text:
    (No. 33969.
    The People ex rel. Mae Doty, Appellant, vs. Francis X. Connell, Clerk of the Circuit Court of Cook County, Appellee.

      Opinion filed September 25, 1956

    Rehearing denied Nov 19, 1956.

      Sol R. Friedman, and I. S. Friedman, both of Chicago, for appellant.
    John Gutknecht, State’s Attorney, of Chicago, (Gordon B. Nash, Charles D. SnEwind, Albert E. Jenner, Jr., and Wesley G. Hall, of counsel,) for appellee..
   Mr. Justice Hershey

delivered the opinion of the court:

This case involves the constitutionality of a 1955 amendment to the Divorce Act, which provides that actions for divorce “shall be commenced by filing a praecipe for summons” and which prohibits the filing of the complaint and entry of the decree for a period of 60 days from the day the summons is served or the last day of publication of notice, unless leave of court is obtained in the manner outlined. Ill. Rev. Stat. 1955, chap. 40, pars. 7a, 7b, 7c, 7d, 7e; Laws of 1955, p. 2114; H.B. No. 786.

The circuit court of Cook County refused appellant’s request for mandamus to compel the clerk of that court to receive and file her complaint for divorce despite her refusal to commence the suit by filing a praecipe for summons as required by said statute. The constitutional validity of a statute being involved, this court has jurisdiction on direct appeal.

In asserting constitutional objections, the appellant relies mainly upon People ex rel. Christiansen v. Connell, 2 Ill.2d 332, which invalidated a 1953 amendment to1 the Divorce Act containing somewhat similar provisions. However, the appellee contends that this legislation does not have the features condemned in the Christiansen case and that the decision is actually an authority in support of the present act.

The 1953 statute considered in the Christiansen case contained three significant provisions (none of which is included in the 1955 act) modifying the practice and procedure in divorce, separate maintenance and annullment. First, it required, as a condition precedent to the commencement of an action for divorce, separate maintenance or annullment, that the plaintiff file a “statement of intention” to institute the action. Second, it provided for a mandatory waiting period after the filing of the statement of intention of 60 days before suit could be instituted, summons issued, and jurisdiction obtained over the person of the defendant. Third, it provided for a voluntary informal conference during the 60-day waiting period, directed to reconciliation of the parties and to be participated in by the court and one or both of such parties.

We held the legislation unconstitutional on two grounds: (1) The 60-day prejurisdictional waiting period denied to the plaintiff a right of access to the courts in violation of section 19 of article II of the Illinois constitution. (2) The voluntary reconciliation conference imposed nonjudicial duties upon judges in violation of the separation of powers provisions of article III of the Illinois constitution.

In an obvious effort to cure these defects, the legislature omitted from the present act all mention of reconciliation conferences and provided for immediate commencement of the suit by the filing of a praecipe for summons, with the consequent prompt obtaining of jurisdiction of the subject matter and the parties.

In holding the 1953 act invalid we pointed out that it differed from so-called “cooling off period” statutes in force in other States in that the latter provided for periods of delay subsequent to the institution of the action for divorce or the service of process, and prior to hearing or the entry of a decree. With reference to these statutes of other jurisdictions requiring the lapse of given periods of time after the filing of suit or service of process, we declared that “Such legislation applies uniformly to all litigants and does not involve any delay of access to the courts.” People ex rel. Christiansen v. Connell, 2 Ill.2d 332, 345.

Likewise, the instant statute provides immediate access to the courts by a procedural means applicable alike to all litigants, with no delay being interposed before jurisdiction is obtained. The commencement of a suit by the filing of a praecipe for summons, a practice familiar to most Illinois lawyers, was in effect in this State for over a hundred years preceding the enactment of the Civil Practice Act of 1933 (Puterbaugh, Common Law Pleading and Practice, 10th ed. sec. 9,) and still prevails in the municipal court of Chicago (Ill. Rev. Stat. 1955, chap. 37, par. 395,) and in municipal courts organized under the general Municipal Court Act. Ill. Rev. Stat. 1955, chap. 37, pars. 459, 469a.

Therefore, the statute in question does not fall under the constitutional inhibition elaborated in the Christiansen case. However, it does retain a form of “cooling off periodand while post-jurisdictional delays of this type were approved inferentially in the Christiansen case, the question warrants further consideration and discussion.

The parties agree there was no right of divorce in the common law, and the legislature could abolish the statutory remedy altogether. Moreover, “an action for divorce involves interests other than those of the parties litigant. The State, as the sovereign, has an interest in maintaining the integrity and permanency of the marriage relation.” (Ollman v. Ollman, 396 Ill. 176, 181. See also Leland v. Leland, 319 Ill. 426.) It follows that the legislature, as an exercise of its police power and to promote the public welfare, may adopt any reasonable rules regulating divorce that do not conflict with the Illinois and Federal constitutions.

The “60-day cooling off period” provision is designed to effectuate a legislative policy directed toward affording an opportunity for reconciliation of the parties prior to hearing and decree. This court in previous decisions has recognized the laudable purposes which are sought to be achieved by legislation of this type. See, for example, People ex rel. Christiansen v. Connell, 2 Ill.2d 332, 346.

Similar statutes providing for a lapse of time after institution of the suit but prior to hearing or entry of decree, are in force in the following twelve States : Arizona (Ariz. Code Ann., chap. 21, sec. 21 — 1202) ; Colorado (Colo. Stat. Ann. 1935, chap. 56, sec. 10(1), Laws 1945, p. 316, § 2); Connecticut (Conn. Gen. Stat. 1949, chap. 367, sec. 7333) ; Indiana (Burns’ Ind. Stat. Ann., Title II, sec. 801, Acts 1947, chap. 94); Kansas (Kan. Gen Stat. Ann. 1949, chap. 60, art. 15, sec. 60 — 1517); Michigan (Mich. Stat. Ann., sec. 25.89); Nebraska (Neb. Rev Stat. 1943, chap. 42, sec. 305.02); Ohio (Ohio. Gen. Code, 1951 Supp., chap. 2, sec. 8003 — 10); South Carolina (S. Car. Code, 1952, Title 20, chap. 2, sec. 20 — 108); Texas (Vernon’s Tex. Stat., Ann., chap. 4, sec. 4632); Vermont (Ver. Rev. Stat. 1947, sec. 3255) ; Washington (Rem. Rev. Stat., sec. 982 et seq., Rev. Code of Wash., Title 26, sec. 26.08.040). In addition, there are eleven States which employ the “interlocutory decree” method and delay the entry of a final decree. See 36 Va. L. Rev. 665.

The Nebraska statute, which provides for a six-month delay after service of summons and before hearing, was upheld in Garrett v. State, 118 Neb. 373. The Nebraska constitution contains a provision equivalent to article II, section 19, of our constitution. In discussing the policy to be implemented the court said at page 379: “[The legislation] was undoubtedly to give parties time to recover from anger, to recall affection, to remember benefits, to reflect on the wellbeing of offspring, and to consider from the standpoint of personal duty and responsibility. Immediate trial and preparation for trial are inherently such as to keep alive resentment and develop new animosity, hence the waiting time prescribed by the lawmaker in order that the relation in which the state is so vitally interested may not be terminated too easily and too speedily.” Cf. Berghean v. Berghean, 113 Ind. App. 412; Pashko v. Pashko, 45 O.O. 498.

The appellant’s challenge is not to the statutory objective, but to the means or procedures adapted to that end. Immediate access to the courts being assured, the procedures are to be judged by the same rule of reasonableness applicable to other legislative acts establishing special limiting, regulatory and restrictive procedures. B.g., adoption, Ill. Rev. Stat. 1955, chap. 4, pars. 1 — 1, 3 — 1, 4 — 1; taxpayers suits, Ill. Rev. Stat. 1955, chap. 102, pars. 14, 15, 16; attachment, Ill. Rev. Stat. 1955, chap. 11, pars. 2, 6, 8, 10, 25; quo warranto, Ill. Rev. Stat. 1955, chap. 112, pars. 11, 12; replevin, Ill. Rev. Stat. 1955, chap. 119, pars. 4, 17a; injunction, Ill. Rev. Stat. 1955, chap. 69, pars. 3, 9, 17; election contests, Ill. Rev. Stat. 1955, chap. 46, pars. 23 — 13, 23 — 20, 23 — 23.

The issue of due process of law is to be determined by judging whether the particular statute is reasonable in the light of the legislative objectives. (Cf. Clarke v. Storchak, 384 Ill. 564.) So judged, we cannot say that a post-jurisdictional delay of 60 days is unreasonable. The legislatures of several States have enacted similar provisions, none of which to our knowledge has been invalidated; and there is abundant reasoned opinion favoring procedures of this kind as a means of attaining a desired end. (See, e.g., Miner, “The 60-Day Cooling Off Period,” 41 Ill. B. J. 636; Comment, 22 U. of Chicago L. Rev. 253, 258-60; Note, 49 Northwestern L. Rev. 682, 687.) The legislature, mindful of the State’s “interest in maintaining the integrity and permanency of the marriage relation” and taking account of the high divorce rate and its effects, cannot be said to have acted arbitrarily or unreasonably in requiring, as a means of fostering reconciliation, that a divorce complainant wait at least 60 days before making the charges a matter of public record and having a hearing thereon. “With the growth and development of the State the police power necessarily develops, within reasonable bounds, to meet the changing conditions.” Clarke v. Storchak, 384 Ill. 564, 576.

It is, of course, not for us to say whether the particular law before us is desirable from the standpoint of legislative policy, since the wisdom of legislation is a matter committed exclusively to a co-ordinate branch of our government, the General Assembly. It is sufficient to show that it is not unreasonable in the light of legislative objectives and was within the province of legislative power.

Under certain conditions the 60-day waiting period may be waived, the law providing as follows: “The court, in its discretion, may upon written motion supported by affidavit setting forth facts showing that immediate relief is warranted or required to protect the interests of any party or person who might be affected by a final decree or order in the proceedings, grant leave to file or order the filing of a complaint before the expiration of the 60-day period.” (Ill. Rev. Stat. 1955, chap. 40, par. yc.) The appellant contends that this provision is so vague, indefinite and uncertain as to amount to a deprivation of due process; that it violates section 29 of article VI of the Illinois constitution, which requires that all laws relating to courts be “general, and of uniform operationand that it contravenes section 22 of article IV which prohibits local or special laws in the granting of divorces.

The exercise of discretion being such an essential part of the judicial process, one can find numerous examples of provisions governing practice and procedure which are analogous to the statute in question. For instance, section 44 of the Civil Practice Act provides that “The court may, in its discretion, order separate trials.” Section 50(6) provides that a “court may in its discretion, before final order, * * * set aside any default.” Section 52.1 provides that a class suit may not be compromised or dismissed “except with the approval of the court.” Section 59 provides that “on good cause shown, in the discretion of the court and on just terms, additional time may be granted for the doing of any act or the taking of any step or proceeding prior to judgment.” Section 63 provides that “the court may in its discretion direct an issue or issues [in an equity case] to be tried by a jury.” See also section 3 of the Injunction Act, which authorizes immediate issuance of an injunction without notice and hearing if it shall appear to the court “that the rights of the plaintiff will be unduly prejudiced,” (Ill. Rev. Stat. 1955, chap. 69, par. 3); and the provision of the act of 1903 which authorizes the appointment of a receiver without bond when “the court is of opinion that a receiver ought to be appointed without such bond.” (Ill. Rev. Stat. 1955, chap. 22, par. 54.) Similar provisions appear in the rules of this court. Among others, Rule 101.8(5) provides that the court may extend the time for filing pleadings or the doing of any act “for good cause shown on motion,” and Rule 101.19 — 10(3) provides that the court may in its discretion permit the use in evidence of a deposition upon a showing of “exceptional circumstances” and “in the interest of justice.”

It is true that individual judges may differ as to what state of facts necessitates waiver of the 60-day waiting requirement “to protect the interests of any party or persons who might be affected by a final decree or order in the proceedings,” but this does not render the law invalid. The same is true in many cases, including that of an injunction which may be issued if it appears to the court “that the rights of the plaintiff will be unduly prejudiced.” (Ill. Rev. Stat. 1955, chap. 69, par. 3.) It would manifestly be impossible for the legislature to foresee and provide explicitly for every possible exigency which might be considered sufficient to call for an immediate filing of a divorce complaint. Accordingly, the course followed by the present statute of conferring discretion upon the courts, coupled with a declaration of legislative policy, is a reasonable method of operation. In effect, the legislature has done no more than confer upon the courts the necessary discretion to regulate proceedings pending before them, similar tO' that exercised in a wide variety of situations.

We conclude that this authority of the court to exercise judicial discretion in determining whether the immediate filing of the complaint is warranted or necessary satisfies due process of law, and since all divorce litigants are subject to its provisions, it is not special legislation violative of section 22 of article IV or section 29 of article VI of the Illinois constitution.

The appellant’s citations, involving the so-called rule against delegation of power to administrative tribunals, are not in point, and no authorities are advanced to vitiate a provision of this type.

The appellant makes two additional arguments, both charging a separation of powers violation.

The first is that section 6a, which prohibits the filing of the complaint for divorce until 60 days from the service of summons or notice of publication, by implication confers upon administrative officers, the clerks of the several courts, the judicial discretion to determine if the 60 days have elapsed. But it is apparent that the statute, by any reasonable construction, requires the clerks to perform duties of a ministerial nature only, and it is further apparent that any action taken by the clerk is subject to immediate review by the trial court upon application by a party to the proceedings.

The appellant’s other separation of powers argument concerns the appointment of “administrative aids.” (Ill. Rev. Stat. 1955, chap. 40, pars. 30 to 32.) But these provisions were contained in H.B. No. 785, an independent statute which is complete in itself and in no way related to or dependent upon the statute here challenged, H.B. No. 786. The appellant admits that these provisions regarding “administrative aids” have not affected her, and their validity is not at issue on this appeal. Cf. People ex rel. Christiansen v. Connell, 2 Ill.2d 332, 337.

The judgment of the circuit court of Cook County is affirmed.

Judgment affirmed,


source: Caselaw Access Project

author: Mr. Justice Davis

license: Public Domain

text:
    (No. 33968.
    The People of the State of Illinois, Appellee, vs. Rexford Clark, Appellant.

      Opinion filed September 25, 1956

    Rehearing denied Nov 19, 1956.

      Daniel D. Glasser, of Chicago, for appellant.
    . Latham Castle, Attorney General, of Springfield, and John GutknEcht, State’s Attorney, of Chicago, (Fred G. Leach, Edwin A. Strugala, Irwin D. Bloch, John T. Gallagher, Rudolph L. Janega, and William L. Carlin, of counsel,) for appellee.
   Mr. Justice Davis

delivered the opinion of the court:

The defendant, Rexford Clark, was found guilty in the municipal court of Chicago of unlawfully and knowingly having in his possession a certain writing, paper, document or article, representing or being a record of chance, share or interest in numbers sold, drawn, or to be drawn, in what is commonly called “policy,” and used in the promoting or playing of said game, in violation of section 2 of an act for the prevention of policy-playing (Ill. Rev. Stat. 1953, chap. 38, par. 413.) He was tried and sentenced by the court to serve a term of 30 days in the county jail and appeals from the judgment assigning error in that: (1) the court erred in denying his petition to suppress certain evidence which was allegedly taken from his person in violation of his constitutional rights; (2) the evidence does not establish his guilt of the crime charged beyond a reasonable doubt; (3) venue was not proved as alleged in the information; and (4) the court erred in denying his request to make an offer of proof. The defendant brings the record here for review, constitutional questions being involved. People v. Humphreys, 353 Ill. 340; People v. McGurn, 341 Ill. 632.

When the case was called for trial, the defendant presented a written petition to- suppress as evidence certain policy slips and sheets. Therein he alleged that said property was unlawfully taken from his person by Chicago police officers Roland, Mitchell and Mullin in the county of Cook and State of Illinois, when defendant was unlawfully arrested on the pretext that he had violated a city parking ordinance. The petition further alleged that the property was now in the possession of the city of Chicago and belonged to the defendant, and requested its return. In support of his petition, the defendant called as his witness officer Mullin, who' testified in substance that he was a police officer of the city of Chicago, assigned to the commissioner’s office in connection with gambling investígations; that on October 10, 1955, at about 12:15 P.M. he was with officers Roland and Mitchell and they observed the defendant park his car in front of 4508 Forrestville Avenue, after which the defendant got out of the car and was about to cross the street; that the witness approached the defendant and asked him if he parked his car like that all the time, and defendant asked officer Mullin what was wrong with it; that the witness then directed officer Roland to measure the distance of the wheels from the curb and it was found that the right front wheel was 21 inches from the curb and the rear wheel 18 inches; and that the permissible parking distance from the curb was 12 inches. The witness then testified that he saw a package sticking out of defendant’s right rear pocket; that this package protruded about 2 inches and was only partially obscured by a handkerchief; that the witness asked the defendant what he had in the package and the defendant replied, “policy slips.” Thereupon the witness took possession of the package containing the policy slips without inserting his hand in defendant’s pocket; that the officers then searched the defendant’s car and found some policy sheets, and forthwith formally charged the defendant with the offense of which he was convicted.

Defendant insists that the seizure of the evidence cannot be justified on the ground that it was taken by the officers in the course of a lawful arrest because no arrest had in fact been made prior to the seizure. It is admitted that the officers had no warrant for defendant’s arrest. But an arrest may be made by an officer or private person without a warrant for a criminal offense committed or attempted in his presence. (Ill. Rev. Stat. 1953, chap. 38, par. 657.) The term “criminal offense,” as used in this statute includes misdemeanors as well as felonies. (People v. Edge, 406 Ill. 490.) If the defendant in fact violated a municipal parking ordinance in the presence of the officers they had the right to arrest him without a warrant for that offense, The guaranty of section 6 of article II of our constitution is not against all searches and seizures but only against unreasonable search and seizure, and does not extend to immunity from search upon lawful arrest. (People v. Barg, 384 Ill. 172.) Where the arrest is justified, for whatever cause, the accompanying search is also justified. (People v. Tabet, 402 Ill. 93.) So in this case a search incident to an arrest for a parking violation would be justified. The fact that the property was taken without the necessity of a search cannot make its seizure unlawful if it could have been lawfully seized upon search. We cannot agree that the evidence fails to show an arrest for unlawful parking. No formal declaration of an arrest on that charge had been made by the officers, but none was necessary. The evidence clearly shows that the violation had been called to the attention of defendant; that he voluntarily submitted to the control of the arresting parties; and that the officers intended to effect the arrest and that the defendant so understood them. The elements of a valid arrest were present. (4 Am. Jur. Arrest, pages 5 and 6; 6 C.J.S. 571.) It is immaterial whether or not defendant was ever formally charged with the traffic violation, or whether or not that charge was sustained. People v. Edge, 406 Ill. 490.

We believe that the seizure of the policy slips and sheets may also be justified on the ground that the event was incident to a lawful arrest for the possession of the contraband in violation of the statute, committed in the presence of the officers. The gist of the offense under the statute is the unlawful possession of the forbidden articles. (Ill. Rev. Stat. 1953, chap. 38, par. 413.) The evidence shows that the officer saw the package protruding from defendant’s pocket; that he called this to the latter’s attention and asked him what he had, whereupon defendant replied, “policy slips.” At that moment the defendant was violating the statute in the presence of the officer who was thereupon justified in making an arrest without a warrant and in seizing the contraband. Though there is no evidence of a formal declaration of arrest for violation of the statute it is clear from what transpired that an arrest for violation of the statute was in fact made at the time of the seizure ; that the officer so intended and the defendant so understood; that the seizure of the articles was justified as incident to a lawful arrest for violation of the statute committed in the presence of the officers. Under these circumstances the court properly denied defendant’s petition to suppress the evidence and return the property.

The defendant contends that the evidence adduced does not establish the corpus delecti of the crime because it fails to show beyond a reasonable doubt that articles of the type forbidden by the statute were in fact possessed by him or possessed by him with knowledge of their unlawful character. During the course of the hearing on the petition to suppress, defendant’s counsel requested that the package containing the slips be received in evidence, and established by the testimony of the officer that this was the package taken from the person of the defendant, and that it was in the same condition as when taken. After the petition to suppress had been overruled and the defendant had entered a not guilty plea, the State’s Attorney offered to stipulate to the same evidence brought out in the hearing on the petition to suppress with the understanding that the evidence taken from defendant’s pocket be received in evidence as State’s exhibit 1 and be introduced on behalf of the People. Counsel for defendant stated he had no objection and joined in the stipulation. Thereupon the documents were duly received and marked as requested. The People then rested their case and the defendant offered no further testimony. Section 3 of the act under which the information was laid provides that possession of policy tickets or slips is presumptive evidence that the tickets or slips were knowingly possessed in violation of the statute. (Ill. Rev. Stat. 1953, chap. 38, par. 414.) Thus the proof received on behalf of the People by stipulation clearly establishes the possession of policy slips by the defendant, and since no testimony was offered by the defendant to rebut the presumption that they were knowingly possessed in violation of the statute, the record as it stands is sufficient to prove the corpus delecti of the crime and establish the guilt of the defendant beyond a reasonable doubt.

The information charges that the offense was committed on October 10, 1955, in the city of Chicago, county of Cook and State of Illinois. The defendant contends that the evidence does not prove the venue as laid in the information. However, the defendant established that he was arrested by three Chicago police officers who were assigned to the commissioner’s office to investigate gambling complaints. In his sworn petition to suppress, which was received in evidence as an exhibit at his request and was later, by stipulation, made a part of the People’s case, the defendant alleged that on October 10, 1955, “officers Roland, Mitchell and Mullin, police officers of the City of Chicago, in the County of Cook, and in the State of Illinois, made an unlawful search and seizure of property from the said Rexford Clark, defendant in the above-entitled cause, which said property was his and was then in his possession,” and “that said property is now in the possession of the City of Chicago.” This court has held that the venue of an offense may be proved like any other fact in a criminal case; that it need not be established by positive testimony, nor in the words of the information; and that if from the facts appearing in evidence, the only rational conclusion which can be drawn is that the offense was committed in the county alleged, it is sufficient. (People v. Shaw, 300 Ill. 451; Weinberg v. People, 208 Ill. 15, at page 19.) The defendant’s evidence may be considered and may supply deficiencies in the State’s proof on the question of venue. (Porter v. People, 158 Ill. 370.) Considering the entire record, including defendant’s petition which he elected to have made a part thereof, there is no reasonable doubt that the offense was committed at the place charged.

We further hold that venue was sufficiently proved by the testimony of officer Mullin which recited that he and the other police officers first saw the defendant as he parked his car in front of 4508 Forrestville Avenue when they stood at the southwest corner of Forty-fifth and Forrest-ville. We will take judicial notice that Forty-fifth Street and Forrestville Avenue are in the city of Chicago as alleged in the information. People v. Golub, 333 Ill. 554; People v. Farnsworth, 324 Ill. 96.

In support of his petition to suppress, the defendant asked his witness, officer Mullin, certain questions relative to the general practice of making traffic arrests in connection with gambling investigations. The court sustained objections to most of the questions on the ground that such evidence was not relevant to the issue of whether there had been a lawful arrest in this case as a basis for the seizure in question. Counsel for the defendant then offered to prove such a general practice but did not state the facts relied upon or by whom he intended to make such proof. The court properly denied this offer. The questions asked were foreign to the issues presented on the petition to suppress, and the form of the general offer of proof was inadequate.

We find no merit in the assignments of error presented and the judgment of the municipal court of Chicago is therefore affirmed.

Judgment affirmed.


author: Mr. Justice Hershey Mr. Justice Bristow,

text:
    (No. 33536.
    Raymond Moushon, Appellant, vs. National Garages, Inc., Appellee.

      Opinion filed September 25, 1956

    Rehearing denied Nov. 19, 1956.

      Bristow and Davis, JJ., dissenting.
    Robert G. Day, of Peoria, for appellant.
    Shore & Coney, and Richard E. CapiTSLLi, both of Peoria, and Angerstein & Angerstein, and Charles T. Shanner, both of Chicago, for appellee.
   Mr. Justice Hershey

delivered the opinion of the court:

By his suit in the circuit court of Peoria County, the plaintiff, Raymond Moushon, sought to recover damages for a personal injury caused by the alleged negligence of his employer, National Garages, Inc. But the court allowed the defendant’s motion to dismiss on the ground that section 5(a) of the Workmen’s Compensation Act barred the action. (Ill. Rev. Stat. 1951, chap. 48, par. 138.5.) After the plaintiff elected to stand by his complaint, judgment was entered for the defendant. The appeal comes to this court on the theory that a constitutional question is involved.

The issue is two-fold: (1) Does section 5(a) of the Workmen’s Compensation Act bar the plaintiff’s suit? (2) If so, is the statute as so construed constitutionally valid?

The plaintiff was injured in the course of his employment for the defendant when a safety device on the “man lift” which he was riding failed to operate. He alleges that “his internal organs were greatly crushed and bruised including a ruptured urethra, which injuries have not permanently disabled [him] from engaging in his usual type of work but have rendered him impotent and have caused him great pain and suffering.”

The parties agree that the employment was such as to automatically be covered by the Illinois Workmen’s Compensation Act and thereby subject the plaintiff-employee and the defendant-employer to its terms. It is also agreed that the injury resulted from an “accident” within the meaning of the statute and arose out of and in the course of the employment. The defendant provided medical, surgical and hospital services reasonably necessary to cure and relieve from the effects of the injury, as required by section 8(a) of the act. (Ill. Rev. Stat. 1951, chap. 48, par. 138.8.) The defendant also paid, and the plaintiff received, compensation for the period of his temporary total disability, in accordance with section 8(b) of the act. The plaintiff’s claim before the Industrial Commission, in which relief is asked under section 8(e) for loss of use of both testicles, is still pending.

On these admitted facts, we think that section 5(a) of the act constitutes a bar to the plaintiff’s common-law action. This section provides, in part, as follows: “No common law or statutory right to recover damages for injury or death sustained by any employee while engaged in the line of his duty as such employee, other than the compensation herein provided, shall be available to any employee who is covered by the provisions of this Act, * *

The plaintiff takes the position that the foregoing is inapplicable where the injury does not fit a category specified by section 8(e). But this ignores the fact that he is still an employee “who is covered by the provisions of this Act,” and more, the injury is admittedly compensable under other of its provisions.

Actually, it is difficult to see that any defense could exist to a claim for compensation under section 8(e) as well. Since the amendatory act of 1951, the section is not limited to the loss of both testicles, but covers also their permanent and complete loss of use. Even prior to this amendment, this court held that the act did not require “physical severance of the testicles” but included loss “in the more serious sense that they never again could perform their normal function having to do with sexual intercourse and the propagation of offspring.” (Northwestern Barb Wire Co. v. Industrial Com. 353 Ill. 371.) This is precisely the injury which the plaintiff claims here. And that the Industrial Commission regards such an injury compensable as a loss of use of both testicles in indicated by its award in Anderson Shumaker Co. v. Industrial Com. No. 33564, in which we denied a writ of error at the March, 1955, term. In that case, as here, the injury consisted primarily of a ruptured urethra. See Gray, Attorney’s Textbook of Medicine, vol. 3, sec. 301.07.

Yet even if it be assumed that the injury is not under section 8(e), it does not follow that the plaintiff should prevail. He still is covered by the act and sustained an accidental injury for which he received compensation benefits. Therefore, by its clear import section 5(a) bars his suit.

This is consistent with the legislative purpose of the statute. “The act was designed as a substitute for previous rights of action of employees against employers and to cover the whole ground of the liabilities of the master, and it has been so regarded by all courts. * * * It is therefore clear that the words ‘accident’ and ‘accidental injuries’ used in the act, were meant to include every injury suffered in the course of employment for which there was an existing right of action at the time the act was passed; also to extend the liability of the employer to make compensation for injuries for which he was not previously liable and to limit such compensation. The act, in talcing away existing rights of action of the employee and extending the liabilities of the employer, fixes limits to the amount to be recovered, and is sustained as a legitimate exercise of the police power for the promotion of the general welfare by covering the entire subject with fixed rules.” Matthiessen & Hegeler Zinc Co. v. Industrial Board, 284 Ill. 378, 382-3.

The general view regarding the particular problem before us here is expressed as follows by a leading writer in this field: “The compensation remedy is exclusive of all other remedies for the same injury, if the injury falls within the coverage formula of the act. If it does not, as in the case where occupational diseases are deemed omitted because not within the concept of accidental injury, the compensation act does not disturb any existing remedy. However, if the injury itself comes within the coverage formula, common-law action is barred even though the particular element of damage is not compensated for, as in the case of disfigurement in some states, impotency, or pain and suffering.” (Larson, Workmen’s Compensation Law, sec. 65.00.) At section 65.10 of the cited text the author states a reason for the compensation act affording the exclusive remedy: “This is part of the quid pro• quo in which the sacrifices and gains of employees and employers are to some extent put in balance, for, while the employer assumes a new liability without fault, he is relieved of the prospect of large damage verdicts.”

The plaintiff refers to decisions of other jurisdictions involving noncompensable occupational diseases or injuries for which no compensation was provided by statute. They are not analogous to the instant case. Apart from statutory and factual differences, the employees did not qualify for benefits under the applicable statutes. The courts were not called upon, as is this court, to permit a recovery under the Workmen’s Compensation Act and then permit also a suit at common law against the same person, to recover additional damages said to arise out of and be connected with the same accidental injury constituting the basis for the one cause of action. See Hyett v. Northwestern Hospital, 147 Minn. 413.

Having determined that the statute is applicable, we next consider its constitutionality as against asserted violations of due process (Ill. Const., art. II, sec. 2; U.S. Const., 14th amend.) and other provisions of the Illinois constitution.

By the Workmen’s Compensation Act, the legislature required the employer to’ give up certain defenses and required the employee to give up certain recoverable elements of damage of a common-law negligence action; and this we have held many times is a reasonable exercise of the legislature’s police power for the promotion of the general welfare. (See, for example, Grand Trunk Western Railway Co. v. Industrial Com. 291 Ill. 167," Mantthiessen & Hegeler Zinc Co. v. Industrial Board, 284 Ill. 378.) This court has never considered one to have such a vested right in the common-law rules governing negligence actions as to preclude the legislature from substituting a statutory remedy of this type for the common-law remedy.

For the reasons stated, the judgment of the circuit court of Peoria County is affirmed.

Judgment affirmed.

Mr. Justice Bristow,

dissenting:

I cannot agree with the conclusion of the majority opinion that plaintiff’s injury is compensable under section 8(e) or any other section of the Workmen’s Compensation Act, or that section 5(a) of the act constitutes a bar to this proceeding.

Compensation awards are provided under the act for partial incapacity (section 8(d) ) ; permanent total disability (section 8(f)); and for enumerated specific loss or loss use of bodily members (section 8(e)). Partial incapacity and permanent total disability are predicated upon the employee’s inability to pursue his usual or suitable employment, and the amount is based essentially upon the difference between his average earnings before and after the accident; whereas for the specfic loss, or loss of use of the enumerated members, the award is fixed in the act.

In the instant case it is apparent that plaintiff’s injury does not come within the terms of section 8(f) or 8(d), since he sustained no disability to pursue his usual employment; nor is plaintiff’s injury listed in the enumeration of specific loss of members, as the majority opinion suggests. The injury sustained by plaintiff was neither the loss, nor the loss of use of testicles, referred to in section 8(e), but a ruptured urethra, involving a different part of the body with different anatomical consequences. Moreover, there is no allegation or proof that the injury to the urethra necessarily involved the loss or loss of use of testicles. I cannot accept defendant’s reasoning, as did the majority opinion, that since impotency may be an incident of the loss of testicles, as in Northwestern Barb Wire Co. v. Industrial Com. 353 Ill. 371, therefore, where impotency is produced from other causes it must also be considered as a loss or loss of use of testicles. Consequently, it is my judgment that the omission in section 8(e) of the act of a specific award of compensation for an injury of the nature sustained by plaintiff, or of a blanket provision such as is found in other workmen’s compensation statutes, cannot be supplied by resort to medical fiction. Therefore, plaintiff’s injury, though allegedly arising out of and in the course of his employment cannot be deemed tO' be compensable under the act.

The majority opinion asserts further that even if it be assumed that the injury is not under section 8(e), plaintiff’s action is barred by section 5(a) of the act. The relevant portion of this section provides: “No common law or statutory right to recover damages for injury or death sustained by any employee while engaged in the line of his duty as such employee, other than the compensation herein provided, shall be available to any employee who is covered by the provisions of this Act.”

The obvious purport of this provision is to protect employers from being held liable for both compensation and damages for the same injury. However, the phrases “other than the compensation herein provided” and “employee who is covered by the provisions of this Act” indicate that a substitute remedy is envisaged, and that the common-law remedy is abolished only where the substitute remedy of compensation is provided under the terms of the act.

In Matthiessen & Hegeler Zinc Co. v. Industrial Board, 284 Ill. 378, cited by. the majority opinion, the court emphasized that where existing remedies were taken away, fixed amounts of compensation were provided. There is nothing contained therein to the effect that, irrespective of whether the act authorizes compensation, the employee should nevertheless be deprived of any remedy.

There does not appear to be any other determinative precedent in Illinois on the issue of whether section 5 (a) bars a common-law action for a noncompensable injury, as in the instant case.

The decisions of other States, predicated upon the terminology and legislative history of the particular Workmen’s Compensation Act, reflect a sharp cleavage of judicial opinion. (100 A.L.R. 519; 121 A.L.R. 1143, et seq.) However, the great weight of authority, apparently disregarded by the majority opinion, holds that the workmen’s compensation acts do not constitute an exclusive remedy barring an action at common law where the injury is not compensable under the acts. 100 A.L.R. 519; 121 A.L.R. 1143, and cases cited; 71 C.J. 1482-3; Rosenfield v. Matthews, 201 Minn. 113, 275 N.W. 698; II Larson, Workmen's Compensation, 135.

In the annotation appearing in 121 A.L.R. 1143, it is stated: “In harmony with the great weight of authority as shown in the earlier annotation, it was held in the following later cases under statutes and facts involved, that the workmen’s compensation acts did not constitute an exclusive remedy as to bar an action at common law or under a statute to recover for injury or disease which was not compensable under the act.”

The rule has been applied not only where the injury suffered was not caused by an accidental injury arising out of and in the course of employment, but also, as in the instant case, where the injury did not result in a disability recognized in either the workmen’s compensation or occupational diseases acts of the particular jurisdiction. 71 C.J. 1483; Shinnick v. Clover Farms Co. 169 App. Div. 236, 154 N.Y.S. 423; Boyer v. Crescent Paper Box Factory, 143 La. 368, 78 So. 596; Clark v. Banner Grain Co. 195 Minn. 44, 261 N.W. 596; Kane v. Fed. Match Corp. 5 F. Supp. 507; Boal v. Elec. Storage Battery Co. 98 F.2d 815; Billo v. Allegheny Steel Co. 328 Pa. 97, 195 Atl. 110; Triff v. Nat’l Bronze & Alum. Foundry Co. 135 Ohio St. 191, 20 N.E.2d 232; Young v. Salt Lake City, 97 Utah 123, 90 P.2d 174; Peerless Woolen Mills v. Pharr, 74 Ga. A. 459, 40 S.E.2d 106; Pershing Quicksilver Co. v. Thiers, 62 Nev. 382, 152 P.2d 432; Jackson v. Pacific Gas & Electric Co. 95 Cal. A.2d 204, 212 P.2d 591; McDaniel v. Kerr, 364 Mo. 1, 258 S.W.2d 629; Kress v. City of Newark, 8 N.J. 562, 86 A.2d 185.

In Clark v. Banner Grain Co. the court held that an employee could maintain a common-law action for damages against his employer for bronchial asthma caused by the employer’s negligence where such injury was not compensable under the act. In Boal v. Elec. Storage Battery Co. the Federal court, following Billo v. Allegheny Steel Co., held that under the Pennsylvania Workmen’s Compensation Act an employee could maintain a common-law action for negligence against his employer for cancer caused by exposure to sulphuric acid, since the injury was neither covered by the Workmen’s Compensation Act nor the Occupational Diseases Act. Moreover, common-law actions were allowed for dye poisoning (Pershing Quicksilver Co. v. Thiers) ; for electric shock (Jackson v. Pacific Gas & Electric Co.); for sundry lung ailments (McDaniel v. Kerr, 258 S.W.2d 629 (Mo. 1953); and for X-ray burns (Kress v. City of Newark, 86 S.2d 185 (N.J. 1951).

In Triff v. Nat'l Bronze and Alum. Co. 135 Ohio St. 191, the Ohio court reversed its position held in an earlier case, and allowed a common-law action for damages for a noncompensable occupational disease. The court pointed out that it was an obvious injustice to allow compensation to some employees who contracted an occupational disease, and to leave others remediless, without even damages for negligence.

The courts in the foregoing cases, in allowing the injured employee common-law damages, notwithstanding statutory provisions comparable to section 5(a), predicated their conclusions upon the presumed legislative intent. After finding that the particular disease was not compensable under either the Workmen’s Compensation Act or the particular Occupational Diseases Act, the courts reasoned that the legislature did not intend to leave the employee remediless where he was the victim of the employer’s negligence, and consequently were loathe to take away the right of recovery available prior to the enactment of the compensation statute.

While there may be a technical distinction between those occupational disease cases where the injury could not be deemed to be within the coverage of the Workmen’s Compensation or Occupational Diseases acts and the instant case, where the employee sustained an accidental injury within the coverage of the act but one for which no compensation benefits were provided, that distinction is without substance. In each case the employee has suffered bodily damage through the negligence of the employer, for which no remedy is given under the Workmen’s Compensation Act, although a common-law right to damages existed prior to the passage of the act. The same cogent reasons exist for reserving that common-law right in both types of cases, and the rationale of the courts in allowing common-law damages in the occupational disease cases is equally applicable herein, where the employee is also deprived of a remedy for his injury.

This conclusion has also been advanced by text writers. In II Larson, Workmen’s Compensation, p. 136, it is said: “If this is the justification for the exclusive remedy rule, it ought logically to follow that the employers should be spared common-law liability only when compensation liability has actually been provided in its place, or, to state the matter from the employee’s point of view, common-law rights of action should not be deemed taken away except when something of value has been put in their place.” Moreover, contrary to the implication in the majority opinion this authority does not assert that the injured employee be remediless, but rather that recovery for such nondisabling injuries should be predicated upon common-law negligence, as in the instant case. II Larson, Workmen’s Compensation, p. 140.

In further support of its conclusion that plaintiff’s action is barred, the majority opinon cites Hyett v. Northwestern Hospital, 147 Minn. 413, 180 N.E. 552. However, in that case, in contrast to the case at bar, the employee after receiving a compensation award for his accident injury brought a common-law claim for additional damages for impotency, and the court held that he could not secure and retain both compensation and damages. In the instant-case the employee received some medical payment and some temporary disability payments, but no award of compensation for the serious permanent injury he sustained; nor could any such compensation award be entered under the terms of the act without resort to medical fiction.

I am in agreement with the principle enunciated in the Hyett case that an employee should not be entitled to secure both damages and compensation from his employer; it is my opinion, however, that where the injury sustained is not compensable under the act, either because it is not an accidental injury arising out of and in the course of employment, or because no compensation benefits are provided in the act for the particular injury, so that no remedy is afforded the employee under the act for an injury caused by the employer’s negligence, then a common-law action for damages should be allowed. On the other hand, where benefits are provided under the act for the permanent injury sustained, then, even though there are elements of damages such as pain and suffering for which no compensation is provided, no common-law negligence action should be maintained.

Admittedly all the cases in the various jurisdictions cannot be reconciled or integrated into a smooth fabric of law. There is cogency in the reasoning of those courts denying common-law damages on the ground that they tend to nullify the objectives of the Workmen’s Compensations Act by subjecting employers to liability for both damages and compensation; nevertheless, the result ordered by the majority opinion is a harsh and unjust one, denying plaintiff both compensation for his permanent injury and common-law damages, contrary to the terminology of section 5(a) of the act, as well as judicial authority and the public policies underlying such compensation legislation.

As aptly stated by the Ohio court in the Triff case: “Since the underlying purpose of compensation is to make industry bear the burden of human wreckage by paying stated awards for injury and loss of life in the course of employment, the court should avoid a strained construction which would leave many employees, who are blameless victims of their employer’s torts, without either damages or compensation and absolutely remediless.”

Furthermore, I cannot agree with the statement in the majority opinion that section 5(a) would be constitutional if construed to bar plaintiff’s action. The Workmen’s Compensation Act was originally sustained as a reasonable exercise of the police power on the assumption that it effected a compromise whereby employers, in return for liability in limited sums relinquished their common-law defenses, and employees gave up their right to damages in return for more certain recovery. (Grand Trunk Western Railway Co. v. Industrial Com. 291 Ill. 167.) However, if the act is held to bar the employee’s common-law action, and at the same time provides no substitute remedy other than, in this instance, temporary disability benefits, but no award for permanent injury, then the act becomes an unreasonable exercise of the police power, effecting an arbitrary classification among emploj^ees, in violation of the due-process guarantees of the State and Federal constitutions. Grasse v. Dealer’s Transport Co. 412 Ill. 179.

It is my opinion that no such construction of section 5(a) is warranted from its own terms, and should not be adopted, particularly in view of the established canon of statutory construction that an interpretation which will render an act valid should be preferred to one which will render it unconstitutional.

On the basis of this analysis, the nondisabling injury sustained by plaintiff as set forth in the pleadings was not covered by the schedule of awards of compensation under the act, except through medical fiction; that recovery for such injury in a common-law action for damages was not barred by section 5(a) of the act, which, properly construed, bars only actions for injuries which are compensable under the act; and that if the section were construed otherwise, it would offend constitutional doctrines. Consequently, I am constrained to dissent from the majority opinion and hold that the circuit court of Peoria County erred in dismissing plaintiff’s cause and in entering judgment for defendant.

Mr. Justice Davis concurs in the foregoing dissenting opinion.


author: Mr. Justice Daily

text:
    (No. 33869.
    Bertie Lee Robinson, Admx., Appellant, vs. William F. Workman, Appellee.

      Opinion filed September 25,1956

    Rehearing denied Nov. 19, 1956.

      James A. Dooley, of Chicago, Ezra J. Clark, and James F. Scott, of Canton, for appellant.
    George P. Proctor, of Lewistown, for appellee.
   Mr. Justice Daily

delivered the opinion of the court:

On December 3, 1953, a complaint was filed in the circuit court of Fulton County by Bertie Lee Robinson, as administratrix, to recover money damages for the wrongful death of her husband, James Robinson, which allegedly resulted from an automobile collision caused by the wilful and wanton misconduct of the defendant, William F. Workman, in driving his automobile, in which decedent was riding as a guest, in such an erratic manner as to strike a machine being driven by one ICarolyn Woodcock. In his answer, the defendant admitted that at the time of the accident, Robinson was riding with him as his guest, but denied that he was driving the automobile in question or that he was guilty of any improper conduct. Upon trial being had, the cause was submitted to' a jury which returned a verdict for the plaintiff in the sum of $20,000. After motions for judgment notwithstanding the verdict and for a new trial were overruled, appeal was prosecuted by the defendant to the Appellate Court of Illinois, Third District, which reversed and remanded the cause to the trial court on the ground that the verdict was against the manifest weight of the evidence. (7 Ill. App.2d 42.) Thereafter, plaintiff filed a motion and affidavit pursuant to section 75 of our Civil Practice Act, (Ill. Rev. Stat. 1953, chap, 110, par. 199,) and the remanding clause was stricken and final judgment against the plaintiff was rendered thereon. Leave to appeal has now been granted by this court.

The facts are not in dispute. At approximately 5 :3o P.M. on the evening of November 4, 1953, the station wagon owned by the defendant and in which both he and the decedent were riding, was traveling west on State Route No. 9 at a point some two miles east of Canton, Illinois, when it struck the east-bound Woodcock car. The force of impact caused the station wagon to overturn and come to rest upside down on the north side of the road, killing Robinson almost instantly. Testimony was offered showing that the decedent’s body was located against the passenger door of the front seat, but that Workman, being unconscious, was lying between the front and rear seat and almost equidistant from each side. It was also noted that Robinson’s shoes were in place and there was testimony that at the time of his removal from the automobile, Workman had no shoe on either foot. A subsequent examination of the station wagon disclosed that one of defendant’s shoes was wedged on the floorboard near the accelerator and the other was found on the floor behind the front seat. There were no eye-witnesses to the accident except the three participants, and of these, Woodcock was unable to remember any events immediately preceding or at the time of the collision and the defendant was incompetent to testify as to these happenings.

Some facts, however, were supplied by Herbert Leach who recalled that at the time in question, it being after dark, he was driving west on Highway No. 9 towards Canton when the defendant’s station wagon passed him going in the same direction at approximately 45-50 miles per hour. Leach stated, without objection, that, although at first he noticed nothing peculiar about the Workman vehicle, as he followed the machine for a short distance he observed that it kept weaving from one side of the road to the other, and such action prompted him to remark to his companion, “Look at the way they are driving — the}' are going to have an accident.” A few seconds later, Leach arrived upon the accident scene.

This account was supported by Floyd Schumacher, who stated that on the evening of November 4th he was proceeding west on Route No. 9 when he approached two other cars traveling in the same direction, the one nearest to him being the Leach machine and the other the defendant’s station wagon. As he attempted to- pass the Leach automobile, Schumacher said, he noticed the erratic driving of defendant’s machine and, being afraid to- proceed around, continued to follow Leach until they came to the wreck. The plaintiff also offered evidence to show that at the point of impact, the defendant’s station wagon was traveling at least partially on the wrong side of the road, that the decedent had neither owned nor been licensed to operate a motor vehicle since the late 1930’s, that Robinson’s injuries were confined largely to the head region, and that he had been known to be a man of careful habits.

In deciding that the jury verdict was against the manifest weight of the evidence, the Appellate Court felt that no direct or “substantial” proof was offered by the plaintiff to show that the defendant was driving, but that the contrary was indicated by the facts that Robinson was found in the front seat and Workman towards the rear of the station wagon, that the windshield was broken only on the driver’s side, and that only Robinson suffered the face and head injuries which might be expected to result from striking such an object. That tribunal was also of the opinion that no clear evidence was produced as to- who owned the shoe which was found pinned to the accelerator. Although the Appellate Court was asked to pass on the question of whether trial instructions were erroneous, it declined to do so in view of its decision to remand.

The defendant now contends that section 92(3) (b) of the Civil Practice Act (Ill. Rev. Stat. 1953, chap, 110, par. 216(3) (b),) which provides that this court shall reexamine cases brought to it from the Appellate Court as to questions of law only, precludes us from examining the record to determine whether the jury verdict was, as the Appellate Court appeared to hold, in fact against the manifest weight of the evidence. It is true the statute relied upon has been construed to prohibit us from reviewing the question of fact arising upon the manifest weight of evidence. (Olson v. Chicago Transit Authority, 1 Ill.2d 83; Victor v. Dehmlow, 405 Ill. 249; Gorczynski v. Nugent, 402 Ill. 147.) It is likewise true that it is our duty to determine the correctness of the judgment reviewed, and while we will examine the opinion of the Appellate Court to determine whether its decision was predicated solely on an erroneous conception of law, what that court may assign as reasons for its judgment is not a matter of concern here. (Merlo v. Public Service Co. 381 Ill. 300; Kee & Chapell Dairy Co. v. Pennsylvania Co. 291 Ill. 248.) Stated differently, as long as we observe the limitation of the above principle of law, in determining the correctness of a judgment of the Appellate Court brought to us for review, we may examine its opinion to determine what in fact prompted such judgment, and we are not bound by the reasons which the court may assign for its holding.

Here, as may be gathered from the record and the opinion of the Appellate Court, defendant’s appeal was predicated not only on the ground that the verdict of the jury was against the manifest weight of the evidence, but also on the theory that there was no evidence to support the essential allegations of the plaintiff’s complaint, thus making it error for the trial court to overrule defendant’s motions for a directed verdict, and for judgment notwithstanding the verdict. Although the Appellate Court concluded its opinion with a statement that the verdict of the jury was against the manifest weight of the evidence, a closer scrutiny of its opinion shows that its judgment was in fact based upon findings that plaintiff had presented no evidence to support her material allegations. That this is so may be gathered from the following statements of the court: “* * * a careful analysis of the evidence fails to show any probative facts upon which a conclusion that the defendant was driving could be based. * * * the conclusion reached by this court that there is no proof that the defendant was driving the car * * * also concludes the question as to wilful and wanton conduct on the part of the defendant, * * * there is nothing to prove that plaintiff’s intestate did anything to prevent the accident * * (Emphasis supplied)

Thus, while the court purported 'to base its judgment on a conclusion that the verdict was against the manifest weight of the evidence, it is apparent that the judgment entered on the verdict of the jury was set aside solely upon the erroneous conclusion that there was no evidence to support it. To quote from Duffy v. Cortesi, 2 Ill.2d 511, 517: “It is established * * * that it is a question of law

whether there is any evidence in the record to support a particular finding. Sterling Midland Coal Co. v. Great Lakes, 334 Ill. 281; Lain v. Metropolitan Life Ins. Co. 388 Ill. 586; Ahlenius v. Bunn & Humphreys, 358 Ill. 155; Seiders v. Henry, 347 Ill. 467; Roon v. Van Schouwen, 406 Ill. 617.” For this reason, we are of the opinion that this court has jurisdiction to consider the correctness of the Appellate Court’s judgment.

The rule is that in deciding whether there is any evidence to support a particular finding, this court must examine the record and determine whether there is some proof, which, taken with its intendments most favorable to the plaintiff, tends to sustain the essential allegations contained in the complaint. (Hall v. Chicago and North Western Railway Co. 5 Ill.2d 135 ; Sims v. Chicago Transit Authority, 4 Ill.2d 60; Seeds v. Chicago Transit Authority, 409 Ill. 566; Mirich v. Forschner Contracting Co. 312 Ill. 343.) Here, it was incumbent upon the plaintiff to prove that the defendant was in fact driving the car; that he was guilty of wanton misconduct in its operation; that such misconduct was the proximate cause of Robinson’s death, and that decedent was free from contributory fault. As to the driver’s identity, she showed that the station wagon was owned by the defendant, that one of his shoes was found pinned to the floorboard near the accelerator and the other between the seats where defendant was lying, that Robinson’s body was located in the passenger’s seat, and that the decedent had neither a driver’s license nor owned an automobile since the late 1930’s. In regard to the questions of proximate cause and of the driver’s wanton misconduct, evidence was offered showing that for some distance prior to the accident, defendant’s vehicle was traveling after dark at an approximate speed of 50 miles per hour while swerving from one side of the public highway to1 the other, and that at the point of impact, this machine was at least partially in the east-bound lane. Finally, proof of decedent’s freedom from such misconduct was made by offering testimony as to his careful habits and customs as observed by his employers.

We cannot agree that there was insufficient evidence to support the plaintiff’s allegations. We must consider not only the proof itself but also the presumptions which arise by operation of the law. This court has frequently held that every presumption will be indulged against unlawful acts, (Tuthill v. Rendelman, 387 Ill. 321; Stephens v. Collison, 330 Ill. 48; White v. Bates, 234 Ill. 276; Russell v. Baptist Theological Union, 73 Ill. 337; 5 Am. Jur., Automobiles, sec. 605, p. 838,) and in favor of the human instinct of self-preservation and avoidance of danger. (Consumers Co. v. Industrial Com. 364 Ill. 145; Cleveland, Cincinnati, Chicago and St. Louis Railway Co. v. Keenan, 190 Ill. 217; Casey v. Chicago Railways Co. 269 Ill. 386. It has also been held in automobile injury cases, that proof of ownership raises a presumption that the machine was under the defendant’s control at the time of the accident, and the burden of rebutting this inference then passes to the latter. (Kavale v. Morton Salt Co. 329 Ill. 445; Watt v. Yellow Cab Co. 347 Ill. App. 307, 106 N.E.2d 760; Rose v. Ruan Transport Corp. 214 F.2d 583; 61 C.J.S., Motor Vehicles, sec. 511, p. 226.) Yet, in this case, the Appellate Court completely ignored these principles to say, in effect, that Robinson was operating the automobile without a driver’s license, that he at that time abandoned his usual careful habits, and that defendant’s car was being driven by a man who had not been known to drive for the past 15 to 20 years. Further evidence of that court’s failure to properly evaluate the testimony is shown by its statement that “It is not clear whether or not this shoe belonged to Workman * * when, in fact, the shoe found pinned to the accelerator was later positively identified by both Workman’s wife and niece as belonging to the defendant.

Although it is true that plaintiff’s case was largely circumstantial, it was the highest degree of proof that was available under these conditions, and unless liability is to be denied in all such instances, it must be accorded the same judicial concern as are other types of evidence. (Metropolitan Trust Co. v. Bowman Dairy Co. 369 Ill. 222; Devine v. Delano, 272 Ill. 166; Ohio Building Safety Vault Co. v. Industrial Board, 277 Ill. 96.) For the reasons stated, it is our opinion that the Appellate Court for the Third District erred in setting aside the jury’s verdict and that its judgment must be reversed.

However, since the Appellate Court has not properly considered the question of manifest weight of the evidence and, because of the result it reached, found it unnecessary to pass upon the other alleged errors occurring at the trial, the cause must be remanded. Accordingly, the cause is remanded to the Appellate Court for the Third District, with directions to affirm the judgment of the trial court if no further reversible error is found.

Reversed and remanded, with directions.


author: Mr. Justice Bristow

text:
    (No. 33904.
    The People of the State of Illinois, Defendant in Error, vs. Jerome Woodruff, Plaintiff in Error.

      Opinion filed September 25, 1956

    Rehearing denied Nov. 19, 1956.

      Max A. Weston, of Rockford, and Myer H. Gladstone, of Chicago, (Edward J. Hladis, of counsel,) for plaintiff in error.
    Latham CastlE, Attorney General, of Springfield, and Everett E. Laugiilin, State’s Attorney, of Freeport, (Fred G. Leach, Edwin A. Strugala, and Bert P. Snow, of counsel,) for the People.
   Mr. Justice Bristow

delivered the opinion of the court :

The plaintiff in error was indicted and tried by a jury in the circuit court of Stephenson County and found guilty of the crime of bribery. The court sentenced the defendant to a term of imprisonment of from one to three years. The validity of the indictment was raised by motion to quash. Motion for new trial was filed which was overruled, and motion was made in arrest of judgment which was denied, and the case is before us on writ of error.

In seeking a reversal it is argued (1) that the count of the indictment on which the defendant was tried is void and that the court erred in denying the motion to quash the same; (2) that the State failed to prove the crime of bribery charged against the defendant because under the law the alleged officer had no lawful authority to weigh steel scrap; (3) that there is a complete failure of proof of the allegation that McHugh was the duly qualified weighmaster of the city of Freeport; (4) that the ordinance of the city of Freeport purporting to create the office of weighmaster and prescribing his duties is void and no valid appointment of a weighmaster could be made thereunder; (5) that McHugh was not an officer within the meaning of the bribery statute; (6) that there is no proof that defendant gave money to influence the alleged weighmaster in the exercise of his alleged official duties; and (7) that the court erred in the giving of instructions and invaded the province of the jury.

The case was tried on the third count of the indictment which in substance charged that the defendant, on January 29, 1955? in the county of Stephenson, did unlawfully, corruptly and feloniously give to one William McHugh, the duly qualified and acting weighmaster of the city of Freeport, a sum of money, good and lawful currency of the United States of America, the amount of money being unknown, with the intent then and there in him, the said Woodruff, to influence the said McPIugh to act with favor and partiality toward him, the said Woodruff, in the execution of his official duties as weighmaster of the city of Freeport, to-wit: to record false weights upon goods bought by said Woodruff from the Structo Manufacturing Company, a corporation, which said goods were weighed at the city scales, said money being given to said William McFlugh at the office of Jerome Woodruff, situated on North Adams Street in said city of Freeport, contrary to the form of the statute in such case made and provided.

The evidence for the State showed that starting December 1, 1948, William McHugh took over the office of city weighmaster of the city of Freeport. He was continuously so employed until his discharge on January 29, 1955. No one else operated the city scales excepting a part-time employee who did the weighing when McHugh was sick or on vacation. Otherwise he was the only employee and he alone operated the city scales. Prior to 1951 McHugh had been hired by Louis Sanders, owner of Sanders Iron & Metal Company, and father-in-law of the defendant, to short-weigh all Structo Manufacturing Company scrap steel. At the end of each week Sanders “made it right” with McHugh in giving him cash for the short weights reported. During this time the defendant Woodruff was working for Sanders, his father-in-law. During this period, on several occasions, Woodruff made the pay-off for Sanders on the short weights. In August, 1954, Wood-ruff started his own scrap iron business and secured a contract with Structo for all of their scrap steel. Woodruff thereupon approached McHugh and told him he had secured the Structo scrap steel business and asked McHugh to help him as McHugh had helped Sanders Iron & Metal Co. McHugh agreed to do so and Woodruff said “he would make it right with me.” Thereafter, for 24 consecutive weeks, up to and including January 29, 1955, McHugh short-weighed every load of scrap steel from Structo Manufactoring Company destined for the defendant Woodruff’s business, with but one exception. That was the time when they were doing some remodeling at the scales. Shortly after the truck would leave the scales and go back to the defendant’s yard the defendant would call up and ask what short weight McHugh had given him and the weight reported to Structo. McHugh would inform defendant of the shortage for the load. Although McHugh did not keep a record of the shortages he knew every load was short. The scrap had a value of about $28 per ton. The fact that McHugh was short-weighing the scrap was corroborated by test weights made by private detectives during the month of January, 1955. McHugh was paid off for his illegal short-weighing weekly, either on Saturday or, if the defendant was busy on Saturday, the pay-off was made on the following Monday.

On January 28, 1955, McHugh admitted the short weights to the police officers and a warrant was procured for his arrest and he was asked to empty out the entire contents of his purse the next day and go to Woodruff’s office. He did so and when he came out of the building he was placed under arrest and served with a warrant, and he had $55 in United States currency in his purse. The defendant denied ever having agreed with McHugh to the short-weighing of scrap iron or that he had either paid or promised to pay him for the same and said that $35 of the $55 found in McHugh’s purse when he was arrested was a loan he had made to McHugh. The defendant was corroborated by the testimony of his wife and one Ura Taylor, another employee of the defendant. Sandra Homan, an employee of the defendant, testified that she knew McHugh and on several occasions when he brought weight tickets to the office she paid for them out of funds for the Woodruff Company. She did that six to ten times and on no occasion did she pay him more than the amount of the weight tickets. The defendant admitted on cross-examination that although he paid almost all of his other business bills by check he paid the city weighmaster the city weighing fees in cash on all occasions and that he never took a receipt.

The rule is well known that the credibility of witnesses and the weight of evidence are, in the first instance, questions best determined by the jurors who are in a position to see and hear the witnesses and to observe their demeanor while testifying. It is for them to accept the testimony they believe, reject what they do not believe, and return a verdict accordingly. People v. Wilson, 1 Ill.2d 178, 187.

It is fundamental that this court will not disturb a verdict of guilty on the ground that the evidence is not sufficient to convict unless it is so palpably contrary to the verdict or so unreasonable, improbable or unsatisfactory as to justify the court in entertaining a reasonable doubt of the defendant’s guilt. Nor will we substitute our judgment for that of a jury in merely weighing the credibility of witnesses where the testimony is conflicting. People v. Tensley, 3 Ill.2d 615, 621.

On the factual issue in this case, we are unable to say that the evidence was insufficient to justify the jury, beyond a reasonable doubt, in the verdict that was rendered.

The plaintiff in error contends that William McHugh was neither an officer de jure nor de facto of the city of Freeport. It is argued that section 23^ — 65 of the Revised Cities and Villages Act (Ill. Rev. Stat. 1955, chap. 24, par. 23 — 65,) gives the city authority only “To provide for and regulate the inspection, weighing, and measuring of brick, lumber, firewood, coal, hay, and any article of merchandise of the same kind;” and that the ordinance of the city of Freeport does not follow the above statutory authority but authorizes the weighmaster “to weigh accurately and without partiality every load of wheat, corn, oats or other grain, every load of hay or coal, slaughtered animals or livestock and every animal or other thing that may be produced to be weighed and to give to the person presenting the same to be weighed a certificate of the weight thereof upon payment being made to him of the fee hereinafter specified.” It is argued that the city had no authority, under section 23 — 65, to provide for the weighing of “scrap steel” and that since the ordinance did not follow the authority granted by the statute the ordinance is void. But the statute does not attempt an exhaustive enumeration of all articles that might be weighed. Nor does it need to. Steel and steel scrap are materials of the same kind as are the brick and lumber specifically mentioned in the statute, and under the doctrine of ejusdem generis their inclusion in the ordinance was authorized by the statute.

It is next contended that the ordinance creating the office of weighmaster of the city of Freeport and providing for his appointment by the mayor, with the consent of the city council, provides that before entering upon the duties of his office he shall take the oath prescribed by law and execute a bond in the penal sum of $500 conditioned upon the faithful performance of the duties of his office. There is no evidence that William McHugh was ever officially appointed by the mayor and confirmed by the council or that he gave a bond and took the oath of office provided by the statute. The mayor testified that he had been mayor of Freeport since May, 1949, continuously to the present time; that the city maintained a city scale located in the city limits and that William McHugh was city weigh-master between July 1, 1954, and January 29, 1955, and that he had continuously been weighmaster since the witness went in office in 1949 but that the witness had not appointed William McHugh or anyone else to the office; that McHugh’s duties were to weigh and give weights to the people of the community that would desire to have different materials weighed on the city scales. No other person was employed in the office of the city weighmaster and he had no assistants.

Under this evidence plaintiff in error contends (1) that McHugh was not city weighmaster de jure; (2) that it would not be sufficient for him to be weighmaster de facto; and (3) that under the contention that the ordinance is void he was not even weighmaster de facto-. We are unable to agree with these contentions. It is our opinion that the correct rule is that offering, giving, soliciting or accepting a bribe constitutes bribery where the one solicited, soliciting, or accepting the bribe, though not an officer de jure, was acting under the color of title of the office involved. In other words, an officer de facto is punishable for accepting or soliciting a bribe in the same manner as if he were an officer de jure. Likewise it is a crime to offer or to give him a bribe. 8 Am. Jur. sec. 15, p. 895.

In People v. McCann, 247 Ill. 130, there was an indictment against a police inspector for the city of Chicago for receiving a bribe, and it was contended that the defendant was never elected inspector of police and was never appointed to said office in the manner authorized by law and that he was never, in fact, a de jure officer, but we said, in sustaining a judgment of conviction, page 143: “We do not, however, think this a controlling question in determining the sufficiency of the indictment. If plaintiff in error was seeking to establish his title, or some right depending upon a valid title, to the office of police inspector, he would be required to show that he is a de jure officer. (Stott v. City of Chicago, 205 Ill. 281; McNeill v. City of Chicago, 212 id. 481; Bullis v. City of Chicago, [235 Ill. 472]; Moon v. Mayor, [214 Ill. 40].) But, as between himself and third parties, (the State in this case,) if the office of inspector of police of the city of Chicago had a legal existence and plaintiff in error assumed the duties and discharged the powers and functions of the office he became a de facto officer, and cannot be permitted to deny his responsibility, while so acting, on the ground that he was not legally elected or appointed to said office. We are of opinion 'the ordinance pleaded did create the office of inspector of police.”

It is a well settled principle that the acts of officers de facto are as valid and effectual where they concern the public or the rights of third persons as though they were officers de jure and that the title to an office cannot be decided in a collateral suit but only in a direct proceeding for that purpose. Trumbo v. People, 75 Ill. 561; People ex rel. Sullivan v. Weber, 86 Ill. 283; Leach v. People ex rel. Patterson, 122 Ill. 420.

The last two Illinois cases were cited with approval by the Supreme Court of Ohio in Stale v. Gardner, 54 O. St. 24, 42 N.E. 999, 31 L.R.A. 660, which has become a leading authority on the question. In that case the defendant was indicted for offering a bribe to Joseph Hugal, a city commissioner of the city of Akron. The accused demurred to the indictment on the ground that the act under which Hugal was performing the duties of his office was unconstitutional and void. The demurrer was sustained and the defendant discharged. Under the Ohio law the State had a right to have the action reviewed by the higher court. The Supreme Court discussed two questions on review, ( x ) whether the act was unconstitutional, and (2) if unconstitutional, whether its constitutionality may be assailed in the collateral way undertaken by the accused. The court, as a principle of public policy, held that the question of the constitutionality of the act could not be urged by the defendant, and sustained exception to the determination of the trial court in sustaining a demurrer to the indictment.

In People ex rel. Rusch v. Wortman, 334 Ill. 298, two women served as judge and clerk respectively in a precinct in the city of Chicago at an election held on November 2, 1926, at which time women were not eligible to serve as such election officials. They were indicted and adjudged guilty of contempt of court for misbehavior in their respective offices at such election and sentenced to imprisonment in the county jail for one year. The defense was made that since they were not eligible to serve as election officials they were not guilty of the offense. The conviction was affirmed and we said, at page 302: “The courts uniformly hold that the acts of officers de' facto, so far as they affect third parties or the public, are as valid as those of officers de jure. (Coles County v. Allison, 23 Ill. 437; People v. Bangs, 24 id. 184; Howard v. Burke, 248 id. 224; Hussey v. Smith, 99 U.S. 20.) The acts of officers de facto cannot be attacked collaterally as invalid but only in a direct proceeding by the proper authority. (Coles County v. Allison, supra; People v. Pederson, 220 Ill. 554; People v. Severinghaus, 313 id. 456.) The sureties upon the bond of a justice of the peace de facto are liable for his failure to pay over money collected in his official capacity without reference to the regularity of his election, commission or eligibility. (Green v. Wardwell, 17 Ill. 278.) The validity of his acts in exercising the powers of the office imposes correlative liabilities to the persons interested in those acts. In People v. Newsome, 291 Ill. 11, a defendant charged in an indictment with fraud and corruption in the conduct of an election was held not entitled to show that his appointment was illegal because there was no record of the establishment of the polling place for which he was appointed, the court holding him to be a de facto officer, liable under the law for his acts as such. The office of judge of election had a legal existence, the election was the general election authorized by law, the voters went to the polls and cast their ballots, the defendant acted throughout the day and at the canvass of the ballots as one of the election officers, and he could not escape responsibility for any delinquency on his part simply because of a mistake of the county board in not making a proper record of the establishment of the election district. In People v. McCann, 247 Ill. 130, the defendant was indicted for bribery as a police inspector of the city of Chicago, and it was objected to the indictment that it did not show that he had been legally appointed to that office. The city council had by ordinance created the office of inspector of police but provided for the filling of the office by appointment by the general superintendent of police, while by statute the power of filling offices established by ordinance was vested in the mayor, with the approval of the city council. It was held that the defendant was not an officer de jure but that by his appointment and his assumption and discharge of the duties of the office he became an officer de facto, and could not escape liability for his criminal acts in that capacity by showing that he was never legally appointed to the office.”

In State v. London, 194 Wash. 458, 78 P.2d 548, 115 A.L.R. 1255, the defendant was indicted for receiving a bribe in the discharge of his official duties and conviction was sustained notwithstanding that he was not formally appointed by the board of county commissioners, that he had not tendered the appropriate bond to the board for its approval, and that he had not filed the same, but had only performed all the duties of the office under claim and color of title thereto. In our opinion the reasoning in this case is sound.

It is argued that the defendant is not guilty because the evidence, taken in the light most favorable to the State, shows that McHugh always received the excess payments from the defendant at the end of the week after he had shorted the weights of the previous week and that there is no evidence whatsoever that the defendant ever gave McHugh money to influence his future exercise of the duties of weighmaster. We find no merit in this argument.

It is also argued that the indictment is fatally defective. Section 6 of division XI of the Criminal Code, (Ill. Rev. Stat. 1955, chap 38, par. 716,) provides that every indictment or accusation of the grand jury shall be deemed sufficiently technical and correct which states the offense in the terms of the language of the statute creating the offense or so plainly that the nature of the offense may be easily understood by the jury. Niceties and strictness of pleadings are supported only where a defendant would be otherwise surprised on the trial or be unable to meet the charge or prepare his defense. People v. Ostrowski, 402 Ill. 106, 113.

We have carefully examined the indictment in this case and find that it clearly states the offense in the terms and language of the statute and specifically alleges that the money was given to McHugh, the duly qualified and acting weighmaster of the city of Freeport, with intent to influence and cause him to act with favor and partiality toward the defendant in the execution of his official duties as weighmaster of the city, to-wit: to record false weights upon goods bought by the defendant from the Structo Manufacturing Company, which said goods were weighed at the city scales and said money being given to McHugh at the office of the defendant on North Adams Street in the city of Freeport. Also, a bill of particulars was requested and furnished by order of the court and nothing is pointed out in the argument for plaintiff in error to' show that he was not fully apprised of the charge against him or that he was surprised on the trial.

Finally it is argued that the court erred in giving instructions that were confusing and repugnant and that the instructions given invaded the province of the jury and were not based on any evidence. The abstract does not show at whose instance any of the instructions were given and we have repeatedly held that all instructions must be abstracted and the party tendering them identified before they are available for review. (Sullivan v. Ohlhaver Co. 291 Ill. 359, 362; People v. Gawlick, 350 Ill. 359; People v. Tabet, 402 Ill. 93.) Notwithstanding the failure to show that the instructions complained of were given at the request of the People, we have examined all the instructions shown by the abstract and it is our opinion that no prejudicial error exists because of the instructions complained of, that the defendant has had a fair trial, that the record is remarkably free from error and that the judgment should be and is hereby affirmed.

Judgment affirmed.


author: Mr. Justice; Davis

text:
    (No. 33959.
    M. Hattie Mercer et al., Appellees, vs. Paul B. Wayman et al., Appellants.

      Opinion filed September 25, 1956

    Rehearing denied Nov. 19, 1956.

      McLaughlin Law CWicls, of Sullivan, for appellants.
    Crain & Hall, of Centrada, for appellees.
   Mr. Justice; Davis

delivered the opinion of the court:

Plaintiffs, widow and children of Fred L. Mercer, deceased, filed this suit in the circuit court of Marion County against the defendants, the surviving sons of Lora Way-man, deceased, and the widow and daughter of Verne Wayman, deceased, to set aside certain oil and gas leases executed by defendants and to have themselves declared the sole owners of the land in question. The circuit court granted the relief prayed for in the complaint, and, a freehold being involved, defendants appealed directly to this court.

The facts in the record are undisputed. The 40-acre tract of land was originally owned in fee simple by John W. Mercer who died intestate prior to 1920, leaving him surviving as his sole heirs-at-law his widow, five sons and two daughters.

Shortly thereafter one of the daughters, Lora Wayman, died intestate, leaving her surviving, Oscar T. Wayman, her husband, and three minor sons, Verne Wayman, June Wayman and Paul Wayman.

Thereafter, on May 7, 1920, the widow of John W. Mercer, four of the sons, and the surviving daughter, together with their spouses, joined in a quitclaim deed conveying the 40-acre tract to the remaining son, Fred L. Mercer and M. Hattie Mercer, his wife. Oscar T. Way-man, the husband of the deceased Lora Wayman, also joined in the conveyance, both individually and as “father and natural guardian of Verne Wayman, June Wayman, Paul Wayman, children of Lora Wayman, deceased.” This deed purported to grant to Fred and Hattie Mercer “all interest” in the 40-acre tract. The consideration for the deed was the assumption of an existing mortgage on the property.

Thereafter Fred L. Mercer and M. Hattie Mercer entered upon the property and farmed it continuously until the present time. The property was assessed in the name of Fred L. Mercer and they paid all taxes when due. They leased land, collected crop rentals, and were generally reputed to be the owners thereof. They executed mortgages on the property in April, 1920, December, 1920, and April, 1926, and thereby warranted their fee simple title to the premises. All of these mortgages were recorded.

Both the plaintiffs and the defendants, or their predecessors in title, executed oil and gas leases on the entire tract. The plaintiffs executed such leases in 1938, 1939, and 1953. Subsequent to the execution of the latter oil and gas lease by plaintiffs, wherein J. T. Thompson was lessee, the defendants also executed oil and gas leases on the same tract to the said J. T. Thompson. These are the leases which the plaintiffs seek to set aside. On April 4, 1939, June Way-man, Paul Wayman, and Verne Wayman, now deceased, executed an oil and gas lease to the Texas Company, which was thereafter recorded. This lease was subsequently released by the Texas Company.

The youngest of the children of Lora Wayman attained his majority on July 1, 1926. Neither the defendants nor any deceased member of the Wayman family ever made claim to any right, title or interest in the tract of land in question, nor have they sought an accounting of the rents and profits; and neither the plaintiffs nor any deceased member of their family ever asserted to the defendants or their predecessors in title any claim of possession adverse to them.

The plaintiffs contend that their possession of the tract in question has ripened into title and the defendants are barred from any claim as to the premises by reason of both the 20-year Statute of Limitations (Ill. Rev. Stat. 1953, chap. 83, par. 1,) and the 7-year Statute of Limitations (Ill. Rev. Stat. 1953, chap. 83, par. 6). Defendants insist that they are tenants in common of an undivided one seventh of the tract, and, as such, are not barred by the 20-year Statute of Limitations because there has been no actual disseizin or ouster. They further contend that the deed to Fred L. Mercer was not good color of title as to the interests of the minor sons of Lora Wayman.

The sole issue presented to this court is whether defendants are, as the trial court held, barred from their claim by virtue of the Statute of Limitations.

While the plaintiffs exercised such control and dominion over the property as to be hostile and adverse to all strangers, the rules with regard to adverse possession are different in the case of one cotenant who claims adversely to other cotenants. The doctrine was well stated in Simpson v. Manson, 345 Ill. 543, 551: “The rule is well settled that the mere possession by one tenant in common who receives all the rents and profits and pays the taxes assessed against the property, no matter for how long a period, cannot be set up as a bar against the co-tenants. In such case the possession of one tenant in common is in contemplation of law the possession of all the tenants in common. Such possession, however, may become adverse if the tenant in common by his acts and conduct disseizes his co-tenants by repudiating their title and claiming adversely to them. (Long v. Morrison, 251 Ill. 143; Steele v. Steele, 220 id. 318.) Before the possession of one tenant in common can be adverse to the co-tenant there must be a disseizin or ouster by some outward act of ownership of an unequivocal character, overt and notorious, and of such nature as to impart information and notice to the co-tenant that an adverse possession and disseizin are intended to be asserted by the tenant in possession. (Andrews v. Floyd, 308 Ill. 559.) Such notice need not, however, be formal in its nature, (Roberts v. Cox, 259 Ill. 232,) and if one tenant in common holds exclusive possession, claiming the land as his, and his conduct and possession are of such character as to give notice to his co-tenant that his possession is adverse, the Statute of Limitations will run. (Tillotson v. Foster, 310 Ill. 52; Hahn v. Keith, 170 Wis. 527, 174 N.W. 551.)”

These rules have been consistently followed in this State. As recently as Williams v. Fulton, 4 Ill.2d 524, we held that in order to start the running of the Statute of Limitations against a cotenant, it must be shown that the tenant in possession gave actual notice to the tenant out of possession that he was claiming adversely, or that the tenant out of possession had received notice of such claim of the tenant in possession by some act which would amount to an ouster or disseizin. In White v. Harris, 206 Ill. 584, at page 592, we stated: “ £A party, claiming title by adverse possession, always claims in derogation of the right of the real owner. He admits that the legal title is in another. He rests his claim not upon a title in himself, as the true owner, but upon holding adversely to the true owner for the period prescribed by the Statute of Limitations. Claiming a benefit from his own wrong, his acts are to be construed strictly.’ (Cornelius v. Giberson, 25 N.J.L. 31.) 'Adverse possession cannot be made out by inference or implication, for the presumptions are all in favor of the true owner, and the proof to establish it must be strict, clear, positive and unequivocal.’ (Zirngibl v. Calumet Dock Co. 157 Ill. 430.) The rule is, that every presumption will be made in favor of the holder of the legal title, and no- presumption will be made in favor of the holder of color of title only. (Kurz v. Miller, 89 Wis. 426.” In Dunlavy v. Lowrie, 372 Ill. 622 at 632, we held that: “Mere knowledge of the obvious fact of possession cannot be converted into- proof of knowledge that those in possession were claiming adversely.”

The pertinent statutes of limitations have likewise been held inapplicable to cases where there was possession in a co-tenant and no actual ouster or disseizin. (Dunlavy v. Lowrie, 272 Ill. 622; Clarke v. Clarke, 349 Ill. 642; Stowell v. Lynch, 269 Ill. 437; Peabody v. Burri, 255 Ill. 592.) In Stowell v. Lynch, 269 Ill. 437, at pages 443 and 444 we held: “To establish a title under section 1 of the Limitation act not only must there be twenty years’ continuous, uninterrupted possession, but such possession must be hostile in its inception and so continue. It must be visible, exclusive and notorious, and be acquired and retained under claim of title inconsistent with that of the true owner. All these elements must concur.”

Fred L. Mercer was a cotenant of the defendants at the time of the delivery of the quitclaim deed which purported to convey the premises therein described to him and Hattie Mercer, his wife. Tested by the above rule, the original taking and holding possession of the land by Fred L-Mercer and Hattie Mercer was not hostile or adverse as required by the 20-year Limitation Act. This deed, signed by Oscar Wayman as father and natural guardian of Verne Wayman, June Wayman, and Paul Wayman, minor children of Lora Wayman, deceased, was ineffective to convey the interests of said minor children. It did not constitute color of title as against the minor children because of the defects appearing on the face of the deed showing that their interests had not been conveyed. Consequently, the 7-year Statute of Limitations was inapplicable. Allen v. Allen, 292 Ill. 453.

While the plaintiffs have, for thirty-four years, occupied the premises, paid the taxes, and improved the property, they at no time affirmatively did anything that would serve as notice to their cotenants that they were claiming adversely to them. Such adverse claim as against cotenants cannot be established by inference. (Stowell v. Lynch, 269 Ill. 437.) The execution of mortgages, warranting complete ownership, would not be of a nature to impart information and notice to a cotenant that adverse possession or disseizin was intended. There is no evidence that defendants had notice of the execution of oil leases by plaintiffs, and, in any event, such oil leases could have been executed by a cotenant. Plaintiffs rely on Simpson v. Manson, 345 Ill. 543, but in that case there was actual notice to the majority of the cotenants, in both number and interest, that the tenant in possession claimed title to the land in question. Other cases cited by the plaintiffs, (Whittington v. Cameron, 385 Ill. 99; Steele v. Steele, 220 Ill. 318; Kotz v. Belz, 178 Ill. 434; Littlejohn v. Barnes, 138 Ill. 478; Dugan v. Follett, 100 Ill. 581; Lavalle v. Strovel, 89 Ill. 370; and Goewey v. Urig, 18 Ill. 238,) are all cases where there was an ouster by a deed of the entire property from one cotenant to a stranger, or where it was proved that there was actual knowledge on the part of the cotenant out of possession that the cotenant in possession was claiming to hold the same adversely.

The burden was upon the plaintiffs to prove facts which would cause the provisions of the Statute of Limitations to bar the defendants from asserting any claim of ownership to the property. This they have failed to do.

The decree of the trial court is accordingly reversed.

Decree reversed.