author: JUDGE CULBERTSON

text:
    Guy Coffey, and Rebecca Coffey, Plaintiffs, v. ABC Liquor Stores, Inc., John Oglesby et al., Defendants. ABC Liquor Stores, Inc., John Oglesby, and Marie Wolfinbarger, Third Party Plaintiffs-Appellants, v. Troy Calvert, Jr., Third Party Defendant-Appellee.
    Term No. 57-F-9.
    Fourth District.
    May 15, 1957.
    Released for publication June 4, 1957.

      Frank G. Schubert, of Springfield, and DeWitt Twente, of Harrisburg, for third-party plaintiffs-appellants.
    Charles J. Smith, and Graham, Califf & Harper, all of Moline (David A. Warford, of Marion, of counsel) for third-party appellee.
   JUDGE CULBERTSON

delivered the opinion of the court.

This action arises from an original complaint filed hy plaintiffs, Gny Coffey and Rebecca Coffey, against ABC Liquor Stores, Inc., a corporation, John Oglesby, Marie Wolfinbarger and William Jr. Hatchett, four defendant tavern operators, under the provisions of the Illinois Dramshop Act. The complaint is in two counts, one on behalf of Guy Coffey, and the other on behalf of his wife, Rebecca. The complaint alleges that the defendants sold or gave alcoholic liquors which in whole or in part caused intoxication of Troy Calvert, Jr., and that while in that condition he assaulted and beat Guy Coffey and injured him. The action of Guy Coffey is for personal injuries, and that of his wife seeks damages for injury to her means of support.

This case took an unusual turn when within the time for filing their answer, three of the defendants, ABC Liquor Stores, Inc., a corporation, John Oglesby, and Marie Wolfinbarger, brought Troy Calvert, Jr., in as a third-party defendant, by filing a third-party complaint against him. In this complaint they allege that if they are held liable to the plaintiffs that it would be only for damages caused by the tortious action of Calvert, and that they themselves were not guilty of any wrongful conduct; and since their liability is entirely statutory, they would have a right to recover against Calvert by way of indemnification.

Calvert filed a motion to dismiss or strike the third-party complaint and this motion was granted by the Trial Court on the grounds that the third-party complaint failed to state a cause of action for indemnification or contribution against Calvert, and that the inclusion of a third-party complaint in’ the proceeding would have been an imposition on the plaintiffs in the original Dramshop action. The third-party plaintiffs stood by their complaint and the Court entered judgment against such plaintiffs and in favor of the third-party defendant as to such complaint.

On appeal in this Court the third-party plaintiffs contend that the complaint states a cause of action showing that they would have a right to indemnification against Calvert in the event they are held liable, and that the rule which in some situations bars a right of indemnification as between tort-feasors does not apply in this case because the complaint against the tavern operators is not based upon their being tortfeasors, but is purely statutory, without any reference to wrong doing or tortious conduct; and secondly, that the damages would have been caused by the active misconduct of Calvert rather than the tavern operators and that, therefore, under the Illinois law they should have a right to recover against this individual for damages.

Under the Illinois Civil Practice Act, within the time for filing an answer, a defendant may, without leave of Court, file a third-party complaint against one who is liable to such parties by reason of the institution of the original action (1955 Ulinois Revised Statutes, Illinois Civil Practice Act, Chapter 110, Section 25, Paragraph 2), and if the Court feels that the consolidation of a third-party action with the original action may inconvenience the original plaintiff or prejudice his rights, the Court may order severance of the actions for trial (Illinois Civil Practice Act, supra).

Our concern at this time is whether this third-party procedure as undertaken is justifiable in an action instituted under the provisions of the Dram-shop Act referred to. Regulation of intoxicating liquors and the liability imposed upon a tavern operator under the provisions of this Act for damages are sustained on the ground that the regulations are established for the purpose of protecting the health, morals, and safety of the people; that the tavern operators do not have an inherent right to sell intoxicating liquors and that the liability under the Dramshop Act is penal in nature. It has also been determined that selling or giving of intoxicating liqnor which causes or contributes in whole or in part to intoxication of a person who causes injury while so intoxicated is a tort (Buckworth v. Crawford, 24 Ill. App. 603).

While the liability imposed upon liquor sellers by the Dramshop Act is purely of statutory origin, it is nonetheless a liability which the liquor dealers agree to accept and be bound by upon entering the liquor business. In all the cases which were directed to our attention on appeal, permitting indemnification as against a tortious third party as an exception to the joint tort-feasor rule, the parties were all innocent parties who established the right of indemnification as against contractors, or servants, or others. It is difficult to reconcile the position of a tavern operator who is found guilty under the provisions of the Illinois Dramshop Act with the innocent party position established by such precedents, since by the terms of the Act the tavern operator must necessarily be a tort-feasor and so penalized by statute. As a consequence, since the Illinois Dramshop Act does not grant any rights of indemnity or subrogation or contribution and is penal in nature (Wanack v. Michels, 215 Ill. 87. 94-96), and since on principle, indemnity or contribution or subrogation is allowed only to innocent parties (Wanack v. Michels, supra; Geneva Const. Co. v. Martin Transfer & Storage Co., 4 Ill.2d 273, 282-283), we do not believe that it would be consistent with the general equitable principles which sanction the third-party action, nor consistent with the objectives of the Dramshop Act to allow the third-party procedure attempted in the case before us (Economy Auto Ins. Co. v. Brown, 334 Ill. App. 579, 586-589; People v. Metropolitan Casualty Ins. Co. of New York, 339 Ill. App. 514, 518-519). By the Dramshop Act the Legislature has expressed the public policy of our State. In our opinion the allowance of the claim for indemnification sought herein would violate the policy so expressed.

We must, therefore, conclude that the action of the Circuit Court of Williamson County in allowing the motion to dismiss and in entering judgment against the third-party plaintiffs in favor of the third-party defendant was proper and should he affirmed.

Judgment affirmed.

SCHEINEMAN, P. J. and BARDENS, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    John Gratz, as Receiver and Supervisor of International Chemical Workers Union, Local No. 21, A. F. of L., Plaintiff-Appellee, v. Chester Cozart, Defendant-Appellant.
    Term No. 57-F-10.
    Fourth District.
    May 15, 1957.
    Released for publication June 4, 1957.

      Robert B. Rutledge, of Bast St. Louis, for defendant-appellant.
    Stanley R. Schuchat, and Floyd D. Stewart, both of St. Louis, Missouri, and Robert F. Godfrey, of East St. Louis, for plaintiff-appellee.
   JUDGE CULBERTSON

delivered tbe opinion of tbe court.

This is an appeal from tbe judgment of tbe City Court of tbe City of East St. Louis, Illinois, in favor of John Gratz, as Receiver and Supervisor of International Chemical Workers Union, Local No. 21, A. F. of L., plaintiff, and against Chester Cozart, as defendant. Tbe action was originally instituted in tbe Justice-of-tbe-Peace Court to recover union dues in tbe sum of $2 per month for a period of four months.

Tbe action was instituted by tbe plaintiff on tbe theory that under tbe constitution of tbe International Chemical Workers Union, to which tbe defendant bound himself, tbe action of tbe president of tbe union taken pursuant to tbe constitution, appointing plaintiff as receiver and supervisor, entitled plaintiff to possession and control of tbe assets of tbe local union, and that since tbe plaintiff was entitled to possession and control of tbe assets of tbe local union, be was tbe proper party to maintain suit for recovery. Defendant contends in tbis Court that tbe suit should have been dismissed for tbe reason that plaintiff did not have tbe legal capacity to sue and that tbe suit should have been required to have been brought in all the names, however numerous, of the union.

The constitution of a voluntary unincorporated association of the type of the union before us, constitutes a contract between the members and the association, and governs their mutual rights and liabilities (Talton v. Behncke, 199 F.2d 471), and under the constitution and by-laws of the union, plaintiff had a contractual right to control and possession of the assets of the local union (State of North Dakota v. North Central Ass’n of Colleges and Secondary Schools, 23 F. Supp. 694, aff’d 99 F.2d 697). The constitution of the particular union to which defendant belonged affirms the right in the international president to appoint a receiver and supervisor of a local union. By that appointment plaintiff acquired a contractual right to possession and control of the assets of the local union. One of those assets was the right to recovery of debts owing the local union by defendant and others.

We distinguish the case before us from the situation which existed in O’Connell v. Lamb, 63 Ill. App. 652, where it was contended that the constitution of an organization empowered the plaintiffs to bring suit. That is an unenforcible provision, and the Court so held. The constitution of an unincorporated association, however, can validly determine the right to possession of assets as between the parties, and under the law of this State a person so entitled to possession of assets can take action to enforce his legal right by resorting to the Courts.

Since under the terms and provisions of the constitution of the union and the action of the international president taken pursuant thereto, the right to possession of the debt owing from defendant to the local union lay solely in the plaintiff, as receiver and supervisor of the local union, the action of the plaintiff was proper and he was a proper party to maintain suit for recovery of the debt.

The judgment of the City Court of the City of Bast St. Louis will, therefore, be affirmed.

Judgment affirmed.

SCHEINEMAN, P. J. and BARDENS, J., concur.


text:
    Louis Jilek, Plaintiff-Appellee, v. Missouri Pacific Railroad Company, Defendant-Appellant, and Illinois Central Railroad Company, Defendant.
    Term No. 57-F-3.
    Fourth District.
    May 15, 1957.

      Hickman & Hickman, of Benton, Walker & Williams, and David B. Stntsman, all of East St. Louis (T. T. Railey, of St. Louis, Missouri, of counsel) for Missouri Pacific Railroad Company, defendant-appellant.
    Moses Pulverman, and Roy C. Martin, both of Benton (Herbert J. Deany, and Joseph H. Wright, both of Chicago, of counsel) for Illinois Central Railroad Company, defendant-appellee.
    William G. Eovaldi, and Elmer Jenkins, both of Benton, for Louis Jilek, as plaintiff-appellee and plaintiff-appellant.
   JUDGE CULBERTSON

delivered the opinion of the court.

This action involves a proceeding against two defendants, Missouri Pacific Railroad Company, and Hlinois Central Railroad Company. The appeals in each case are taken separately and shall be treated separately in the course of this opinion. In one case the plaintiff Louis Jilek, is appealing from the order of the Circuit Court of Franklin county denying his motion for new trial which raised the point that the Trial Court erred in refusing to permit Mm to amend Ms pleadings to conform to the proof, and in directing a verdict in favor of Illinois Central Railroad Company. In the other case the defendant, Missouri Pacific Railroad Company, is appealing from a judgment in the sum of $10,000, based on a verdict of a jury in favor of plaintiff, Louis Jilek, as against defendant, Missouri Pacific Railroad Company. The Missouri Pacific Railroad Company filed a motion for judgment notwithstanding verdict, and contends on appeal that the Court should have allowed such motion, so that the only issue before us in the Missouri Pacific case is whether plaintiff has made out a case which was properly submissible to the jury.

The facts in the case show that on April 23, 1953 plaintiff, Louis Jilek, was employed as a load rider at a coal mine near Waltonville, Illinois. His duties required him to get on the coal cars after they were loaded under the tipple and to ride and control the coal cars down the slope across the scales at such a slow rate of speed that the cars could be weighed, and after crossing the scales to leave the cars, where they were then to be attended by another employee. On the day in question plaintiff got on a Missouri Pacific coal car after it had been loaded under the tipple, and proceeded to let the car roll down the incline. An Hlinois Central coal car was stalled down on the slope at a point either on or just past the switching point. There was some evidence to the effect that the brake of the Illinois Central coal car was dragging. This evidence came out on the trial and apparently was not known to plaintiff prior to the time of the trial.

The position of the Hlinois Central car was noted by the plaintiff as he proceeded to let the Missouri Pacific car roll down the incline, and he testified that he assumed that the Missouri Pacific coal car on which he was riding would respond to the brake control wheel which he manipulated, but that the brake control wheel failed to slow or stop the car, so that it collided with the stalled Illinois Central coal car at the switch point. Plaintiff was crushed between the two cars and received severe abdominal injuries.

Action for damages and personal injuries was instituted against both defendants, alleging against both that it was their duty to deliver to the consignee coal company cars in reasonably safe condition; that they failed to make a reasonable inspection of the coal cars before turning them over to the coal company; that they assigned the Missouri Pacific coal car which was equipped with defective brakes and that because of the bad brakes on this car, it failed to stop or slow down when plaintiff applied or manipulated the hand brake in the usual and normal manner, as the result of which he was injured. The railroad companies deny the allegations of the complaint, and Illinois Central Railroad specifically denied that the Illinois Central Railroad was under any duty to inspect the Missouri Pacific car.

With reference to the Illinois Central proceeding alone, at the close of plaintiff’s case a motion was made by plaintiff to conform the pleadings to the evidence by alleging, in substance, that Illinois Central delivered a car with bad brakes, followed with the usual allegations relating such defective condition to the injury. It is also contended by the plaintiff in this Court that Illinois Central was responsible for the condition of the Missouri Pacific car since it moved such car a short distance, even though the car was delivered by Missouri Pacific railroad to the general yard to be loaded. There were no patent defects shown to exist in the brakes of the Missouri Pacific car, under the evidence, and since the Missouri Pacific car was simply moved by the Illinois Central from the joint yard to the mine to be loaded with coal for shipment by the Missouri Pacific, we find no support for the contention that Illinois Central should be charged with responsibility for the condition of the Missouri Pacific car.

The only defect on the Illinois Central car which had been alleged in the complaint was the maintenance of defective couplers. The plaintiff’s contention was that he should have been permitted at the close of the evidence to file an amendment charging defective brakes of the Illinois Central car. This would have raised the question as to whether or not the Illinois Central car which was stalled on the switch, could have been the proximate cause of the accident. The plaintiff testified that he knew the Illinois Central car was stalled on the switch when he got on the Missouri Pacific car some 300 feet away, and that he intended to bump the Illinois Central car off the switch. The courts of this state have held that if the negligence does nothing more than furnish a condition by which the injury is made possible and that condition causes an injury by the subsequent act of a third person, the two are not concurrent, and the existence of the condition is not the proximate cause of the injury (Seith v. Commonwealth Elec. Co., 241 Ill. 252, 259-260; Merlo v. Public Service Co., 381 Ill. 300, 317). The court below in denying the request of plaintiff to amend apparently had this consideration in mind, and since a motion for leave to amend the pleadings is addressed to the sound discretion of the court, a judgment will not be reversed for refusal to allow such amendment unless there has been an abuse of discretion (Brockob Const. Co. v. Trust Co. of Chicago, 6 Ill.App.2d 565, 570; Martin v. Kozjak, 5 Ill.App.2d 390,393).

While we support the principle that in all cases and at any time before final judgment in a civil action amendments should be allowed on such terms as are just and reasonable, changing the cause of action or adding new causes of action, and there should be the greatest liberality in allowing such amendments, we feel that the action of the court in the instant case in view of the evidence showing that the alleged negligent omission could not have been the proximate cause of the injury was proper and should not be reversed.

There is no evidence in the case which would justify a verdict against Illinois Central Railroad, and the allowance of the motion for directed verdict and entry of judgment in favor of Illinois Central was proper and will be affirmed.

As to Missouri Pacific Railroad Company, it is contended on appeal in this court by the railroad company, rather vigorously, that there was no showing that Missouri Pacific Railroad Company was guilty of negligence and that the evidence did not clearly establish that the brake on the Missouri Pacific car was defective. It was also contended that plaintiff was guilty of contributory negligence at the time of the collision and was, therefore, not entitled to recover as a matter of law.

Questions of a defendant’s negligence and of a plaintiff’s contributory negligence are ordinarily questions of fact to be decided by the jury if there is any evidence to support a finding of negligence and a finding of freedom from contributory negligence. (Blue v. St. Clair Country Club, 7 Ill.2d 359). In the case before us it is obvious that Missouri Pacific Railroad had a duty to use ordinary care to inspect its railroad cars to see that the cars were reasonably safe before delivering them to the consignee (Waldron v. Director General of Railroads, 266 Fed. 196). If the jury believed the testimony of plaintiff alone concerning the failure of a hand brake to stop or slow the Missouri Pacific coal car as he was going down the incline, then sufficient evidence was presented to justify the submission of the case to the jury (Welch v. N. Y., Chicago & St. Louis Ry. Co., 5 Ill.App.2d 568). The question of whether or not the plaintiff was guilty of contributory negligence was, under the facts in this case, peculiarly one for the jury. Plaintiff testified that he looked at the Illinois Central car as he started down the incline on the Missouri Pacific car and did not thereafter look at the Illinois Central car, hut attempted to apply the brake on the Missouri Pacific car and thought that the brake was slowing down or stopping this car and that he remained in a position between the cars rather than moving to the side or another position which would be normally a safer position. We cannot say, as a matter of law, under the circumstances that this constitutes contributory negligence. . Since his duties required that he make effort to reduce the speed of the coal cars in the process of running them across the scales to be weighed, and since he normally would expect the cars to respond to the application of the brakes, the question of whether his conduct constituted contributory negligence became peculiarly one for the jury to determine.

Under the facts and circumstances in the case, therefore, we believe that the judgment of the Circuit Court of Franklin County against the Missouri Pacific Railroad Company was proper and should be affirmed.

Affirmed.

SCHEINEMAN, P. J. and BARDENS, J., concur.


text:
    Mayme Marchetti, Plaintiff-Appellee, v. Lumaghi Coal Company, Defendant-Appellant.
    Term No. 57-F-5.
    Fourth District.
    May 15, 1957.
    Released for publication June 4, 1957.

      Oehmke, Dunham & Boman, of East St. Louis, for defendant-appellant.
    R. H. Burroughs, and Joseph R. Bartylak, both of Collinsville, for plaintiff-appellee.
   JUDGE CULBERTSON

delivered the opinion of the court.

This is an appeal from a judgment of the Circuit Court of Madison county, in favor of Mayme Marchetti (hereinafter called plaintiff), as against the Lumaghi Coal Company, in the sum of $3,500, arising by reason of an action to recover damages caused to certain improved real estate by failure of defendant company to leave sufficient support under the plaintiff’s land and for damage caused by introducing large quantities of water into the mine shaft of defendant, thereby weakening the support under plaintiff’s land. There was evidence of damage to the premises of plaintiff and evidence of surface cracks on plaintiff’s premises.

The defendant contends on appeal that the verdict of the jury in favor of the plaintiff should now be set aside on the ground that the court erred in failing to grant a motion for directed verdict at the close of plaintiff’s evidence and at the close of all the evidence in the case, so that the sole issue before us on appeal is whether or not there was sufficient evidence presented as a matter of law under the pleadings which justified submission of this case to the jury for its determination. A motion for judgment notwithstanding the verdict and for new trial was made in this cause but no appeal is taken from the court’s refusal to grant a new trial.

It is well-established'that the owner of the surface land subject to coal or mineral rights granted has the right to subjacent support (Jilek v. Chicago W. & R. Coal Company, 382 Ill. 241, 251; Wilms v. Jess, 94 Ill. 464), and evidence of removal of any such support in the course of mining operations without other proof is prima facie evidence that subsidence or surface damage was caused thereby, and it is for the mine owner who is in control of underground workings and is in possession of facts to show the contrary, if he can, by proof of underground conditions (Standard Oil Co. v. Watts, et al., 17 F.2d 981).

In many such cases, necessarily, only circumstantial evidence becomes available to a plaintiff, but if such circumstances so group themselves as to establish a right to recovery, such evidence is satisfactory and acceptable (Fabian v. Traeger, 215 Ill. 220; Jacobs v. Ill. Nat. Bank & Trust Co., 345 Ill. App. 30).

We have also repeatedly pointed out that when there is any evidence, however slight, which tends to support or establish the issue in a case, a motion for directed verdict should not be allowed and the cause should be submitted to a jury (Bay Island Drainage and Levee Dist. No. 1 v. Nussbaum, 388 Ill. 131).

In the action before us there was evidence that the land owned by plaintiff was improved with a story and a half residence and tavern and dance hall building, partly two-story and partly one-story, and a small four-room house. The buildings were in a good state of repair prior to July 1,1954. After July 1,1954 a large crack appeared in the ground, entering plaintiff’s land one corner, running through the buildings and emerging on the far side of the buildings, continuing to the far side of plaintiff’s property where it abuts the township road. At the same time damage to foundations, floors, walls, and to plumbing was noted in the improvements on the land.

There was also evidence that similar cracks have appeared in other subsidence cases and that where water has been introduced on fire clay at the bottom of a coal mine with sinking of the- stratum, cracks on the surface causing damage to buildings resting on the surface can result. There was evidence that while defendant had not removed coal from under the premises in question for many years, defendant had, over a period of years prior to the damage, introduced large quantities of water (about 200 gallons of water per minute for fourteen hours a day, for two hundred days a year) into the mining shaft of defendant less than a thousand feet from plaintiff’s premises.

While there was substantial -contradictory evidence, under the facts, it would have been error for the Trial Court to direct a verdict and its refusal to direct such verdict was proper. The court properly submitted the cause to a jury for its determination as to whether or not the surface damage was caused by sub-surface subsidence or action of the water placed in the shaft by defendant as indicated in this opinion. Since questions of fact were properly raised by the evidence and the cause was properly submitted to the jury, the judgment of the Circuit Court of Madison county will be affirmed.

Judgment affirmed.

SCHEINEMAN, P. J. and BARDENS, J., concur.


author: JUDGE ROETH

text:
    Marion Anderson, as Administrator of Estate of Myron Anderson, Deceased, Plaintiff-Appellee, v. Virgil Launer, Defendant-Appellant.
    Gen. No. 10,101.
    Third District.
    May 20, 1957.
    Released for publication June 5, 1957.

      R. L. Nortliciitt, and F. W. Reither, both of Beards-town, for defendant-appellant.
    Edward J. Flynn, of Jacksonville, and Milton McClure, of Beardstown, for plaintiff-appellee.
   JUDGE ROETH

delivered the opinion of the court.

This is an action brought by the administrator of the estate of Myron Anderson against the defendant Virgil Launer growing out of an automobile accident. A jury found the defendant guilty. The assessed damages were thereafter reduced by stipulation and a judgment entered for the stipulated amount. This appeal is from that judgment.

The defendant was the owner of an automobile and plaintiff’s intestate was a guest in that automobile along with two young ladies, Sharon Spoon Ring and Rosemary Hamilton. As a result of the accident plaintiff’s intestate and Rosemary Hamilton lost their lives. At the time of the accident the defendant was 20 years; old, plaintiff’s intestate was 19, Sharon Spoon Ring was 15 and Rosemary Hamilton 14 years of age. This action was brought under the wrongful death statute for the death of Myron Anderson. The only witness to testify as to the facts of the accident was Sharon Spoon Ring. Defendant was called by plaintiff to testify under Sec. 60 [Ill. Rev. Stats. 1955, ch. 110, § 60] and stated that he had no recollection of the accident nor events just prior to it, and no testimony was given as to why he conld not remember, whether from injuries or other causes.

The testimony showed that the four young people started out for an evening in defendant’s car, between 7:00 and 8:00 P.M. The defendant and plaintiff’s intestate stopped at a tavern where they purchased 12 cans of beer and a pint of whiskey. They drove out of town to a country lane where they parked. Each of the girls drank two cans of beer and the boys drank the balance and each of them drank some whiskey. The evidence is conflicting as to the amount of beer consumed by the defendant but the indications were he drank anywhere from two to five cans. Prom there they proceeded to a tavern in Havana, Illinois where they consumed more beer. The defendant had no recollection of events that followed his entering the tavern. Sharon Spoon Ring testified that at about 11:30 P.M. which was one hour after they arrived at the tavern in Havana, she left the party and reclined in the back seat of the ear where she went to sleep. Her next recollection was when the car swerved just immediately preceding the accident. She testified that the car swerved to the left and that she raised up and defendant was driving, with Rosemary Hamilton seated at his right and with plaintiff’s intestate next to the Hamilton girl and against the right front door. She testified that defendant had consumed five cans of beer, drank some of the whiskey and had at least two bottles of beer in a tavern at Havana before she went to the car and in her opinion he was intoxicated the last time she saw him. She testified that she had no recollection of the events that occurred from the time she fell asleep in the back seat of the car until awakened by the swerving of the car immediately preceding the accident. A State Highway Patrolman arrived at the scene of the accident at 7:00 A.M. An ambulance arrived shortly thereafter. A wrist watch found at the scene was stopped at 2:05. The witness Ring estimated that she was in the car for 6 hours after the accident occurred.

The testimony showed that the highway upon which the accident occurred is U. S. Route 78 and ran in a general north-south direction and that the car in which the parties were travelling was headed in a southerly direction prior to the accident and that it came to rest over an embankment on the east side of the road facing in a northerly direction after the accident. Testimony of the patrolman and ambulance driver indicates that the car had left the hard road and ran along the shoulder on the right or west side of the road, swerved from the right to the left side or east side of the road, after travelling a distance of approximately 100 feet, proceeded down the left shoulder of the road for approximately another 100 feet where it plunged down the embankment, partially uprooted a tree, and came to rest on its right side; that the distance the car travelled from the point where it left the pavement on the west shoulder to the point where it came to rest was between 300 and 400 feet.

Defendant raises four questions on this appeal, (1) that the preponderance of the evidence did not prove that the defendant was driving the car in question (2) there was no evidence tending to prove that the defendant was guilty of any wilful and wanton misconduct or that plaintiff’s intestate was free from wilful and wanton misconduct (3) that plaintiff’s intestate was guilty of contributory wilful and wanton misconduct as a matter of law, and (4) the verdict was against the manifest weight of the evidence.

Considering the first question raised, it is to be noted that the defendant testified that he owned the car. The Supreme Court of this state has held that proof of ownership raises the presumption that the car was under the defendant’s control at the time of the accident and the burden of rebutting this inference then passes to the defendant. Robinson v. Workman, 9 Ill.2d 420, 137 N.E.2d 804. Kavale v. Morton Salt Co., 329 Ill. 445, 160 N. E. 752. In addition the witness Eing testified that when she raised up on the back seat the defendant was driving. In an effort to establish that the defendant was not driving the automobile at the time of the accident, defendant testified that he sustained no injuries to his chest or abdomen and witnesses testified that the steering wheel in the automobile was broken and bent and that Eosemary Hamilton died of a skull fracture and crushing chest injuries. On cross examination of the witness Eing the defendant also showed by a signed statement and by her testimony at the coroner’s inquest that the witness Eing had stated that she could not remember who was driving. The proof of ownership made out a prima facie case that the defendant was operating the car at the time of the accident. The weight to be accorded the testimony of the witness Eing was for the jury to determine. It cannot be seriously contended that under these circumstances the preponderance of the evidence did not prove that defendant was driving the car at the time of the accident.

Defendant urges that there was no proof of wilful and wanton misconduct. Direct testimony is lacking with respect to the conduct of the defendant and others while on the road immediately prior to the accident. There is ample proof that defendant had been drinking all evening. Physical facts, i.e., tracks on the shoulders, show that the car left the road, first on the west side and then on the east side before plunging over the embankment travelling for a considerable distance prior to hitting the tree. The distance that the defendant permitted the automobile to remain out of control was between 300 and 400 feet. The opinion of the police officer based upon the physical facts was that the car was travelling at a very rapid rate of speed.

What constitutes wilful and wanton conduct depends on the facts in each case and it cannot be categorically stated what conduct is, and what conduct is not, wilful and wanton. Wilful and wanton misconduct may consist of an entire absence of care for the life, person or property of others such as exhibits a conscious indifference to consequences or utter disregard of the consequences. This proposition of law is so well established that we deem a citation of authority unnecessary. The driving of a car by one who is under the influence of intoxicating liquor, knowing that he is responsible for the driving of a motor vehicle and knowing that such vehicle in the hands of one so influenced becomes a dangerous instrumentality to the public as well as his guest, responds to all of the foregoing elements. In addition, and without reference to the question of being under the influence of intoxicating liquor, it was held in Eobinson v. Workman, supra, that circumstantial proof, where that is the best available, that the car was being operated in an erratic manner, from one side of the road to the other without being under proper control was evidence of wilful and wanton misconduct. It therefore becomes apparent that we cannot hold that there was no evidence tending to prove the defendant guilty of wilful and wanton misconduct.

The contention that there is no evidence showing that plaintiff’s intestate was free from wilful and wanton misconduct is likewise without merit. Every presumption will be induged in, in favor of the human instinct of self preservation and avoidance of danger. Eobinson v. Workman, supra, and cases therein cited. This presumption, standing alone, prohibits this court from holding that there is no evidence showing plaintiff’s intestate to be free from wilful and wanton misconduct. Attention is also called to Myers v. Krajefska, 8 Ill.2d 322, a case in which positive, affirmative evidence as to what decedent did or did not do at the time of the actual occurrence and immediately prior thereto, was lacking.

Defendant further contends that if he was guilty of wilful and wanton misconduct in driving the car while under the influence of liquor, then plaintiff’s intestate was also guilty of the same misconduct in the same degree as a matter of law in that he participated in the drinking which brought about defendant’s condition and then, subjected himself to the peril by voluntarily riding in the automobile. This question so far as it relates to an action under the guest act does not appear to have been passed upon by the courts of review of this state. A similar factual situation was present in Myers v. Krajefska, supra, but the point does not appear to have been raised or passed upon. In 15 A.L.R.2d 1165 (1951) there is an exhaustive annotation covering the question above raised. This annotation is supplemented by the current A. L. R. Supplement Service. An examination of many of the cases cited in the annotation leads us to conclude that under the evidence in the instant case, whether or not plaintiff’s intestate was guilty of wilful and wanton misconduct in participating in the drinking and subjecting himself to the peril of riding with the defendant under the situation as here disclosed, was a jury question.

Finally it is urged that the verdict is against the manifest weight of the evidence. A court of review cannot hold the jury’s verdict to be against the manifest weight of the evidence unless an opposite conclusion is clearly evident. De Long v. Whitehead, 11 Ill.App.2d 330, 137 N.E.2d 276; Green v. Keenan, 10 Ill.App.2d 53, 134 N.E.2d 115; Griggas v. Clauson, 6 Ill.App.2d 412, 128 N.E.2d 363. In our opinion the verdict of the jury is not against the manifest weight of the evidence.

Accordingly the judgment of the Circuit Court of Cass county will be affirmed.

Affirmed.

REYNOLDS, P. J. and CARROLL, J., concur in this opinion.


text:
    Ernest W. Mammen, Plaintiff-Appellee, v. Lawrence Snodgrass, Defendant-Appellant.
    Gen. No. 10,114.
    Third District.
    May 20, 1957.
    Rehearing denied Jnne 18, 1957.
    Released for publication June 18, 1957.

      Chester Thomson, of Bloomington, for defendant-appellant.
    William J. Bach, of Bloomington, for plaintiff-appellee.
   JUDGE ROETH

delivered the opinion of the court.

Plaintiff sued defendant to recover a real estate broker’s commission. Upon a trial before the court without a jury, the court found the issues for the plaintiff and entered judgment for the sum of $636 and costs. From this judgment defendant appealed to this court.

There is not much dispute on the facts. On January 13, 1955 plaintiff and defendant entered into a written non-exclusive listing contract by the terms of which defendant listed his 80 acre farm with plaintiff and authorized its sale at $289 per acre or any other amount that the defendant agreed to accept. By the terms of the contract defendant agreed to pay a commission according to the rates recommended by the local Real Estate Board, for plaintiff’s services in procuring a purchaser. Subsequent to the date of the contract and about the latter part of January or first of February plaintiff talked with one Woolsey about the farm. He received an offer from Woolsey of $18,500 and a check for $100 as earnest money. At about the same time plaintiff took a prospect by the name of Howell out to the farm to view it. While there, Howell offered $20,000 for the farm which offer the defendant rejected. The record shows that on the occasion of the offer by Howell, plaintiff said to defendant “Well, I have got a check here for an offer of $18,500”, whereupon the defendant told him “Yon might as well give it back, I am not interested.” The plaintiff thereupon replied, “I didn’t suppose you were.” At no time was the name of Woolsey mentioned. While plaintiff says he showed the check for $100 to defendant he admits that the manner of its display was such that defendant could not observe the name of the maker thereof. Plaintiff obtained no further offer from Woolsey and did not communicate further with defendant about Woolsey.

Plaintiff thereafter continued to intermittently advertise the farm for sale in the local newspaper, a total of 14 times. The last ad appeared July 31, 1955. During this period of time plaintiff showed the farm to about 12 other prospects and mentioned it to others. Defendant continued to farm the land, put in a crop in the spring of 1955 and harvested it in the fall.

In September of 1955 plaintiff prepared for an extended trip to California and Washington. About the first of September he went to see Woolsey and told him he was going to Washington and would be gone for some time. He then returned the $100 check to Woolsey and told Woolsey that if he wanted the farm to deal directly with the defendant. Woolsey says he thereupon told plaintiff he was no longer interested. Plaintiff also called the defendant and told him that he was leaving for the west coast. Plaintiff returned from the west on November 20, 1955. The record is barren of any activity, any inquiry, or any communications by the plaintiff as to this farm after his return.

On November 25, 1955, Woolsey contracted with defendant for the purchase of the farm and all livestock and equipment on it, a package sale, for $26,000. The contract was signed in the office of Beulah Irvin, a lawyer in Bloomington. At the time of the signing of the contract Woolsey mentioned to defendant that he had previously spoken to plaintiff about the farm, which appears to be the first intimation that defendant had of any prior contact between Woolsey and plaintiff. Defendant tried to call plaintiff but could not reach him. The contract was completed and subsequently performed.

The law is well settled in this state that the fact that the seller consummates a sale, or that it is made upon different terms from those proposed to the broker, does not necessarily deprive the broker of compensation. If he is the efficient procuring cause of the transaction he is entitled to his commission.

But that a sale is finally brought about by the efforts of the principal with a person with whom the broker had previously negotiated without success, does not furnish a basis for commission, if it appears that the broker has for a long time ceased negotiation with the purchaser and abandoned all efforts to induce him to take the property. A time must necessarily arrive after a prospective purchaser has declined to purchase when the owner may treat the negotiation at an end and begin an entirely new and independent solicitation. Kaplan v. Birk, 349 Ill. App. 538, Ill N.E.2d 377, Weisjohn v. Bell, 316 Ill. App. 62, 43 N.E.2d 688, Rasar & Johnson v. Spurling, 176 Ill. App. 349, West End Dry Goods Store v. Maun, 133 Ill. App. 544, Watts v. Howard & Calkins, 51 Ill. App. 243, Carlson v. Nathan, 43 Ill. App. 364, Mears v. Stone, 44 Ill. App. 444 and Lipe v. Ludewick, 14 Ill. App. 372.

The facts as hereinbefore set out bring this case within the principles of law as announced in the foregoing cases. Had those principles been correctly applied to the conceded facts of the case by the trial court a judgment for the defendant would necessarily follow. The length of time following plaintiff’s attempt to negotiate between the two parties, his subsequent inactivity, his breaking off of negotiations with Woolsey upon the return of Woolsey’s earnest money and Woolsey’s announced lack of further interest, clearly show that plaintiff had abandoned his effort to induce Woolsey to purchase and that he was not the efficient procuring cause of the sale. Such being the case it is our opinion that this case should be reversed and remanded with instructions to enter a judgment for defendant.

Reversed and remanded with directions.

REYNOLDS, P. J. and CARROLL, J., concur in this opinion.


author: PRESIDING JUSTICE ROBSON

text:
    Lois M. Kahl, Administratrix of the Estate of Colin Kahl, Deceased, Appellant, v. Grand Trunk Western Railroad Company, Appellee.
    Gen. No. 47,056.
    First District, Second Division.
    May 21, 1957.
    Released for publication June 18, 1957.

      James A. Dooley, of Chicago, for plaintiff-appellant.
    Winston, Strawn, Smith & Patterson, of Chicago (Gerard E. Grashorn, and Edward J. Wendrow, of Chicago, of counsel) for defendant-appellee.
   PRESIDING JUSTICE ROBSON

delivered the opinion of the court.

This is an appeal from an order denying plaintiff’s request to restrain defendant from seeking injunctive relief against her in the State of Michigan. The question presented is whether or not the public policy of Illinois is such that the court should grant the relief requested.

The record reveals that plaintiff, Lois M. Kahl, a resident of Cass county, Michigan, as administratrix of her husband’s estate, brought an action in the Superior Court of Cook county under a Michigan statute allowing an action for wrongful death. The complaint alleges that the negligence of the defendant caused a collision between one of defendant’s trains and an automobile driven by the decedent, which resulted in the death of decedent. The collision occurred at a grade crossing in Cass county, Michigan, on February 16, 1955. The Illinois complaint was filed on February 16, 1956, and summons was served upon defendant on February 17, 1956. On March 6, 1956, defendant filed a bill in chancery in the Circuit Court of Cass county, Michigan, to enjoin the plaintiff from prosecuting her action in Illinois. On that date the Circuit Court of Cass county ordered plaintiff to show cause why a temporary injunction should not issue, and, pending a determination of that order, that she be restrained from further prosecuting the Illinois action.

The defendant obtained a number of extensions of its time to plead in the Illinois action. On July 15, 1956, it filed an answer setting forth the restraining order of March 6, 1956, entered in the Circuit Court of Cass county, Michigan. At oral argument both parties stipulated that since this appeal was filed the Michigan court had entered a permanent injunction against plaintiff, from which she has appealed.

Meanwhile, on July 5, 1956, plaintiff filed a motion in the Superior Court of Cook county requesting an order restraining defendant from further prosecuting its bill in the Michigan court. That motion was denied, and plaintiff filed an additional motion to amend the order of July 5, 1956, by adding the finding that the order was final and appealable, together with a supplemental complaint requesting an injunction against further prosecution of the Michigan action. After a hearing, the relief requested was denied, and the appropriate finding was entered, making possible an appeal to this court from the denial of the relief requested.

On these facts was the trial court required to enjoin defendant from maintaining its bill in the Michigan court?

Plaintiff is a citizen of Michigan and a resident of Cass county in that state. She was appointed administratrix of her husband’s estate by the Circuit Court of Cass county. The accident resulting in her husband’s death occurred at a grade crossing in Cass county. Plaintiff has been able to invoke the jurisdiction of the Superior Court of Cook county because defendant is a corporation which does business in Illinois. However, a Michigan statute (Sec. 27.641 M.S.A.) provides that where the line of a railroad traverses the county in which the plaintiff resides, suit against the railroad shall be brought in that county. In Pere Marquette Ry. Co. v. Slutz, 268 Mich. 388, 256 N. W. 458 (1934), the Supreme Court of Michigan upheld the authority of a Michigan court to enjoin a plaintiff in an Illinois action (defendant in the Michigan action) from maintaining the suit in Illinois under facts almost identical to those in the case at bar. There the court referred to the Michigan venue statute as follows (268 Mich. 390, 391):

“This statute required plaintiff in the action at law to bring suit in Van Burén county. The evident purpose of the statute is to keep the venue of actions against railroads close to the point where witnesses are available. It was the duty of defendant herein to comply with this statute, and the court was fully justified in restrainng him from prosecuting the action at law in a foreign jurisdiction.

“The decree, restraining defendant from prosecuting the action at law in the State of Hlinois, is affirmed, with costs to plaintiff.”

Historically, the courts of Illinois are reluctant to enjoin a party within their jurisdiction from maintaining an action in another state, except where it appears clearly that the maintenance of an action would result in fraud, gross wrong or oppression. Harris v. Pullman, 84 Ill. 20 (1876); Royal League v. Kavanagh, 233 Ill. 175 (1908); Illinois Life Ins. Co. v. Prentiss, 277 Ill. 383 (1917); Catherwood v. Hokan son, 201 Ill. App. 462 (1916); Brinkerhoff v. Huntley, 223 Ill. App. 580 (1921); Wabash Ry. Co. v. Lindsey, 269 Ill. App. 152 (1933). In Harris v. Pullman, supra, the court stated that where an action had already been commenced in another jurisdiction, it was inconsistent with interstate harmony that its prosecution should be controlled by the courts of another state, citing two early New Tork cases. (Mead v. Merritt, 2 Paige 402, and Bicknell v. Field & Southworth, 8 Paige 440.) This distinction between actions already commenced and those which might be commenced was ignored in Royal League v. Kavanagh, supra, and Illinois Life Ins. Co. v. Prentiss, supra, although neither case involved an action already commenced, and, in each, the requested injunction was denied. An injunction has also been denied in cases in which the action in a foreign jurisdiction had already been commenced. Catherwood v. Hokanson, supra; Brinkerhoff v. Huntley, supra; Wabash Ry. Co. v. Lindsey, supra. In those cases the court indicated the power to interpose in an action already commenced, by means of an injunction against one of the parties, existed in instances of fraud and gross oppression.

Injunctions have been issued by the courts of this State to prevent threatened divorce proceedings in other jurisdictions. Kahn v. Kahn, 325 Ill. App. 137 (1945); Russell v. Russell, 329 Ill. App. 580 (1946). In those cases the court sought to avoid the circumvention of the laws of Illinois. In Kleinschmidt v. Kleinschmidt, 343 Ill. App. 539 (1951), the plaintiff in an Illinois divorce action had filed that action six months after leaving her residence with the defendant in Florida, shortly before he filed a suit against her in that state. The court reversed an order enjoining the Illinois defendant from maintaining his action in Florida on the ground that these facts indicated no fraud or gross oppression. In summary, the Illinois courts have recognized their own power to enjoin parties within their jurisdiction from commencing or maintaining an action in another jurisdiction, but have been extremely reluctant to exercise this power.

Plaintiff in the instant case contends that the Michigan proceedings constitute a threat to the authority of an Illinois court to exercise jurisdiction at the instance of a nonresident plaintiff, and that, where the jurisdiction of an Illinois court is invoked prior to any proceeding elsewhere, public policy requires the court to prevent any encroachment on its authority by a court of another jurisdiction. The decisions of our courts, which indicate that fraud, gross wrong, or oppression are the only grounds upon which our courts will interfere in foreign litigation, militate strongly against the issuance of a retaliatory injunction for the sole purpose of preserving jurisdiction so tenuously attained as that in the instant case. The only thread linking Illinois to the issue, at all, is the fact that defendant is a corporation doing business in this State. Other than that the action involves a foreign occurrence, a foreign plaintiff, foreign witnesses, foreign law, and a defendant equally susceptible to the jurisdiction of a foreign tribunal. Under such circumstances, we can see no basis to view with alarm the action of the Michigan court.

The question now before this court does not require us to pass on the recognition to be afforded the Michigan decree, although there is some pertinent dicta on this point in Kleinschmidt v. Kleinschmidt, supra, which is as follows (p. 546):

“It is apparent that an injunction against the prosecution of an action in another State acts upon the parties rather than the court, and, therefore, the court in which the enjoined action is pending has the power to proceed with the litigation despite the injunction. (28 Am. Jur. 392; 128 A. L. R. 1469.) Nevertheless, that court will generally take cognizance of the judicial processes of another State, and recognize an injunction issued by the court of another State as a matter of comity. (43 C.J.S. 504; Allen v. Chicago Great W. R. Co., 239 Ill. App. 38.)”

In situations such as that presented by the instant case, the principle of comity is the one method of staving off a preposterous duel of injunctions between the courts of Michigan and Illinois which can only end in a compilation of contempt orders in each of the states involved. This would result in bringing the courts into ridicule, rather than aiding in the promotion of justice.

We do not consider cases involving jurisdictional disputes under the Federal Employer’s Liability Act relevant to the present action because the Act contains its own jurisdictional provision, and determinations thereunder are matters of Federal law, rather than comity between the states. See Miles v. Illinois Central R. Co., 315 U. S. 698 (1942).

We find no public policy in this State favoring the relief requested by the plaintiff. The order of the trial court is affirmed.

Order affirmed.

SCHWAETZ and McCOEMICK, JJ., concur.


text:
    Edward V. Mulcrone, Appellee, v. Timothy J. O’Connor, Commissioner of Police of City of Chicago, William A. Lee, President of Civil Service Commission of City of Chicago, Albert L. Williams, and John J. Ahern, Members of Civil Service Commission of City of Chicago, and City of Chicago, a Municipal Corporation, Appellants.
    Gen. No. 47,005.
    First District, Second Division.
    May 21, 1957.
    Released for publication June 18, 1957.
    John C. Melaniphy, Corporation Counsel of City of Chicago, of Chicago (Sydney R. Drebin, and Robert J. Collins, Assistant Corporation Counsel, both of Chicago, of counsel) for defendants-appellants.
    Francis T. Delaney, of Chicago, for plaintiffappellee.
   PRESIDING JUSTICE ROBSON

delivered the opinion of the court.

Plaintiff, a police officer, filed his complaint in chancery seeking a writ of mandamus to compel the defendants to correct his official police record by reciting therein a certain act of bravery and a commendation he received therefor; to require defendants to show cause why he was not promoted to sergeant of police; to restrain defendants from removing a sergeants’ promotional list until his record was corrected, and until the Commissioner of Police, in the light of such corrected record, considered plaintiff’s record for a new efficiency marking; and, in addition, to restrain defendants from making further promotions to the rank of sergeant until he had been promoted to a sergeant.

The cause was referred to a master in chancery for hearing. His report recommended that the writ of mandamus issue but that the injunctive relief be denied. The trial court entered a decree affirming the master’s report and ordered the mandamus to issue directing the Commissioner of Police to correct plaintiff’s record so that it would reflect the act of bravery performed by plaintiff; that the Commissioner recompute the efficiency mark of plaintiff in the light of such corrected record, and that he submit such new efficiency mark to the Civil Service Commission within ten days; that the Civil Service Commission, on the basis of such new mark, correct the numerical score received by plaintiff on the basis thereof and submit the same to the trial court.

Defendants appeal from this order. They concede that plaintiff is entitled to have his personal record show his act of bravery and commendation therefor. They contend, however, that to require the Commissioner of Police to correct his efficiency record to reflect the showing of this award and change plaintiff’s position on the sergeants’ promotional list comes too late. Plaintiff argues that the failure of the Commissioner to consider his commendation for bravery in the efficiency marking amounted to arbitrary discrimination and prevented him from being promoted to a sergeant.

The essential part of the record for the purpose of our decision reveals that plaintiff, who was assigned to the records section of the Police Department, performed an act of bravery on November 4, 1946. On March 30, 1948, plaintiff’s name was placed on the merit roll for the year 1946. On April 26,1948, he made application to take the examination for promotion to sergeant. On September 11, 1948, he took the written examination for promotion. At the time plaintiff’s efficiency mark for promotion was computed by the Commissioner of Police, plaintiff’s official personnel record did not and does not now reflect the commendation for bravery. Pour thousand men took the examination; 3,333 passed. On September 30, 1948, pursuant to the merit roll filed March 30,1948, the Civil Service Commission recommended plaintiff, along with others, to the Mayor for an award of commendation for his act of bravery. On October 5, 1948, an award of honorable mention was officially made to plaintiff. At the same time similar awards were made to other members of the Department. On April 23, 1952, the eligible list for promotion to sergeant was posted. Records of two other officers were introduced in evidence for the purpose of showing that their citations and awards were reflected thereon.

The record further discloses that sometime after the examination, but prior to the posting of the promotional list, plaintiff checked his record and saw that it failed to show his award for bravery. He told his commanding officer about it and also called it to the attention of an aide of the Commissioner of Police.

The Commission has statutory authority to provide by its rules for promotion on the basis of ascertained merit, seniority in service and examination. (Ill. Rev. Stat. 1955, chap. 24%, par. 47, sec. 9.) Section 7 of Rule III of the Civil Service Rules of the City of Chicago provides: “The subjects of examination may include . . ., ascertained merit or efficiency, . . .” Section 1 of Rule Y provides that the Commission shall investigate and ascertain the merit or efficiency of persons submitting themselves to examinations.

The rules and regulations of the Civil Service Commission proyide a precise method for giving credits for aptitude test, duties, physical, seniority, and, if applicable, military credit in promotional examinations. The assessment of a man’s efficiency cannot be precise and in its very nature must be discretionary. To determine this the Commission must rely upon the Commissioner of Police. The Civil Service Commission provides the Commissioner with a list of all those who have taken the examination. The Commissioner returns the list to the Civil Service Commission with the efficiency markings noted thereon for each individual. The Commissioner in preparing the report relies upon information received from the applicant’s commanding officer and the records of the Department. In the instant case, the Commissioner in determining the efficiency rating of plaintiff should have had an opportunity to take into consideration plaintiff’s act of bravery, which the record discloses was recognized by the Department when the merit roll was filed on March 30, 1948, five months prior to the written examination.

However, in the posting of a civil service promotional list, technical or mechanical errors, such as improper mathematical computation of the written test, may be corrected, but as far as efficiency markings are concerned, Regulation Xn of the Civil Service Commission provides:

“The rating of the efficiency markings of any competitor in any promotional examination shall be in such manner as the Commission may determine with respect to snch examination, and upon the posting of a promotional eligible list based upon such examination the action of the Commission with reference to the efficiency markings for that examination shall be conclusive evidence of such determination.” (Emphasis added.)

In this case, plaintiff, who was employed in the Records Department, was well aware long before the promotional list was posted that his record did not reflect the act of bravery. He had ample opportunity to take such action as was necessary to have this corrected so that the Commissioner could consider it. He waited, however, more than two years after the promotional eligible list had been posted to file this action. There is no showing in the record nor charge, that through fraud, collusion or illegality, plaintiff was prevented from correcting this error before the posting of the list. Regulation XII of the Civil Service Commission is specific that upon the posting of a promotional eligible list the action of the Commission with reference to efficiency markings shall be final and conclusive. Further, the reasonableness of this regulation is apparent when it is realized what chaos could result if any substantial number of the 4,000 police officers who took the examination would, after the posting of the promotional list, question the Commissioner’s discretion in assessing their efficiency mark. Plaintiff waited until it was too late to file his complaint.

We conclude that the part of the decree of the trial court directing the Commissioner of Police to correct plaintiff’s record so that it would reflect the act of bravery he performed was proper, but that the trial court erred in directing the Commissioner of Police to submit a new efficiency mark to the Civil Service Commission and requiring the Civil Service Commission, on tlie basis of tbe new efficiency mark received from tbe Commissioner of Police, to correct the numerical score received by plaintiff.

Tbe decree of tbe trial court is affirmed in part and reversed in part witb directions to enter a decree consistent witb tbe findings herein made.

Decree affirmed in part and reversed in part witb directions.

SCHWARTZ and McCORMICK, JJ., concur.


author: JUDGE MoCORMICK

text:
    Chicago Land Clearance Commission, Petitioner Below, v. Ira H. Jones, et al., Defendants Below. Exchange National Bank, a National Banking Association, as Trustee Under Trust No. 3320, Defendant Below, Appellee. On Appeal of Henry A. Bjork, and Agnes M. Bjork, Defendants Below, Appellants.
    Gen. No. 47,044.
    First District, Second Division.
    May 21, 1957.
    Released for publication June 18, 1957.

      ¥m. Allen Nathenson, of Chicago (Kenneth W. Bellile, of Chicago, of counsel) for appellants.
    Robert L. Hnttner, and Martin S. Gordon, both of Chicago (Robert L. Hnttner, of counsel) for appellee.
   JUDGE MoCORMICK

delivered the opinion of the court.

Condemnation proceedings were instituted September 2,1955 by the Chicago Land Clearance Commission against certain property located at the southeast corner of 56th street and Blackstone avenue, Chicago, Illinois. Henry A. Bjork and Agnes M. Bjork (hereafter referred to as sellers), who had by assignment become contract sellers under certain articles of agreement for warranty deed, and the Exchange National Bank, as Trustee under Trust No. 3320 (hereafter referred to as purchaser), were, together with others, made defendants. A settlement was entered into by the purchaser and the Chicago Land Clearance Commission for a total award on the property of $148,000, which sum was deposited with the county treasurer of Cook County on February 29, 1956. The purchaser petitioned for a distribution of the award. The sellers filed an answer asserting a lien for $612.50 upon any monies to be awarded the purchaser and asked that they be paid such amount in addition to the $42,904.08 which was their undisputed share in the total award of $148,500. The court ordered a partial distribution to the various claimants, and directed that $1,000 should remain with the county treasurer until the dispute herein involved between the sellers and purchaser, arising out of the contract of purchase, had been resolved. The trial court subsequently on April 30, 1956 ordered the $1,000 held by the county treasurer be paid to the contract purchaser, and the sellers have brought this appeal from that order.

The sellers’ claim is for attorney’s fees, costs and expenses allegedly expended in enforcing certain provisions of the contract of purchase and is based upon the following provision of the contract:

“10. That the Beneficiaries of the Purchaser shall pay to the Sellers all costs and expenses, including attorney’s fees, incurred by the Sellers in any action or proceeding to which Sellers may be made a party by reason of being a party to this agreement, and that the Beneficiaries of the Purchaser will pay to the Sellers all costs and expenses, including attorney’s fees incurred by the Sellers in enforcing any of the covenants and provisions of this agreement aud incurred in any action brought by Sellers against the Purchaser or the Beneficiaries of the Purchaser on account of the provisions hereof, and all such costs, expenses and attorney’s fees may be included in and form a part of any judgment entered in any proceeding brought by the Sellers against the Purchaser or the Beneficiaries of the Purchaser on or under this agreement.”

The purchase contract contained certain specific provisions covering the purchaser’s duties and obligation with respect to maintaining insurance on the property in question. From the time the contract was entered into on February 18, 1953 until March of 1956 the purchaser was from time to time in default under the contract with respect to the provisions of insurance. The answer of the sellers set out that on December 14, 1953 they had retained William A. Nathenson, an attorney, and set out the services rendered by him in enforcing compliance with the terms of the contract and that for such services they had paid him the sum of $300 and still owed him $50. The answer also set out the additional services rendered by him in protecting their interests in the condemnation proceeding and in endeavoring to enforce payment of attorney’s fees therein, for which the attorney’s fees amounted to $262.50. They prayed for the sum of $612.50 as attorney’s fees.

It is the sellers’ contention that the above provision of the contract means that the beneficiaries of the purchaser will pay to the sellers attorney’s fees incurred by them in enforcing any of the covenants and provisions of this agreement whether by suit or not, as well as pay attorney’s fees incurred in any action brought by the sellers against the purchaser or the beneficiaries of the purchaser on account of the provisions in the contract. The sellers base their entire claim upon this interpretation of the contract and admit that unless the contract is so interpreted they are not entitled to any attorney’s fees. In other words, the additional attorney’s fees claimed in their answer for services rendered by their attorney in the instant action is ancillary to and stands or falls with the attorney’s fees first incurred before any action was commenced. The purchaser contends that the provision of the contract in question means that the beneficiaries were obligated to pay to the sellers all attorney’s fees incurred by them in enforcing any of the covenants and provisions of the agreement only when incurred in any action brought by the sellers against the purchaser or the beneficiaries of the purchaser on account of the provisions of the contract. The decision of the issue before us thus becomes an exercise in semantics.

In interpreting an integrated contract which purports, as this contract does, to be a complete expression of the whole agreement, it is necessary to determine the intention of the contracting parties, which intention ordinarily must be determined from the words of the contract. Decatur Lumber & Manufacturing Co. v. Crail, 350 Ill. 319. If the language used therein is not ambiguous, it must be given a construction which the words used imply. Martin Emerich Outfitting Co. v. Siegel, Cooper & Co., 237 Ill. 610. The language used must be given its common everyday meaning. John Gabel Mfg. Co. v. Murphy, 390 Ill. 455.

The sellers contend that in the disputed provision in the contract in question the word “or” should be substituted for “and,” so that the provisions would read that the beneficiaries of the purchaser will, pay to the sellers all costs and expenses, including attorney’s fees, incurred by the sellers in enforcing any of the covenants and provision of this agreement or (and) incurred in any action brought by the sellers against the purchasers on account of the provisions hereof. It is apparent from a reading of the contract that it is necessary to substitute “or” for “and” in order to give the provision the meaning sought by the sellers. As the provision stands, without the word “or,” giving the words their common ordinary meaning, it must he interpreted as meaning that in order for the sellers to charge the beneficiaries of the purchaser, the costs, expenses and attorney’s fees must not only be incurred by the sellers in enforcing any of the covenants and provisions of the agreement but also must be incurred in an action brought by the sellers against the purchaser on account of the provisions therein contained. The entire clause of the contract in question apparently contemplates litigation. The first provision, which is not at issue here, deals with the liability of the beneficiaries of the purchaser in an action to which the sellers are made a party by reason of the agreement. The second deals with the liability of the beneficiaries of the purchaser in case the sellers incur attorney’s fees enforcing covenants and provisions of the agreement in an action brought by the sellers against the purchaser or the beneficiaries of the purchaser. The last clause of the provision provides that “all such costs, expenses and attorney’s fees may be included in and form a part of any judgment entered in any proceeding brought by the Sellers against the Purchaser or the Beneficiaries of the Purchaser on or under this agreement.” Ordinarily the word “and” and the word “or” are not in any sense interchangeable terms. “And” is strictly of a conjunctive, “or” of a disjunctive nature. It is of course true that in order to effectuate the intention of the parties to a contract, where the intention is evident, the word “and” may be construed to mean “or.” This construction, however, is never resorted to except for strong reasons, and the words should never be so construed unless the context favors the substitution. 3 C.J.S. And p. 1068.

Reading the contract as it stands, the language is not ambiguous, nor does it lead to an absurd result. There is nothing in the context of the contract favoring the substitution of “or” for “and.” The courts cannot make a contract for the parties; nor can they change or modify the terms of the contract deliberately entered into by the parties even though by so doing they might improve it. A contract cannot be construed for the purpose of supplying an intention not otherwise shown. In Herlihy Mid-Continent Co. v. Sanitary District of Chicago, 390 Ill. 160, the court says:

“In construing a contract, the primary object is to ascertain the intention of the parties. (Decatur Lumber and Mfg. Co. v. Crail, 350 Ill. 319.) That intention must be determined from the language in the contract. If the intention may be ascertained from the wording of the contract, rules of construction have no application. (Domeyer v. O’Connell, 364 Ill. 467.) No words can be added to or taken from a contract and thereby change the plain meaning of the parties as expressed therein. (Stevens v. Felman, 338 Ill. 391.) Nor may the courts engage in surmises as to what the parties intended but which they failed to express.”

The sellers argue that under the contract, when there was a default by the purchaser with respect to the insurance provisions, they could have declared a forfeiture, and since the law abhors forfeitures the disputed provision before us should be construed so as to permit the allowance of attorney’s fees in enforcing the provisions of the contract. They argue that such a construction, since it would not require litigation in order to entitle them to attorney’s fees, would have a tendency to discourage both forfeiture and litigation. The argument is not persuasive. In order to reach such result it would require an alteration of the terms of the contract and it would also be necessary for the court to conclude that such was the intention of the parties, and such conclusion at the best would be highly conjectural. Nothing appears in the contract which wonld support such a conclusion.

The trial court properly construed this provision of the contract. The order of the Superior Court is affirmed.

Order affirmed.

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


text:
    Board of Education of Wellington Community Unit School Dist. No. 7 of Iroquois County, Illinois, et al., Plaintiffs-Appellants, v. County Board of School Trustees of Vermilion County, Illinois, an Administrative Agency, et al., Defendants-Appellees.
    Gen. No. 10,095.
    Third District.
    May 27, 1957.
    Released for publication June 12, 1957.

      Foreman, Meaclmm and Clapper of Danville, and Pallissard, Fleming and Oram, of Watseka, for appellants.
    Acton, Baldwin, Bookwalter & Meyer, John T. Allen, State’s Attorney of Vermilion county, and V. W. Mc-Intire, all of Danville (V. M. Acton and V. W. Mclntire, of Danville, of counsel), for appellees.
   JUDGE ROETH

delivered the opinion of the court.

As Modified on Denial of Petition foe Reheaeing.

On October 7, 1954, a petition was filed with the County Board of School Trustees of Vermilion County, Illinois, by persons residing in the Wellington Community Unit School District No. 7 of Iroquois County, Illinois, where it was requested that certain property therein described be detached from the Wellington School District and annexed to the East Lynn. School District.-

Thereafter, after complying with the necessary requirements as to publication and notice, a hearing was held on said petition before the Vermilion County Board of School Trustees. On December 15, 1954, the County Board of School Trustees of Vermilion County entered an order granting the petition and directing that the territory described in the petition be detached from the Wellington School District and annexed to the East Lynn- School District. This order of the defendant, County Board of School Trustees, was thereafter appealed to the Circuit Court of Vermilion county-pursuant to the provisions of the Administrative Review Act. On appeal, the order of the County Board of School Trustees was affirmed by the Circuit Court. This appeal is from the affirmance by the Circuit Court.

Essentially, the appellants here, being the Wellington Community Unit School District No. 7, and other objectors to the detachment and annexation, assert three grounds for reversal of the order of the Circuit Court. First, it is contended that the order entered by the County Board of School Trustees is erroneous and invalid for the reason that at the hearing the board refused to have the witnesses placed under oath prior to hearing their testimony, and secondly and related to the first point, it is the contention that the proceedings before the board could not result in a valid order for the reason that the board refused the appellants the right to cross-examination of the witnesses. Appellants, through their counsel, made timely objection to procedure adopted by the County Board of School Trustees and we think the questions presented were properly preserved for review. Finally, the order of the County Board of School Trustees contains no findings of fact or conclusions of law as a basis for the order and this is asserted as the third ground for error on this appeal.

At the time of the filing of the petition with the County Board of School Trustees of Vermilion County, the applicable section of the School Code (Article 4B — 2, Chap. 122, Ill. Rev. Stats. 1953) provided:

“New school districts lying within two or more counties may be created and the boundaries of existing school districts lying within two or more counties may be changed by detachment, annexation, division, dissolution or consolidation or any combination thereof bv the action of the county board of school trustees of the county in which the county superintendent of schools has supervision over the annexing district, or in which the county superintendent of schools will have supervision over the proposed new district or consolidated district, when petitioned by the boards of each district affected, or by a majority of the legal voters residing in each district affected, or by two-thirds of the legal voters residing in any territory proposed to be detached from one or more districts or in each of one or more districts proposed to be annexed to or consolidated with another district. If there are no legal voters residing within the territory proposed to be detached from one or more districts, then the petition may be signed by all of the owners of record of the real estate of the territory. The annexing district is that district to which territory is proposed to be added.”

Further, Article 4B in sub-section 3 thereof provides that no petition shall be granted unless certain conditions specified in the sub-section 3 shall have been met, or unless the annexation or detachment would not result in certain circumstances apparently deemed by the legislature to be harmful to a community unit district or high school district.

Sub-section 4 of Article 4B provides for the notice and procedure to be followed by the County Board of School Trustees, and “the hearing” on the petition for detachment or annexation. It is provided in this section that the petitioner shall pay the expenses of publishing notices and of any transcript taken at the hearing, and that prior to the hearing, the secretary shall submit to the County Board of School Trustees maps showing the school districts involved, the report of the financial and educational conditions of districts involved, and the probable effect of the proposed changes. Thereafter, the County Board of School Trustees is required to “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.” It is further provided that at “the hearing” any resident of the territory described in the petition, or any resident in any district affected by the proposed change of boundaries, may appear in support of the petition, or to object to the granting of the petition. At the conclusion of the hearing and within thirty (30) days, the County Board is required to enter an order either granting or denying the petition.

This order of the County Board of School Trustees is made subject to the provisions of the Administrative Review Act, and under the provisions of that act, any judicial review thereof would be based upon the record of the Administrative proceedings had before the County Board of School Trustees.

The procedure outlined in the statute was followed in this case insofar as the mechanical aspects thereof are concerned. Two vital elements, however, were missing from the “hearing” before the County Board of Trustees. The record on this case indicates that the County Board did not swear, or have sworn, any witnesses who appeared in support of or in opposition to the petition, and further that they refused the right of cross-examination of witnesses with a single exception.

We. view the question presented on this appeal to be narrowed down to one of determining whether or not, in arriving at a decision on a petition filed in accordance with Article 4B of the School Code, as it existed at the time this petition was filed, the County Board of School Trustees may act upon the petition following a course of procedure as hereinabove outlined.

It is fundamental that.the state may, with or without the consent of the inhabitants of a school district, and with or without notice or hearing, take the school facilities in the district without compensation and vest them in other districts or agencies. This is for the reason that a school district as snch owns no property. All school facilities, snch as grounds, buildings, equipment and so forth are in law and in fact the property of the state of Illinois, and subject to the legislative will. Pritchett v. County Board of School Trustees, 5 Ill.2d 356, 125 N.E.2d 476.

In passing upon petitions for annexation or detachment of a territory, the County Board of School Trustees can either allow or deny the petition before it, but cannot modify. The function of passing upon a petition is neither a delegation of legislative nor judicial power. School District No. 79 v. School Trustees, 4 Ill.2d 533, 123 N.E.2d 475. Since the legislature may, in its wisdom, change, alter or modify the boundaries of school districts, it is obvious that it can authorize the discharge of this administrative duty, by other agencies and prescribe for them general standards to be followed in the execution of the delegated function. It has previously been determined that the standards prescribed in Article 4B are sufficient to serve as an adequate guide for the administrative body. Community Unit School District v. County Board, 9 Ill.App.2d 116, 132 N.E.2d 584.

The County Board of School Trustees is an administrative agency. Pritchett v. County Board of School Trustees, 5 Ill.2d 356, 125 N.E.2d 476. As such it is an arm of the legislative branch of government. However, in authorizing the administrative agency to act, the legislature has set up certain standards, attached certain conditions and required determination of certain facts. To this end it has provided for a hearing and notice thereof, required the hearing of evidence, and provided for a review of the action taken. The proceedings therefore, before the County Board of School Trustees are quasi judicial in character. (Emphasis supplied.)

In prescribing such a procedure, we can only presume that the legislature intended to place the whole administrative machinery into the well defined, orderly proceeding commonly applicable to snch proceedings.

In Flick v. Lately, 328 Ill. App. 81, 65 N.E.2d 137, in commenting upon the hearing requirements before a zoning board of appeals, it was held:

“Inasmuch as no particular method of procedure for the conduct of hearings before the Board on appeal is provided for either in the Illinois Zoning Act (par. 73-1 to and including par. 73-10 Cities and Villages Act — ch. 24, Ill. Rev. Stat. 1943 (Jones Ill. Stats. Ann. 21.2122 et seq.)) or in the zoning ordinance of the City of Chicago, its hearings must be governed by established rules of procedure applicable generally to administrative tribunals. In 42 Am. Juris, under the heading ‘Public Administrative Law’, it is said in sec. 150, ‘The mere holding of a hearing does not justify administrative action required to be based on a hearing. The decision of the trier of the facts must be reached in accordance with the facts proved, and it must find adequate support in the evidence, formally introduced at the hearing, in all its essential elements.’ ”

In C. & E. I. Ry. Co. v. Commerce Commission, 341 Ill. 277, 173 N. E. 380, it was held that the making of findings (the determination of certain facts) by an administrative agency, necessitates the hearing of evidence with an opportunity to all parties to know of the evidence to be submitted or considered, to cross-examine witnesses, to inspect documents and to offer evidence in explanation or rebuttal.

It is axiomatic that the words of a statute will be construed in their ordinary sense and with the meaning commonly attributed to them unless such construction will defeat the manifest intention of the legislature.

In Braden v. Much, 403 Ill. 507, 87 N.E.2d 620, the court said:

“We have previously defined the words ‘public hearing’ before any tribunal or body, by the accepted definitions of lexicographers and courts, to mean the right to appear and give evidence and also the right to hear and examine the witnesses whose testimony is presented by opposing parties. (Farmers’ Elevator Co. v. Chicago, Rock Island and Pacific Railway Co., 266 Ill. 567, 573)”

In Jones v. Gregory, 48 Ill. App. 228, the Court held the term evidence included the statements of a witness under oath, documentary evidence and whatever might be otherwise inspected by the trier of facts. (Emphasis supplied.)

A careful review of the record in this case does not indicate that there was a “hearing” within the above definitions. On the contrary, there was only a meeting of the Board of School Trustees wherein a parade of proponents and opponents to the petition stated their wishes. These persons were not under oath. They were not subject to cross-examination that can be so helpful in ascertaining fact not mere opinion. The hearing here is a statutory hearing wherein the term “hearing” must mean orderly proceeding. The term “evidence” must refer to the commonly accepted definition of that word. The- procedure here is not in keeping with either.

The absence of statutory authority for the board, its members or officers, to administer oaths to witnesses, does not negate the possibility of having witnesses sworn. If the witnesses are not sworn, the reasons for cross-examination are more compelling.

Since the filing of the petition for detachment in this case, the statute under which these proceedings were instituted, has been changed by amendment by the legislature. The statute now requires the concurrent action of the County Board of School Trustees of both the annexing and detaching districts, where the territory, as in this case, lies within two counties. The statute as amended now requires the petition to be originally filed with the County Board of School Trustees of the detaching district with the hearing to be initially conducted by that board. The amendments concern procedural matters and in view of the changes made it would not be possible for this court to direct a rehearing on the petition as originally filed.

Accordingly the order of the Circuit Court of Vermilion county is reversed.

Reversed.

REYNOLDS, P. J. and CARROLL, J., concur.


author: JUDGE ROETH.

text:
    Dorothea Sager, Plaintiff-Appellant, v. Paul Steele et al., Defendants. Henry C. Husmann and William Thompson, Defendants-Appellees.
    Gen. No. 10,104.
    Third District.
    February 8, 1957.
    Released for publication June 7, 1957.
    R. W. Deffenbaugh, for appellant; Roy M. Rhodes, for appellees.
   Opinion by

JUDGE ROETH.

Not to be published in full.


author: JUDGE BARDENS.

text:
    Rollin Welch (Also Known as Charles R. Welch), Plaintiff, v. Clarence Laux, Defendant.
    Term No. 57-F-2.
    Fourth District.
    May 15, 1957.
    Released for publication June 4, 1957.
    Jesse R. Brown, for defendant; O’Neill & O’Neül, for plaintiff.
   Opinion by

JUDGE BARDENS.

Not to be published in full.


author: JUDGE CARROLL.

text:
    Merrel Elwin Edsall, Sr., and Roy Oliver Edsall, d/b/a Edsall Agency, Plaintiffs-Appellants, v. Chester A. Creek, and Mabel G. Creek, Defendants-Appellees.
    Gen. No. 10,099.
    Third District.
    May 20, 1957.
    Released for publication June 5, 1957.

      Arthur D. Young, for appellants; Scott and Sebo, for defendants-appellees.
   Opinion by

JUDGE CARROLL.

Not to be published in full.


text:
    Josephine Bova, Plaintiff-Appellant, v. Charles Keller, and Marguerite Keller, Defendants-Appellees.
    Gen. No. 10,118.
    Third District.
    May 20, 1957.
    Rehearing denied June 18, 1957.
    Released for publication June 18, 1957.
    Lindauer, Lindauer, Pessin & Nieman (Curt C. Lindauer, Jr., of counsel) for plaintiff-appellant; John S. Self, for defendantsappellees.
   Opinion by

JUDGE ROETH.

Not to be published in full.


author: JUDGE MoCORMICK.

text:
    Radcliffe O. Woolford, Appellee, v. Perfection Motors, Incorporated, Appellant.
    Gen. No. 47,053.
    First District, Second Division.
    May 21, 1957.
    Released for publication June 18, 1957.
    Carl L. Steiner, and Edward G. Bazelon (Axelrod, Goodman and Steiner, of counsel) for defendant-appellant; Fitzgerald, Petrueelli & Simon and P. J. Muldowney (Patrick J. Muldowney, of counsel) for appellee.
   Opinion by

JUDGE MoCORMICK.

Not to be published in full.


author: JUDGE SCHWARTZ.

text:
    George F. Conley Company, Appellee, v. Marvin Langhaus, Appellant
    Gen. No. 47,069.
    First District, Second Division.
    May 21, 1957.
    Released for publication June 18, 1957.
    James A. Geraghty (Frank J. Wiedner, of counsel) for appellant; Philip E. Ryan (J. F. McBride, of counsel), for appellee.
   Opinion by

JUDGE SCHWARTZ.

Not to be published in full.


text:
    People of the State of Illinois, Defendant in Error, v. Alvin C. Rithamel (Impleaded), Plaintiff in Error.
    Gen. No. 47,120.
    First District, Second Division.
    May 21, 1957.
    Released for publication June 18, 1957.

      Julius L. Sherwin, and Theodore R. Sherwin, for plaintiff in error; Benjamin S. Adamowski, State’s Attorney (L. Louis Karton, and William L. Carlin, Assistant State’s Attorneys, of counsel) for defendant in error.
   Opinion by

JUDGE SCHWARTZ.

Not to be published in full.