author: PRESIDING JUSTICE BARDENS

text:
    Charles Peterie, Plaintiff-Appellee, v. Guy A. Thompson, Trustee, Missouri Pacific Railroad Company, Defendant-Appellant.
    Term No. 56-F-12.
    Fourth District.
    May 1, 1956.
    Released for publication June 4, 1956.

      Walker & Williams, of East St. Louis, for defendant-appellant; T. T. Railey, of St. Louis, Missouri, of counsel.
    Hubbell & Mattes, of St. Louis, Missouri, and Goldenhersh & Goldenhersh, of East St. Louis, for appellee.
   PRESIDING JUSTICE BARDENS

delivered the opinion of the court.

Plaintiff recovered a $75,000 judgment against defendant entered on a jury’s verdict in the Circuit Court of St. Clair county for personal injuries sustained in a crossing accident in Kansas City, Missouri. Defendant’s motion to dismiss based on the doctrine of forum non conveniens was not sustained by the trial court. This ruling, together with assignments of error in excluding evidence, in instructing the jury, as to the manifest weight of the evidence, and as to excessiveness of verdict forms the basis of defendant’s appeal. These matters were preserved for review by appropriate post-trial motions overruled by the trial court.

Plaintiff’s case consisted of testimony by himself and four medical witnesses and developed the following: that plaintiff, a 45-year old railroad worker, was driving home from work at 4:45 A. M. on a dark, rainy morning; because of poor visibility, he could see only 30 or 40 feet ahead with his bright lights on and only 5 feet to the side; as he came to a multiple track crossing, he observed the flasher lights working and came to a stop; that he faintly saw a cut of 6 or 8 freight cars moving in front of him through the crossing; a few seconds after the cars cleared the crossing the flasher lights went off and the bell stopped ringing; that he then started slowly forward in low gear looking to the right and left before reaching the track; he maintained a constant speed of 5 to 10 miles an hour until he was struck by a single unlighted boxcar being switched through the crossing, travelling 10 to 15 miles per hour; the boxcar struck his car just about in the middle and shoved it sideways 150 feet down the track before stopping; that the switching crew was aware of the danger resulting from their switching operations during the limited visibility and earlier the same night one of its employees had been assigned to flagging the crossing. It is undisputed that the signals at the crossing were manually operated from a tower 250 feet away. With respect to plaintiff’s injuries the evidence showed that plaintiff was suffering a traumatic neurosis as well as injury to the lower back and was not capable of following any type of employment.

The defendant’s testimony developed that the single freight car was switched through the crossing about 80 feet behind the last of the nine-car cut; that the flasher lights were still operating; that believing plaintiff’s auto might continue over the crossing after the last of the nine-car cut had passed and knowing that the single car was following, one of defendant’s employees began to yell and run toward the crossing. The engineer of the switch engine, the foreman, one brakeman and the field man of the switching crew testified that though it had rained intermittently during the evening, at the time of the accident it had stopped raining; that though visibility was not the best, they had no difficulty in passing signals by lantern for distances up to 1500 feet. The engineer did not see the car before the accident and did not know whether the flasher lights were operating at the time of the accident. The field man’s best recollection was that the flasher lights were operating at all times but he conceded that he could be in error.

Defendant’s claim agent testified that he went to the plaintiff’s home to get a statement and that he typed up a statement in plaintiff’s presence as they talked; when completed, plaintiff read it over, said it was a fair statement but at his wife’s direction refused to sign it. Plaintiff testified he refused to sign because there was “a lot of stuff in it that was wrong.” This statement was offered in evidence but its admission was denied by the Court; however, the claim agent testified to as much of the conversation as was contradictory to plaintiff’s testimony at the trial.

Defendant’s motion to dismiss the action upon the doctrine of forum non conveniens was predicated upon the following circumstances: that the injuries were sustained in an accident in Kansas City, Missouri, and that the plaintiff and all witnesses who testified were residents of Missouri living approximately 300 miles from Belleville, Illinois; that no part of plaintiff’s cause of action took place in Illinois, and that no citizen of St. Clair county, Illinois, was interested in the litigation; that trying the case in St. Clair county would involve substantial expense to the county which was already operating on a deficit; that defendant would be put to great expense and inconvenience in bringing witnesses to testify, and that the defendant would be without the power to subpoena witnesses who were unwilling to testify, and would have to rely upon depositions to be read into the evidence at the trial. These matters were set forth in an affidavit filed by defendant. No counteraffidavit was filed disputing any such facts or showing any new facts or reasons why the Circuit Court of St. Clair county should retain jurisdiction of the case.

The doctrine of forum non conveniens was recognized and applied in Illinois by our Supreme Court in the case of Whitney v. Madden, 400 Ill. 185. The Court said that if it is apparent that an appropriate forum is available and the relief is sought in local courts by a nonresident for a transaction which occurred outside of the territorial boundaries of the state for the purpose of frustrating the defendant or if the bringing of the action unduly burdens the defendant or causes him great and unnecessary inconvenience or unnecessarily burdens the court, the trial court may, in its discretion, decline the jurisdiction of the case. The doctrine was also applied by the Supreme Court of the United States in Gulf Oil Corp. v. Gilbert, 330 U. S. 501, 91 L. Ed. 1055. Under headnote 3 of this case the Court states as follows: “Among the considerations to be weighed in determining whether a court will decline to exercise jurisdiction on the ground that another forum is more convenient are the relative ease of access to sources of proof, availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing witnesses, possibility of view of the premises if view would be appropriate to the action, and all other practical problems that make trial of the case easy, expeditious and inexpensive, questions as to the enforceability of a judgment if one is obtained, and relative advantages and obstacles to a fair trial.” The Court also points out that factors of public interest have a place in applying the doctrine and that when litigation is piled up in congested centers instead of being handled at its origin that administrative difficulties follow. Following this line of thought, the Court makes the following observations: “Jury duty is a burden that ought not to be imposed upon the people of a community which has no relation to the litigation.” Also: “There is an appropriateness, too, in having the trial of a diversity case in a forum that is at home with the state law that must govern the case, rather than having a court in some other forum untangle problems in conflict of law, and in law foreign to itself.” We might add that the taxpayers of the community, also, are entitled to some consideration.

The United States Supreme Court in Southern B. Co. v. Mayfield (Missouri case) 340 U. S. 1, 95 L. Ed. 3, held that federal law does not limit the power of state courts to deny access to suitors under the F. E. L. A. if the policy is enforced impartially so as not to discriminate against suits under the act nor offend the Privilege and Immunities clause. The Court vacated the judgment of the Supreme Court of Missouri because that Court had acted upon the assumption that state courts were compelled in all events to accept jurisdiction in such cases.

See also F & F Laboratories v. Chocolate Spraying Co., Inc., 6 Ill.App.2d 299, 300; 127 N.E.2d 682; Johnson v. Chicago, B. & Q. R. Co., 66 N.W.2d 763 (Minn.); St. Louis-San Francisco R. Co. v. Superior Court, Creek County, 290 P.2d 118 (Okla.).

Belying on the Mayfield case, the Supreme Court of California has overruled its prior decisions to the contrary and applied the doctrine in Price v. Atchison, T. & S. F. Ry. Co., 42 Cal.2d 577, 268 P.2d 457, 43 A.L.R.2d 756 (note at 774), certiorari denied 348 U. S. 839, 99 L. Ed. 661. The Price case was a consolidation of two causes both of which were dismissed by the lower court. One judgment was affirmed but the other was reversed upon a stipulation of counsel the statute of limitations was about to run against that action.

We have previously set out the substance of the motion filed in the case at bar and the fact that no counter-affidavits were presented. It is our opinion that there were sufficient grounds alleged to have justified the Court in dismissing this action. However, it appears that the statute of limitations will run in August of 1956. Considering the time element involved from this decision to the time of the running of the statute, it would be quite impractical to expect that plaintiff would have the opportunity to exhaust his appeal remedies in this ease. For this reason and for the reason that much time and expense have been already devoted to the case we do not reverse on this ground.

We turn now to the consideration of other matters raised by the defendant in seeking a reversal. The first of these is the contention that the verdict is against the manifest weight of the evidence. Since the case involves disputed questions of fact which were presented to a jury, in order to find in defendant’s favor on the issue of manifest weight of evidence, a conclusion on the facts opposite to that reached by the jury must be clearly evident. Olin Industries, Inc. v. Wuellner, 1 Ill.App.2d 267, 117 N.E.2d 565. Such is not the case here. The evidence produced on behalf of the plaintiff is sufficient to sustain the verdict. The evidence on behalf of the defendant, in our opinion, is not either sufficient either in overwhelming numerical strength or by reason of physical facts and circumstances in evidence to clearly show that the verdict of the jury was against the manifest weight. We have previously detailed the evidence and it shows that the defendant’s switching crew was aware of the increased hazard due to limited visibility and shows no manifest weight of evidence with regard to whether or not the signal lights were working after the first cut of freight cars was switched through the crossing. «

Defendant excepted to the refusal of the trial court to allow Defendant’s Exhibit “A” into evidence. This was the unsigned typewritten statement prepared by defendant’s claim agent in the presence of the plaintiff. The claim agent was permitted to testify to any portions of the matter set out in the statement which were considered to be admissions against interest on behalf of the plaintiff. Since the plaintiff did not sign the instrument or authorize a signature to it, we see no error in its refusal into evidence by the trial court. It remained in the category of a report. Wiedow v. Carpenter, 310 Ill. App. 342, 34 N.E.2d 83.

On behalf of the plaintiff the Court gave instruction No. 6 which reads as follows: “The Court instructs the jury that the plaintiff’s complaint, as amended, alleges that on August 28, 1951, plaintiff while in the exercise of the highest degree of care for his own safety was driving his automobile over a certain railroad crossing owned and maintained by the defendant and that the defendant negligently caused and permitted a certain boxcar to run toward and over the said crossing and that it negligently caused and permitted the said boxcar to run toward and over the said crossing without giving any reasonable, adequate and timely warning of the approach and movement of said boxcar, and that the defendant maintained a signal standard at said crossing and negligently permitted and caused it to be turned off at a time when a boxcar was being propelled toward and across the said crossing when the defendant knew or by the exercise of ordinary care should have known that the plaintiff would likely rely on the said signal standard and his life and limb would likely be endangered thereby and that as the proximate result of the foregoing conduct of the defendant, the boxcar did collide with plaintiff’s automobile and plaintiff sustained injuries and damage.

“The defendant admits that it owned the said right of way and crossing and denies each and every charge of negligence.

“If you believe from the preponderance of the evidence under the instructions of the Court that the defendant was guilty of the acts as alleged, and that this was negligence, and that such negligence, if any, was the direct and proximate cause of the injuries complained of in this case, and that at the time and immediately prior thereto the plaintiff was in the exercise of the highest degree of care for his own safety, then you should find the issues in favor of the plaintiff.” Defendant contends that the first paragraph is subject to the criticism made by the court in Signa v. Alluri, 351 Ill. App. 11, 113 N.E.2d 475. With this contention we do not agree. It appears to us that the Court in giving this instruction was complying with the rules laid down in the cited case because the instruction attempts to summarize the pleadings rather than set them out in detail as alleged in the complaint. While it is true that the instruction did not repeat in paragraph 1 that these were allegations made by the plaintiff, the paragraph is not so long that the jury should have been misled into believing that these were assertions being made by the Court. This conclusion is strengthened by the fact that the second paragraph states that the defendant denies each and every charge of negligence, and thus further directs the jury to the fact that the first paragraph were allegations of the plaintiff. It is true also that the instruction does not inform the jury that the defendant denied the allegation that the plaintiff was exercising due care. However, the instruction is much stronger in defendant’s favor in that it required the plaintiff to prove that he was in the exercise of the highest degree of care for his own safety. Defendant asserts that the instruction allowed the jury to wander afield as to the basis of negligence. However, the third paragraph of the instruction confines the jury to the negligent acts that are alleged. Nor does the case of Walton v. Greenberg Mercantile Corp., 1 Ill.App.2d 99, 116 N.E.2d 197, bear upon the question of this instruction. In the Walton case the instruction held faulty omitted any reference to contributory negligence. In our opinion there was no error in the giving of instruction No. 6.

Complaint is also made by the defendant of the plaintiff’s given instruction No. 7 on the question of damages because in paragraph 1 it read “You will award the plaintiff such sum as you find and believe from the evidence” and omitted the requirement that plaintiff was required to prove his damages by a “preponderance” of the evidence. This objection is not well taken because in each of the subsequent paragraphs, which were four in number, setting out the different elements of damages claimed the jury was told that it must find these elements from the “preponderance” of the evidence. As stated in the case of Smith v. Kroger Grocery & Baking Co., 339 Ill. App. 501, 508, 90 N.E.2d 500, it is not necessary that this requirement be constantly repeated if it is clearly stated in the instruction.

Lastly, defendant claims that the verdict is the' result of passion and prejudice and should therefore be set aside. Plaintiff produced four medical experts as his witnesses and their testimony was to the effect that the plaintiff was totally and permanently disabled from doing any kind of work. No medical testimony was offered by defendant. It is undisputed that the plaintiff’s income at the time of the injury was $3,600 a year. He was 45 years of age at the time of the accident and 48 years at the time of the trial. Defendant admits in its brief that plaintiff’s future earnings, discounted at 3 per cent, would be approximately $60,000, but in addition to that figure he had actually lost in wages at the time of trial approximately $13,000. While it is true that the plaintiff had a crying spell while he was on the witness stand, when the verdict of $75,000 is considered in relation to the loss of earnings figures, it seems to us there is not sufficient basis for a conclusion that the verdict was the result of passion and prejudice. Furthermore, this question was presented to the trial court who was in a much better position than we are to judge of the effect of this crying spell on the jury and the trial judge refused defendant’s contentions.

We are of the opinion that the judgment in this case is free of reversible error and it therefore is affirmed.

Judgment affirmed.

CULBERTSON and SCHEINEMAN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE SCHEINEMAN

license: Public Domain

text:
    City of Murphysboro, Illinois, Plaintiff-Appellant, v. Sanitary Water Board of State of Illinois, Defendant-Appellee.
    Term No. 56-F-15.
    Fourth District.
    May 1, 1956.
    Released for publication June 4, 1956.
    David A. Warford, of Marion, and 0. Edgar White, of Murphysboro, for plaintiff-appellant.
    Latham Castle, Attorney General of State of Illinois, of Springfield, for defendant-appellee; John L. Davidson, Jr., First Assistant Attorney General, and Lneien S. Field, Assistant Attorney General, both of Springfield, of counsel.
   JUSTICE SCHEINEMAN

delivered the opinion of the court.

The City of Murphysboro filed a suit under the Administrative Review Act, attacking an order of the Sanitary Water Board of the State of Illinois, which directed the City to cease discharging its untreated sewage into the Big Muddy River. From a judgment sustaining the Board, the City appeals on the ground the findings and orders of the Board are against the manifest weight of the evidence.

This City has a population of about 9000 and discharges its untreated sewage into the river through four outlets. In 1948 the discharge averaged about 550,000 gallons per day. The City also obtains its water supply from the same river at a point upstream from the outlets, but the river sometimes backs up or reverses, under certain conditions, so that the waters from below the outlets get into the intake system. This happened in 1944, 1947 and 1953. Under the treatment used, the water continued to test as fit for drinking purposes.

City officials and other residents of the locality testified that there had been no complaint about pollution, no reports of adverse effects on fish, no reports of anyone being made ill by use of the water or by eating fish therefrom, and the tests each month had shown the water fit for drinking purposes. There is no other municipality between Murphysboro and the river’s outlet into the Mississippi.

Sanitary engineers for the State reported upon conditions below the outlets as compared with the stream above the City. Besides the 1948 survey, tests were made at various points in 1952,1953 and 1954. The witnesses found a diminution of oxygen content below the outlets, rising sludge, sludge banks, and gas bubbling, and at times an odor. There was found a clear demarcation between the gray color of the flowing sewage and the green color of the algae in the water. Floating solids and scum were visible.

A state biologist took samples of water from nine different points, which showed the normal moderate bacteria above the outlets, but rapid displacement below them, with a substitution of varieties of bacteria which are tolerant of pollution. The displacement showed a substantial increase in later tests, until it became 100%. On these last tests the only organisms present were sludge worms, or oligochaeta or tubifex. These live on organic matter and are capable of getting oxygen under deplorable conditions. Another biologist testified these conditions are detrimental to fish life.

Other engineering testimony was that there must be a stream flow of 8 or 10 cubic feet of water per second for each 1000 persons discharging untreated sewage into the stream, to prevent nuisance conditions. Using statistics on the varying stream flow, and estimating 7000 persons discharging sewage, this engineer calculated that 32% of the time the flow is less than necessary to prevent nuisance conditions.

The Sanitary Water Board Act, Ch. 19, Ill. Bev. St., Sec. 145.10 prohibits disposal by any person of organic or inorganic matter into the waters of this State which shall cause pollution. Sec. 145.2(j) includes municipalities in the definition of persons. Sec. 145.6 authorizes the Board to determine if pollution exists and Sec. 145.9 gives the board power to order discontinuance of pollution. Sec. 145.2 defines pollution as follows:

“(a) ‘Pollution’ means such alteration of the physical, chemical or biological properties of any waters of this State, or such discharge of any liquid, gaseous or solid substance into any waters of the State as will or is likely to create a nuisance or render such waters harmful or detrimental or injurious to public health, safety or welfare, or to domestic, commercial, industrial, agricultural, recreational, or other legitimate uses, or to livestock, wild animals, birds, fish or other aquatic life.”

The validity of this statute is not questioned. It is obviously intended primarily to protect public health, but is not limited to that purpose. And to constitute pollution, the definition does not require that all the conditions enumerated shall exist, they are stated in the disjunctive.

The argument for the City is predicated largely on the theory that the Board has no power to act except to abate a common-law nuisance, or at least upon a showing that fish were affected, or human illness already resulting. Cases cited include City of Chicago v. Reuter Bros. Iron Works, Inc., 398 Ill. 202; Rosehill Cemetery Co. v. City of Chicago, 352 Ill. 11; Hall v. Putney, 291 Ill. App. 508; and Lazarus & Cohen v. Parmly, 113 Ill. App. 624. Some of these are injunction cases, and all involve the question of what constitutes a nuisance at common law. None of them is in point under this statute.

On the other hand, there is the case of Village of Dwight v. Hayes, 150 Ill. 273, in which the court regarded the discharge of sewage from 1600 population into a small stream as a material pollution and nuisance per se.

In the present case the City has a population of 9000. Doubtless the river is large enough to provide adequate flow for disposal of the large volume of sewage most of the time. But the evidence is undisputed that, at times, the flow diminishes to the vanishing point and even backs up into the municipal water supply.

However, we do not interpret this statute to restrict the power of the Board to abatement of a cornmon-law nuisance, which could be enjoined on complaint of individuals. That construction would render the statute nugatory and the Board needless. The Board is not restricted to “locking the barn door after the horse is stolen,” but has powers aimed at prevention as well.

This Board is authorized to order pollution stopped. One definition of pollution is the “alteration of the physical, chemical or biological properties of the water,” a condition conclusively proved. Another definition is the discharge of liquids or solid substances “likely to create a nuisance” or even likely to render the water “harmful or detrimental or injurious” to almost anything in which the public may be affected. There was substantial evidence that such pollution exists.

The findings of the Board were based on competent evidence, and we find no basis to declare the order contrary to the weight of the evidence. The judgment of the Circuit Court is affirmed.

Judgment affirmed.

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


author: JUSTICE SCHEUSFEMAN

text:
    Asadour Bedian, and Elizabeth Bedian, Plaintiffs-Appellants, v. Arnold Cohn, Defendant-Appellee.
    Term No. 56-F-21.
    Fourth District.
    May 1, 1956.
    Rehearing denied May 22, 1956.
    Released for publication June 4, 1956.
    Burton C. Bernard, of Granite City, for plaintiffs-appellants.
    Goldenhersh & Goldenhersh, of Bast St. Louis, for defendant-appellee.
   JUSTICE SCHEUSFEMAN

delivered the opinion of the court.

In this suit the plaintiffs seek to hold defendant personally liable for the balance due on the purchase price of real estate, notwithstanding express provisions in the mortgage and note that defendant should not be liable for any deficiency.

The undisputed facts are that defendant Arnold Cohn contracted orally to purchase the property from plaintiffs, Asadour and Elizabeth Bedian, at a fixed price, to make a down payment, to pay the balance in installments, the defendant not to be liable for a deficiency in the event of foreclosure.

It is undisputed that the property is inadequate to cover the balance, but the chancellor decreed that though the plaintiffs were entitled to the property there was no personal liability on defendant.

On this appeal, it appears to be undisputed that pursuant to the oral contract, the parties met in a law office, the down payment was made, plaintiffs executed a deed to defendant, and the latter gave a mortgage and note for the balance, both of which expressly limited collection of the balance to the property pledged, and stated that the maker should not be personally liable for any deficiency. Some installments were paid.

Plaintiff contends these provisions are inconsistent, and ambiguous, and the court should hold the restriction on personal liability void. Defendant cites cases from other states that it is valid. While there is no reported decision in this state of precisely similar facts, the principle has been stated in accord with the weight of authority. Thus, in City of Joliet v. Alexander, 194 Ill. 457, the opinion states:

“The provision for a mortgage implies a debt, since a mortgage cannot exist without a debt. The mortgage is a mere incident to a debt or obligation secured by it and which is an essential element in a mortgage. It is not essential to a debt or to a mortgage that there should be any promise of the mortgagor to pay the debt. The mortgage may be merely to secure payment, and a debt exists in many cases where there is no personal liability and where there could be no suit at law and no personal decree could be rendered for a deficiency. One who pawns or pledges his property and who will lose the property if he does not pay, is indebted although the creditor has nothing but the security of the property; and so, also, is a mortgagor who is liable to lose his property if he does not pay the money secured by the mortgage.”

Again in Evans v. Holman, 244 Ill. 596, it was held that there must be a debt to constitute a mortgage, but there need not be any promise to pay the debt, and it is not essential that the obligation to pay be direct.

Accordingly, we hold that a mortgage and note are evidence of a debt, but an agreement therein that the collection of the debt is limited to the property pledged, without personal liability on the maker, is valid and will be enforced according to the expressed terms.

The plaintiff further argues that the suit is not based upon the note and mortgage, but upon the original contract of sale, and that there being a fixed price, plaintiffs are entitled to specific performance to compel payment of the agreed price, citing cases. It appears to be implicit in this argument that the note and mortgage were not in conformity with the original agreement.

Upon examination of the pleadings, it is apparent that the plaintiffs have never asserted that the mortgage and note differed from the original contract. There is no claim that these documents were drawn and accepted by mutual mistake, fraud, or otherwise. On the contrary, the complaint, in the first count for specific performance, alleged that the defendant was not to be personally liable for a deficiency judgment under the contract. No other count asserts a different state of facts.

Furthermore, the testimony discloses that defendant stated he would only buy the property under this, his usual condition, the scrivener testified he informed plaintiffs that the note and mortgage differed from the usual in that there was no personal liability on defendant. There is no evidence contradicting this testimony nor any evidence that plaintiffs did not understand or agree to it. They accepted the note and mortgage in accordance with the agreement alleged in their complaint.

We hold that where the contract of purchase contemplates that the buyer is not to be personally liable, and the documents are drawn in accordance with the agreement, the provisions therein are valid, and the seller cannot assert personal liability of the buyer. The decision of the chancellor was correct and is affirmed.

Decree affirmed.

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


author: JUSTICE SCHEUSTEMAN

text:
    Harold Hargis, Plaintiff-Appellee, v. Standard Oil Company of Indiana, Defendant-Appellant.
    Term No. 56-F-11.
    Fourth District.
    May 8, 1956.
    Released for publication June 4, 1956.

      Kramer, Campbell, Costello & Wiechert, of East St. Louis, for defendant-appellant.
    Cox, Smith & Bassett, of Wood River, for plaintiffappellee.
   JUSTICE SCHEUSTEMAN

delivered the opinion of the court.

Plaintiff, Harold Hargis, obtained judgment on a verdict of $3875 for injuries incurred while delivering oil products at the bulk plant of the defendant, Standard Oil Company of Indiana, in Centralia, Illinois.

On this appeal the defendant contends it was entitled to judgment as a matter of law, on the grounds that the plaintiff was guilty of contributory negligence, the defendant was not proved guilty of any negligence which proximately contributed to plaintiff’s injury, and plaintiff had assumed the risk. In the alternative, it is contended a new trial should be ordered because the verdict is against the manifest weight of the evidence, it is excessive, it is the result of passion and prejudice, and the court gave erroneous instructions requested by plaintiff.

Plaintiff was employed by a company other than defendant, but his duties included delivery of oil products to defendant at night. He was supplied with a key to the enclosure and keys for the tank valves so that he could perform his duties in the absence of defendant’s employees. It is undisputed that he was an invitee to whom the defendant owed a duty of due care. In serving the tanks, it was necessary for bim to get up on a narrow catwalk, about 4 feet above ground, then to arrive at the tank to be filled.

Plaintiff had made such deliveries twice before the occasion of his injury. He testified that the first time he turned on a yard light, which he claims illuminated the catwalk and equipment. The second visit he found this light would not operate. Having some difficulties with the valves he called an agent of the company who came and also tried the light and found it would not work. About a week later on his third trip, the light still would not work, so he took from his truck a safety lantern to light his way. He proceeded along the catwalk to the last tank in the row, finished his task there and on the way back, his head bumped into a pipe above the walk, and he fell and was injured.

He said he did not run, but had walked fast, in a stooped position, to pass under the several pipes to the tanks. He had safely passed all but the last one, which he found afterward was 6 or 8 inches lower than the others. Prior to this date, he had walked around the tanks once, but had not worked on that side of the tank, and as he walked on the narrow way, he kept his light pointed downward.

The defense contends these facts disclose contributory negligence as a matter of law, it being argued that he was aware of the “existence and position” of the pipe and “well knew the plant,” and should have flashed his light on the pipes.

The issue of contributory negligence is preeminently one for the jury, and becomes a question of law only when the undisputed evidence is conclusive that the accident resulted from the negligence of the party injured, and could have been avoided by the use of reasonable precaution. Packard v. Kennedy, 4 Ill.App.2d 177, 182; Pauckner v. Wakem, 231 Ill. 276.

In our opinion, the fact that this was the first time he worked in that particular position, even though he had previously walked past it, bears on the question whether he well knew the plant and was aware of the position of this pipe, which he claims differed from the others. And the use of the light solely on the narrow catwalk to watch his precarious footing, instead of pointing it upward at some time, is simply a question whether he acted as an ordinary prudent man. We conclude it cannot be said that all reasonable minds must agree that his acts were negligent, and the question was properly submitted to the jury.

The defendant produced one witness, its local agent, who testified that the yard light was not intended to light up the tanks and equipment, but was to light the place where the trucker hooks onto the unloading pipe. He also denied that he had been called to the place on a previous night when the light was out. It is argued that, under the evidence, the light being out was not the proximate cause of the accident. This argument ignores the testimony of plaintiff that the light did illuminate the walk, and particularly so at the corner where he fell.

In view of the conflicting testimony there is clear support for the jury verdict which implies that the absence of the light was the proximate cause of the accident. Moreover, regardless of the intended purpose of this light, it was the duty of the defendant to use reasonable care for the safety of invitees on its premises. The cases previously cited, Packard v. Kennedy, 4 Ill.App.2d 177, and Pauckner v. Wakem, 231 Ill. 276, both hold that defendant’s failure to provide adequate light on the premises leaves it a question for the jury whether the defendant had failed to use reasonable care, which was a proximate cause.

It is next urged that by proceeding to perform his duties with inadequate light, plaintiff assumed the risk. The doctrine of “assumed risk” grew up in master-servant cases, and has been considered by this court in Deckert v. Chicago & E. I. R. Co., 4 Ill.App.2d 483. It has been applied in other situations, sometimes as a substitute for another principle of law. Most of the cases cited by defendant, including Dressel v. Chicago City R. Co., 172 Ill. App. 568, are master-servant cases, the latter at page 575 specifically limits its holding to that situation.

Defendant also cites 38 Am. Jur. Negligence, Sec. 171 and 349. These and other sections illustrate the overlapping nature of the principle. Section 171 cites a number of cases in which the doctrine was used instead of some other recognized principle. Section 172 states “the doctrine of assumed risk is based upon voluntary exposure to danger.” Under discussion of Contributory Negligence, Section 182 includes “one who voluntarily and unnecessarily assumes a position of danger . . . even the most prudent man is sometimes compelled to take risks . . . the taking of a risk is negligent only where the risk is greater than is reasonably necessary to meet the ordinary requirements of business . . . The fact that one who took a risk took it in the performance of duty is entitled to great weight in determining whether his conduct was negligent” etc.

Plainly, the courts frequently treat the question of voluntary exposure to a visible risk as bearing upon the defense of contributory negligence. While we do not hold that the doctrine of assumed risk is limited to master-servant cases, we do hold that in the instant case it is merely a re-argument of the question whether plaintiff was guilty of contributory negligence; that the conduct of plaintiff in proceeding with his work by the aid of a hand lantern, knowing the yard light was out, was properly submitted to the jury as a question of due care; and that this is the usual and customary method of presenting that question in landlord-invitee cases in this state. Packard v. Kennedy, 4 Ill.App.2d 177; Pauckner v. Wakem, 231 Ill. 276; Murphy v. Illinois State Trust Co., 375 Ill. 310; Coken v. Peterson, 340 Ill. App. 518.

We conclude that the verdict is not against the manifest weight of the evidence and that the case was properly submitted to the jury.

Objection is made to two given instructions. The court instructed in the usual form, requiring that plaintiff be free from contributory negligence to recover, but made no mention of the doctrine of assumed risk. The principles stated above sufficiently answer this objection. The other questioned instruction pertained to the measure of damages.

This given instruction was the stock form, which contains a reference to future pain and suffering, if any. The defense contends there was no evidentiary basis for the inclusion of such an item. The plaintiff had testified that trouble with his eyes had ceased; but, he testified that he had recurrent headaches, which the medical testimony indicates is typical in concussion cases. Plaintiff also testified to the effect that the frequency of his headaches had diminished, and he had not had one for a week prior to the trial. This testimony may properly be interpreted as indicating that he was on the road to recovery, but not fully cured. In this situation, the giving of the instruction was not reversible error.

As to the amount of the verdict: the plaintiff was hospitalized for several days, off work for 3 months, on reduced earnings for some time thereafter, and pain and suffering were disclosed by the evidence. While defendant calculates that plaintiff’s special damages could not exceed $1871, and contends the balance is an excessive allowance for pain, we are of the opinion that the verdict of $3875 is within the reasonable scope of the evidence, is not excessive, and does not tend to establish a showing of passion and prejudice.

The several motions by defendant were properly denied by the trial court, and the judgment is affirmed.

Judgment affirmed.

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


author: PRESIDING- JUSTICE HIBBS

text:
    People of State of Illinois, Plaintiff-Plaintiff in Error, v. Billy Lee Lobb, Defendant-Defendant in Error.
    Gen. No. 10,043.
    Third District.
    May 14, 1956.
    Released for publication May 31, 1956.

      Kenneth E. Evans, State’s Attorney of Macon county, of Decatur, for plaintiff in error; Lloyd F. Latendresse, Roy B. Foster, and David C. Jack, Assistant State’s Attorneys, all of Decatur, of counsel.
    A. R. Ivens, of Decatur, for defendant in error.
   PRESIDING- JUSTICE HIBBS

delivered the opinion of the court.

On May 5, 1955 an information was filed in the County Court of Macon county against Billy Lee Lobb and John Rainey charging them with the offense of contributing to the delinquency of a minor child. Defendant Lobb filed a motion to quash the information. Instead of ruling thereon the court granted a motion by the State’s Attorney to amend the information. On June 15, 1955 Lobb again moved to quash the information, which motion was allowed by the court on the following day. The People have appealed from this order.

The information charged that Lobb and Rainey on April 2,1955 in Macon county, Illinois “did unlawfully, knowingly and wilfully do an act which tended to render Marilyn Stephens ... a female person under the age of eighteen years, to-wit sixteen years, a delinquent child by . . . procuring and providing intoxicating liquor, to-wit, beer for the said . . . minor child, two or three cans of which said child, the said Marilyn Stephens did . . . drink in the company of said Billy Lee Lobb and John Rainey while riding in an automobile after dark with said Billy Lee Lobb and John Bainey, and while no parent, guardian or other person with the right to supervise the conduct of the said Marilyn Stephens was present, and the said Billy Lee Lobb and John Bainey not then and there having had the consent of any parent, guardian or other person with the right to supervise the conduct of said Marilyn Stephens to so provide beer for the said Marilyn Stephens, contrary to the form of the statutes in such cases made and provided. . . .”

While the court did not state upon which of the four counts in Lobb’s motion it based its order, both parties on appeal agree that the only issue here is whether the information in question charges a crime.

Par. 103, Chap. 38, Ill. Rev. Stat. 1953 defines a delinquent child as one who “violates any law of this State; or is incorrigible, or knowingly associates with thieves, vicious or immoral persons; or without just cause and without the consent of its parents, guardian or custodian absents itself from its home or place of abode, or is growing up in idleness or crime; or knowingly frequents a house of ill repute; or knowingly frequents any policy shop or place where any gambling device is operated; or frequents any saloon or dram-shop where intoxicating liquors are sold; or patronizes or visits any public pool room or bucket shop; or wanders about the streets in the night time without being on any lawful business or lawful occupation; or habitually wanders about any railroad yards or tracks or jumps or attempts to jump onto any moving train; or enters any car or engine without lawful authority; or uses vile, obscene, vulgar, profane or indecent language in any public place or about any school house; or is guilty of indecent or lascivious conduct.”

Par. 104 of the same chapter provides that anyone “who shall knowingly or wilfully cause, aid or encourage . . . any female under the age of eighteen (18) years to be or become a delinquent child as defined in section one (1), or who shall knowingly or wilfully do acts which directly tend to render any such child so delinquent . . . shall be deemed guilty of the crime of contributing to the delinquency of children.”

These sections of the Criminal Code were construed by the Supreme Court in People v. Plocar, 411 Ill. 141, where it was held that an information must define in what manner the child was rendered delinquent. Either it must include one of the definitions of delinquency set forth in par. 103, or, as stated at page 145: “The language must plainly and concisely set out sufficient facts to apprise the defendant of the crime charged against him such as defined by the statute.”

The State contends here that the information in question qualifies under the language just quoted. In support of its position it cites People v. Ostrowski, 334 Ill. App. 494. In that case the Appellate Court for the First District held that an information under Section 2 [Ill. Rev. Stats. 1953, ch. 38, § 104] need not allege that the child actually became delinquent but merely that the defendant’s acts tend to render the said child delinquent, that it need not charge the defendant with one of the acts set forth in one of the sections under the statute but must charge conduct which would tend to cause a child to commit one or more of the acts defined therein; and finally that an information charging the defendant with engaging “in indecent, obscene and lascivious conversation” with a child was sufficient since such conversation would encourage a child to associate with immoral persons or be guilty of indecent or lascivious conduct — two acts defined in Section 1. The State points out that the information in the Ostrowski case did not charge that the defendant’s conduct encouraged the child to commit such acts but that this was inferred by the court. It urges that in the present case a similar inference should be made and points out that the giving of intoxicating liquor to a minor female child might well encourage her to become incorrigible, to associate with evil companions, to frequent taverns or even to engage in immoral or lascivious conduct.

The State in addition to People v. Ostrowski, supra, also cite People v. Friedrich, 385 Ill. 175 (selling obscene books), People v. Walker, 305 Ill. App. 500 (indecent exposure), People v. Fry, 403 Ill. 574 (lascivious acts), all of which it should be noted involve acts on the part of a defendant which result in sexual stimulation. Thus a statement in an information that conduct of the type described in each of these cases tended to cause the child to become delinquent leaves the inescapable inference that it tended to cause the child to be “guilty of indecent or lascivious conduct,” one of the acts of delinquency defined in Section 1. There could be no doubt as to what type of delinquency the defendant’s acts, in each of these cases, tend to cause. In each the information properly notifies the defendant of what charge he would be expected to meet so that he could prepare a defense.

The inferences that the State would have us draw in this case do not so readily follow. Opinions of respectable people differ as to the wisdom and morality of the use of intoxicating liquors in moderation. Most people, however, would condemn the giving of three cans of beer to a sixteen year old girl, but that is not the issue here. The Legislature did not in Section 2 make every act involving a child, however reprehensible a crime, but only those which “directly tend” to cause a child to do the things condemned by Section 1. While under certain circumstances, the giving of three cans of beer to a sixteen year old girl might encourage her to become incorrigible, to associate with evil companions, to frequent taverns or act in an immoral or lascivious way, we do not believe that such unfortunate conduct would necessarily follow. Thus it cannot be said that the defendant’s conduct here directly tended to cause this girl to become delinquent. The defendant could not tell from this information what type of delinquency defined in Section 1 his acts tended to cause. He therefore could not know against what charges he might have to defend. We believe the County Court of Macon county properly quashed the information here on the defendant’s motion. Its judgment is therefore affirmed.

Judgment affirmed.


text:
    Leo Freese, Trustee Under Will of Frank M. Clayton, Deceased, Plaintiff, v. Jewell Jeffords et al., Defendants. Leo Freese, Trustee Under Will of Frank M. Clayton, Deceased, Plaintiff-Appellee, and Bodkin Cemetery, and Christian Church of Ogden, Illinois, Defendants-Appellees, v. Jewell Jeffords, Defendant-Appellant.
    Gen. No. 10,068.
    Third District.
    May 14, 1956.
    Released for publication May 31, 1956.

      Law Offices of W. C. Noel, William C. Noel, Joseph M. Williamson, H. Frank Middleton, Roy 0. Freeman, and Robert P. Pope, of Urbana and Rantoul, for defendant-appellant.
    John H. Finfrock, of Urbana, for plaintiff-appellee, Oris Barth, Urbana, for Bodkin Cemetery and Christian Church of Ogden, Illinois, defendants-appellees.
   PRESIDING- JUSTICE HIBBS

delivered the opinion of the court.

The Circuit Court of Champaign county entered a decree appointing a successor testamentary trustee and a direct appeal was taken from that decree to the Supreme Court. That court upon its own motion declined to proceed because it was without jurisdiction and transferred the cause to this court. (Freese v. Jeffords, 7 Ill.2d 189.)

Leo Freese, named as trustee in the Will of Frank M. Clayton, deceased, filed his complaint in the Circuit Court of Champaign county wherein he requested that because of his advanced age and poor health he be relieved of his duties as trustee and that Chancy L. Finfrock, who was named as successor trustee in the Will, be appointed trustee in his stead. Jewell Jeffords, who was the testator’s housekeeper, Bodkin Cemetery and Christian Church of Ogden, Ulinois, the only beneficiaries of the trust, were made parties defendant. Jewell Jeffords filed an answer which denied each of the allegations of the complaint. The answer included a “First Affirmative Defense” which alleged the existence of a contract hy which the deceased had agreed to convey or devise all of his property to Jewell Jeffords in consideration for her promise to care for him for the remainder of his life. The affirmative defense also alleged that there was pending in the Circuit Court of Champaign county an action for specific performance in which the enforcement of this contract was sought. No reply was filed to the answer. No counterclaim was filed by Jewell Jeffords. Bodkin Cemetery and Christian Church of Ogden, Illinois entered their general appearances, but made no resistance to the complaint and were defaulted. At the trial the only witness was Chancy L. Finfrock, who testified that Leo Freese was about eighty years old, was not in good health, and did not want to assume the responsibilities of the trust. The decree fixed the amount of the trustee’s bond, accepted the resignation of Leo Freese as trustee and appointed Chancy L. Finfrock as successor trustee.

The defendant-appellant contends that the plaintiffappellee failed to file a reply to the affirmative matters contained in the answer and therefore the answer must be taken as true and the trial court erred in entering the judgment for appellee. With this we cannot agree.

The decedent, Frank M. Clayton departed this life on the 24th day of August 1954 leaving a last will and codicil which were admitted to probate. The will after providing for payment of his just debts and obligations gave the household furniture in his home at Ogden to Jewell Jeffords and a life estate in his residence with the remainder to her two children, Sandra Jeffords and Janice Jeffords. All of the rest, residue and remainder of the estate was given to Leo Freese of Ogden, Illinois, as Trustee, to collect the rents, issues and income therefrom, and after paying all taxes and other necessary expenses and his charges for handling said trust, to pay and distribute the net income therefrom as follows: To the Bodkin Cemetery located southeast of Ogden, Illinois the sum of $200 per year and to distribute the remainder thereof after making such payments to the Bodkin Cemetery as follows: One-half of such remainder to Jewell Jeffords and one-half to the Christian Church of Ogden, Illinois, and upon the death of Jewell Jeffords, the annual payments to Bodkin Cemetery shall cease and the remainder of such income after the payment of taxes, insurance and other expenses would be paid and devised as follows: One-half to the legally constituted authorities of said Bodkin Cemetery to be used for the upkeep hnd maintenance of said cemetery and the other one-half to the Christian Church of Ogden, Illinois to be used in such manner as the governing authorities of such church shall deem best suited to serve the best interests of such church. The first codicil gave to Jewell Jeffords the residence in fee simple.

The only relief prayed for in the original complaint was for permission to resign and the appointment of a successor trustee and the fixing of the amount of the bond. The necessity for the appointment of a successor trustee is evident. A suit was pending in the Circuit Court of Champaign county, commenced by Jewell Jeffords against Leo Freese, Trustee, under the will of Frank M. Clayton, deceased, involving the specific performance of a contract or alleged contract set forth in the affirmative defense. It was therefore of paramount importance that somebody should be appointed successor trustee in order to defend in that action.

Furthermore, the affirmative defense set up by Jewell Jeffords was not accompanied by a counterclaim making parties defendant the trustee, successor trustee when appointed and the other beneficiaries in the trust, whose rights of necessity would be affected by the prayer for relief and without which the cross-complainant could not succeed in her lawsuit.

Sec. 38, Chap. 110, 1955 Rev. Stat. provides: “(1) Subject to rules, any demand by one or more defendants against one or more plaintiffs, or against one or more codefendants, whether in the nature of set-off, recoupment, cross-bill in equity, cross demand or otherwise, and whether in tort or contract, for liquidated or unliquidated damages, or for other relief, may be pleaded as a cross demand in any action, and when so pleaded shall be called a counterclaim. (2) The counterclaim shall be a part of the answer, and shall be designated as a counterclaim. Service of process on parties already before the court is not necessary. (3) Every counterclaim shall be pleaded in the same manner and with the same particularity as a complaint, and shall be complete in itself, but allegations set forth in other parts of the answer may be incorporated by specific reference instead bf being repeated. (4) An answer to a counterclaim and pleadings subsequent thereto shall be filed as in the case of a complaint and with like designation and effect.” The defendants could obtain affirmative relief only on a cross-complaint. (Heiligenstein v. Schlotterbeck, 300 Ill. 206; Daly v. Daly, 299 Ill. 268.)

Nor do we believe that the relief asked for could possibly be germane even if prayed for in a cross-complaint to the original complaint. The original complaint merely sought to permit the trustee to resign and to appoint a successor. The relief apparently that the defendant wishes was not germane to this subject whatsoever because it related to a matter that could only be adjudicated after the appointment of a successor trustee had been made.

The judgment of the Circuit Court of Champaign county is affirmed.

Judgment affirmed.


author: JUDGE CARROLL

text:
    L. H. Clark and Alexander Lumber Company, Plaintiffs, v. John R. Titone et al., and Maurer Construction Company, Defendants. James E. Thornton, and Mallie E. Thornton, Petitioners-Appellees, v. Eilert Leesman, and Anna Leesman, Respondents-Appellants.
    Gen. No. 10,045.
    Third District.
    May 14, 1956.
    Released for publication May 31, 1956.
    R. Marlin Baker, of Lincoln, for appellants.
    Gehlbach & Gehlbach, and Harris & Harris, both of Lincoln, for petitioners-appellees.
   JUDGE CARROLL

delivered the opinion of the court.

This appeal arises out of a Mechanics Lien foreclosure proceeding brought in the Circuit Court of Logan County.

The sole question raised is as to the propriety of the action of the Trial Court in ordering the issuance of a Writ of Assistance.

The provisions of the decree of foreclosure and sale as entered by the Court, insofar as the same are pertinent on this review, are as follows:

“. . . in case such premises shall not be redeemed as aforesaid, then upon production to the Master, or his successor, of such certificate or certificates of sale by the legal holder thereof, the Master, or his successor, shall execute and deliver to him or them a good and sufficient deed of conveyance of such premises in fee simple; and that thereupon, the Grantee or Grantees in such deed, or his or their legal representatives or assigns, be let into possession of said premises; and that any of the parties to this cause who shall be in possession of said premises, or any portion thereof, or any person who may have come into such possession under them, or any of them, since the commencement of this suit, shall upon the production of such Master’s deed of conveyance, surrender possession of said premises to said Grantee or Grantees, his or their representatives or assigns, and, in default of so doing, a writ of assistance shall issue; and further ordered that the Court hereby retains jurisdiction of the subject matter of this cause and of all the parties hereto for the purposes of enforcing this decree.”

The facts appearing from the record are briefly that the plaintiffs purchased the real estate involved in the •proceeding at a sale by the Master in Chancery and received a certificate of sale, which they assigned to John J. Shute and Jo Ann Shute, his wife; that upon expiration of the redemption period the Master issued a deed to the said assignees who subsequently conveyed the premises by deed to James E. Thornton and Mallie E. Thornton, appellees herein and to whom we shall refer as petitioners; that Eilert Leesman and Anna Leesman, defendants, who bring this appeal, were in possession of the premises at the time of the filing of the complaint and so remained np to the time of the issuing of the Writ of Assistance; and that the defendants refused to surrender possession of the premises to petitioners who thereupon petitioned the Circuit Court for a Writ of Assistance.

A motion by the defendants to dismiss the petition was denied by the Court. This appeal is from the Trial Court’s order denying such motion.

Petitioners have filed a motion in this Court to dismiss the appeal on the grounds (1) that the abstract of record is insufficient in that it fails to set forth that notice of appeal was filed in the Trial Court; that it was filed within the time required by the Civil Practice Act and that a copy of the same was served upon the petitioners or their attorneys (2) that it fails to sufficiently set forth the final judgment from which the appeal is taken. This motion has been taken with the case.

Rule 38 of the Supreme Court [Ill. Rev. Stats. 1953, ch. 110, § 259.38] and Rule 6 of this Court requires the party prosecuting an appeal to furnish a complete abstract of the record. The Civil Practice Act provides that an appeal is perfected when the notice of appeal is filed in the lower court and no other step in the perfecting of the appeal is jurisdictional. Chap. 110, Sec. 76 (2), Par. 200 [subd. (2)], Ill. Revised Statutes 1953. It follows that if the notice of appeal is not filed in compliance with such statutory requirement, the appeal is not perfected.

In the abstract of record filed by defendants in the instant case, no mention is made of a notice of appeal. Obviously, this Court cannot determine from the abstract whether such a notice was filed or whether a copy thereof was served upon petitioners as required by the Practice Act. It is petitioners’ contention that under the decisions in Stevenson v. Illinois State Trust Co., 292 Ill. App. 528 and Shaw v. Davis, 289 Ill. App. 447, its motion to dismiss the appeal should be sustained. While these cases do support petitioners’ contention, it is important to observe that in the Shaw case the abstract of record made mention of a notice of appeal and service thereof upon the attorneys for the appellees but failed to show the filing of the same in the clerk’s office. In the Stevenson case, the motion to dismiss was grounded upon failure of the abstract to show filing of the motion within the time required by the Civil Practice Act and that a copy was served upon the appellees. The situation with which the Court dealt in both instances differs from that presented to this Court on the instant appeal. It is also important to point out that in the above cases the Court in effect held that in all cases where the abstract of record fails to show all jurisdictional steps to have been taken it must be held to be insufficient. As will be hereinafter observed, the rule as announced by the Court in these two cases was subsequently held to be unduly broad and as authority both have been overruled.

As indicated by its opinions in numerous cases, the Supreme Court has always sought to avoid a harsh construction of Eule 38 except where there appears to have been a flagrant disregard thereof. In People ex rel. Sandberg v. Grabs, 373 Ill. 423, where the appellees contended that the abstract of the record was insufficient to sustain the appeal, the Court had this to say:

“It is not contended that the notice of appeal was not filed in proper time, or that it was not properly served, but only that the abstract was insufficient. It appears from the abstract that the judgment of the lower court was entered on October 3, 1939; that on November 9, 1939, the notice of appeal was filed, and ‘November 13, 1939. Proof of service of notice of appeal.’ This shows that the notice of appeal was served within ninety days after the entry of the judgment appealed from, and within but four days after it was filed. Buie No. 38 of this court (370 Ill. 43) regulates the making of an abstract. It must be sufficient to present fully every error relied upon, and it will be taken to be accurate and sufficient for a full understanding of the questions presented for decision, unless the opposite party shall file a further abstract, making necessary corrections or additions. To dismiss this appeal for failure to fully abstract the notice of appeal and proof of its service where no point is made as to it being regularly and properly filed or served, would be highly technical, and would defeat the announced purpose of section 4 of the Civil Practice Act which provides that the act shall be liberally construed to the end that controversies may be speedily and finally determined, according to the substantive rights of the parties. Ordinarily, the appellee must supply an additional abstract if he deems appellant’s abstract insufficient. He cannot obtain the dismissal of the appeal, except for flagrant disregard of the rule.”

It is to be noted that this opinion clearly indicates that the notice of appeal was served and filed.

In People ex rel. Kunstman v. Nagano, 389 Ill. 231, where the abstract referred to the notice of appeal and proof of service thereof but was challenged as to its sufficiency, the Court said:

“While it is true that Buie 38 of this court requires that the party prosecuting an appeal shall furnish a complete abstract of the record, we have always avoided a harsh construction of said rule except for flagrant disregard thereof. The abstract in this case is not as complete as might be desired but it does refer to the notice of appeal and proof of service thereof. In fact, the notice of appeal is set forth in full and appellee Nagano makes no contention that it was not regularly and properly filed or served. Under similar circumstances, a motion to dismiss the appeal was denied in People ex rel. Sandberg v. Grabs, 373 Ill. 423, and we adhere to that ruling in the instant case.”

The Appellate Court, Fourth District, in Ellet v. Wyatt, 345 Ill. App. 420 denied a motion to dismiss the appeal where the abstract while showing the filing of a notice of appeal and appeal bond, did not show the date or manner of filing and service of notice of appeal. In that case, the Court followed the liberal construction of Rule 38 as applied by the Supreme Court in People ex rel. Sandberg v. Grabs and People ex rel. Kunstman v. Nagano, supra and overruled the Shaw and Stevenson cases to the extent that it was held therein that dismissal was required in every case where any jurisdictional step was not shown by the abstract. However, the opinion in the Ellet case reflects no tendency on the part of the Court to permit a flagrant disregard of the requirements of Supreme Court Rule 38 as is clearly indicated by the following statement therein:

“We are of the opinion that the abstractor should in every case show the jurisdictional steps in connection with the appeal, including the dates of the entering of judgment and notice of appeal, but a failure in this respect should not require dismissal of the appeal unless the failure can be seen to be of a flagrant character. Rule 38 of the Supreme Court and our rule No. 8 both state that the purpose of the abstract is that it will be sufficient to present fully every error relied upon. In the case at bar no question is raised concerning the jurisdictional steps and the abstract does show that a judgment was entered, a notice of appeal filed and an appeal bond filed and approved.”

The facts in the instant case are readily distinguished from those before the Court in the Wyatt case. Here the defendants have furnished the Court with an abstract which fails to refer to or make any mention of a notice of appeal or the filing and service thereof. We think such failure must be held to be of a flagrant character. No matter how liberal may be the construction applied to the rules regulating the composition of an abstract, it will not cover a situation where there has been no attempt to comply therewith.

Because of the defendants flagrant disregard of Supreme Court Buie 38 and Buie 6 of this Court, the motion of petitioners to dismiss the appeal must be allowed.

We are also of the opinion that the abstract in this case is insufficient in that it fails to show the judgment of the Trial Court from which the appeal was taken. It does show a portion of the foreclosure decree but does not show the order of the Trial Court allowing the petition for a Writ of Assistance. The only reference therein to any order of the Trial Court is the following appearing on page 3 of the original abstract:

“Order of the Circuit Court overruling the Motion of Eilert Leesman and Anna Leesman to dismiss the Petition for Writ of Assistance, and ruling on the Defendants Eilert Leesman and Anna Leesman to Answer.”

Obviously this is not a judgment order. The abstract also refers to the Writ of Assistance as issued by the Court but does not contain the order directing the issuance thereof. .

The courts have repeatedly held that where the abstract does not show any judgment entered by the Trial Court such failure to furnish a proper abstract is sufficient ground for affirmance. Hayes v. Industrial Commission, 383 Ill. 272; Boston Store of Chicago v. Industrial Commission, 386 Ill. 17; Harris v. Annunzio, 411 Ill. 124.

For the reasons herein indicated, the appeal is dismissed.

Appeal dismissed.


text:
    People of State of Illinois, Plaintiff-Plaintiff in Error, v. Damon L. Gentry, Defendant-Defendant in Error.
    Gen. No. 10,057.
    Third District.
    May 14, 1956.
    Released for publication May 31, 1956.
    Latham Castle, of Springfield, Attorney General of State of Illinois, for plaintiff in error; Carroll V. Wintersteen, of Havana, State’s Attorney of Mason County, Fred G. Leach, of Springfield, and Edwin A. Strugala, of Chicago, Assistant Attorneys General, of counsel.
    No brief filed for defendant in error.
   JUDGE CARROLL

delivered the opinion of the court.

An information filed in the County Court of Mason county charged the defendant with being a vagabond.

The defendant filed a motion to quash the same on the ground that the county court lacks jurisdiction over vagrancy cases; that Par. 579, Chap. 38, Revised Statutes of Illinois, 1955, specifies that such cases shall be heard by a justice of the peace or a police magistrate, and, therefore, jurisdiction in such cases is limited to justices of the peace, police magistrates or the circuit court, which has original jurisdiction in all criminal cases.

The county court sustained the defendant’s motion and ordered the information quashed. By Writ of Error, the People seek reversal of the Trial Court’s order.

Paragraph 177, Chapter 37, Illinois Revised Statutes, 1955, reads as follows:

“The County Courts shall have concurrent jurisdiction with the Circuit Courts in all that class of cases wherein justices of the peace now have or may hereafter have jurisdiction, where the amount claimed or the value of the property in controversy shall not exceed two thousand dollars ($2,000), concurrent jurisdiction in all cases of appeals from justices of the peace and police magistrates and in all criminal offenses and misdemeanors where the punishment is not imprisonment in the penitentiary or death.”

The offense of vagrancy is punishable by fine or a jail sentence not to exceed six months and is accordingly a misdemeanor. To sustain the argument that jurisdiction in vagrancy cases is not conferred upon county courts despite the aforesaid provisions of Par. 177, Chap. 37 of the Illinois Revised Statutes, which plainly vests authority in such courts to deal with all misdemeanor cases, this court would be required to hold that the statutory jurisdiction in vagrancy cases outside of the City of Chicago is vested exclusively in justices of the peace or police magistrates.

It may well be that the basis of the argument advanced by defendant in the Trial Court is that portion of Par. 579, Chap. 38, Illinois Revised Statutes, 1955, which fixes the punishment for the offense of being a vagabond and which reads as follows:

“It shall be the duty of the sheriff, bailiff of the municipal court of Chicago, constable, city marshal and police officers of any county, town, village, city or other municipality in this state, to arrest, upon warrant, and bring before the nearest justice of the peace or police magistrate, or, if within the City of Chicago, before the municipal court of Chicago, any such vagabond, wherever he may be found, for the purpose of examination;

In sustaining the defendant’s motion, the Trial Court apparently proceeded upon the theory that the aforesaid Paragraph 579 by making it the duty of certain police officers, outside the City of Chicago to arrest a vagabond and bring him before a justice of the peace or police magistrate for examination, thereby limited jurisdiction to deal with the offender to justices of the peace and the circuit court.

Ho attempt to confer exclusive jurisdiction upon justices of the peace in vagrancy cases is indicated by this statutory provision. Furthermore, the jurisdiction of justices of the peace in vagrancy cases is not dependent upon the above provision. Original jurisdiction in all cases of misdemeanor, where the fine does not exceed $500 and imprisonment in the county jail for one year, is conferred upon justices of the peace by Par. 165, Chap. 79, Illinois Revised Statutes, 1955.

The theory upon which the defendant’s Trial Court argument proceeded appears to have been rejected in numerous cases. In Fanning v. People, 10 Ill. App. 70, it was contended that the county court lacked jurisdiction in misdemeanor cases because original jurisdiction thereof had been conferred upon justices of the peace by a section of the Statute then in force. The Appellate Court, however, rejected such contention and said:

“. . . There is no force in the objection that the county court has no jurisdiction in cases of misdemeanors, where the punishment is by fine only, not exceeding $200, because original jurisdiction of such cases has been conferred upon justices of the peace, by section 381, Rev. St. 1874, p. 405. That section does not purport to make such jurisdiction exclusive.”

In Myers v. People, 67 Ill. 503, it was held that the jurisdiction of the circuit court in all criminal cases as conferred by the Constitution was not exclusive but that it was within the power of the legislature to confer upon county courts concurrent jurisdiction in criminal cases.

In People v. Jacobson, 247 Ill. 394, where it was contended that Sec. 2 of the Municipal Court Act [Ill. Rev. Stats. 1953, ch. 37, § 357] in attempting to confer jurisdiction over misdemeanors was unconstitutional because under the Constitution the criminal court of Cook County is vested with jurisdiction of all criminal cases, the court citing the Myers case, rejected such argument and said:

“The jurisdiction conferred upon any court by the constitution cannot be diminished by the legislature, but in the absence of a constitutional prohibition the legislature may confer concurrent jurisdiction of the same subject matter upon another court.”

In view of the above decisions, there would appear to be no merit in the contention advanced by the defendant in support of his motion. The sections of the Statute defining the offense of being a vagabond and fixing the punishment therefore, do not purport to confer exclusive jurisdiction in vagrancy cases upon justices of the peace or police magistrates. In fact, these sections of the Statute do not confer jurisdiction in these cases upon justices of the peace courts for the reason that original jurisdiction in misdemeanor cases is conferred upon such courts by Par. 165, Chap. 79 of the Statutes and to which we have above referred.

The county courts have concurrent jurisdiction with the circuit courts and justices of the peace in all misdemeanor cases including the offense of vagrancy.

The court erred in sustaining the defendant’s motion to quash the information.

The order of the county court quashing the information is reversed and the cause remanded to that court with directions to reinstate the information and thereafter, to proceed in due course.

Reversed and remanded with directions.


author: JUSTICE EOVALDI

text:
    In Matter of Petition for Incorporation of Territory into Proposed Village to be Known as Village of Hickory Park, in County of Winnebago, and State of Illinois.
    Gen. No. 10,928.
    Second District.
    May 19, 1956.
    Released for publication June 7, 1956.

      Stuart B. Nordquist, of Rockford, for petitioners-appellants.
    John F. Pelgen, and William H. Barrick, both of Rockford, for Clyde R. Moore, appellee; William H. Barrick, of Rockford, of counsel.
   JUSTICE EOVALDI

delivered the opinion of the court.

This is a petition presented to the county judge by forty-seven petitioners to seek an election to organize a village from unorganized territory within the County of Winnebago, Illinois. Clyde R. Moore, a duly qualified elector and property owner within the boundaries of the proposed Village of Hickory Park, Illinois, filed a motion to dismiss the petition on the grounds that a previous petition and election had been defeated by a vote of fifty to fifty-four three days before the present petition had been filed in said county court. The motion to dismiss alleged that Section 3 — 14, Chap. 24, Ill. Rev. Stat., 1953, prohibited the same question concerning territory within the same boundaries being brought up to the electors within a term of one year.

The second petition included a territory which was about two-thirds of the same territory included in the first petition.

The petitioners-appellants filed a motion objecting to the motion to dismiss on the grounds that said Article 3 of the Cities and Villages Act did not provide for objections by dissatisfied electors within the boundaries of a proposed village; that the court as an administrative body should admit the petition as originally filed; and that the objector had an adequate remedy at law.

The court dismissed the motion objecting to motion to dismiss, and granted the motion to dismiss the original petition. This appeal follows.

Petitioners-appellants contend that (1) the county court erred in denying the motion objecting to the motion of any dissatisfied elector; and (2) the county court erred in granting the motion to dismiss on the grounds that an election could not be held within one year of the previous election.

In their brief, the appellants take the position that the acts required by the county judge are purely ministerial and are neither legislative nor judicial (relying on the case of People v. Morrow, 181 Ill. 315, which case involved an Information in the nature of a quo warranto) ; that the county judge had no discretion in the matter; and that appellee had no right to object.

The petition to organize was based on Ch. 24, Article 3, Sec. 3 — 5, Ill. Rev. Stat., 1953. Article 3 is entitled, “INCORPORATION OF VILLAGES.” Section 3 — 5 provides for the filing of the petition with the county clerk addressed to the judge of the county court. Section 3 — 6 provides for the election, and the following sections provide for the steps to be taken in the event a majority of the votes favor the incorporation. Section 3 — 14 of the same Article provides as follows:

“No election on the same question concerning territory within the same boundaries, shall be had, after one election thereon, until one year has elapsed.”

The motion to dismiss alleged that the present petition was filed three days after the previous petition and election had been defeated. Appellants do not question this to be a fact. It is admitted by the respective parties to this cause that this second petition included a territory about two-thirds of the same territory included in the first petition.

In the case of Village of Glencoe v. Hurford, 317 Ill. 203, our Supreme Court stated, page 212:

“In construing an act of the legislature it is the duty of the court to attempt to determine the intention of the legislature from the language of the act when all of its provisions are taken together and considered with reference to the purpose for which the legislation was enacted.”

Article 3, Section 3 — 14, plainly provides that no election shall be held until one year has elapsed. The language of the statute is clear and unambiguous. Where the language used in a statute is plain and certain, it must be given effect by the courts. Smith v. Board of Education of Oswego Community High School Disk, 405 Ill. 143, at page 148; Kinney v. County Board of School Trustees of La Salle County, Illinois, 7 Ill.App.2d 286, at page 294.

It is not contradicted that all of the territory in both petitions for incorporation of territory into the proposed village is located in Winnebago County. The present petition is entitled, “STATE OF ILLINOIS, WINNEBAGO COUNTY — SS. IN THE COUNTY COURT THEREOF. ... TO THE HONORABLE JUDGE OF THE COUNTY COURT OF THE COUNTY OF WINNEBAGO AND STATE OF ILLINOIS:”. Courts know their own records. People v. Bernovich, 403 Ill. 480, at page 483; People v. Powers, 283 Ill. 438; Newberry v. Blatchford, 106 Ill. 584; Chicago & A. R. Co. v. Kelly, 182 Ill. 267; Jackson v. Glos, 249 Ill. 388; Smyth v. Neff, 123 Ill. 310.

The lower court, being in possession of facts showing that petitioners were not entitled, as a matter of law, to the relief prayed for in their petition for incorporation, acted within its rights in refusing to proceed under said petition, and in dismissing same.

Affirmed.

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


author: JUSTICE EOVALDI.

text:
    Cecil Wood, d/b/a Wood Electric Company, Appellee, v. Ward Vanderpool, and Lee M. Vanderpool, Appellants.
    Gen. No. 10,911. (Abstract of Decision.)
    Second District.
    May 3, 1956.
    Rehearing denied May 28, 1956.
    Released for publication May 29, 1956.
    Hyer, Gill & Brown, for defendants-appellants; Berry & Simmons, for appellee.
   Opinion by

JUSTICE EOVALDI.

Not to be published in full.


author: PER CURIAM.

text:
    People of State of Illinois, Defendant in Error, v. Claude Bailey, Plaintiff in Error.
    Gen. No. 10,847. (Abstract of Decision.)
    Second District.
    May 3, 1956.
    Rehearing denied May 28, 1956.
    Released for publication May 29, 1956.

      Paul D. Perona, and George S. Skinner, for plaintiff in error; Calhoun W. J. Phelps, State’s Attorney, and Donald E. Blodgett, Assistant State’s Attorney, for defendant in error.
   Opinion

PER CURIAM.

Not to be published in fuH.


author: PRESIDING JUSTICE BARDENS.

text:
    Nella M. Blue, and Charles Blue, Plaintiffs-Appellees, v. St. Clair Country Club, Defendant-Appellant.
    Term No. 56-F-22. (Abstract of Decision.)
    Fourth District.
    May 5, 1956.
    Released for publication June 4, 1956.
    Pope and Driemeyer for appellant; Frank M. Rain, of counsel; Williams and Walker, and Kramer, Campbell, Costello & Wieehert, for appellees.
   Opinion by

PRESIDING JUSTICE BARDENS.

Not to be published in full.


author: JUSTICE CULBERTSON.

text:
    William Webb, Administrator of Estate of Linda Diann Webb, Deceased, Plaintiff-Appellee, v. Homer Henke, Defendant-Appellant.
    Term No. 56-F-10. (Abstract of Decision.)
    Fourth District.
    May 5, 1956.
    Released for publication June 4, 1956.
    James L. Reed, for defendant-appellant; Listeman and Bandy, and Irving M. Wiseman, for plaintiff-appellee.
   Opinion by

JUSTICE CULBERTSON.

Not to be published in full.


text:
    Joe Oehlert, Plaintiff-Appellant, v. John W. Youngman, Defendant-Appellee. John W. Youngman, Plaintiff-Appellee, v. Joe Oehlert, Defendant-Appellant.
    Term No. 56-F-19. (Abstract of Decision.)
    Fourth District.
    May 5, 1956.
    Released for publication June 4, 1956.

      Loyd M. Bradley, for appellant; no brief filed for appellee.
   Opinion by

JUSTICE CULBERTSON.

Not to be published in fuH.


author: JUSTICE EOVÁLDI.

text:
    Sigmund J. Tarvid, Plaintiff-Appellant, v. Marguerite S. Tarvid, Defendant-Appellee.
    Gen. No. 10,852. (Abstract of Decision.)
    Second District.
    May 12, 1956.
    Released for publication June 7, 1956.
    Putnam, Johnson & Alsehuler, for appellant; Sam Alsehuler, Ralph C. Putnam, Jr., and Edward J. McWethy, of counsel; Thomas P. O’Malley, and Donn Johnson, for appellee.
   Opinion by

JUSTICE EOVÁLDI.

Not to be published in full.


author: JUDGE CARROLL.

text:
    Wardell Jackson, Plaintiff-Appellant, v. Campbell K. Evans, Defendant-Appellee.
    Gen. No. 10,054. (Abstract of Decision.)
    Third District.
    May 14, 1956.
    Released for publication May 31, 1956.
    John Alan Appleman, for plaintiff-appellant; Busch & Harrington, for appellee; Earl C. Harrington, and Thomas E. Harrington, of counsel.
   Opinion by

JUDGE CARROLL.

Not to be published in full.