author: JUDGE McCORMICK

text:
    Biggerstaff, Appellant, v. New York, Chicago & St. Louis R. Co., Appellee.
    Gen. No. 46,922.
    First District, Second Division.
    February 19, 1957.
    Released for publication April 2, 1957.

      Henslee, Monek & Murray, of Chicago, for appellant; Francis H. Monek, and Melvin L. Griffith, of Chicago, of counsel.
    Winston, Strawn, Smith & Patterson, for appellee; Douglas C. Moir, and Edward J. Wendrow, of Chicago, of counsel.
   JUDGE McCORMICK

delivered the opinion of the court.

The defendant, the New York, Chicago and St. Louis Railroad Company, was sued by Earl Biggerstaff in the Superior Court of Cook county under the Federal Employers’ Liability Act to recover damages for injuries received by him as the result of defendant’s alleged negligence in the course of his employment. The case was tried before a jury which returned a general verdict in favor of the defendant. The court entered judgment and subsequently overruled plaintiff’s motion for a new trial, making the judgment final. This appeal is from that judgment.

The plaintiff here contends that the verdict of the jury was against the manifest weight of the evidence and that the court erred in submitting certain instructions and special interrogatories to the jury at the request of the defendant.

The cause of action grew out of an accident which occurred on April 13, 1950 at Bluffton, Indiana. The plaintiff was a patrolman employed by the defendant and on the day of the occurrence in question he rode to Bluffton in a “rider caboose” directly behind the engine of a freight train. The caboose was a converted boxcar equipped with a stove, coal bunker, and two used passenger seats. When the train arrived at Bluff-ton the plaintiff left the caboose at the depot. The train went into the yards for the purpose of breaking up the train to pick up and deliver certain freight cars and to make up the train for its further trip. The plaintiff went about his duties, and later walked back through the yards to the rider caboose, which was standing on the “passing track.” At this time there were several cars attached to the caboose, which were to go through as a part of the train. According to plaintiff, in a coupling operation the engine backed some cars into the cars attached to the rider caboose with such force as to knock him out of his seat and jam him into the coal bunker in such a manner as to force his right knee into the hollow back of his left knee, twisting his left leg, which struck the bunker at a point left of the shin bone about half way between the ankle and the knee. His leg pained him. He massaged it and he felt better. About twenty minutes later the conductor came to the caboose to report to the plaintiff an accident which had occurred a short distance away where some ladies had backed their automobile into the engine. The plaintiff testified that he told the conductor what had happened to him. This was denied by the conductor. Some two weeks later the plaintiff’s .left leg was amputated. There was a conflict in the medical testimony as to whether the physical condition of the plaintiff which required the amputation of the leg could or could not have been caused by the trauma which he claimed he had suffered at the time of the accident.

The jury returned a general verdict. Three interrogatories were submitted to the jury at the request of the defendant. The record shows no objection made by the plaintiff to the interrogatories. The first interrogatory was: “Was defendant guilty of negligence in the manner in which it coupled the cars onto the caboose that plaintiff was within?” The second was: “Did any of the employees of defendant know, or have reasonable grounds for believing that plaintiff was inside of the caboose at the time of the occurrence in question?” The third was: “Was the amputation of plaintiff’s left leg caused solely by any physical condition which he had prior to the occurrence in question ?” All of the interrogatories were answered “No” by the jury. In order to show negligence it was necessary for the plaintiff to prove that the defendant negligently coupled the cars to the caboose and so caused injury to the plaintiff, and to show that the employees of the defendant either knew or had reasonable grounds for believing that the plaintiff was inside the caboose at the time of the occurrence. C. & O. R. Co. v. Mihas, 280 U. S. 102; Rogers v. New York, C. & St. L. R. Co., 328 Ill. App. 123. Interrogatories 1 and 2, which were answered “No” by the jury, covered both these issues. They are in accord with the general verdict.

The plaintiff argues that the verdict was against the manifest weight of the evidence and that the answers to the special interrogatories were not responsive to the evidence. In his motion for new trial the plaintiff calls attention to the giving of the three interrogatories and only says that the court erred in submitting them to the jury. He made no motion to strike the answers to the interrogatories, nor did he allege that they were contrary to the manifest weight of the evidence, though in the motion he did urge that the verdict was contrary to the manifest weight of the evidence. In Forslund v. Chicago Transit Authority, 9 Ill.App.2d 290, we held that where a finding is substantially conclusive of the fact upon which the issue of liability depended and the defendant had failed to object to the answer to the interrogatory in the motion for new trial, the reviewing court must consider the special findings to have been fully sustained by the evidence, and in support we cited Voigt v. Anglo-American Provision Co., 202 Ill. 462; Weinrob v. Heintz, 346 Ill. App. 30; Brant v. Chicago & Alton R. Co., 294 Ill. 606; and Brimie v. Belden Mfg. Co., 287 Ill. 11. In Rubottom v. Crane Co., 302 Ill. App. 58, the court said: “Under the authorities there are several ways by which a party may escape from being conclusively bound by the special finding of a jury: (1) by specific objection to the special finding on the motion for a new trial, or (2) by filing a specific motion to set aside the special finding when the motion for a new trial is made.” The error here assigned, that the jury’s negative answers to two special interrogatories were against the manifest weight of the evidence, was not in any way preserved in plaintiff’s motion for new trial, and the assignment of error falls within the rule announced in the above cases. In both Bowman v. Illinois Cent. R. Co., 9 Ill.App.2d 182, and Midden v. Allstate Ins. Co., 7 Ill.App.2d 499, relied on by plaintiff, the motion for new trial did specifically set up that the answer to the interrogatory therein was against the weight of the evidence. No objection in the instant case was made to the answers to the special findings on the ground that they were against the weight of the evidence, nor was any motion filed to set them aside. Under the law the question as to whether or not the verdict of the jury was against the manifest weight of the evidence is not before us.

The plaintiff also urges that the trial court erred in giving interrogatory No. 3, which was answered “No.” However, no objection was made by the plaintiff before the trial court when the interrogatory was submitted, nor was any objection made to the submission to the jury of the other two interrogatories. In Weinrob v. Heintz, 346 Ill. App. 30, the plaintiff objected to the submission, of, and tbe answers to, special interrogatories given by the court to tbe jury. Tbe court says:

“Section 65 of the Civil Practice Act (Par. 189, Sec. 65, Ill. Rev. Stat. 1951 [Jones Ill. Stats. Ann. 104.065]) provides tbat special interrogatories shall be submitted to tbe adverse party before tbe commencement of tbe argument to tbe jury, and tbat submitting or refusing to submit a question of fact to tbe jury ‘may be excepted to and be reviewed on appeal, as a ruling on a question of law.’ Tbe submission of each of tbe four interrogatories requested by defendant was a ruling on a question of law. Plaintiff did not object or except to tbe giving of any of tbe interrogatories. Section 80 of tbe Civil Practice Act states tbat no formal exception need be taken to any ruling or action of tbe court in any matter or proceeding in order to make sucb ruling or action a ground for review. We are not called upon to say whether section 65 of tbe Act requires a formal exception. An exception presupposes an objection. We are convinced tbat it is tbe duty of an attorney, who feels tbat there is no evidence to support a requested interrogatory or tbat for any other reason sucb interrogatory should not be given or should be modified, to make bis position known before the - interrogatory is submitted to tbe jury. A litigant should not be permitted to speculate on bis chances for a favorable answer to tbe interrogatories and then raise objections which should have been raised in due time.” (Citing Worthen v. Thomson, 343 Ill. App. 62.)

Counsel cannot sit idly by and permit interrogatories, even though they are erroneous, to be submitted to tbe jury and then be given tbe advantage of properly predicating error thereon by urging it in a motion for new trial. We cannot consider plaintiff’s contention with regard to tbe improper submission of tbe interrogatories.

The plaintiff also urges with respect to the third interrogatory, by which the jury found that the amputation of the plaintiff’s leg was not caused solely by any physical condition which he had prior to the occurrence in question, that even if it were properly submitted, the answer was inconsistent with and controlled the general verdict. In order to succeed, the plaintiff must prove negligence on the part of the defendant and also that the negligence was in some degree the proximate cause of the amputation of his leg. The interrogatory found that the amputation of plaintiff’s leg was not caused solely by a physical condition which he had had prior to the occurrence in question. If we assume that the finding was that the •occurrence was a contributing proximate cause of the amputation, it would also be necessary for the jury to find that the negligence of the defendant was a proximate cause of any injury which the plaintiff might have suffered at the time and place in question. In other words, it is a finding on only one element of the necessary concomitants of the general verdict, and consequently does not control it. As we have pointed out, the plaintiff did not object to the giving of the interrogatory and has no right to here urge that it was improperly given. The only objection he made to it in his motion for new trial was that because of its wording in connection with the instructions it would convey to the jury the impression that the court was of the opinion that the plaintiff’s left leg was not lost through the negligence of the defendant. The contention of the plaintiff has no merit.

The plaintiff further urges that the trial court erred in giving to the jury improper instructions. The instructions and the objections thereto were properly set out in full in plaintiff’s motion for a new trial. However, under the view which we have taken, that interrogatories 1 and 2 answered adversely to the plaintiff’s canse by the jury were controlling on tbe question of negligence, any instructions which did not tend to produce those special findings of fact cannot be considered by us. In Vischer v. Northwestern El. R. Co., 256 Ill. 572, the court said:

“The jury returned a special finding that no servant of the defendant was guilty of negligence in any act or omission contributing to the cause of the accident, which was controlling, regardless of the nature of the general verdict, and necessitated a judgment for the defendant. Any error not affecting or tending to produce that special finding would not be cause for the reversal of the judgment, since that ultimate fact was conclusive against the right to recover.”

Also see Pennsylvania Coal Co. v. Kelly, 156 Ill. 9; Tuller v. Fox, 46 Ill. App. 97. However, there are two instructions which are closely connected with the special interrogatories and hence they can properly be considered. The first instruction is as follows:

“If you find from the evidence that defendant coupled onto the caboose that plaintiff was within, with ordinary care, then you should find the defendant not guilty.”

Plaintiff urges that this instruction has no evidentiary support, and argues that the coupling in question was described only by him and that if the accident occurred as he described it the implication of negligence on the part of the defendant was inescapable. He also contends that the coupling which the engineer in his testimony indicated was properly made was another and subsequent coupling and not the one involved. From the evidence in the record the jury could find that the coupling referred to by the plaintiff and the one referred to by the engineer and the other crew members were one and the same, or the jury might infer that the coupling referred to by the plaintiff occurred prior to the one described by the engineer. The jury has the duty of resolving contradictory evidence. All that is required in order to justify the giving of an instruction is that there is some evidence in the record to support the theory set out in the instruction. In addition, the engineer testified that all the switching done that day was done in the ordinary and customary manner. Here, while the evidence was conflicting, the question as to whether the defendant acted negligently at the time when the plaintiff was in the caboose was properly before the jury and the giving of the instruction was not error.

The second instruction complained of is:

“The court instructs the jury that, if you find from the evidence that defendant did not know, and had no grounds for believing, that plaintiff was inside of the caboose at the time of the occurrence in question, then you should find defendant not guilty.”

This instruction also refers to an issue which was properly before the jury. Plaintiff argues that the evidence in the record must be considered as being conclusively in his favor, that the only inference which could possibly be drawn therefrom was that the defendant knew that he (plaintiff) was inside the caboose at the time of the occurrence, hence there was no issue on this fact before the jury and therefore this instruction should not have been given. He bases this on the fact that after the automobile accident the conductor, seeking the plaintiff, went to the caboose and found him there. However, there is nothing in this evidence from which it must be conclusively inferred that the conductor either knew or had reasonable grounds to believe that at the time in question the plaintiff, or anyone else, was in the caboose. It was a question of fact for-the jury. The plaintiff also argues that it was admitted by the defendant in his answer that at the time of the occurrence it either knew or had reasonable grounds for believing that tbe plaintiff was in tbe caboose. The pleadings, however, do not bear out this contention inasmuch as the only admission which was made was that the plaintiff at the time of the occurrence was sitting in the caboose, but there is no admission that the defendant either knew or had reasonable grounds to believe that at the time of the occurrence the plaintiff was in the caboose. We find no reversible error in the rulings of the trial court.

The judgment of the Superior Court of Cook County is affirmed.

Judgment affirmed.

ROBSON, P. J. and SCHWARTZ, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Ella C. Haring, Appellee, v. Henry Godbersen and Clara Godbersen, his wife, Appellants.
    Gen. No. 47,032.
    First District, Second Division.
    February 19, 1957.
    Released for publication April 2, 1957.

      Lyle, Havey & Gage, of Chicago, for appellants.

      David Larson, of Chicago, for appellee.
   JUDGE McCORMICK

delivered the opinion of the court.

The only two questions before this court on appeal are as to whether or not this foreclosure suit should have been dismissed at the close of the testimony before the master, on the ground that the plaintiff had not authorized its filing, and as to whether or not the fees recommended by the master and allowed by the court to the plaintiff’s attorney were excessive.

It is our opinion that the contentions raised by the defendants are not properly before us. Fact findings made by a master and not excepted to by the defendant before the chancellor cannot be raised on appeal. Fischer v. Slayton & Co., Inc., 10 Ill.App.2d 167; Decatur Coal Co. v. Clokey, 332 Ill. 253. In the instant case the objections which were filed to the master’s report were overruled. No exceptions were filed, nor was an order entered allowing the objections filed to the master’s report to stand as exceptions before the chancellor. Even in the objections filed before the master no complaint was made of any lack of authority of the attorney. Nor can we find from the abstract of the record where the contentions here urged were even informally raised or argued before the chancellor. In any case, even if the matter was properly before us, where the master has heard the evidence and makes findings of fact which are approved by the chancellor, we could not disturb them unless they were against the manifest weight of the evidence. Velsicol Corp. v. Hyman, 405 Ill. 352.

Considering the contentions on the merits, there is no question that it is the law that an attorney must be actually employed for the purpose before he can represent a party in court. Frye v. County of Calhoun, 14 Ill. 132, However, the objection must be raised either by a motion or in the answer, and it cannot be raised by evidence brought out during the taking of testimony on the merits of the case. Emerson v. Fleming, 246 Ill. 353; Ransom v. Jones, 1 Scam. (Ill.) 291. Here the only matter in the record with reference to the authority of the attorney was brought out during the examination and cross-examination of witnesses on the merits of the case. In his report the master says: “Though the defense of lack of authority was not raised in the Answer, it was suggested in the hearings before the Master, and as a result thereof considerable testimony was introduced. There is no foundation whatever for this contention. The first attorney for the plaintiff testified that he was given the trust deed and the note involved in this proceeding by the plaintiff with instructions to take whatever action he deemed necessary. Later, at the request of the defendants, the plaintiff was produced at the Master’s hearing and testified that she had given full authority to her attorneys to take any steps that might be necessary to collect the indebtedness, including foreclosure proceedings if necessary.” The finding of the master is amply supported by the evidence.

The allowance of attorney’s fees by the chancellor on recommendation of the master is in accord with the ordinary, reasonable and customary attorney’s fees allowable at the time in the County of Cook and State of Illinois for services such as were rendered in this case, and is supported by the evidence.

In our opinion this appeal is frivolous. The plaintiff filed a motion in this court, which was taken with the case, that in case the decree of the trial court was affirmed this court should make an appropriate award of additional attorney’s fees to the plaintiff, and in the alternative, that the case be remanded to the trial court to hold such hearings as may be necessary to determine the amount of additional fees. This court has no power to allow attorney’s fees, and the plaintiff’s motion requesting us so to do is denied. Lake Erie and Western R. Co. v. Beam & Son, 60 Ill. App. 68; Kingsbury v. Powers, 26 Ill. App. 574. Plaintiff’s motion in the alternative is allowed.

The cause is remanded to "the trial court to determine, on a hearing, the amount of additional attorney’s fee to be allowed to the plaintiff for the necessary services rendered by her attorney in the proceedings in this court, and the trial court is instructed to modify the decree originally entered to include the additional fees allowed. The decree of the Superior Court in all other respects is affirmed.

Decree affirmed and cause remanded.

ROBSON, P. J. and SCHWARTZ, J., concur.


text:
    Investors Commercial Corp., Appellant, v. John Metcalf and Leah Metcalf, Appellees.
    Gen. No. 46,968.
    First District, Second Division.
    February 19, 1957.
    Released for publication April 2, 1957.

      Laff & Tuber, for appellant; Harry G. Fins, of Chicago, of counsel.
    James J. Kilgallon, of Chicago, for appellees.
   JUDGE McCORMICK

delivered the opinion of the court.

This appeal is taken from an order of the Municipal Court of Chicago vacating a judgment by confession theretofore entered against the defendants on a certain note. The defendants signed the note in question at their home in Paris, Edgar county, Illinois, and there manually delivered it to an agent of Parliament Appliances, Inc., the payee in said note. The note was negotiated by Parliament Appliances, Inc. to the Investors Commercial Corporation, hereafter referred to as plaintiff, which confessed judgment on the note in the Municipal Court of Chicago. Subsequently the defendants filed a motion to vacate the judgment. The motion was supported by the affidavit of both defendants, which in substance set up that they executed the note at their home in Paris and there delivered it to an agent and representative of Parliament Appliances, Inc. They further state that they did not reside in the city of Chicago, Illinois or Cook county, Illinois either at the time of the entry of the judgment or at the time of the execution of the affidavit, and that they had no property, real or personal, either in the city of Chicago or in Cook county, Illinois.

The plaintiff filed a counter-affidavit in which, in substance, the affiant, Parliament Appliances, Inc., stated that it employed solicitors and salesmen to sell certain equipment throughout the state of Illinois; that such solicitors and salesmen take orders for the equipment and request the intended purchasers to sign a conditional sales contract, note or whatever papers are necessary incidental to the sale of said units; that such papers are then forwarded to the Chicago office for approval and the salesmen or solicitors do not have the authority to complete the sale, which can only he completed in the Chicago office after credit information is received and credit of the proposed purchasers is accepted; that the installment contract and note in question were so handled and were accepted at Chicago, Illinois.

On a hearing, the Municipal Court entered an order vacating the judgment and dismissing the proceedings.

The plaintiff’s theory is that there was sufficient compliance with the section of the statute applying to confessions of judgment because the note in question was executed in Chicago, since the term “excution” as used in the statute requires both a signing and a delivery, and the delivery to the plaintiff was made in Chicago; and also that since the note on its face bears the printed words “Chicago, Ill.” the defendants are estopped to assert a defense against the plaintiff, which was not the original payee of the note.

The Practice Act in section 50 (Ill. Rev. Stat. 1953, chap. 110, par. 174) permits a judgment to be entered by confession “provided, that such application to confess judgment, whether made in term time or vacation, shall be made in the county in which the note or obligation was executed or in the county where one or more of the defendants reside or in any county in which is located any property, real or personal, owned by any one or more of the defendants. A judgment entered by any court in any county other than these herein specified shall have no force or validity, anything in the power to confess to the contrary notwithstanding.” It has been held that under the statute where the note has been executed in one county and the judgment by confession entered in another county, unless the defendant either resides in or has real or personal property in the county where the judgment was entered the court lacks jurisdiction of the person of the defendant and the purported judgment is void. Green v. Walsh, 5 Ill.App.2d 535.

In confessing a judgment the statute must be strictly complied with. In French v. Willer, 126 Ill. 611, the Supreme Court adopted in toto the opinion of the Appellate Court, in which it is said (pp. 617-618) :

“The practice of entering judgments in debt on warrants of attorney is very old, so old that the date of its origin is unknown. Chitty says: ‘How or when this peculiar security for a debt authorizing a creditor, as it were per saltum, to sign a judgment and issue execution, without even issuing a writ, was first invented, does not appear, but it has now become one of the most usual collateral securities on loans of money or contracts to pay an annuity and for debts, but usually accompanied with some other deed or security.’ 2 Gen. Prac. 334.

“It was early found that unconscionable advantage was taken of debtors by creditors by means of such warrants of attorney, obtained when the debt was incurred, and when the debtor was hopeful, and executed with harshness against him in the hour of his distress, and the courts were compelled to prescribe rules, and parliament to enact statutes, to limit the operation of such warrants, and restrain the injustice to which the use of them frequently gave rise.”

The plaintiff contends that this was a conditional delivery of the note by the'defendants and that delivery did not take place until there was an acceptance by virtue of some practice in the company, which was not known to the defendants at the time they made manual delivery of the note. A delivery may be conditional in the sense that it is to take effect only on the happening of a future contingency, and in order for the delivery to be conditional it must appear that there was a mutual understanding that the instrument was to be ineffective until the performance of the condition. (10 C.J.S. Bills and Notes, sec. 79.) In all the cases which have come to our notice the condition is one which was imposed by the maker.

In Burr v. Beckler, 264 Ill. 230, it was held that a note is not executed until delivered (cf. George v. Haas, 311 Ill. 382, with reference to the meaning of “executed”); and in the Burr case it was held that when a maker parts with possession and loses all control over the papers and all right to retake or claim them it is a valid delivery. In George v. Haas, 229 Ill. App. 648, (reversed on other grounds in George v. Haas, supra), the court holds that the note having been retained after it was received, the acceptance must be deemed to have been at the place of delivery since it was there that the maker lost control over it. The question of acceptance ordinarily arises only where there has been a conditional delivery in the proper legal sense by the maker. There was a legal delivery of the note in question at Paris, Illinois.

The plaintiff also contends that because the date line of the note was “Chicago, ill., July 16, 1955” the defendants are estopped from contending that the note was not executed in Chicago. There is nothing in the record to indicate that this question was raised or argued in the lower court, and since it was not it cannot be urged here. People ex rel. Mitchell v. Engle, 313 Ill. 483, 490; Rodenkirk v. State Farm Mutual Auto Ins. Co., 325 Ill. App. 421, 441; Oliver v. Retirement Bd. of Municipal Employees, 311 Ill. App. 38, 45. However, had the question of estoppel been properly raised in the trial court, it could have been disregarded inasmuch as it was admitted that the note was signed and manually delivered in Paris, Illinois, and there is no indication anywhere in the record that the plaintiff was prejudiced by the fact that the date line of the note carried the words “Chicago, Ill.” The counter-affidavit filed was made by the original payee of the note, Parliament Appliances, Inc. No affidavit was filed by the plaintiff and there is nothing before us to indicate that the plaintiff did not have full knowledge of the circumstances surrounding the execution of the note. The necessary elements involved in an estoppel are not present. Beasley v. American Surety Co., 243 Ill. App. 447. We express no opinion as to the efficacy of an estoppel in a case of this character, even though it had been properly raised and possessed all the necessary elements.

No reply brief was filed by the plaintiff. While a reply brief is not required under the rules of the court, it is helpful in that it enables the reviewing court to have before it a full and complete presentation of all material questions of law and fact involved in the case.

Here the note was signed and legally delivered in the city of Paris, Illinois, and consequently was there executed. It is admitted that the defendants at the time the judgment was entered resided there and that they owned no personal or real property in the city of Chicago or county of Cook. Under the statute, judgment could not have been confessed in the Municipal Court of Chicago. The judgment was void and the trial court properly vacated it and dismissed the proceedings. The order of the Municipal Court of Chicago vacating the judgment is affirmed.

Order affirmed.

ROBSON, P. J. and SCHWARTZ, J., concur.


author: JUDGE SCHWARTZ

text:
    Robert L. Payne, Plaintiff-Appellant, v. Pullman Company, Defendant-Appellee.
    Gen. No. 46,982.
    First District, Second Division.
    February 19, 1957.
    Released for publication April 2, 1957.

      Milton P. Webster, Jr., of Chicago, for appellant.
    Erwin W. Roemer, and Donald S. Dugan, of Chicago, for appellee; Herbert S. Anderson, Marshall R. Wendt, James A. Yelde, and Laurence A. Carton, all of Chicago, of counsel.
   JUDGE SCHWARTZ

delivered the opinion of the court.

The question presented on this appeal involves the right of a sleeping car porter formerly employed by defendant (a carrier subject to the Railway Labor Act) to sue for damages for alleged wrongful termination of his contract although he has not exhausted all the remedies provided in the collective bargaining agreement of his union and in the Railway Labor Act. The trial court held against plaintiff and dismissed the suit.

Under the terms of the collective bargaining agreement between defendant and the Brotherhood of Sleeping Car Porters, the right of an employee to a fair and impartial hearing before discharge is recognized and provision is made for a hearing before the district representative of the carrier. If the decision of the district representative is not satisfactory, the employee may within twenty days appeal to the assistant to the vice-president in Chicago or to such other operating officer as may be designated. The contract then provides that: “Any further appeal in accordance with provisions of the Railway Labor Act shall be taken within thirty (30) days from date decision is rendered.” The Railway Labor Act creates the National Railroad Adjustment Board for the purpose of deciding disputes between carriers and their employees. (45 U.S.C., Sec. 153 (1952).) The Board is composed of four divisions. The third division is the one empowered to act in respect to the controversy here involved. This division is composed of ten members, five selected by the carriers and five by the national labor organizations. In case of deadlock a neutral person is to sit with the division.

Plaintiff was charged with making advances toward a woman passenger, and in accordance with the provisions heretofore recited was given a hearing before the proper official. He was ordered discharged and took an appeal to the Assistant Vice-President, who sustained the order. He then abandoned his right to a further appeal and started this suit.

The question of the right of an aggrieved railroad employee upon discharge to resort to the state courts for relief by way of damages for breach of contract has been the subject of litigation for some years, and three cases have quite definitely established the law. Moore v. Illinois Central R. Co., 312 U. S. 630, 634; Slocum v. Delaware L. & W. R. Co., 339 U. S. 239; Transcontinental and Western Air, Inc. v. Koppal, 345 U. S. 653, 654, 661. In Moore v. Illinois Central R. Co., supra, the plaintiff sued in a Mississippi state court for damages for discharge contrary to provisions of a collective bargaining agreement. The parties were subject to the Railway Labor Act. The case was transferred to the federal court. The plaintiff recovered a judgment. Upon appeal, the United States Supreme Court, while reversing for reasons not relevant here, said that the plaintiff was not required to pursue his remedy by an appeal to the Adjustment Board as a prerequisite to a suit for wrongful discharge. However, the collective bargaining agreement in that case did not provide for appeal to the Adjustment Board. In Slocum v. Delaware L. & W. R. Co., supra, the railroad filed suit for a declaratory judgment interpreting a collective bargaining agreement with respect to a jurisdictional dispute between unions. The court held that the Adjustment Board had exclusive jurisdiction. It distinguished the Moore case on the ground that the Adjustment Board was best designed to handle such jurisdictional disputes. In its opinion the court said:

“The Adjustment Board is well equipped to exercise its congressionally imposed functions. Its members understand railroad problems and speak the railroad jargon. Long and varied experiences have added to the Board’s initial qualifications. Precedents established by it, while not necessarily binding, provide opportunities for a desirable degree of uniformity in the interpretation of agreements throughout the nation’s railway systems.”

Transcontinental and Western Air, Inc. v. Koppal, supra, is the last word on this question. In that case the plaintiff was employed in Kansas City, Missouri, by a common carrier subject to the Railway Labor Act. As in the instant case, the agreement with the union provided for a fair hearing with two appeals, similar to those in the case before us. The plaintiff was charged with abuse of a sick leave provision and after a hearing was told he would be discharged, whereupon he was permitted to resign “under protest.” He took no appeal, as provided by his employment contract, but instead instituted suit in the federal court. The case was submitted to a jury which returned a verdict of $7,500. The trial court set aside the verdict and dismissed the complaint on the ground that the respondent had failed to exhaust the remedies prescribed in his employment contract. The Court of Appeals reversed the trial court, and an appeal was taken to the Supreme Court of the United States, which reversed the Court of Appeals and upheld the trial court. The Supreme Court held that the substantive law of Missouri determined the requirements of .the cause of action and the interpretation of the contract (Erie R. Co. v. Tompkins, 304 U. S. 64; Klaxon Co. v. Stentor Electric Mfg. Co., 313 U. S. 487) and that under the law of Missouri (as distinguished from the law of Mississippi where the Moore case was tried) an employee must exhaust the administrative remedies under his contract of employment in order to sustain his cause of action. The order dismissing the suit was affirmed.

The net effect of these cases was to define an area within which the jurisdiction of the Railway Adjustment Board was exclusive and another area within which resort could be had to the courts. When in a proper case resort is had to a state court, it becomes subject to such defenses as are lawful in that state. This includes questions such as are here involved, that is:

1. Whether plaintiff was required to exhaust the remedies provided in the agreement, and

2. Whether the agreement, properly interpreted, provided a complete system of arbitrament of the provisions for discharge, and whether the decisions thereon are final and exclude resort to a court.

We must apply Illinois law to those questions.

While the doctrine of exhaustion of remedies is well established in Illinois, our Supreme Court has never specifically passed upon it in an employer-employee dispute. The Court of Appeals for this circuit, however, has found and applied the Illinois law ia a labor case, Anson v. Hiram Walker & Sons, 222 F.2d 100. In that case, employees of a distilling company sought damages for breach of a collective contract of employment and reinstatement of their seniority rights. The court, after finding that plaintiffs had not exhausted their remedies, said, p. 104:

“In Illinois it is well settled that where a member of a union or other association, brings suit and it appears that his remedies are governed by laws and regulations of the association to which he belongs, he must, before he can succeed, show that he has exhausted all of the remedies provided by those laws and regulations. (Citing cases.) This court, in United Protective Workers of America v. Ford Motor Co., 7th Cir., 194 F.2d 997, held that ordinarily a complaint by an employee must show that plaintiff followed the grievance procedure provided for in the collective bargaining agreement. Without such a showing plaintiffs may not resort to the courts for relief. Consequently, under Transcontinental & Western Air, Inc. v. Koppal, supra, and the Illinois governing law, plaintiffs, even if they sued for wrongful discharge, could not maintain their action unless they showed exhaustion of their remedies under the collective bargaining agreement.”

Plaintiff in the instant case asserts that this is dicta. With respect to this, we said in Larson v. Johnson, 1 Ill.App.2d 36, 40, 116 N.E.2d 187:

“If the opinion expressed on a legal question is one casually reached by the court on an issue unrelated to the essence of the controversy or based on hypothetical facts, then it is obiter dictum. If, however, the question involved is one of a number of legal issues presented by the facts of that particular case, the court’s decision on that question is not dictum even though it be the last ground of many decided by the court, all in support of its final conclusion. (Goodhart, 40 Y.L.J. 161, 180). It is often stated that all except that which is necessary to the decision of a case is obiter dictum. This is misleading, for nothing but the bare finding of the court is absolutely necessary to its decision as between the parties. For the purpose of legal precedent, we must look to all the issues presented by the facts of the case and to the legal principles applied by the court in the final determination of those issues. Our Supreme court has made a distinction between judicial dictum and obiter dictum, meaning that a legal principle deliberately passed upon by a court establishes a precedent. Scovill Mfg. Co. v. Cassidy, 275 Ill. 462, 470.”

We do not consider the language in Anson v. Hiram Walker & Sons, supra, obiter as to the point in question here.

In Keel v. Illinois Terminal R. Co., 346 Ill. App. 169, 104 N.E.2d 659 (1953) a railroad employee was discharged after a hearing, and without taking an appeal pursuant to his collective bargaining agreement sued for reinstatement and damages for wrongful discharge. He obtained a judgment which was reversed and the cause was remanded on a ground not relevant to our present inquiry. After that opinion the Koppal casé was decided, and defendant in his brief advises us ihat the trial court dismissed the Keel suit on the ground that under the law of Illinois the plaintiff could not sue in this state until he had exhausted his administrative remedy. (Keel v. Illinois Terminal R. Co.. Circuit Court of Madison County, No. 6414 Law (1954).)

In Illinois the doctrine has been applied in cases involving members of labor unions seeking relief against penalties or expulsion from the union. Engel v. Walsh, 258 Ill. 98, 101 N.E. 222 (1913); Moody v. Farrington, 227 Ill. App. 40 (1922). The doctrine has also been applied in suits brought by members of voluntary associations. The People v. Chicago Board of Trade, 45 Ill. 112 (1867); The People v. Women’s Catholic Order of Foresters, 162 Ill. 78 (1896); Board of Trade v. Nelson, 162 Ill. 431 (1896); Pacaud v. Waite, 218 Ill. 138, 75 N. E. 779 (1905). It has been applied to members of religious organizations. People ex rel. Michajlowski v. Tanaschuk, 317 Ill. App. 130, 45 N.E.2d 984 (1942). It has also been applied to administrative bodies sncb as utility and zoning commissions. Bright v. City of Evanston, 10 Ill.2d 178, 139 N.E.2d 270; City of Chicago v. O’Connell, 278 Ill. 591, 116 N. E. 210 (1917); Bistor v. McDonough, 348 Ill. 624, 118 N. E. 417 (1932); Colton v. Commonwealth Edison Co., 349 Ill. App. 490, 111 N.E.2d 363 (1953).

The doctrine has been applied to labor cases in other states either by the state court or by the federal court on a finding that such is the law of those states. Cone v. Union Oil Co. of California, 129 Cal.App.2d 558, 277 P.2d 464 (1954); Harrison v. Pullman Co., 68 F.2d 826 (C.A. 8, 1934) (applying the Missouri law); Thompson v. St. Louis-San Francisco By. Co., 113 F. Supp. 900 (D.C. Ala. 1950) (applying the Alabama law); Mayfield v. Thompson, 262 S.W.2d 157 (Mo. App. 1953); Barker v. Southern Pacific Co., 214 F.2d 918 (C.A. 9th, 1954) (applying the California law).

Counsel for plaintiff argues that the Illinois courts have not applied the doctrine of exhaustion of remedies specifically to a dispute between employer and employee where a collective bargaining agreement was involved, and that the doctrine should not be extended to include such disputes. Collective bargaining agreements are not in this respect sui generis but are subject to the same rules of practice and to the same principles of procedure and interpretation, in a general sense, as other contracts. Nothing here presented would justify a departure from the general principle with respect to exhaustion of remedies. The facts in Transcontinental and Western Air, Inc. v. Koppal, 345 U. S. 653, 654, 661, are substantially the same. We do not know whether such an argument was made in that case. It does appear, however, that in its opinion in that case the United States Supreme Court cited Reed v. St. Louis S. W. R. Co., (Missouri) 95 S.W.2d 887, which involved a railroad employee, ancl in a subjoined note the court refers to a quotation relied upon in the Eeed case as follows (p. 658):

“ ‘. . . It is well settled that, where contracting parties either agree or are required by law to resort to a designated tribunal for the adjustment of controversies, they must exhaust such remedy before resorting to the courts for redress.’ Glass v. Hoblitzelle, 83 S.W.2d 796, 802 (Tex. Civ. App.). See also Bell v. Western R. Co., 228 Ala. 328, 153 So. 434.”

Glass v. Hoblitzelle, supra (1935), referred to in the note, was not an employee case but a suit between the owner of a “second run” motion picture theatre and the owners of “Class A” or “first run” theatres for an interlocutory order denying an injunction. The National Eecovery Act was in effect, and the court held that the grievance should have been presented to the local grievance board organized thereunder. It thus appears that this case, although not involving a collective bargaining agreement, was considered by the Supreme Court of Missouri and the Supreme Court of the United States as authority to support the application of the doctrine of exhaustion of remedies.

Plaintiff has relied on Jorgensen v. Pennsylvania R. Co., 38 N. J. Super. 317, 118 A.2d 854, 866 (1955). While points of distinction are made by defendant, we believe the principal basis for the decision was the holding that in New Jersey the law did not require a plaintiff to exhaust his administrative remedies. Under that decision a discharged employee may pursue his contract remedies until he determines reinstatement to be hopeless. Then he may pick another forum. This decision is contrary to the preponderance of authority and to a. fair interpretation of the contract.

Plaintiff makes the point that an appeal to the Railway Adjustment Board is not a remedy created by the collective bargaining agreement, hut is one granted to him by law and is therefore not a prerequisite to a suit for damages. The point he makes is better illustrated by his distinction of the two cases involving Illinois law, Anson v. Hiram Walker & Sons, 222 F.2d 100, and Keel v. Illinois Terminal R. Co., 346 Ill. App. 169, 104 N.E.2d 659 (1953). He says that in the first case suit was for enforcement of the collective bargaining agreement and that the National Labor Relations Board had exclusive jurisdiction. In the second case (Keel) he says that the collective bargaining agreement provided that in the event of disagreement “the case shall then be handled in accordance with' the Railway Labor Act.” He stresses the use of the word “shall.” We do not see the validity of the distinction. Clearly, neither the statute nor the agreement intended to make the unreasonable requirement that an employee must pursue an appeal whether he desired to do so or not. The real question is whether it was the intention of the parties that an employee could discontinue proceedings under the collective bargaining agreement at any point where he determines he could not succeed and then resort to a law suit in a state court. Plaintiff argues that this is in effect what Transcontinental and Western Air, Inc. v. Koppal, supra, holds. We do not so construe it. What was under consideration in the Koppal case was whether the doctrine of exhaustion of remedies was applicable to a suit of this character. The court held it was if the state law applicable so required. In other words, nothing in the federal law operated to supersede the state law. But having taken the case, the state court has the power and duty to interpret the contract, to determine whether it was intended that the employee should be restricted, with respect to his right to a fair hearing, to the procedure set up in the contract and the Railway Labor Act or whether he could do what he here contends he can, that is, proceed under the contract to the point where he feels it futile to go further and then switch his forum and his remedy.

The appeal procedure provided in the Railway Labor Act is stated in permissive language. Plaintiff urges that for this reason the Illinois doctrine of exhaustion of remedies does not render mandatory recourse to the Railroad Adjustment Board. The exercise of a right to appeal is always permissive, but under the doctrine of exhaustion of remedies the course to be taken in the exercise of the right is mandatory. The People v. Women’s Catholic Order of Foresters, supra, at p. 80; Engel v. Walsh, supra, at p. 105; Sweitzer v. Industrial Commission, 394 Ill. 141, 147, 68 N.E.2d 290, 294 (1946). We think the language of the court in the Sweitzer case clearly states the Illinois law on this point (Sweitzer v. Industrial Commission, supra, p. 147):

“If defendant in error was dissatisfied with the arbitrator’s decision, he should have .sought a review by the Industrial Commission. Having failed so to do, he cannot by-pass the commission and obtain, for all practical purposes, a direct review by the circuit court. In short, he should have exhausted the administrative remedies afforded him by the statute before resorting to the courts. 42 Am. Jur., Public Administrative Law, sec. 197; Bistor v. McDonough, 348 Ill. 624.

“The argument is advanced by defendant in error that section 19 does not expressly require a review of the decision of an arbitrator by the Industrial Commission as a prerequisite to a review by the circuit court. Statutes should be construed according to their intent and meaning. A situation which is within the object, spirit and the meaning of a statute is regarded as within the statute although not within the letter. (People ex rel. Simpson v. Funkhouser, 385 Ill. 396; Burke v. Industrial Com., 368 Ill. 554). We are of the opinion that the plain intention of section 19 of the Workmen’s Compensation Act is to make a review of an arbitrator’s decision by the Industrial Commission a condition precedent to a review by the circuit court.”

But if the law were otherwise, we are of the opinion that the collective agreement limits the plaintiff to the procedure provided for in the agreement. The purpose of these provisions in a collective bargaining agreement are well known. Without contractual protection an employee could lose his means of livelihood at the whim of the employer. There was and is no protection in law save that which the contract provides. The cruelty and severity of an arbitrary and unfair discharge came to be recognized, and to mitigate this evil the collective bargaining agreement set up a complete plan. It recites in general terms the requirements for the discharge of an employee who has passed the probationary period. The employer’s right to discharge for just cause is recognized and the employee’s right to continuance of his employment, unless there is just cause for his dismissal, is also recognized. The provisions are not, however, the kind which would be written into a contract contemplating a trial by court or jury. They are couched in general and ambiguous terms, but are given practical implementation by the establishment of a complete system of arbitrament, that is, a fair hearing before an operating official, an appeal to a superior of high rank and, finally, to a body composed of ten members — five union and five carriers, and in the event of a deadlock, an eleventh neutral. It is a fair arrangement for the protection of plaintiff’s rights. To interpret this agreement to mean that an employee could, at any stage of the proceedings, discontinue such proceedings and still resort to the courts would be unreasonable. We conclude that a fair interpretation of the contract is that the provisions with respect to grounds for discharge are confined in their implementation to the plan of arbitrament established by the contract.

Plaintiff argues that it is unfair to require him to use the Railway Labor Act because final decision would be in the hands of “lay administrators” and beyond the scope of judicial review. To many this may appear to be a boon. Eminent jurists and lawyers at times have felt that no misfortune, short of smallpox or hydrophobia, is greater than involvement in serious litigation. The long delays, the cumbersome machinery, and the great expense combine to make our judicial system the subject of bitter denunciation. To hold that this should be the resort to which a plaintiff could go for a fresh start after an adverse finding in a plan of arbitrament which provides for a hearing and two appeals would be piling Ossa on Pelion. Even those of us who have faith in our profession and its ability ultimately to solve the problems which beset it must realize that laymen have ample justification for seeking to avoid becoming enmeshed in its toils.

Judgment affirmed.

ROBSON, P. J. and MoCORMICK, J., concur.


text:
    Katharine Trueblood, Plaintiff-Appellee, v. Wilson D. Trueblood and Charles A. Bunnell, Defendants-Appellants.
    Gen. No. 46,973.
    First District, Second Division.
    February 19, 1957.
    Released for publication April 2, 1957.

      Singer & Singer, of Highland Park, for defendant-appellant, Charles A. Bunnell.
    Becker W. Hungerford, of Chicago, for appellee, Katharine Trueblood.
   JUDGE SCHWARTZ

delivered the opinion of the court.

Plaintiff obtained a judgment by confession on a promissory note payable to her and executed by Wilson Trueblood, her husband, and Charles A. Bunnell, as comakers. A motion to vacate was sustained, the judgment was opened and a jury was impanelled to hear the issues. At the close of all the evidence the court directed a verdict for plaintiff and confirmed the judgment. From this only Bunnell has appealed. His defense to the note is that Wilson True-blood, as the agent of his wife, released Mm from Ms obligation under the note upon his agreeing to execute a bill of sale of their partnersMp business to a third person, and he asserts that this defense was sufficiently established by the evidence on Ms behalf to make an issue for the jury.

Plaintiff in her brief states the rule which should have guided the court in determining whether to take the case from the jury, as follows: A motion to direct a verdict presents only a question of law as to whether, when all the evidence is considered and all reasonable inferences are drawn most favorable to the party against whom the motion is directed, there is a total failure or lack of evidence to prove one or more necessary elements of the case. This is a correct statement of the law. It is in the light of this principle that we state the facts which the trial court should have considered in making its ruling.

Bunnell and Wilson Trueblood entered into an oral partnership agreement to purchase and operate a bakery in Algonquin, Illinois, early in January 1949. In April 1950 Katharine Trueblood loaned $3,800 to the business, taking a chattel mortgage on what appears to have been most of the operating equipment of the bakery. While the chattel mortgage refers to an indebtedness owing by the mortgagors, no note evidencing this indebtedness was executed until two months later, when Wilson Trueblood and Bunnell executed a promissory note for $3,800, being the note in question. At that time, according to Bunnell’s testimony, Wilson Trueblood said his attorney had told him that he should get this note “to protect him on the chattel mortgage”; that it would not amount to anything. “It is a matter of form.” To this, Bunnell replied that he would sign the note. “As long as it is against the bakery, I haven’t any objection. I will be glad to sign it for you.” From this, we think a reasonable inference may be drawn that Bunnell was to sign the note merely as formal evidence of the indebtedness secured by the chattel mortgage, but that the plaintiff would look only to the mortgaged property for payment.

On June 2, 1951 the bakery was sold to a third person for $5,250. The purchase price to Trueblood and Bunnell had been $15,000. There is testimony in the record that the purchaser assumed the chattel mortgage. Bunnell testified substantially that when Wilson Trueblood told him of the purposed sale for about $5,000, Bunnell told him the price was ridiculous and thereupon Trueblood agreed to cancel the note. Upon this understanding Bunnell executed the bill of sale. He received nothing from the proceeds of the sale, nor does he know whether the money was used to make a settlement with creditors of the business. The only remaining question, therefore, is whether there is evidence upon which the case could go to the jury on the agency of Wilson Trueblood to release the obligation of Bunnell and himself to his wife.

Only two witnesses appeared — Katharine Trueblood and Charles Bunnell. Mrs. Trueblood’s testimony, with the reasonable inferences to be drawn therefrom, reveals that she considered the money paid pursuant to the note to be in the nature of an advance to her husband; that she was letting him use the money; that he handled all her affairs and made all her investments for her, and that she knew little or nothing of these business transactions. She did not know who prepared the note or the chattel mortgage. We are of the opinion that this evidence, with all the favorable inferences that may be drawn in defendant’s favor, taking the defense as a whole, was sufficient to reveal authority in Wilson Trueblood as his wife’s agent to procure Bunnell’s agreement to- sign the bill of sale upon their releasing him from his obligation under the note.

Gorin v. Wiley, 215 Ill. App. 541, supports the view that a parol agreement made and performed as in the instant case is adequate basis for the release of an obligor on a promissory note. In that case the plaintiff, as the administrator of one Krone, sued upon a promissory note given by the defendant to Krone. The defendant pleaded that during Krone’s lifetime a three-sided contract was made whereby the defendant sold and delivered certain property to a third person, one Peers, in consideration for the oral promise of Peers, made to the defendant and Krone, to pay the obligation of defendant on the notes. A demurrer to this plea was overruled and judgment was entered in favor of the defendant. The court held that the plea was good.

Plaintiff argues that an agency to make a loan or investment does not by implication carry any authority to cancel or release the obligation. In the instant case, as we have said, the evidence favorable to defendant, with the reasonable inferences which may be drawn therefrom, reveals that the husband was his wife’s agent not only with respect to making a loan or investment but with respect to all matters concerning the investment.

The cases which plaintiff cites do not appear to be relevant. In Ingersoll v. Banister, 41 Ill. 388, the plaintiff by one Weaver as his agent sold the defendant some goods. Subsequently the defendant and Weaver became partners. The partnership was dissolved and the defendant, as a defense to the plaintiff’s complaint, claimed that he had an arrangement with Weaver whereby Weaver was to assume the debt to the plaintiff. The court there held that Weaver and the defendant could not make an arrangement for the discharge of the debt owing to the plaintiff without the plaintiff’s knowledge, consent, or ratification. Weaver’s authority as agent for the plaintiff was limited to the sale of grain. The gist of the decision in that case was the fact that Weaver exceeded his limited authority without the plaintiff’s knowledge or ratification.

Garrels v. Morton, 26 Ill. App. 433, cited by plaintiff, turned on the question of custody of securities. The court held that there was no direct proof of agency except by the agent himself that he had authority to receive the payment of principal. In the instant case proof of authority is to be found in plaintiff’s own testimony with respect to the general power and trust she reposed in her husband in connection with the business in question. This court recently held in Hoiden v. Kohout, 12 Ill.App.2d 161, 138 N.E.2d 852, that it is not essential to the establishment of authority to collect that the agent should have the security in his possession.

In Gannon v. Bronston, 246 Ky. 612, 55 S.W.2d 358 (1932) three partners executed a note to a creditor. The creditor brought suit on the note against Bronston, one of the partners. Bronston defended on the ground that Gannon had released him from liability on the note on his promise to quit the partnership, apparently in the creditors’ expectation that this would compose disputes among the partners. However, after Bronston had quit the partnership it continued to suffer financial reverses and the two remaining partners were discharged in bankruptcy. After the discharge Gannon sued Bronston, alleging that his release was invalid for want of consideration and because the note was not surrendered nor was there any written evidence of a release. The question was discussed thoroughly from the point of view of release, renunciation and estoppel, and the court held that these defenses were still applicable under the circumstances there existing to a suit on a note.

The judgment is reversed and the cause is remanded with directions to take such further proceedings as are consistent with the views herein expressed.

Judgment reversed and cause remanded with directions.

ROBSON, P. J. and McCORMIOK, J., concur.


author: JUDGE CARROLL

text:
    People of the State of Illinois, Plaintiff-Appellee, v. George H. Sheffer, Supervisor, Town of Champaign, County of Champaign, and State of Illinois, Defendant-Appellant.
    Gen. No. 10,120.
    Third District.
    March 11, 1957.
    Released for publication March 27, 1957.
    C. E. Tate, of Champaign, for appellant.

      Robert W. McDonald, State’s Attorney, Champaign county, Urbana, for appellee.
   JUDGE CARROLL

delivered the opinion of the court.

The State’s Attorney of Champaign County filed a complaint in quo warranto against the defendant, George H. Sheffer, Supervisor of the Town of Champaign, in said county, charging that said defendant since December 8, 1955 has held and executed without lawful right or authority the pretended office of supervisor in two certain territories, in the County of Champaign, and which are described in the petition and that the defendant has usurped said office.

The defendant filed a plea, or answer in which in addition to denying that he has usurped the office of supervisor in the two territories described in the petition, he alleges that he is the supervisor of the Town of Champaign and that the said territories are included within the area of that town. The reply of the State’s Attorney to this plea recites that the territories in question, although previously a part of the Town of Champaign, had been annexed to the Town of the City of Champaign and that it therefore became the duty of the defendant to recognize such change in boundaries and to cease and desist from performing any functions as supervisor over the territories so annexed to the Town of the City of Champaign.

The facts underlying this action appear to be briefly as follows: On March 2, 1920, the Board of Supervisors of Champaign County provided by resolution for the organization of the territory embraced within the City of Champaign into a separate town to be known as the “Town of the City of Champaign.” On February 9, 1920, the City of Champaign annexed to it a portion of the territory described in the quo warranto petition and the remainder of the territory described therein was annexed by said City on August 16, 1949. At the time of these annexations the Statute authorizing the organization of the territory within a city into a township contained the following provision with reference to the annexing to said city territory in an adjacent township:

“Whenever such a city, at any one time, shall have annexed or shall hereafter annex any territory in an adjacent township, the county board may, by resolution, upon receipt of a certified copy of the resolution or ordinance of the city annexing such territory, disconnect such territory from the town or towns in which it may be situated and annex the same to the town in which said city is situated.”

(Sec. 127, Chap. 139, Ill. Rev. Stat. 1953.)

The Board of Supervisors of Champaign County failed to exercise the permissive authority given it under the above quoted section of the Statute and did not disconnect the territories in question from the Town of Champaign and did not annex the said territories to the Town of the City of Champaign.

At the 1955 session of the General Assembly, the aforesaid statutory provision was amended (Sec. 127, Chap. 139, Ill. Rev. Stat. 1955), and the same now reads as follows:

“Whenever such a city, at any one time, shall have annexed or shall hereafter annex any territory in an adjacent township, upon receipt of a certified copy of the resolution or ordinance of the city annexing such territory, such annexation shall disconnect such territory from the town or towns in which it may be situated and annex the same to the town in said city and the county clerk, upon receipt of a certified copy of the resolution or ordinance of the city annexing such territory, shall enter such boundary change in the official records of his office.”

On December 8, 1955 tbe City Clerk of tbe City of Champaign filed in the office of the County Clerk of Champaign County certified copies of the ordinances annexing the territories described in the complaint to the City of Champaign. Subsequent thereto, the defendant continued to exercise authority over the territories annexed to the City and as a result this quo warranto action followed.

Upon a hearing the trial court entered a judgment of ouster. Proceeding upon the theory that the constitutionality of a Statute is involved in this action, the defendant appealed from said judgment directly to the Supreme Court. Upon an examination of the abstract of record that Court determined that no constitutional question was raised or decided in the trial court and transferred the cause to this court for review.

Aside from the constitutional question with which we are not concerned, the only point urged by defendant is that the Statute as amended is not applicable to the situation involved in the instant case. There is no merit in such contention. The Statute plainly prescribes a method of procedure whereby annexations to a city which has been organized as a city township are brought within the jurisdiction of such city township. No complaint is made of failure either by the City or the County Clerk to properly comply with the provisions of the Statute. Prior to the 1955 amendment, the authority to make transfers of territories annexed by a city township was vested in the county board, but the exercise thereof was not made mandatory. The effect of the 1955 amendment is to remove from the authority of the county board its permissive power to make transfers of territory annexed to a city township and renders it mandatory that when a city which constitutes a city township annexes territory to that city the county clerk, upon receipt of a certified copy of the resolution or ordinance annexing such, territory shall enter such boundary change in the official records ■ of his office. The record herein indicates that the City of Champaign and the County Clerk of Champaign County have complied with the 1955 amendment and as a result the territories described in the petition are a part of the Town of the City of Champaign and as such are not within the jurisdiction of the Town of Champaign. All questions relative to the necessity for the amendment or the wisdom of its enactment are beyond the scope of this review.

Since we find no error in this record, the judgment of the Circuit Court is affirmed.

Affirmed.


author: PRESIDING JUSTICE ROBSON.

text:
    Motor Building Corporation, Appellee, v. Frederick C. Bigham, as Trustee under Trust No. 1, Appellant.
    Gen. No. 47,015.
    First District, Second Division.
    February 19, 1957.
    Released for publication April 2, 1957.

      Ordower & Ordower, for appellant, Benjamin Ordower, and Nathan Wolf berg, of counsel; O’Keefe, O’Brien & Hanson, for appellee, James H. O’Brien and James F. Ashenden, Jr., of counsel.
   Opinion by

PRESIDING JUSTICE ROBSON.

Not to be published in full.


text:
    George Sitelis, Appellant, v. Angelo Mouhelis, Evdokia Mouhelis, and Bernard S. Neistein, Appellees.
    Gen. No. 46,998.
    First District, Second Division.
    February 19, 1957.
    Rehearing denied March 12, 1957.
    Released for publication April 2, 1957.
    Peter S. Sarelas, for appellant; Abram Jess Cohen, for appellees, Burton Berger, of counsel.
   Opinion by

PRESIDING JUSTICE ROBSON.

Not to be published in full.


author: JUDGE McCORMICK.

text:
    Robert Sasseman, Jr., Appellee, v. Cornelia Cameron Sasseman, Appellant.
    Gen. No. 46,934.
    First District, Second Division.
    February 19, 1957.
    Released for publication April 2, 1957.
    William C. Wines, Geoffrey Levinson, Ehrlich and Cohn, for appellant, William C. Wines and Aaron H. Cohn, of counsel; Romano and Romano, for appellee, Frank J. Romano, Jr., Henry S. Romano, Harrison L. Dod, and Charles D. Snewind, of counsel.
   Opinion by

JUDGE McCORMICK.

Not to be published in full.


author: PRESIDING JUSTICE REYNOLDS.

text:
    Mary E. Hering, Plaintiff-Appellee, v. Garlin Hilton, Defendant-Appellant.
    Gen. No. 10,093.
    Third District.
    February 26, 1957.
    Rehearing denied March 22, 1957.
    Released for publication March 22, 1957.

      Young & Sullivan, and James E. Murphy, attorneys for Garlin Hilton, defendant-appellant, Elliott B. Young, and John D. Sullivan, of counsel; Lybarger & Collins, and Keith E. Scott, attorneys for Mary E. Hering, plaintiff-appellee.
   Opinion by

PRESIDING JUSTICE REYNOLDS.

Not to be published in full.


author: PRESIDING JUDGE FEINBERG.

text:
    Fairfield Savings and Loan Association, Plaintiff-Appellee, v. Central National Bank in Chicago, as trustee, Defendant, Jerome Cinman, Cross-Defendant-Appellant.
    Gen. No. 46,954.
    First District, Third Division.
    February 27, 1957.
    Rehearing denied March 21, 1957.
    Released for publication March 21, 1957.
    Melvin B. Lewis, for Jerome Cinman, cross-defendant-appellant, Arnold F. Block, of counsel; Donovan, Sullivan and Jeffers, for Fairfield Savings and Loan Association, plaintiff-appellee.
   Opinion by

PRESIDING JUDGE FEINBERG.

Not to be published in full.


author: JUSTICE EOYALDI.

text:
    Olan Black, Plaintiff-Appellee, v. Homer White, Defendant-Appellant.
    Gen. No. 11,012.
    Second District.
    March 4, 1957.
    Released for publication March 21, 1957.
    Snyder, Clarke & Dalziel, for appellant; McQueen, Churchill, Kirkland & Brady, for appellee.
   Opinion by

JUSTICE EOYALDI.

Not to be published in full.


author: JUSTICE CROW.

text:
    People of the State of Illinois, on the Relation of John J. Kelly, County Treasurer and Ex-Officio County Collector of DuPage County, Illinois, on Application for Order of Judgment Sale, Appellee, v. Avery Coonley School, Appellant.
    Gen. No. 11,015.
    Second District.
    March 12, 1957.
    Released for publication March 29, 1957.
    Hooper & Bunge, for appellant; William L. Guild, State’s Attorney, for appellee.
   Opinion by

JUSTICE CROW.

Not to be published in full.


author: JUSTICE EOVALDI

text:
    Wauconda Township High School District No. 118 in Lake and McHenry Counties, State of Illinois, Appellee, v. County Board of School Trustees of McHenry County; School District No. 156 in McHenry County, Illinois, et al., Appellants.
    Gen. No. 11,000.
    Second District.
    March 14, 1957.
    Released for publication March 30, 1957.
    Charles C. Stadtman, of Woodstock, for appellant.

      Looze & Kinne, of McHenry, and Runyard & Behanna, of Waukegan, for appellee.
   JUSTICE EOVALDI

delivered the opinion of the court.

This action was brought by plaintiff school district to review a decision of the County Board of School Trustees of McHenry county ordering the detachment of certain territory from plaintiff’s district and annexing it to another district. The court entered a judgment reversing and setting aside the decision of the county board on the ground that no evidence was taken or preserved by said board at its hearing.

The appellants’ theory is that the record of the Board of School Trustees is prima facie true; that the court erred in finding that no evidence was taken or preserved by the board at its hearing; and that the court should have confirmed the decision of the county board.

Appellee’s theory of the case is that the County Board of School Trustees failed to comply with the mandate of Chapter 122, Section 4B — 4 of the Hlinois Revised Statutes; that the board’s order of disconnection was null and void, and that upon review by the circuit court of McHenry county the decision was properly reversed.

Wauconda Township High School District No. 118 in Lake and McHenry counties filed its complaint in the circuit court praying for a review of a decision of the County Board of School Trustees of McHenry county detaching certain territory from said district and annexing same to School District No. 156 in McHenry county. It was alleged among other things that the decision of the administrative agency was not based on any transcript or upon any maps or information concerning same, and that said agency was without jurisdiction or authority to hear and determine the prayer of the petition and to enter an order to change the boundaries of the districts involved; that the secretary of the board failed to submit maps showing the districts involved or to report the financial and educational conditions of the districts involved and the probable effect of the proposed change, and that such agency made no determination as to the funds and indebtedness of the districts involved. The County Board of School Trustees filed an answer denying certain of the allegations of the complaint, and attaching certain exhibits as a part of the record of said hoard.

Six individual petitioners obtained an order from the circuit court for leave to intervene as defendants, and moved for dismissal of the complaint, which motion was allowed by the circuit court. On appeal, this court reversed the order and remanded the case to the circuit court. (7 Ill.App.2d 65.) We there held that Wauconda Township High School District No. 118 was entitled to have reviewed the decision of the County Board of School Trustees, which decision detached from its district a substantial part of its territory.

The case was reinstated in the circuit court and the intervening defendants answered the complaint, denying certain of the allegations thereof.

Chap. 122, Sec. 4B — 4, Ill. Rev. Stat., provides in part as follows:

“. . . The county hoard of school trustees shall hear evidence as to the school needs and conditions of the territory in the area within and adjacent thereto and as to the ability of the districts affected to meet the standards of recognition as prescribed by the Superintendent of Public Instruction, . . . .”

While it is true as contended by appellants that the findings and conclusions of an administrative agency on questions of fact shall be held to be prima facie true and correct, and that the court will not disturb the findings of fact made by an administrative agency unless manifestly against the weight of the evidence, it is also the established law in Illinois that the findings of said board must be based on facts established by evidence which is introduced as such, and such board cannot rely on its own information to support its findings. The applicable statute in this case specifically provides that the county board of school trustees shall hear evidence. In the case of Wallace v. Annunzio, 411 Ill. 172, the Supreme Court held that the findings of the administrative agency must be supported by substantial evidence, and that the court has power to review all questions of law and fact presented by the record. To the same effect are the cases of Beth Weber, Inc. v. Murphy, 389 Ill. 60, and Moriarty, Inc. v. Murphy, 387 Ill. 119.

In the case of Flick v. Gately, 328 Ill. App. 81, hearings were had before a zoning board. No witnesses testified nor was any evidence introduced. On page 88, the court said:

“The report of proceedings in the return discloses that not a single witness testified and that no evidence of any kind was introduced before the board at any of its sessions when this ease was being considered by it. While it is true that in the course of the general discussions at the various sessions of the board some of the adjoining property owners made statements that the operation of plaintiffs’ plant caused excessive noise and vibrations, no evidence as such was presented to said board. The rule is firmly established that findings of administrative boards must be based on facts established by evidence and ‘nothing can be treated as evidence which is not introduced as such.’ Chicago & E. I. Ry. Co. v. Commerce Commission ex rel. Hoopeston Grain & Coal Co., 341 Ill. 277.”

On page 89, the court further said:

“There were several documents included in the return as tending to support the findings and decision of the Board. These documents were not introduced in evidence at any of its purported hearings and had no place in the return.

“Counsel for the board assert that it was not even required to hear testimony.’ That would only be true if plaintiffs had admitted the violation with which they were charged. In the absence of such admission it was the duty of the board to require the submission of evidence at a formal and proper hearing sufficient to establish facts showing that plaintiffs were guilty of violating the zoning ordinance as charged.”

In the case of Strohl v. Macon Co. Zoning Board, 411 Ill. 559, a complaint for judicial review was filed in the circuit court of Macon County to review an order entered by the zoning board of that county. Although the complaint requested that the defendants be required to file a complete record of the proceedings under review, all that was filed was an answer, which merely admitted or denied various allegations of the complaint and prayed that judicial review be denied. No attempt was made to incorporate the record of proceedings required by statute, nor did there appear to have been any stipulation to a-shortened record. Instead of confining itself to a review of the record of the administrative proceedings, as the statute directs, the circuit court conducted a trial de novo, permitting appellees to introduce testimony and exhibits into evidence and to call members of the board as adverse witnesses to determine their motives for the administrative decision being reviewed. The decree of the circuit court appealed from was based upon the record made at the trial de novo and did not result from a review of the administrative record as contemplated by the Administrative Review Act. In reversing the circuit court, the Supreme Court said on pages 563, 564 and 565:

“The Administrative Review Act does not purport to give an independent remedy, or create any new cause of action, but merely provides a method of review, whereby challenged decisions of the administrative body may be subjected to a review. It provides for reviews of the decisions of the board on the record alone, as no new or additional evidence in support of, or in opposition to, any finding, order, determination, or decision of the administrative agency shall be heard by the court, and the findings and conclusions of the agency on questions of fact shall be held prima facie true and correct. (Krachock v. Department of Revenue, 403 Ill. 148.) Whether or not the Macon County Zoning Board of Appeals made findings and conclusions on questions of fact in the present case cannot be judicially determined, for no record of the administrative proceeding or of the decision to be reviewed was ever brought before the circuit court. The nearest the complaint comes in this regard is to state that appellees received notice that their petition for rezoning had been denied. Section 3.2 of the County Zoning Act (Ill. Rev. Stat. 1951, chap. 34, par. 152k.2,) requires that the Board of Appeals ‘keep minutes of its proceedings, showing the vote of each member upon every question, or if absent or failing to vote, indicating such fact, and shall also keep records of its examinations and other official actions. Every rule, regulation, every amendment or repeal thereof, and every order, requirement, decision or determination of the board shall immediately be filed in the office of the board and shall be a public record.’ If the mandate of this section has been complied with, some record of the' board’s actions and of its decision must exist and a judicial review of the final administrative decision must be predicated upon it. . . .

“Section 12 (1) (b) of the Administrative Review Act, (Ill. Rev. Stat. 1951, chap. 110, par. 275,) empowers the circuit court to make any order that it deems proper for the amendment, completion or filing of the record of proceedings of the administrative agency. Subparagraph (2) of the same section provides that ‘Technical errors in the proceedings before the administrative agency . . . shall not constitute grounds for the reversal of the administrative decision unless it appears to the trial court that such error or failure materially affected the rights of any party and resulted, in substantial injustice to him.’ If the board failed to keep a record of its proceedings as required, we consider their failure to be beyond the scope of a technical error and that it would work a substantial injustice on appellees if the continued delay in using their property as they choose can be attributed to such failure. If, on the other hand, appellants have merely omitted to file the record, appellees are equally at fault in failing to pursue their prayer that appellants produce it and, further, in not pleading the administrative decision sought to be reviewed. The decree of the circuit court of Macon county is therefore reversed and set aside and the cause is remanded to that court to determine if a record of administrative proceedings was kept. If it is determined that none was kept, it is directed that the decision of the Board of Appeals be reversed, . . . .”

Appellants admit that no transcript of testimony was taken at the hearing, and state that no reporter was on hand for the purpose of reporting verbatim any testimony presented to them, but they further state that testimony was heard and the substance of same was reported in the minutes of the meeting. While the order granting the petition to detach and annex recites that the board had heard evidence as to the school needs and conditions of the territory in the area within and adjacent thereto and as to the ability of the districts affected to meet the standards of recognition as prescribed by the Superintendent of Public Instruction, an examination of the record fails to disclose such evidence. As summarized, the minutes of the meeting of the County Board of School Trustees are replete with statements, requests, announcements, etc. as follows: “Mr. McConnell stated . . . ; Mr. Looze requested . . . ; Mr. Vaupel stated . . . ; Mr. Looze then stated . . . ; the hoard retired . . . ; the board announced . . . . The board then heard the petitioners give their reasons for desiring a change. Mr. Vaupel and Mr. Carlson gave their reasons . . . .” But, the evidence which is required by the statute is lacking. Nowhere in the record is there to be found any reference to the swearing of witnesses, the taking of testimony or the examination of a witness under oath. While appellants contend that testimony was taken at the hearing, and while the order of the county board states that consideration was given to the evidence of the persons present at the hearing, an examination of the record does not bear out their contentions. Statements of persons cannot be considered as evidence. “Matters as discussed at the previous and present meetings” cannot be considered as evidence. The record must control. Even the cases cited by appellants require that the findings have a substantial foundation in the evidence. How can this court determine whether the findings have a substantial foundation in the evidence unless the evidence appears in the record. The order and judgment of the circuit court is correct.

Judgment affirmed.

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


text:
    Sophia Niman, Plaintiff-Appellant, v. Pecatonica Livestock Exchange, Inc., Defendant-Appellee.
    Gen. No. 11,019.
    Second District.
    March 28, 1957.
    Released for publication April 15, 1957.

      Pedderson, Menzimer & Conde, of Rockford, for appellant.
    Alex J. Victor, of Rockford, for appellee.
   JUSTICE EOVALDI

delivered the opinion of the court.

This action was brought to recover damages for personal injuries sustained by plaintiff due to the alleged negligence of the defendant. The jury brought in a verdict for the defendant upon which the court entered the judgment from which this appeal is taken.

The plaintiff’s theory of the case is that the verdict is against the manifest weight of the evidence; that defendant was erroneously allowed by the court to deny acts of its lawful agents; and the court erred in refusing to give plaintiff’s instruction number nine to the jury.

The complaint charges that the

“defendant failed and neglected to maintain a cover over said cess pool of sufficient strength to support the weight of the crushed rock and the soil over the same, and the weight of persons who might step thereon, and that defendant negligently and carelessly allowed said cover to become decayed and in a state of disrepair so that it did not support the weight of the plaintiff, and that defendant failed to provide any fencing or other protection around said cess pool, and that the defendant failed to give any warning to the plaintiff or other persons of the presence of said cess pool underneath the ground, and that as a proximate and direct result of the defendant’s negligence as aforesaid, plaintiff fell into said cess pool and was injured as aforesaid.”

For a long time prior to November 11,1953, plaintiff had been employed as a cattle buyer by the Kosher Packing Company of Rockford, Illinois, which was owned by her and her family. The defendant corporation for a long time had been in the business of selling livestock and other items at auction and for that purpose had leased a sale barn and surrounding parking area, all located near Pecatonica, Illinois. The sale barn had, in addition to the auction ring, a combination office and lunch room on the south side of the barn. A door led from this room outdoors. There were parking areas to the north, south and west of the barn composed of dirt and crushed rock.

As part of plaintiff’s duties, she had attended the sales held each week at defendant’s sale barn, and on November 11, 1953 she attended the sale, and made numerous purchases of cattle. When she had completed her purchases, she went with her son, Norman, from the auction ring to the room containing the office and luncheonette in order to get her invoices. When she had completed this transaction with defendant’s employees, she started out the door, following her son who had come to take her home in his car, and they were on their way to his car in the parking area. Plaintiff turned to the west on a beaten path and walked two or three feet when she fell into a cesspool causing her injuries. John McDougal, vice-president of the defendant corporation, called a doctor and plaintiff was taken to the hospital.

An examination of the hole she fell into revealed that it was about twenty-four inches square. The sides were out of dirt, and the top was of boards about an inch or an inch and a quarter thick. One of the boards was rotted and had broken letting plaintiff fall into the hole. A pipe protruded into the hole about twenty-eight to thirty inches below the ground. The pipe went out of the sink and into the wall near the floor. The sink was directly in front of the hole and about two feet away.

In 1945 Albert Peterson built the sale barn for that purpose. He leased it to the defendant and defendant has been his first and only tenant. In 1947 Peterson was also secretary of the defendant corporation. Then, and during the time defendant has been in business, the kitchen has been part of the building. In 1947 Peterson installed the cesspool for the kitchen. He dug it about four feet by four feet and about three feet deep to the stone, and installed the pipe and the boards covering the hole. At that time John H. Dieken was president of the defendant, and still is.

Appellant argues that the tenant or occupant of leased premises and not the owner thereof is responsible for injuries resulting from the defective condition of the demised premises; that lack of actual knowledge of corporation officers of defective or dangerous conditions is no defense upon a suit by an invitee for injuries received on premises leased by the corporation; and that knowledge of an officer and director of a corporation is actual notice to the corporation itself.

Appellee contends that a lessor of land, who conceals or fails to disclose to his lessee any unnatural or artificial condition involving unreasonable risk of bodily harm to persons upon the land, is subject to liability for such harm caused thereby to persons on the land with the consent of the lessee; that a tenant must have actual or constructive notice of defective or dangerous conditions to be held liable in a suit by an invitee for injuries received on premises leased by the tenant; and that a corporation is not chargeable with knowledge or notice of facts learned by an officer while he is acting solely in his own private interest.

Five cases are relied on by appellant in support of her contention that lack of actual knowledge of corporation officers of defective or dangerous conditions is no defense upon a suit by an invitee for injuries received on premises leased by the corporation. In three of the cases — Blue v. St. Clair Country Club, 7 Ill.2d 359, Storment v. Swift & Co., 5 Ill.App.2d 417, and Thomas v. Vannucci, 185 Ill. App. 414 — the tenant had actual knowledge of the defects complained of. In the fourth case, Swanson v. S. S. Kresge Co., 302 Ill. App. 455, the court stated at 466 “In our judgment the proof as to the defective condition of the step at the time of the accident to plaintiff showed a condition of disrepair that would warrant a jury in finding, especially in the absence of any proof by defendant, that the defective condition had existed for a space of time sufficient to charge defendant with constructive notice of it. In other words, plaintiff’s evidence was sufficient to make out a prima facie case.” In the other case cited by appellant, Reichmann v. Robertson’s, Inc., 264 Ill. App. 537, it was clear that the injury to plaintiff was due to the negligence of defendant in allowing a ladder or stairway to be in an unsafe and unattached condition at the time plaintiff attempted to use it in coming down from a loft to which defendant’s salesman had taken him to show him feed to be used at his farm. This was the first time the customer had used the ladder or stairway.

In the instant case plaintiff testified that she had been on the premises on a number of occasions prior to the date of the accident. On that day she walked out the south door, looking ahead of her and saw nothing in the nature of a hole or obstruction. The ground on which she walked suddenly gave way. Her son testified to the same effect; that it was daylight; that he walked out ahead of her, and observed the ground as he walked along, and that he saw a beaten, dirt path, no indication of any hole; and that he went across approximately the same place his mother had, and that he had gone out there on a number of occasions for five or six years and he believed that he had walked the same path on a number of occasions before, and that his mother had been out there a number of times.

Albert Peterson, the landlord, testified for the plaintiff that he himself built the cesspool a number of years before the accident, and that the cesspool was dug and constructed by him as landlord and not as agent or officer of the defendant. He testified further that his wife was operating the lunch counter, that he carried out the dish water in a pail, and that he constructed the cesspool to drain off the dish water and thus relieve himself from carrying out the water. He further testified that he consulted with no one about the construction, and informed no one of its construction or existence, and that he didn’t tell anybody in the corporation at the time that he was building it.

John H. Dieken and John McDougal, two officers of the corporation who were actually engaged in the operation of the sale barn and premises surrounding the barn, testified that they did not know of the existence of the drainage pit or cesspool and that there was nothing to indicate that the ground over the cesspool was sinking or about to cave in, and that they never saw any lowering of the ground or any depression of any kind.

Plaintiff contends that knowledge of an officer and director of a corporation is actual notice to the corporation itself. This is the rule where an officer or director receives notice while acting in the course of his employment and within the scope of his authority. However, the evidence here is not sufficient to bring this case under that rule of law. The law is well settled that a corporation is not chargeable with knowledge or notice of facts learned by an officer while he is acting solely in his own private interest. Allmon v. Salem Building Ass’n, 275 Ill. 336 at page 344; Home Savings and State Bank v. Peoria Agricultural and Trotting Society, 206 Ill. 9 at pages 13, 14.

Appellant in her post-trial motion charges that the court erred in refusing plaintiff’s instruction number nine, which reads as follows: “The court instructs the jury that knowledge of any officer of a corporation is binding on the corporation.” This instruction was in the abstract and did not contain a correct proposition of law as applicable to this case and the court did not err in its refusal.

In the case of Elbers v. Standard Oil Co., 331 Ill. App. 207, the court stated at page 226:

“A lessor of land, who conceals or fails to disclose to his lessee any unnatural or artificial condition involving unreasonable risk of bodily harm to persons upon the land, is subject to liability for such harm caused thereby to the lessee and others on the land with the consent of the lessee or a sublessee after the lessee has taken possession, if (a) the lessee does not know of the condition or the risk involved therein, and (b) the lessor knows of the condition and realizes the risk involved therein and has reason to believe that the lessee will not discover the condition or realize the risk. Restatement of the Law of Torts, vol. 2, sec. 358.”

The fact of the existence of the cesspool was not known by the defendant, and until the cesspool caved in, there was no evidence of any kind to indicate that it was in a defective condition. The landlord built the cesspool and failed to notify the defendant, but seeks, by his testimony on behalf of the plaintiff, to shoulder his responsibility elsewhere. On cross examination he stated that he had never had any trouble with running water coming out of the sink; it never backed up; drinking water was all that went into the cesspool; he never had to make any repairs; he saw no indication that it was going to collapse. “Just dug the hole and I put four posts in each corner, and then I laid a plank in on the sides and inside the posts and covered- it with a plank. . . . Then I covered it with dirt on top, it was all covered up. There was five or six inches of dirt and gravel on top; mostly gravel. We had covered the whole driveway with gravel. I guess it had worked over there, crushed rock. Looking at the parking lot, you couldn’t tell where the cess pool was. Unless someone knew, you wouldn’t know it was in. There was no way of telling unless you actually knew it was there.”

It is not the province of this court to substitute its judgment for that of the jury, or to upset the verdict even if it were to reach a contrary conclusion, for that would be invading the constitutional prerogative of the jury. Bliss v. Knapp, 331 Ill. App. 45, 50. To be against the “manifest weight of the evidence” requires that an opposite conclusion be clearly evident. Olin Industries, Inc. v. Wuellner, 1 Ill.App.2d 267, 271; Schneiderman v. Interstate Transit Lines, Inc., 331 Ill. App. 143, 147. We cannot say that the judgment is against the manifest weight of the evidence in this case. For the reasons stated, the judgment is affirmed.

Judgment affirmed.

DOVE, P. J. and CEOW, J., concur.