Cheevers, Appellant, v. Harry Stone, and Roger Lumber Company, Appellees.
    Gen. No. 46,766.
    First District, Second Division.
    April 24, 1956.
    Released for publication May 15, 1956.

      G-eter & Geter, of Chicago, for appellant; Howard D. Geter Jr., and Antoine L. Joseph, both of Chicago, of counsel.
    Maurice Weissman, of Chicago, for appellees.
   JUDGE SCHWARTZ

delivered the opinion of the court.

This is an appeal from an order of the Municipal Court striking plaintiff’s statement of claim and dismissing the suit.

The statement of claim contained three counts. The first count states a claim against defendant Harry-Stone for compensation in the sum of $1,500 arising out of a contract between them relative to the construction of a public garage. Count two states a claim against the same defendant for $1,500, being the reasonable value of services rendered in the construction of the public garage. The third count states a claim against defendant Roger Lumber Company for $1,500, being the reasonable value of services rendered “at the special instance and request of Defendant, Roger Lumber Company, a Corporation . . . for Defendant as a contractor.”

The written contract between plaintiff and defendant Stone contained promises by plaintiff to do the following: “Item 1 — To furnish the proper legal process to have the property rezoned from residential to commercial use. Item 2 — To accelerate the date of public hearing and personally represent my client at the hearing. Item 3 — To use the necessary political pressure to obtain the authorization for a legal permit to build without delay of the lengthy and regular process of rezoning procedure.” The balance of the contract was vague, but we gather that plaintiff further promised to estimate the cost of construction and to procure vital materials. Plaintiff’s fee for these services was to be $1,500. Plaintiff was not and is not now an attorney.

Defendants answered the complaint with a statement of defense based upon a plea of res judicata. This statement set forth a prior bill in equity to foreclose a mechanic’s lien entitled Cheevers v. Stone, 53 C 13460, filed in the Circuit Court of Cook County, and alleged that said proceeding was based upon the same written contract that forms the basis of plaintiff’s action in the present proceeding. The statement of defense further alleged that defendants filed a motion to dismiss the bill in equity on the following grounds:

“(a) That items numbered (1) and (2) in plaintiff’s complaint cannot properly be made the subject matter of a claim for lien in that it appears that said services are of a legal character and constitute the practice of law; that plaintiff does not allege he is duly licensed as such; that the court will not lend its aid in the enforcement of a contract contrary to law;

“(b) That the enforcement of the contract dated January 6,1951, is contrary to public policy in that the contract contemplates the use of political pressure and is of a character contrary to the law and constitutes a form of undertaking to which courts will not aid in enforcement.”

The statement of defense further states that the Circuit Court granted said motion to dismiss and entered the following order:

“(1) That the Court finds that said motion to strike the complaint of plaintiff is well founded and said motion is accordingly sustained, and it appearing to the Court that the plaintiff stands by said complaint and does not wish to plead over;

•‘(2) It is accordingly ordered, adjudged and decreed that said complaint be stricken for want of equity, and suit of plaintiff is accordingly dismissed.”

The statement of defense concludes that the order of the Circuit Court in the action to foreclose the lien was an adjudication that the contract was illegal and unenforceable, and that said adjudication is determinative of the present proceeding. Defendants moved to dismiss the complaint.

Plaintiff then moved to strike defendants’ answer. The court set the case down for trial, heard the arguments, overruled plaintiff’s motion, sustained defendants’ statement of defense and dismissed the suit on the ground that the prior adjudication was a bar to this action.

In this appeal plaintiff contends that the trial court erred in applying the doctrine of res judicata for the following reasons: (1) Defendants’ answer was insufficient for a plea of res judicata because there was no showing there was a hearing on the merits in the prior equity action; (2) there was no specific finding in the prior action that the contract was illegal; (3) the contract contained certain legal covenants which were separable from the illegal ones; (4) the dismissal of the prior action to foreclose a mechanic’s lien for want of equity does not preclude an action at law on a quantum meruit theory for work done; (5) the plea of res judicata is insufficient insofar as defendant Roger Lumber Company is concerned because that company was not a party to the prior action.

To be effective as a prior adjudication, judgment must have been upon the merits, but it is immaterial whether the judgment was upon the facts proved or upon the facts alleged which were admitted by demurrer. Life Printing & Pub. Co., Inc. v. Marshall Field, 327 Ill. App. 486; Marie M. E. Church of Chicago v. Trinity M. E. Church of Chicago, 253 Ill. 21. Defendants’ motion to dismiss plaintiff’s bill to foreclose corresponded in onr present day practice to a demurrer and had the effect of admitting the facts well pleaded in the bill.

While it is true that a motion to dismiss may be based on a technical deficiency in a pleading and in such ease will not bar another action for the same cause (Sattenstein v. Earl, 328 Ill. 148; Marie M. E. Church of Chicago v. Trinity M. E. Church of Chicago, 253 Ill. 21), where, as in the instant case, an order of dismissal follows the ruling on the motion and recites the plaintiff’s election to stand by the complaint, it is an adjudication of all the issues thereby raised. Doner v. Phoenix Joint Stock Land Bank of Kansas City, 381 Ill. 106. In the instant case the court’s order stated that defendants’ motion was “well founded” and it accordingly dismissed the complaint “for want of equity.” It is clear from the record that the questions raised in the motion to dismiss went to the equities of the case and not to any question of defective pleadings. We are of the opinion that the judgment on the motion to dismiss was a judgment on the merits of plaintiff’s cause of action.

Plaintiff however contends that the equity court did not specifically adjudicate that the contract was illegal. This contention has no merit because the illegality of the contract was the precise issue raised by the motion to dismiss. The court’s statement that the motion to dismiss was “well founded” and “accordingly sustained” sufficiently evidences a finding that the contract was illegal. Our Supreme Court has stated recently “that what has been adjudicated is to be determined not from the opinion rendered but from a consideration of the judgment actually entered in reference to the issues presented for decision.” Adams v. Pearson, 411 Ill. 431. Some very pertinent language also appears in Sattenstein v. Earl, 328 Ill. 148, where the court said p. 154: “When a demurrer is sustained to a bill in equity, an order entered by the court expresses the conclusion of the court. If the demurrer is sustained and goes to the right to relief it will be followed by a decree dismissing the bill for want of equity.”

Plaintiff further contends that the contract contains some legal promises on his part and that those which can be separated from the illegal promises are valid. We need not decide whether the contract in this case was divisible because even assuming it was, plaintiff raises the issue too late. If plaintiff thought the court erroneously construed the law in the equity suit, he should have appealed from the judgment in that case. He cannot now collaterally attack that judgment. In the Sattenstein case the court said that even “if it were conceded upon examination of the bill in the former case that the court erroneously decided that the bill then under consideration upon general demurrer did not state a cause of action, appellants are in no better position here.' The final judgment following that decision was acquiesced in by them, and it is as binding upon them as if rendered upon evidence heard.” Moreover, plaintiff’s pleadings did not either in the instant or the prior case allege that the action was based upon services performed under the legal covenants of the contract, and though given the opportunity to do so, plaintiff never amended his pleadings to show reliance only on the legal covenants of the contract.

Plaintiff contends that recovery on a quantum meruit is not barred by dismissal of a bill to foreclose a mechanic’s lien based on an express contract. Whether we apply the doctrine of res judicata or estoppel by verdict, the fact remains that this contract has been adjudged to be illegal. The services performed were thus illegal and the unenforceable nature of an illegal, executed contract cannot be circumvented by disregarding the express contract and suing for the reasonable value of such illegal services. American Straw-board Co. v. Peoria Strawboard Co., 65 Ill. App. 502, 527, 528.

We hold that plaintiff’s action on the contract and on quantum meruit against defendant Harry Stone is barred by the prior adjudication that such contract was illegal and against public policy.

The final question for our decision is whether the adjudication in the prior action can serve as a bar to recovery against defendant Roger Lumber Company. The lumber company was not a party to the suit in equity and its claim does not on its face rely on the contract between plaintiff and defendant Stone. It thus seems that the trial court erred in basing its dismissal of the claim against Roger Lumber Company on the former adjudication that the contract between plaintiff and Harry Stone was illegal and unenforceable.

While we are of the opinion that plaintiff’s statement of his claim against the lumber company failed to allege certain facts necessary to establish a cause of action, no motion to strike the pleading „on account thereof was filed by defendants. Under such circumstances defendants should be required to answer that portion of the statement of claim relating to Roger Lumber Company.

The dismissal of the complaint against defendant Harry Stone is affirmed. The dismissal of the complaint against defendant Roger Lumber Company is reversed and the cause is remanded for further proceedings not inconsistent with the views herein expressed.

Affirmerl in part, reversed in part and cause remanded.

McCORMICK, P. J. and ROBSON, J., concur.


source: Caselaw Access Project

author: JUDG-E SCHWARTZ

license: Public Domain

text:
    Louise Trojan, Appellee, v. City of Blue Island, Appellant.
    Gen. No. 46,801.
    First District, Second Division.
    April 24, 1956.
    Released for publication May 15, 1956.

      Paul E. Schreiber, of Blue Island, for appellant; John Dooley, of Chicago, of counsel.
    Kamin & G-leason, of Chicago, for appellee.
   JUDG-E SCHWARTZ

delivered the opinion of the court.

This is an appeal from a judgment on a verdict for $7,500 for injuries sustained by plaintiff as the result of a fall on a sidewalk. Defendant relies on two points:

(1) That the evidence does not disclose actual or constructive notice to it of the existence of the defect complained of; and

(2) That plaintiff was not in the exercise of due care for her own safety.

A third point relating to error in instructions was waived upon oral argument.

The accident occurred at 3:30 p.m., January 26,1951, on a sidewalk in front of a hospital in Blue Island. Plaintiff and her son had gone to the hospital about 2 p.m. to visit her husband. After leaving the hospital they walked on the sidewalk a few feet and plaintiff then stepped into a hole caused by the breaking or disintegration of the cement walk and sustained the injuries complained of. She was taken back to the hospital immediately and given the necessary care and attention. As no complaint is made with respect to the damages, there is no occasion to detail the injuries.

The hole in question extended from the street edge two-thirds to three-fourths of the way across the sidewalk and was described by plaintiff’s son as being from 10 to 14 inches wide, tapering down to 4 or 5 inches, about 4 or 5 inches deep, and 3-1/2 to 4 feet long. Thus, it was a defect of substantial size and character and readily discernible. The only evidence offered by defendant was that of two police officers. Both said they had never examined the sidewalk before the accident; that they went there on the same day, after the accident, but could not see the defect because shortly after the accident a fall of snow covered the hole. According to the testimony offered by plaintiff, a retaining wall for the hospital grounds adjoins the sidewalk at the point where she fell and that portion of the sidewalk immediately adjoining the wall is so pitched as to afford some drainage. Leakage therefrom can, of course, produce ice. There was ice on the sidewalk near the retaining wall and as plaintiff, who was 60 years old and was walking with her son, reached the point where the ice was, her son saw the ice, took her arm and drew her closer to the street side of the walk to by-pass it. A few seconds later she stepped into the hole.

Plaintiff’s son testified that from his observation he would estimate that the hole had been there for a period of one to two months. He admitted it was hard to tell, but felt it was there at least a month. The question presented to us is whether this was adequate proof that the city had notice of the defect in time to remedy it. On this point it should first be noted that the hole was, as we have said, substantial and readily discernible. Proof of notice to a city of a dangerous condition such as this can seldom be made by evidence of direct communication with city officers prior to the accident. If the city had any such direct notice, the injured person would not be likely to know how to get such evidence. Hence, courts have had the problem, from the inception of these cases, of determining what, in justice to litigants would be adequate proof of notice to a city. They have taken into account conspicuity and length of time as evidence on this issue.

In Baker v. City of Granite City, 311 Ill. App. 586, a witness for the plaintiff testified that a flange or rim of a catch basin was badly corroded and that the lower edge of the cover was worn off “as thin as a piece of cardboard.” This the court held was proof that the defect had been there a sufficient length of time to constitute constructive notice to the city of its existence. The court took into account the fact that no inspection was made of the cover from the time it was installed until after the accident six months later. The court also affirmed the general rule that the issue is for the jury to decide.

In City of Taylorville v. Stafford, 196 Ill. 288, affirming 99 Ill. App. 418, the plaintiff was injured by stumbling over a staub (stake) driven into the ground to fill a hole in a sidewalk. The stake had worked its way two inches above the rest of the walk. The court permitted the plaintiff to show that there were other stakes in the neighborhood which had worked up above the walks. This, it was held, was adequate to prove notice.

In Shepard v. City of Aurora, 5 Ill.App.2d 12, a metal trap door in a sidewalk appears to have been the cause of a fall. It had a flange around it with a raise of about 1-1/2 inches in the northeast corner which “appears to have been a gradual matter starting part way back or south along the east edge of the flange.” The testimony showed that other people had stumbled on the trap door prior to the accident. While there was no positive evidence, the court thought it was a fair inference that plaintiff’s shoe did not clear the raise. The court held that the record sufficiently indicated constructive notice to the city.

In our opinion the size and nature of the hole in the sidewalk in the instant case is such that it was proper for the witness to estimate the length of time it had been there as a month or two, and his statement about being doubtful as to the precise length of time was the statement of a conscientious witness. It does not destroy the value of his .testimony.

Another factor to be taken into account on the issue of notice is that the city knew about the accident shortly after it occurred and yet offered no evidence with respect to the defect nor any estimate of the length of time the hole had been there prior to the accident. The only excuse offered for this was that the policemen who went there after the accident found the hole covered with snow and were unable to see it. Apparently they made no further effort to investigate the cause of the accident.

On the question of contributory negligence, the city argues that according to plaintiff’s testimony she did not have her eyes on the sidewalk at the time she stepped into the hole. Plaintiff acknowledges that she was talking to her son and looking at him part of the time and at other times, looking at the sidewalk. In other words, she was walking along with her son in a normal fashion, without thought of an accident. A pedestrian may ordinarily assume that a sidewalk is in a reasonably safe condition and he is not absolutely bound to keep his eyes on the sidewalk in search of possible defects. City of Chicago v. Babcock, 143 Ill. 358, 363; Graham v. City of Chicago, 346 Ill. 638, affirming 260 Ill. App. 590; Shepard v. City of Aurora, 5 Ill.App.2d 12. The fact that a pedestrian is familiar with a sidewalk and knows of a particular defect is not conclusive against a plaintiff on the question of contributory negligence. Village of Cullom v. Justice, 161 Ill. 372; City of Streator v. Chrisman, 182 Ill. 215; City of Springfield v. Bosenmeyer, 52 Ill. App. 301; City of San Diego v. Perry, 124 F.2d 629.

Defendant relies on Walter v. City of Boekford, 332 Ill. App. 243. There, the plaintiff charged that the city had permitted the surface of a cement sidewalk to be and remain in a broken and raised condition. The court thought it was a fair inference from all the evidence that the injury was caused by a three-fourths inch crack between slabs in the concrete walk and the fact that a portion of one of the slabs was about one inch higher than the adjoining section, that the plaintiff did not raise her foot sufficiently high to clear the one inch raise, and as a consequence, stumbled. In distinguishing this case the court in Shepard v. City of Aurora, supra, called attention to the fact that in the Walter case the plaintiff apparently had a clear, unobstructed view of at least fifteen feet and could see that there was a box and boards surrounding a fresh piece of cement a few feet from the claimed defect which should have called her attention to the condition. That is quite different from the facts presented in the instant case.

Defendant also cites Fleming v. City of Rockford, 303 Ill. App. 224. There, the plaintiff was walking with her daughter who was wheeling a baby carriage. She called her daughter’s attention to a car which was being pushed in their direction and “might start up and hit the baby cab.” Just as she spoke, she stepped into a hole in the walk and fell. The court held that she was guilty of contributory negligence. We do not think that case is in conformity with the more persuasive authorities we have cited.

In our opinion the court properly submitted the issues in the instant case to the jury and there is ample evidence to sustain the verdict.

Judgment affirmed.

McCORMICK, P. J. and ROBSON, J., concur.


author: JUSTICE EOVALDI

text:
    Polly D. Green, Administratrix of Estate of Paul H. Green, Deceased, and Polly D. Green, Individually, Appellees, v. John Keenan, Appellant.
    Gen. No. 10,879.
    Second District.
    April 27, 1956.
    Rehearing denied May 21, 1956.
    Released for publication May 22, 1956.

      Petersen & Goldsmith, of Aurora, for appellant; John S. Petersen, and David D. Dyer, Jr., both of Aurora, of counsel.
    Allen, Matthews, Jordan & Dean, of Aurora, for appellees ; Everett Jordan, and John T. Matthews, both of Aurora, of counsel.
   JUSTICE EOVALDI

delivered the opinion of the court.

This action was brought by Polly D. Green, individually, and as administratrix of the estate of her deceased husband, Paul H. Green, to recover damages for personal injuries and wrongful death occasioned by the alleged negligence and wilful and wanton misconduct of the defendant, John Keenan, in driving his automobile.

On the evening of March 19, 1952, the plaintiff and her husband drove to the farm of John Boberg situated near the Village of North Aurora, Illinois, to feed some riding horses which belonged to the husband. The husband was driving his 1941 Willys Americar, and the plaintiff was riding with him as a passenger. After the horses were fed, the Greens got into their car to return to Aurora and Paul H. Green found that he could not get the car started. He made some repairs to the engine under a light in Roberg’s yard, and when he was still unsuccessful in getting it started, he asked Eoberg to push him with Roberg’s truck. Eoberg pushed him out of his yard onto a gravel road, then onto a state highway called Butterfield Eoad. The car started then and ran a short distance and stopped. Eoberg then pushed them to the intersection of Butter-field Eoad and State Highway 25 where they turned south on Eoute 25. Two or three attempts were made to fix the engine and both vehicles were stopped off the highway during these attempts. Eoberg then told the Greens that he would push them into Aurora and they proceeded in a southerly direction on Route 25. At a point in the highway where there is a knoll and a decline from north to south, the Greens rolled on ahead of the Eoberg truck. As Eoberg, while still moving, was coming up to again make contact with the Green car which had slowed down upon reaching level ground, the defendant who was driving a new 1952 Ford automobile south on the highway collided with the rear of the Eoberg truck with such force that the defendant’s car was completely smashed; and the Eoberg truck was rammed into the rear of the Green car which in turn was forced off the highway into a tree 150 feet from the point of impact. Paul H. Green was thrown out of the car into the middle of the pavement and suffered injuries from which he later died and his wife Polly D. Green sustained various injuries on her own account.

The evidence showed that there were other cars approaching from the opposite direction immediately prior to the collision but that they had already met the Green car and were some 500 feet north of the point of impact and that the headlights and taillights on both the Green car and the Eoberg truck were on and in proper working condition at the time. The evidence further disclosed that defendant Keenan had been drinking intoxicating liquor prior to the accident and that he was operating his car at a high rate of speed. He stated to one of the police officers of Aurora at the hospital, “Driving and drinking don’t mix.” The force of the impact itself showed that he was traveling at a high speed.

The case was tried before a jury and at the close of the evidence for plaintiffs, defendant moved for a directed verdict. Again at the close of all the evidence, defendant made like and similar motions which were denied. Whereupon the issues were submitted to the jury with instructions and defendant’s three special interrogatories. The jury retired to consider their verdict at 5:43 p. m. on the 25th of February, 1955; by agreement of counsel and by order of court, it was agreed that the jury should sign, seal and deliver their verdict to the officer of the court and separate, and that the verdict should be presented to the court, opened and read on Monday, February 28,1955, and counsel in their agreement further agreed to waive polling the jury; on said February 28, the verdict was opened and read, at which time a verdict in favor of the administratrix in the amount of $16,000.00 was returned, and a verdict for Polly D. Green, individually, in the amount of $650.00 was returned; a further verdict was returned finding the administratrix not guilty on defendant’s counterclaim; the jury answered one special interrogatory finding the defendant guilty of wilful and wanton misconduct; the two other interrogatories were not answered. They were:

“Was the plaintiff, Polly D. Green, guilty of contributory, wilful and wanton misconduct at the time and place of the occurrence in question?
“Yes............ No............
“Was the plaintiff’s decedent, Paul H. Green, guilty of contributory, wilful and wanton misconduct at the time and place of the occurrence in question?
“Yes............ No............”

After reading the verdicts, the court entered judgment on same. Counsel for defendant was present in open court. No objection was made to the verdict or to the answer to the interrogatory, or the failure of the jury to answer the two unanswered interrogatories ; no motion was made that they were insufficient, and no motion was made to send the jury back to complete their verdict or to answer the unanswered interrogatories. Defendant’s first objection to the failure of the jury to answer the two interrogatories was in his motion for a new trial filed on March 8, 1955. The defendant moved the court for a judgment notwithstanding the verdict and for a new trial which said motions were denied by the court and judgment entered on the verdict of the jury. From said judgment, the defendant has filed this appeal.

The defendant’s theory is that, as a matter of law, he was not guilty of negligence or of wilful and wanton misconduct as plaintiffs allege; that further, the plaintiffs were guilty of contributory negligence and wilful and wanton misconduct as a matter of law. He further contends that the trial judge should have directed a verdict in his favor; that in any event the trial judge erred in certain of his rulings in the trial of this cause; that he erred in giving certain instructions offered by the plaintiffs and modifying other instructions offered by the defendant, and denying still other instructions offered by defendant; and that he should have granted the defendant’s motion for a new trial.

The plaintiffs’ theory of the case is that defendant was guilty of both negligence and wilful and wanton misconduct and that there was ample evidence to sustain the jury’s findings in support of the verdict.

The evidence in this case clearly presented a question for the jury as to the negligence and the wilful and wanton misconduct of the defendant. In answer to a special interrogatory the jury found that the defendant was guilty of wilful and wanton misconduct. On a motion for a directed verdict the court does not weigh the evidence. The court may properly consider only the evidence and inferences most favorable to the plaintiff; and it is only when there is no evidence tending to prove plaintiff’s case that the court can grant either a motion for directed verdict or judgment notwithstanding the verdict. Lindroth v. Walgreen Co., 407 Ill. 121, 130; Beverly v. Central Illinois Electric & Gas Co., 5 Ill.App.2d 27. The rule is the same whether the charge is general negligence or wilful and wanton misconduct. Our Illinois courts have repeatedly said that the question of whether the defendant is guilty of wilful and wanton misconduct is a question of fact for the jury. Bernier v. Illinois Cent. R. Co., 296 Ill. 464; Streeter v. Humrichouse, 357 Ill. 234; Schneiderman v. Interstate Transit Lines, Inc., 394 Ill. 569. A court of review will not interfere with the verdict of the jury unless the jury’s verdict is contrary to the manifest weight of the evidence. To be against the “manifest weight of the evidence” requires that an opposite conclusion be clearly evident. Clin Industries, Inc. v. Wuellner, 1 Ill.App.2d 267; Griggas v. Clauson, 6 Ill.App.2d 412; Schneiderman v. Interstate Transit Lines, Inc., 331 Ill. App. 143, affirmed 401 Ill. 172. We have examined the record and do not find that the verdict is manifestly against the weight of the testimony. Under these circumstances, we have no right to set aside the jury’s findings. There is no contention that the Green car and the truck pushing it were not in their proper lane of traffic and what the defendant did "was to collide with the truck when there was ample opportunity for him to pass.

As the jury found the defendant guilty of wilful and wanton misconduct, the plaintiff’s contributory negligence, if any, has no part in this case. The fact that the jury failed to answer two of the three special interrogatories submitted by the defendant does not alter the fact that they did answer one special interrogatory finding the defendant guilty of wilful and wanton misconduct. The right to submit interrogatories for special finding by the jury is controlled by statute. Paragraph 189, Chapter 110 of the Revised Statutes of Illinois [ILl. Rev. Stats. 1953, ch. 110, § 189] provides in any case where a general verdict is to be returned the jury will be required at the request of a party to find specially upon any “material question or questions of fact” which shall be stated to them in writing. The section then goes on to provide that submitting or refusing to submit such a question of fact to the jury may be reviewed on appeal as a ruling on a question of law. Then the paragraph provides : “when the special finding of fact is inconsistent with the verdict, the former shall control the latter and the court may render judgment accordingly.” A special finding controls and supersedes a general finding only if inconsistent therewith. There was nothing inconsistent in the jury’s verdicts and in its answer to the one interrogatory. If the defendant was not satisfied with the verdicts when they were opened and read, and if he was not satisfied with the answers made to the special interrogatories, he should at that time have objected and made a motion to send the jury back to complete their verdict by answering the two unanswered interrogatories. Not having done so, he is in no position now to complain, and he is bound thereby.

The defendant also complains that the court erred in admitting what he contends was improper and illegal evidence offered by the plaintiffs which consisted of certain photographs of the scene of the aceident which were taken in the daytime about one year after the collision. The court, however, upon admitting the exhibits objected to, made the following statement: “The court will admit the exhibits for the limited purpose of showing the physical aspects of the highway near the point where the accident occurred, with the distinct understanding that it does not correctly portray the appearance of the highway at the time the accident occurred.” The defendant also complains that certain other photographs admitted into evidence which were taken of the truck involved in the collision did not correctly portray the same since there was a spare tire in the back of the truck at the time of taking the picture which was not there at the time of the collision. We do not feel that the admission of these exhibits into evidence in any way prejudiced the rights of the defendant in the trial of the case. Further, we do not feel that the court committed prejudicial error in limiting the scope of cross-examination by the defendant of the plaintiff, Polly D. Green, concerning her knowledge of the defective condition of her husband’s automobile prior to the collision. The scope of cross-examination is largely within the discretion of the trial court. It should be kept within fair and reasonable limits, and the court has a discretion in the conduct of the trial for that purpose. People v. Strauch, 247 Ill. 220; Davison v. People, 90 Ill. 221; Cooper v. Randall, 59 Ill. 317; Birmingham Fire Ins. Co. v. Pulver, 126 Ill. 329.

Defendant objects to certain matters in the instructions. The trial judge was literally swamped by the tender of over sixty-seven instructions in this case; forty-five of which were given. Eighteen were given for the plaintiff. Twenty-two were given for the defendant as submitted and five were given for the defendant as modified. Many of the instructions which were refused by the court dealt with the defendant’s theory of the case that the plaintiff, Polly D. Green, her husband and John Roberg were engaged in a joint venture at the time of the accident. There was no evidence in the record to substantiate the position that they were engaged in a joint venture and the court properly refused to instruct the jury along that line.

It would unnecessarily prolong the opinion to discuss each instruction objected to in detail. The defendant contends that plaintiffs’ instructions one and two were unnecessarily long and tended to confuse the jury as to the issues in the case. This contention has little merit in view of the fact that the defendant submitted so many instructions in the case. It must be admitted that the number of instructions tendered by both parties in this case serves not only to reduce the effectiveness of the instructions as a benefit to the jury but also to lessen the likelihood of a reviewing court reviewing the decision of the jury because of alleged faulty instructions. In Schluraff v. Shore Line Motor Coach Co., 269 Ill. App. 569, wherein forty-eight instructions were tendered, the court said “The character and number of these instructions also serves to lessen our critical faculty toward them.” We call particular attention to what the court said in Baker v. Thompson, 337 Ill. App. 327, at page 330, wherein the defense tendered twenty-seven instructions:

“The abuses and evils underlying the practice of trial attorneys in tendering to the court a multitude of involved, confusing and argumentative instructions has been growing and certainly merits some observation by a reviewing court. It is common knowledge that most plaintiff attorneys tender very few instructions. They do so because of their fear of intervention of error. . . . The converse is true with a majority of those who are interested in the defense of personal injury cases. It is of little moment to them that an error in the trial procedure may occasion a new trial. Delays, however occasioned, are always one of the best defenses. Too often defense attorneys are prone to tender an excessive number of instructions, repeating the same proposition over and over, not with the honest design of informing the jury of the law, but with the thought of enforcing upon the minds of the jury the importance of their various defenses.”

After careful consideration of the evidence and of the record in this case, we find no reversible error was committed and the judgment is accordingly affirmed.

Affirmed.

DOVE, P. J. and CROW, J., concur.


author: PRESIDING JUSTICE DOVE.

text:
    Vernon H. Anderson, Plaintiff-Appellee, v. Board of Education of School District No. 70, Winnebago County, Illinois, Defendant-Appellant.
    Gen. No. 10,912. (Abstract of Decision.)
    Second District.
    April 27, 1956.
    Released for publication May 16, 1956.
    Henry H. Caldwell, for appellant; Henry H. Caldwell, of counsel; Berry & Simmons, for appellee.
   Opinion by

PRESIDING JUSTICE DOVE.

Not to be published in full.


author: JUSTICE EOVALDI.

text:
    Transit Trucking Company, Appellant, v. Charles Gaitsch, Appellee.
    Gen. No. 10,895. (Abstract of Decision.)
    Second District.
    April 27, 1956.
    Released for publication May 16, 1956.
    Corrigan & Maekay, for appellant; Rathje & Woodward, for appellee; John S. Woodward, of counsel.
   Opinion by

JUSTICE EOVALDI.

Not to be published in full.


text:
    G. A. Rafel, d/b/a G. A. Rafel and Company, Plaintiff-Appellant, v. City of Elmhurst, a Municipal Corporation, and George Langler, Defendants-Appellees.
    Gen. No. 10,908. (Abstract of Decision.)
    Second District.
    May 3, 1956.
    Released for publication May 23, 1956.

      Erlenborn and Bauer, for appellant; George E. Billett, for appellees; Ervin F. Wilson, of counsel.
   Opinion by

PRESIDING JUSTICE DOVE.

Not to be published in full.


text:
    T. W. Merryman Plumbing and Heating Service, Inc., Plaintiff-Appellee, v. Gene Goodman, Defendant-Appellant.
    Gen. No. 10,923. (Abstract of Decision.)
    Second District.
    May 3, 1956.
    Released for publication May 23, 1956.
    Carl H. Urist, for appellant; Snyder, Clarke & Dalziel,. and Louis S. Gunn, for appellee; William A. Holmquist, of counsel.
   Opinion by

PRESIDING JUSTICE DOVE.

Not to be published in full.


author: JUSTICE CROW.

text:
    Nicholas Arendt, Appellant, v. Donald C. Tallman, Appellee.
    Gen. No. 10,902. (Abstract of Decision.)
    Second District.
    May 3, 1956.
    Released for publication May 23, 1956.
    Humphrey W. Serritella, and Morris K. Levinson, for appellant; Morris K. Levinson, of counsel; Butz, Blanke & Smith, for appellee.
   Opinion by

JUSTICE CROW.

Not to-be published in full.


author: JUSTICE SCHEINEMAN

text:
    W. R. Smith, Plaintiff-Appellee, v. Ohio Oil Company, and Maurice M. Smedley, Defendants-Appellants.
    Term No. 55-O-12.
    Fourth District.
    March 5, 1956.
    Rehearing denied May 22, 1956.
    Released for publication June 4, 1956.

      Wham and Wham, of Centralia, and John D. Daily, of McLeanshoro, for defendants-appellants.
    Leonard J. Dunn, of West Frankfort, for plaintiffappellee.
   JUSTICE SCHEINEMAN

delivered the opinion of the court.

Plaintiff, W. R Smith suffered personal injuries when his truck was run into by a truck of the Ohio 011 Company, driven by its employee, Maurice M. Smedley. In a suit against these parties, plaintiff recovered a judgment on a verdict of $50,000 and the defendants have appealed.

The collision occurred about 8:30 A. M. on a clear day. Plaintiff was driving westerly on U. S. Route 460. Smedley was driving south on a gravel road in a truck with defective brakes. Upon approaching the stop sign at U. S. 460, the brakes would not hold and he ran into the rear wheels of plaintiff’s truck as it was passing the side road, resulting in an upset, and injuries to plaintiff.

Defendants contend there was no evidence of negligence on the part of Smedley, it being asserted that he did not know the brakes were defective and had no reason to expect the mechanical failure which caused the collision. Also that the plaintiff was guilty of contributory negligence; that there were prejudicial errors in the court’s rulings; and that the verdict was grossly excessive.

As to evidence of defendants’ negligence, the driver, Smedley, was called by plaintiff as an adverse party, and the following admissions were elicited:

This truck was not customarily driven by Smedley, but he also had the duty of maintenance and repair of the company’s equipment. Another employee turned the truck over to Smedley the day before the crash, with a report of “difficulty with the brakes.” Smedley drove it to two garages for service, but they were too busy. He observed the brakes did not act right, the pedal went down. “At times the brakes left, the pedal went down like a leaky cylinder, seepage there.” The next morning he added brake fluid, and the pedal still went down, there was no improvement in that respect. The truck was due for state inspection and he started to Oarmi for that purpose, intending to stop first at a garage for brake adjustment, and the collision occurred on the way.

Driving a vehicle with defective brakes on the public ways is not only illegal, it is a serious menace to traffic, and when it is done with knowledge of the defect, it cannot be said that this is no evidence of negligence.

It is true that the witness said he had made stops using the foot brake. That may be possible even with defective brakes, provided that the approach to the intended stop is made with such diminished speed that the small residual pressure in the hydraulic brake system is adequate to make a stop before the pedal goes down and the pressure is lost. The reasonable inference from the testimony in this case is that Smedley approached the stop sign at a speed of about 15 miles per hour, possibly more.

Regardless of that, it is clear that Smedley knew the brakes were defective, there was a reasonable inference he knew the truck could not pass state inspection without this being remedied. He knew there was seepage in the lines, knew it was more serious than adding brake fluid could cure, he was on his way to a garage at the time, and certainly he knew that the vehicle was placed in his possession because the brakes were defective. The jury was justified in charging him with that knowledge, and the verdict is fully supported by competent evidence that the defendants were negligent.

The assertion of contributory negligence is based upon the plaintiff’s admission that he was driving at a speed of about 45 miles per hour, possibly 45 to 50 with a truck which has a speed limit of 40 miles per hour by statute. Also that he did not slow down after seeing the defendant’s truck, until he saw it pass the stop sign with no sign of stopping.

It is correct that plaintiff was not entitled to rely entirely on the preferential status of his way, and was required to use reasonable care. It is also true that this state, unlike some others, does not accept the doctrine of comparative negligence, but holds that contributory negligence bars recovery. However, this state also holds, unlike some others, that violations of laws or ordinances can only be regarded as prima facie evidence of negligence and are not negligence per se. Miller v. Burch, 254 Ill. App. 387.

This principle has been applied many times in reference to violations of traffic regulations, to such extent that many of the decisions are in abstract form. Such violations do not constitute negligence as a matter of law, and it is error for a court by instruction to suggest that such violation is regarded in law as negligence. Rasmussen v. Wiley, 312 Ill. App. 404; Burke v. Zwick, 299 Ill. App. 558; Wallace v. Yellow Cab Co., 238 Ill. App. 283; Berg v. Michell, 196 Ill. App. 509.

Defendants cite Beidler v. Branshaw, 200 Ill. 425, and Ritgers v. City of Gillespie, 350 Ill. App. 485 to the effect that where the facts are not in dispute the court will not hesitate to enter judgment notwithstanding the verdict if it is clear that the plaintiff was guilty of contributory negligence. These cases do not involve violations of traffic regulations, they are based on actual negligence, and furnish no authority for a court to hold that a party is guilty of negligence as a matter of law by reason of some traffic violation. Under the authorities previously cited, this court must hold that the denial of motions for directed verdict and for judgment were correct.

This is not a case of a party insisting upon his right of way against a vehicle previously reaching or entering the intersection. The defendants’ vehicle struck the plaintiff’s toward the rear, when small braking power would have been sufficient to avert the collision, and this court finds it within the scope of the evidence that the plaintiff was not guilty of contributory negligence which was a proximate cause of the collision.

The first of the trial court’s rulings under attack is that the court permitted the use of the pre-trial deposition of Smedley on cross-examination, and in ruling upon an objection, stated that the jury should determine whether it was contradictory in fact. The defense asserts that this was improper and relies upon Reilly Tar & Chemical Corp. v. Lewis, 326 Ill. App. 84. Therein the court found that the answers in the deposition were not different from the testimony on material points, that parts of the examination were a mere memory test, and that the party admitted all of his answers on material points, yet the deposition was used thereafter, which was held error.

In this case the deposition appears inconsistent with the direct testimony of Smedley, as the last witness for the defense. On direct, he related several stops he had made with the use of the foot brake. There is not a word in his direct testimony to indicate that he had ever perceived any defect in the brakes, or ever heard of any, or had any reason to doubt that the truck could pass state inspection, or any reason to expect a failure of the brakes. His deposition showed he had observed the defect, and knew the pedal went down at times and the brakes left.

The modern practice of pre-trial depositions is a salutary means of combating faulty memory, exaggeration, understatement, and false claims or defenses, and this court finds no logical reason to invent rules for its curtailment. The trial court’s ruling which refused to curtail cross-examination and permitted the showing of prior inconsistent statements was proper.

It is not material whether the court’s stated reason was correct, but, in this case we think it was an appropriate reason. The credibility of a witness is a question for the jury, and the trial judge is reluctant to indicate his opinion thereon. Yet, to rule flatly that an admitted prior statement is inconsistent with present testimony could easily be interpreted by the jury as disapproval from the bench of the veracity of the witness. Frequently, the attorneys differ as to the interpretation of statements, and we think it most unwise to hold that the judge must always interpret the language and impose his opinion on the jury, as to what the witness has said and is saying. In this case, it is clear that the objection made by the defense raised a factual question which materially affected the credibility of the witness, and in our opinion the court properly referred the question to the jury.

During the testimony of a medical witness for plaintiff, the court permitted the use of a plastic model of a human skeleton to assist the explanations. This is assigned as error on the ground that it was unnecessary to an understanding of the issues, was gruesome, and tended only to arouse emotion rather than explain anything.

The use of physical objects before a jury falls into two categories: 1, real evidence, which Wigmore calls “autoptive,” and 2, demonstrative evidence. The tests for the proper use of either are substantially similar, i. e., the object must be relevant to some issue in the case, and it must also be actually explanatory of something which it is important for the jury to understand. If these tests are met, the courts do not seem to be greatly concerned with the question whether the object is gruesome.

Beal evidence involves the production of some object which had a direct part in the incident, and includes the exhibition of injured parts of the body. The defense cites two cases of this type, Wagner v. Chicago R. I. & P. Ry. Co., 277 Ill. 114; and O’Hara v. Central Illinois Light Co., 319 Ill. App. 336. In the Wagner case, the plaintiff exhibited his foot, also a shoe worn at the time of his injury. The court found the objects had no value in explaining any fact in issue, and were used to excite the emotion of pity, rather than to explain anything. In the O’Hara case, the plaintiff exhibited burns on the arm, but had suffered additional burns on the same arm subsequent to the incident involved. As this was more confusing, than explanatory, it was disapproved.

Other cases in this class are: People v. Hobbs, 297 Ill. 399, an abortion case, where exhibit by the physician of the uterus of the victim was held a proper aid to understanding the injury; and Seltzer v. Saxton, 71 Ill. App. 229, where the physician exhibited a piece of bone and the eye he had removed from plaintiff, and this was affirmed.

These cases are cited only to show that the courts weigh the explanatory value of an object against its possible emotional effect, with no flat rule that a gruesome object carnot be used.

Demonstrative evidence (a model, map, photograph, X-ray, etc.) is distinguished from real evidence in that it has no probative value in itself, but serves merely as a visual aid to the jury in comprehending the verbal testimony of a witness. Wigmore, Evid. Sec. 790, et seq. It is said its great value lies in the human factor of understanding better what is seen than what is heard. Wigmore favors the use of any aid modern science may provide, to the end that the jury may have the best possible understanding of matters it must decide. The limitations are: that the evidence must be relevant and the use of the object actually explanatory. Sometimes the question of accuracy of an exhibit is pertinent, but this seems to be a phase of its explanatory function, since it may be misleading if inaccurate.

Similar views have been expressed by the courts. Reinke v. Sanitary District of Chicago, 260 Ill. 380; 20 Am. Jur. Evid. Sec. 740; 9 A.L.R.2d 1044, note. The skeleton of a human foot was held properly used by physicians in explanation of their testimony: Chicago & Alton Ry. Co. v. Walker, 217 Ill. 605. It was proper to use a model skeleton where it was of assistance to the jury: Carnine v. Tibbetts, 158 Ore. 21, 74 P.2d 974. But where its use would not aid a jury, trial court properly excluded it, Dameron v. Ansbro, 39 Cal. 289, 178 Pac. 874.

Articles by law professors and trial attorneys in various law reviews have pointed out that the very fact people learn and understand better with the eyes than with the ears makes it possible to abuse demonstrative evidence by giving a dramatic effect, or undue emphasis to some issue at thw expense of others. There is obvious merit in thesfeocriticisms and the courts must be alert to eliminate such abuse. Apparently the enthusiasm of Wigmóre, Grreenleaf, and other writers for demonstratiytemvidence is shared by the courts, and the desirability of giving the jury the best possible understanding) ofethe- subject on which they are to pass seems to ha^é^utweighed other factors. ' 7

As a result, the use oFshch-evidenee is usually left to the discretion of the triál feurt, and expressions of disapproval are generally bitted on irrelevance, or that the model, picture, etc., W¡k‘s misleading or not explanatory. Therefore, this ccrfirt will not announce any flat rule that a skeletal mociféí may never be used, but holds that its use must be actually explanatory of some relevant issue in the case.

This court holds that the determination of relevancy and explanatory value of demonstrative evidence is primarily within the discretion of the trial court, but, to curtail abuses, is subject to review as to the actual use made of the object. If it appears that the exhibit was used for dramatic effect, or emotional appeal, rather than factual explanation useful to the reasoning of the jury, this should be regarded as reversible error, not because of abuse of discretion, but because actual use proved to be an abuse of the ruling.

Applying these tests to the actual use in the case at bar, it appears that the model was not used at all during the physician’s testimony as to injuries he found, operations performed, methods of treatment, etc. Not until he proceeded to describe the present condition of plaintiff was the model exhibited. This involved the pelvic area, which is probably the part of the body most difficult for the average person to visualize.

In reply to questions by the court, the witness stated the model would assist his explanation, and that it was an excellent reproduction of a normal human skeleton. Permission was given to use the model. The witness then pointed to displacement of bones of the pelvis in a recent X-ray of plaintiff, and pointed to the model to illustrate normal alignment. Witness also explained the muscular arrangement and how the weight of the upper torso is transmitted to the lower extremities. He pointed out where excess strain would occur because of damaged ligaments and bone displacement, and how this would affect the ability to balance, or to stoop over. This was important as an explanation of the doctor’s statement that a built up shoe would not remedy the condition.

From consideration of testimony of the witness, this court concludes that the explanation was relevant, legitimate and helpful, and contained nothing emotional or dramatic in character. The rulings of the court thereon were correct.

As to the amount of the verdict, while it is large, we find that the injuries were serious and permanent, and materially affect earning power. Defendants calculate that the actual damage in expense, loss of earnings, and loss of future earnings discounted for cash, would not exceed $10,000. Plaintiff makes a different calculation, the difference being largely accounted for by which prior year of earnings was used for comparison.

The plaintiff was a construction worker and had received wages on that scale. The continuity and intensity of employment in that field depends upon several variable conditions, so that no exact period can be taken as completely representative. He is now earning much less, but has earnings as a truck driver owning and operating his own truck, recently hauling coal. He states he can operate the truck, but if the movement of coal involves use of a shovel or wheel barrow, he must hire another man, since he cannot stoop and maintain his balance. This latter is corroborated by medical evidence. He can hardly be considered as employable at manual labor, except self-employment.

Considering the seriousness and permanence of plaintiff’s injuries, past and future loss of earnings, and other factors, we find no basis to depart from the usual rule that the amount of damages is primarily a jury question. Ford v. Friel, 330 Ill. App. 136; Mueth v. Jaska, 302 Ill. App. 289. The verdict is within the reasonable scope of the evidence.

Finding no reversible error in the proceedings, the judgment is affirmed.

Judgment affirmed.

BARDENS, P. J. and CULBERTSON, J., concur.


author: JUSTICE CBOW

text:
    Homer Hankenson, and Avis Youngberg, Appellants, v. Board of Education of Waukegan Township High School District No. 119, Lake County, Illinois, Appellee.
    Gen. No. 10,877.
    Second District.
    April 3, 1956.
    Rehearing denied May 28, 1956.
    Released for publication May 29, 1956.

      Rugen, Ligtenberg & G-obel, of Chicago, for appellants; John Ligtenberg, of Chicago, of counsel.

      Diver, Diver and Bidge, of Waukegan, for appellees.
   JUSTICE CBOW

delivered the opinion of the court.

This is a complaint for judicial review, under the Administrative Beview Act (Ch. 110, Ill. Rev. Stats., 1953, par. 264 ff) of the final administrative decision of March 15, 1954, of the defendant administrative agency, Board of Education of Waukegan Township High School District No. 119, Lake County, Illinois, removing or dismissing the plaintiffs, Homer Hankenson and Avis Youngberg, as teachers, presumably for the ensuing school year 1954-1955, although the resolution of the defendant Board effecting the removals or dismissals does not specifically state whether the removals or dismissals are effective instanter March 15, 1954 or as of and for the ensuing school year. The plaintiffs contend that they have acquired contractual continued service status as tenure teachers under the Teacher Tenure Law, a part of The School Code (Ch. 122, Ill. Rev. Stats., 1953, pars. 24 — 2 to 24 — 8), and that the defendant’s attempted removals or dismissals are contrary to the provisions of that law and violate their rights thereunder. The defendant contends that the removals or dismissals are in accordance with the provisions of Section 24-3 of that law (Ch. 122, Ill. Rev. Stats., 1953, par. 24 — 3) and are entirely proper thereunder. That law, Section 24-8, provides that the provisions of the Administrative Beview Act shall apply to proceedings for the judicial review of final administrative decisions of the School Board under Section 24-3 thereof (Ch. 122, Ill. Bev. Stats., 1953, par. 24 — 8).

The pleadings consist of the plaintiffs’ verified complaint, the defendant’s motion (pursuant to the Administrative Beview Act) for specification of errors and to strike, the plaintiffs’ specification of errors, the defendant’s verified answer, to which is attached what the defendant says is the entire record or a certified copy of the record of the proceedings of the defendant administrative agency relating to the removals or dismissals which are under review, and in which answer the defendant says certain parts of the complaint contain the full and complete minutes of its meetings in any way dealing with “the decision of the defendant to decrease the number of teachers employed by” it, and the defendant’s motion to strike paragraph 12 and a part of paragraph 15 of the complaint. On February 7, 1955, upon the defendant’s motion, paragraph 12 and the indicated part of paragraph 15 were stricken as being immaterial and surplusage, and on the same date a judgment order was entered finding, so far as material, that the defendant had complied with Section 24-3 of the foregoing statute, that that section governed the defendant’s actions, and that the Board of Education’s order dismissing the plaintiffs should be affirmed, and the court accordingly entered judgment for the defendant and affirmed its decision. The plaintiffs have appealed from that judgment order and from the order of the same date striking the foregoing portions of the complaint.

No evidence was heard by the defendant administrative agency, but from the pleadings and record it appears that the essential facts, for the purposes of the case, are, in substance, these: the plaintiffs are regularly employed teachers in and for the high school district here concerned at Waukegan Township High School. One of them has been so employed since the first day of the school term in September, 1948, and ever since then; the other has been so employed since the first day of the school term in September, 1951, and ever since then. Prior to the events herein complained of they had entered upon contractual continued service under the provisions of Article 24 of the School Code (the Teacher Tenure Law), and had theretofore served as probationary teachers in the district for two consecutive years. They are duly certificated, qualified to teach certain subjects, and did teach certain subjects. The defendant Board is a body politic and corporate under The School Code, derives its powers thereunder, and maintains and operates the high school here concerned. The plaintiffs have always held contracts to teach with the defendant, and held such contracts under The School Code, including the Teacher Tenure Law, for the school year 1953-4. They are citizens, over 21, and under 65 years. On March 15, 1954, the defendant Board adopted a resolution removing, dismissing, or discharging the plaintiffs, — which resolution we shall hereinafter refer to in more detail, — and that is the administrative decision presently under judicial review. On March 17, 1954, the plaintiffs received letters from the school principal, dated March 16th, informing them of the dismissals, to which letters we shall also later refer. The defendant Board purported to act under Section 24-3 of The School Code. The enrollment of the high school will be diminished by about 581 students for the school year 1954-5. On March 25,1954, the plaintiffs made written requests to the defendant for hearings, which were not granted, and no hearings were held to which the plaintiffs were parties or of which they had notice.

The resolution of March 15, 1954 of the defendant Board, adopted at a regular meeting at which all the members were present, removing, dismissing, or discharging the plaintiffs (and certain other teachers) was as follows:

“EDUCATION COMMITTEE REGARDING DISMISSAL OF FACULTY MEMBERS

Upon the recommendation of the Education Committee, it was moved by Mrs. Hathorne, seconded by Mrs. Smith, that the following teachers be informed by registered mail and given statement of honorable discharge and the reason therefor, namely, the separation of North Chicago territory from Waukegan Township High School District No. 119.

Miss Wilma Bartimus
Mr. Carlton Buerger
Mr. Homer Hankenson
Miss Patricia Haviland
Miss Eloise Hindman
Mrs. Evelyn Hickox
Mr. Joseph Schwaninger
Miss Rowena Vaniman
Mr. Lawrence Wieczorek
Miss Avis Youngberg
Mr. Ralph Lane

After due consideration thereof by the Board, the President put the question, and upon roll call being had, the following members voted: Ayes: Hathorne, Long, Mc-Donough, Seidenfeld, and Smith. Nays: Jones and Kirby. Absent: None. The majority of votes being cast in favor of the motion, President Jones declared the motion carried.”

Prior to that, on February 15, 1954, the Education Committee of the defendant Board had addressed a communication, recommendation, letter, or report to the defendant Board which was as follows:

“February 15,1954

Board of Education WTHS District #119 Waukegan, Hlinois

Honorable President, Ladies and Gentlemen:

Your Education Committee recommends that the following named teachers who will have completed the two-year probationary period of teaching in the Waukegan Township High School at the end of the present school year, be tendered contracts to teach here for

1954-55 and be given full tenure status:

Mr. John E. Baker
Miss Margaret Broadhurst
Mr. Jaime McClendon
Mrs. Carolyn Memmen

Tour Education Committee further recommends that the decision of the Board of Education to decrease the number of teachers employed by the Board for the school year 1954^55 be given the following teachers:

Miss Wilma Bartimus
Mr. Carlton Buerger
Mr. Homer Hankenson
Miss Patricia Haviland
Miss Eloise Hindman
Mrs. Evelyn Hickox
Mr. Joseph Schwaninger
Miss Rowena Vaniman
Mr. Lawrence Wieczorek
Miss Avis Toungberg
Mr. Ralph Lane

and that written notice be given these teachers by registered mail together with a statement of honorable dismissal and the reason therefor, namely the separation of North Chicago Territory from Waukegan Township High School District #119.

Respectfully submitted,
/s/ Mrs. Ruth M. Hathorne, Chairman
/s/ Mrs. Fredrica Smith
/s/ Mrs. Marshall McDonough”

The letters of March 16,1954 from the school principal to the plaintiffs read as follows:

“This letter will confirm our recent conversation concerning the decision of the Board of Education to decrease the number of teachers employed by the Board for the school year 1954-55 because the separation of North Chicago territory from Waukegan Township High School District #119 will diminish our enrollment by about 581 students. Accordingly your employment by the Board of Education of this high school district will terminate with the end of the present school year.

Please consider this an honorable dismissal due solely to the above mentioned facts and feel free to call upon me for any assistance I may be able to render in the matter of your securing other employment.

The Board of Education joins with me in thanking you for your fine contribution to the education of the youth in this community during your tenure here. We wish you every success in your continuing professional growth.”

The plaintiffs’ written requests of March 25, 1954 to the defendant Board for hearings need not be set forth in detail as there is no dispute as to their adequacy or timeliness, if under the facts and law the plaintiffs were entitled to an administrative hearing.

Among other grounds or alleged errors relied upon for reversal of the administrative decision removing or dismissing the plaintiffs, the plaintiffs urge that the same is contrary to the law; the record of the defendant Board does not justify the dismissals.; the plaintiffs were deprived of their rights without due process ; no sufficient record, or no record at all, of the existence of cause or reason for their dismissals was made; the resolution of the defendant Board is void and ineffective to dismiss the plaintiffs as teachers because it does not state a statutory cause of dismissal; the dismissals are contrary to Section 24-3 of The School Code; and the Teacher Tenure Law gives the plaintiffs contractual rights which are property rights. Other matters are urged by the plaintiffs, including the allegations that the defendant Board had in its employ on March 16, 1954 other teachers who had not yet attained contractual continued service status, some of whom will continue to be teachers for the ensuing school year 1954-5, teaching subjects the plaintiffs are qualified to teach, and that if there be a decision of the defendant Board to decrease the number of teachers employed or to discontinue some particular type of teaching service then the plaintiffs, as teachers having contractual continued service status, are entitled to preference in being retained over such other teachers who do not have such status, which allegations are the subject matter of paragraph 12 and that part of paragraph 15 of the complaint which were stricken, but in the view we take of the case it will not be necessary to discuss such other matters.

Section 24^2 of the Teacher Tenure Law, a part of The School Code (Ch. 122, Ill. Rev. Stats., 1953, par. 24 — 2) provides, in part, so far as here material, as of the time of the events here concerned:

ÍÍ

Any teacher who has been employed in any district as a full-time teacher for a probationary period of two consecutive school terms shall enter upon contractual continued service unless given written notice of dismissal stating the specific reason therefor, by registered mail by the employing board at least sixty days before the end of such period. ...

Contractual continued service shall cease at the end of the school term following the sixty-fifth birthday of any teacher, and any subsequent employment of such a teacher shall be on an annual basis.

Contractual continued service shall continue in effect the terms and provisions of the contract with the teacher during the last school term of the probationary period, subject to the provisions of this Act and the lawful regulations of the employing board. This section and succeeding sections do not modify any existing power of the board except with respect to the procedure of the discharge of a teacher and reductions in salary as hereinafter provided. Contractual continued service status shall not restrict the power of the board to transfer a teacher to a position which the teacher is qualified to fill or to make such salary adjustments as it deems desirable, but unless reductions in salary are uniform or based upon some reasonable classification, any teacher whose salary is reduced shall be entitled to a notice and a hearing as hereinafter provided in the case of certain dismissals or renewals.”

Section 24-3 of that law (Ch. 122, Ill. Rev. Stats., 1953, par. 24 — 3), provides, in part, so far as here material, as of the time of the events here concerned:

“Notwithstanding the entry upon contractual continued service, any teacher may be removed or dismissed for the reasons or causes provided in Sections 6-36 and 7-21, in the manner hereinafter provided. If the removal or dismissal results from the decision of the board to decrease the number of teachers employed by the board or to discontinue some particular type of teaching service, written notice shall be given the teacher by registered mail at least sixty days before the end of the school term, together with a statement of honorable dismissal and the reason therefor, but if the position so discontinued is reinstated within a period of one calendar year it must be tendered to the teacher dismissed because of such discontinuance. If the dismissal or removal is for any other reason or cause it shall not become effective until approved by a majority vote of all members of the board upon specific charges and after a hearing, if a hearing is requested in writing by the teacher within ten days after the service of notice as herein provided. . . .”

Sections 6-36 and 7-21(16) of The School Code (Ch. 122, Ill. Rev. Stats., 1953, pars. 6 — 36 and 7 — 21(16)), which are referred to in the above Section 24-3, authorize the dismissal of a teacher for, respectively, incompetency, cruelty, negligence, immorality, or other sufficient cause, or whenever, in the Board’s opinion, he is not qualified to teach, or the interests of the schools require it, subject, as to Section 7-21(16), to the provisions of Sections 24-2 to 24-7. Sections 6-36 and 7-21(16) have no application to the present case.

Under Section 24-2, the plaintiff teachers had entered upon contractual continued service, which, according to the statute, evidently continued in effect for the ensuing school year 1954-5 the terms and provisions of the contracts with the teachers during the last school term of the probationary periods, subject to the provisions of the Teacher Tenure Law, which did not modify any existing power of the defendant Board except with respect to the procedure of the discharges of the plaintiff teachers and reductions in salary as thereafter provided. The Teacher Tenure Law was enacted primarily for the protection of Illinois teachers who, prior to its enactment in 1941, served at the pleasure of the Boards of Directors or Education as to any renewals of their periods of service. Its object was to improve the Illinois school system by assuring teachers of experience and ability a continuous service and a rehiring based upon merit, subject to the provisions of that law, rather than failure to rehire upon non-statutory reasons : Donahoo v. Board of Education of School Dist. No. 303, 413 Ill. 422 (1953); Betebenner v. Board of Education of West Salem Community High School Dist. No. 201, Edwards County, 336 Ill. App. 448 (1949) Fourth Dist.

Under Section 24-3, notwithstanding the plaintiffs’ entry upon contractual continued service they may be removed or dismissed for the reasons or causes provided in Sections 6-36 and 7-21(16), in the manner thereafter provided — which sections, as we’ve said, have no application here. And “if the removal or dismissal results from the decision of the board to decrease the number of teachers employed by the board or to discontinue some particular type of teaching service” then written notice thereof shall be given the teacher in a certain prescribed manner. But “if the dismissal or removal is for any other reason or cause it shall not become effective until approved by a majority vote of all members of the board upon specific charges and after a hearing, if a hearing is reguested” by the teacher in a certain prescribed manner, in which event the written notice of the charges must be served in a certain manner, the hearing held and decision rendered in a certain manner, it is to be public if requested by the teacher or board, the teacher may be present, with counsel, may cross-examine witnesses, may offer evidence, present defenses, have subpoenas issued, the testimony is to be under oath, a record is to be kept, and a reporter shall take the testimony.

It would appear that “if the removal or dismissal restdts from the decision of the board to decrease the number of teachers employed by the board or to discontinue some particular type of teaching service” all the Board is required to do is give written notice thereof as prescribed, and that no administrative hearing is necessary, under those circumstances, — at least we shall so assume for the purposes of this case. If so, then that is the only type of removal or dismissal which can be had without a hearing, if the teacher wants a. hearing, for “if the dismissal or removal is for any other reason or cause” a hearing must be had, if requested by the teacher, with all the benefits, advantages, rights, and privileges permitted upon such a hearing under the statute. Removal or dismissal without a hearing, under the second sentence of that section on the basis and under the circumstances therein stated, is, in other words, an exception to the general rule stated in the third sentence that dismissal or removal for any other reason or cause cannot be done without a hearing, if requested by the teacher: Donahoo v. Board of Education of School Dist. No. 303, 346 Ill. App. 241 (1952) Third Dist., reversed on other grounds, 413 Ill. 422. And exceptions in a statute, being intended to qualify what is otherwise generally affirmed in the statute, are to be strictly construed: People ex rel. Bowen v. Hughes, 370 Ill. 255 (1938); State Pub. Util. Commission v. Early, 285 Ill. 469 (1918); Doubler v. Doubler, 412 Ill. 597 (1952). It is the defendant Board’s position here that the removals or dismissals were done under a part of that second sentence, — “if the removal or dismissal results from the decision of the board to decrease the number of teachers employed by the board,” that it was complied therewith, and that no hearing is required.

Removal or dismissal under that second sentence, on the basis and under the circumstances therein stated, without a hearing (as we shall assume, for this purpose, is permissible) being an exception to the general rule on dismissals or removals, and, if it applies, the plaintiff teachers then having none of the carefully provided for benefits, advantages, rights and privileges attached to a hearing in case of a removal or dismissal for any other reason or cause, it is of the utmost importance to determine whether the record here shows that the necessary conditions and circumstances precedent to the application of that second sentence have in fact been met and satisfied here. We think not. In particular, it does not apply unless the removal or dismissal “results from the decision of the board to decrease the number of teachers employed by the board or to discontinue some particular type of teaching service.” A “decision of the board” to that effect and an order of removal or dismissal resulting from that decision, are necessary conditions precedent to the application thereof. We cannot read out of the statute words which the legislature has placed therein any more than we can read into it words which are not within the manifest intention of the legislature as determined by the statute itself; Donahoo v. Board of Education of School Dist. No. 303, supra. It is a question for the legislature to specify the conditions and reasons upon which a preexisting contract of employment may be terminated: Pack v. Sporleder, 394 Ill. 130 (1946).

Under Sections 7-7 and 7-14 of The School Code (Ch. 122, Ill. Rev. Stats., 1953, pars. 7 — 7, 7 — 14), the Board of Education has all the duties and powers of school directors as set forth in Article 6 thereof, is subject to the same limitations, and in addition has certain other duties and powers therein enumerated. And under Article 6, Sections 6-9 and 6-10 (Ch. 122, Ill. Rev. Stats., 1953, pars. 6 — 9, 6 — 10) no official business shall be transacted by the directors except at a regular or a special meeting, and the clerk shall keep in a punctual, orderly, and reliable manner a record of the official acts of the Board which shall be signed by the president and the clerk. Powers conferred upon a Board of Education can be exercised only at regular or special meetings of the Board: Pratt v. Board of Education of Dist. No. 61, Kankakee County, 326 Ill. App. 610 (1945) Second Dist. Proper minutes and records should be kept by a Board of Education to the end that the persons who are carrying the tax load may make reference thereto and that future boards may be advised of the manner of disposition of questions that have arisen: Donahoo v. Board of Education of School Dist. No. 303, supra. A record is required to be kept of the essential steps in the exercise by the Board of its powers; every essential proceeding in the course of its exercise of its powers must appear in some written and permanent form in the records of the body authorized to act upon them; and where public officials are required to keep a record of their proceedings such record constitutes the only lawful evidence of action taken, and cannot be contradicted, added to, or supplemented by parol, assuming the record correctly states the facts as to what occurred, and subject to the Board’s limited power (not applicable in the case at bar) in a proper case and under proper circumstances to amend its record to make it correctly state the facts as to what occurred: Jackson v. School Directors Dist. No. 85, 232 Ill. App. 102 (1924) Second Dist.; People ex rel. Prindable v. New York Cent. R. Co., 400 Ill. 507 (1948); People ex rel. Toman v. Chicago Heights Terminal Transfer R. Co., 375 Ill. 590 (1941); Grietl v. Com’rs of Drain. Dist. No. 1, 384 Ill. 499. “Decision” means the act of deciding or settling a dispute or question by giving a judgment; the act of making up one’s mind; a judgment or conclusion reached or given; a determination: Webster’s New World Dictionary, p. 380; State Public Utilities Commission ex rel. Illinois Cent. R. Co. v. Thedens, 291 Ill. 184 (1920). We must, therefore, examine whatever official business in this respect was transacted by the defendant Board at a regular or special meeting insofar as it is reflected in the record before us of the official acts of the Board kept by its clerk, or comparable official. A “decision of the board,” — an official act of deciding, — of the type indicated in the second sentence of Section 24-3 and of the importance it is as a condition and circumstance precedent to the application of that sentence and as a foundation, reason, or cause for these dismissals, must be found somewhere in the official records of the defendant Board or that sentence furnishes no foundation, reason or cause for the dismissals.

The resolution of the defendant Board of March 15, 1954 set out above is, admittedly, the only official act or decision of the defendant in this record, and this record, the defendant says, is entire, full, complete, and accurate. It must stand or fall as is. We cannot read into it by interpolation, implication, or inference, things which are not in fact in it. That resolution is not a decision of the Board to decrease the number of teachers employed by the Board. The subject of decreasing that number is not therein referred to at all. It is simply a decision honorably discharging the plaintiffs (and some others). It recites a so-called “reason” for their discharge, — “the separation of North Chicago Territory from Wauhegan Township High School District No. 119,” — which is not a statutory reason or cause for removal or dismissal. That circumstance is not mentioned in the statute, and is, at best, only a part of some general background information. If the legislature had intended that mere separation of territory from a school district should, in and of itself, without more, be a reason or cause for removal or dismissal of a teacher, it could readily have said so in Section 24-3, but it has not so provided. And it is not our province to read such words into the statute. It cannot be determined from that resolution what the number of teachers employed by the Board was on March 15, 1954, or what that number would be for the ensuing school year 1954-5, or that the number of teachers employed by the board has been decreased at all, or, if so, in what number and to what extent. For aught that appears in the resolution the total number of teachers' employed by the board may have remained the same, or for that matter, even been increased. The resolution does not say one way or the other. It throws no light whatever on the very crux of this dispute. Whatever else it may be as a final administrative decision honorably discharging the plaintiffs, which it is, it is not a “decision of the board to decrease the number of teachers employed by the board” within the meaning of that second sentence of Section 24-3. This is not a mere matter of form, but of the substantive rights, powers, and duties of the plaintiffs and defendant. The general background information recited in the resolution, if true, together with several other material facts such as reduction in pupils, etc., if true, might have furnished some good reason for the defendant Board to decide to decrease the total number of teachers employed by it, but so far as this record is concerned it either never in fact made such a decision, or, if it did, the same is not reflected in its records.

The prior communication, recommendation, letter, or report of the Education Committee of the defendant Board of February 15, 1954 recites, among other things, “your Education Committee further recommends that the decision of the Board of Education to decrease the number of teachers employed by the Board for the school year 1954-55 be given” the plaintiffs (and some others), “and that written notice be given these teachers by registered mail together with a statement of honorable dismissal and the reason therefor, namely the separation of North Chicago Territory from Waukegan Township High School District #119.” That communication is, of course, not, in itself, an official act or decision of the defendant Board, does not aid the record, and does not, by its vague, general language identify when the alleged “decision of the Board” was taken, or to what extent it allegedly decreased the number of teachers employed by the Board, or where the official record of any such alleged decision may be found. Beyond that, the reference therein, as of February 15,1954, to “the decision of the Board of Education to decrease the number of teachers” appears only to compound the confusion, speaking, as it apparently does, in the past tense of some such alleged decision of the Board presumably taken prior to the date of that letter, of which there is nothing at all in this record. That reference simply casts further doubt on the legal effectiveness of the subsequent resolution of the Board, of March 15th, as being such a decision if that decision (of which there is no record) had already presumably been made prior to February 15th, as that letter would seem to indicate. Why would the defendant Board be allegedly making such an official decision March 15th, if it had already made such decision prior to February 15, and if it had made such decision prior to February 15, where is the record thereof ?

The letters of the school principal to the plaintiffs of March 16, 1954 reciting, among other things, “This letter will confirm our recent conversation concerning the decision of the Board of Education to decrease the number of teachers employed by the Board for the school year 1954-55 because the separation of North Chicago territory from Waukegan Township High School District #119 will diminish our enrollment by about 581 students” is, again, of course, not, in itself, an official act or decision of the defendant Board, does not aid the record, goes beyond and outside the only official act or decision of the defendant Board in this record, and does not, by its vague, general language, identify when the alleged “decision of the Board” was taken, or to what extent it allegedly decreased the number of teachers employed by the Board, or where the official record of any such alleged decision may be found.

Accordingly, the necessary condition and circumstances precedent to the application of that second sentence of Section 24-3 are simply not met and satisfied here. So far as this record is concerned, there is no decision of the Board to decrease the number of teachers employed by the Board or to discontinue some particular type of teaching service. The attempted removals or dismissals of the plaintiffs necessarily did not result from any such alleged decision, so far as this record is concerned. Hence, that part of Section 24-3 was not complied with and provides no foundation for the removals or dismissals. There being no contention there was any other reason or cause for the attempted removals or dismissals, and no effort having been made to comply with the balance of Section 24-3 as to specific charges and a hearing, then the balance of Section 24-3 either has no application, or was not complied with, and in either event provides no foundation for the removals or dismissals. The attempted removals or dismissals indicated by the resolution of March 15, 1954 are, therefore, not in conformity with the statute, have no substantial foundation, and are illegal, and the final administrative decision making such removals or dismissals must be reversed.

The purpose of judicial review of a decision of an administrative agency is to keep the agency within the jurisdictional and judicial bounds prescribed by law, and to guard the rights of parties guaranteed by the Constitution or Statutes, and for that purpose the court may and must, if necessary, reexamine the facts and law and set aside an order of the administrative agency when the record shows it to be without substantial foundation: Curtis v. State Police Merit Board, 349 Ill. App. 448 (1953) Third Dist.; Illinois Cent. R. Co. v. Illinois Commerce Commission, 411 Ill. 526 (1952). The public schools are not, of course, created and supported for the benefit of the teachers therein, but for the benefit of the pupils, their parents, and the community at large, but it is necessary that a Board of Education adhere to whatever statutory provisions there may be regulating the employment, removal, or dismissal of teachers: Wilson v. Board of Education of School Dist. No. 126 Union, Madison County, 327 Ill. App. 338 (1945) Fourth Dist.

The only cases the defendant refers us to are: Roth v. Kaptowsky, 401 Ill. 424 (1948); Smith v. Board of Education of Oswego Community High School Dist., 405 Ill. 143 (1950); Donahoo v. Board of Education of School Dist. No. 303, 413 Ill. 422 (1953); McNely v. Board of Education of Community Unit School Dist. No. 7, 5 Ill.App.2d 84 (1955) Third Disk; and Anderson v. Board of Education of School Dist. No. 91, 390 Ill. 412 (1946). Roth v. Kaptowsky and Smith v. Board of Education of Oswego Community High School Dist., are cited simply for the general principles that where the language used in a statute is plain and certain it must be given effect by the courts; a court cannot legislate but must merely interpret the law as announced by the legislature; and the wisdom, as a matter of policy, of legislation is a question for the legislature and not for a court. Donahoo v. Board of Education of School Dist. No. 303 is similarly cited for such general principles, and we’ve previously referred to that case. Those principles are, of course, correct, we’ve endeavored to apply them here, and we do not perceive how they aid the defendant. McNely v. Board of Education of Community United School Dist. No. 7 and Anderson v. Board of Education of School Dist. No. 91 are similarly cited simply for the general principles that the Teacher Tenure Law casts a new liability upon school Boards and, therefore, should be construed strictly in favor of the Board. There is no contention by the defendant that those cases are in point on their facts or that they are determinative of the present case. Assuming the general principles thereof to be correct, such does not decide the present case favorably to the defendant, and it may be observed that the more recent case of Donahoo v. Board of Education of School Dist. No. 303, supra, does not cite either the McNely case or the Anderson case, the court evidently feeling they did not inhibit the construction of the Teacher Tenure Law there involved adversely to the Board.

The judgment order of the trial court of February 7, 1955 affirming the decision of the defendant Board of Education is, therefore, reversed and the cause remanded to the Circuit Court, with directions to proceed in accordance with the views expressed herein.

Beversed and remanded with directions.

DOVE, P. J. and EOVALDI, J., concur.