author: Mr. Justice SchaEEER

text:
    (No. 33887.
    ACF Industries, Incorporated, (formerly American Car and Foundry Company,) Plaintiff in Error, vs. The Industrial Commission et al.—(Pauline Suski, Defendant in Error.)

      Opinion filed May 23, 1956.

      Stevenson, Conaghan, Velde and Hackbert, of Chicago, (Harlan L. Hackbert, and Douglas E. Stevenson, of counsel,) for plaintiff in error.
    Harold Tucker, of Chicago, (Charles Wolee, of counsel,) for defendant in error.
   Mr. Justice SchaEEER

delivered the opinion of the court:

The question here is whether or not a determination of the Industrial Commission which denied a claim of death benefits was properly set aside upon review. On May 20, 1949, Albert Suski filed an application for adjustment of his claim for loss of use of his right foot against his employer, American Car and Foundry Company, now ACE Industries, Inc. Suski died on September 8, 1949, and thereafter his widow, Pauline Suski, filed an amended application, alleging that her husband’s death resulted from the injury. An arbitrator found that the injury caused Suski’s death. The Industrial Commission set aside the arbitrator’s award, and found that Suski died from causes not related to the injury.

The circuit court of Cook County set aside the decision of the commission as contrary to the manifest weight of the evidence and remanded the cause to the commission, with directions to hear such further medical evidence as the parties might offer, and in the event that no additional evidence was offered, to award death benefits. No additional evidence was offered on remand, and in obedience to the mandate of the circuit court the commission found that Suski’s death resulted from causes related to his injury and awarded benefits accordingly. Respondent filed a writ of certiorari to- review this order in the superior court of Cook County. That court was of the opinion that it was without jurisdiction to review the remanding order of the circuit court and without reviewing the evidence confirmed the decision of the commission. We allowed a writ of error.

The order of the circuit court which remanded the cause to the commission was interlocutory. (Joyce Bros. Storage and Van Co. v. Industrial Com. 399 Ill. 456; American Manganese Steel Co. v. Industrial Com. 399 Ill. 272; Brown Shoe Co. v. Industrial Com. 374 Ill. 500.) The ultimate award of the commission, however, was made in accordance with that order, and the award has been sustained. Upon this writ of error the entire record is before us, and the correctness of the order of the circuit court is open to review. Northwestern University v. Industrial Com. 409 Ill. 216; American Manganese Steel Co. v. Industrial Com. 399 Ill. 272; Gray Knox Marble Co. v. Industrial Com. 363 Ill. 210; Yellow Cab Co. v. Industrial Com. 333 Ill. 49.

The only disputed issue of fact before the commission was whether or not there was a causal relationship between Suski’s injury on May 20, 1949, and his death on September 8, 1949. The only question argued here is whether the original determination of the commission that his injury was not related to' his death was against the manifest weight of the evidence. Only three witnesses, the claimant and two doctors, testified. Neither doctor saw Suski after the injury to his foot.

Suski was 45 years old. He was a helper in the blacksmith shop, and he was injured when an angle iron fell from a hand truck he was operating onto his right foot. An X-ray was taken, and Suski was told that it was just a heavy bruise and that he should put hot applications on it to reduce the swelling. He continued to work the rest of the day and went to work the next day, a Saturday. Two days later, on Monday, he was told by another doctor that the X-ray indicated fractures. He was hospitalized for the next three or four days, and his foot was put in a cast equipped with a walking caliper, which he wore until July 7 or 8 when it was removed. He returned to work on August 17, first doing light jobs such as sweeping the floor, and resumed his normal duties on August 21. When he went home on August 29, he complained of feeling ill and weak. He remained at home, confined to his bed part of the time. On the morning of September 8, he complained of weakness and difficulty in breathing. His physician, Dr. Edward Madey, was summoned but Suski died before he arrived. The death certificate gave the cause of death as acute coronary occlusion and stated that Suski was a chronic alcoholic.

Claimant testified that Suski had never made any complaints tO' her about his physical condition prior to May 20, 1949," that after he returned to work, she observed that he breathed heavily when he climbed the three flights of stairs in their home, and that he complained of sharp shooting pains which radiated from his right foot through the leg, sometimes causing a jerking of the entire body.

Claimant’s medical witness, Dr. Edward Madey, stated that in his practice he had looked at about 75 cases of coronary occlusion. He had examined Suski some four years before the accident. At that time he complained of periodic bouts of shortness of breath and fullness in his upper abdomen, particularly after his big meal. Suski refused tO' have an electrocardiogram, and Dr. Madey made a diagnosis of "complaints relative to his heart” and prescribed sedatives, antispasmodics and nitroglycerine tablets. He saw Suski on two or three subsequent occasions and again about eight months before his death. At that time, Suski stated that the episodes of tightness in his chest seemed to- be increasing, not only after eating, but when he did any extensive amount of work or climbed the three flights of stairs in his home. Dr. Madey told Suski to continue with the medication previously prescribed. He testified that Suski had become a heavy drinker since his first consultation.

In response to- a hypothetical question, he stated that the accident suffered on May 20 might have contributed to Suski’s death on September 8, 1949. “We know from experience,” he said, “that any psychic or physical trauma to- an individual who shows evidence of progressive organic heart disease may accelerate the process by imposing an additional prolonged strain on a heart that is already damaged, and may result in an earlier death than might be expected.” On cross-examination, he said: “I am not saying that the man’s death was directly due to- the trauma of the accident three and a half months prior'to- his death. I am stating that an injury of that type, with a prolonged period of disability, might reasonably place an added strain on the man’s heart and result in acceleration of degenerative processes which might cause his death.” To the question: “Do you believe that an accident such as this man had, an injury to- the foot, fracture of the foot, would result in coronary occlusion three and a half or four months later, or would you expect it much sooner than that?” Dr. Madey replied: “You never can tell whether the accident directly contributed to the man’s early death, or whether he was going to- die at that time, anyway. You have no measure, no guide.”

Dr. Chauncey Maher, a specialist in heart disease, testified for the employer. When asked substantially the same hypothetical question submitted to Dr. Madey, he expressed the opinion that there was no causal connection between the accident described and Suski’s death. He testified that an acute coronary occlusion or thrombosis is a specific episode which occurs in the course of a primarily chronic disease known as coronary sclerosis, or hardening of the arteries of the heart; that what brings about an occlusion has never been answered, and that why an occlusion should occur at a particular time has never been satisfactorily explained. He testified that there is no scientific reason to believe that strenuous exercise might accelerate an occlusion in a person suffering from antecedent coronary or arteriosclerosis, and that he would advise a patient of his to return to a strenuous form of work. He testified further that he had a number of patients currently and in past years who have had coronary sclerosis and some of whom have had a coronary thrombosis; that these patients had sustained fractures of the legs, ribs or skull, suffered dental extractions, or undergone major surgical operations, and that there was nothing in his experience leading him to believe that “that type of thing, which is much greater than the trauma in this hypothetical question, had anything to do with their course.” To the arbitrator’s question as to whether, in his opinion, trauma in any form would not accelerate the death of one suffering with coronary sclerosis, he answered: “* * * I have had the experience of subjecting these patients to major surgery, bowel obstruction, gall bladder operations, brain operations. I have seen patients with extensive fractures who had coronary disease, under my care, and there has been no- evidence in my record that trauma of a surgical type, or trauma of a fracture type has precipitated coronary thrombosis in such patients. I say it would not accelerate it or precipitate death.”

It is the function of the commission to- draw inferences from the evidence in workmen’s compensation proceedings, and the decision of the commission upon a finding of fact is not to be set aside unless it is manifestly against the weight of the evidence. (Hunter Packing Co. v. Industrial Com. 1 Ill.2d 99; American Manganese Steel Co. v. In dustrial Com. 399 Ill. 272; Weil-Kalter Mfg. Co. v. Industrial Com. 376 Ill. 48.) The question here was whether the injury to decedent’s foot brought about the fatal coronary occlusion three and a half months later. On that issue the evidence consists almost entirely of the conflicting views of two medical witnesses. Under the circumstances the commission was required to determine which testimony was entitled to the greater weight, (Railway Express Agency v. Industrial Com. 415 Ill. 294; Turner v. Industrial Com. 393 Ill. 528; J. I. Case Co. v. Industrial Com. 378 Ill. 132,) and upon the record made, the original decision of the commission was not contrary to the manifest weight of the. evidence.

Claimant argues, however, that the conclusion of the company’s medical expert is outweighed by “the facts that prior to' the accident the decedent was physically capable of performing his work and duties in the normal manner, that he sustained a severe trauma, and that immediately thereafter his physical condition declined and deteriorated until it culminated in his death.” But the testimony of the claimant that her husband was in good health prior to1 his injury directly conflicts with the testimony of Dr. Madey, who testified that Suski had been suffering from a heart ailment for several years prior to the date of the accident.

Claimant also argues that adverse inferences may be drawn against a party to whom material evidence is available and who fails to produce it or account for its absence. (International Sales Co. v. Industrial Com. 365 Ill. 436.) Her point is that the evidence shows that after the accident Suski was treated by at least two of the employer’s doctors, that he was under the care of one of them from a few days after the accident until at least July 8, 1949, and that neither of these doctors was called as a witness. The weight to be given to the employer’s failure to call the doctors who treated the injury to Suski’s foot rested with the commission. Whether their testimony would have supported claimant’s medical witness or the employer’s medical expert is a matter of speculation.

In this case the original decision of the commission was reviewed in the circuit court of Cook County. Review of the commission’s second decision, entered in accordance with the mandate of the circuit court, was sought in the superior court of Cook County. It was the view of the judge of the superior court that he was “without jurisdiction to review said remanding order of the Circuit Court” and therefore he confirmed the second decision of the commission without having reviewed the evidence in the record. Our decisions on the point are not entirely clear. Brown Shoe Co. v. Industrial Com. 374 Ill. 500, supports the view taken by the superior court. On the other hand, American Manganese Steel Co. v. Industrial Com, 399 Ill. 272, and Yellow Cab Co. v. Industrial Com. 333 Ill. 49, strongly suggest that the second court has jurisdiction tO' review the full record. The practice of reviewing orders of the commission entered in a single proceeding in different courts is inimical to orderly judicial procedure. The power of the circuit and superior courts of Cook County to transfer a case to the appropriate court, “if considerations of justice or convenience require it,” is adequate to solve problems of this kind if they should arise in the future. Ill. Rev. Stat. 1955, chap. 146, par. 37. See Ill. Rev. Stat. 1955, chap. 110, par. 10; Caterpillar Tractor Co. v. Industrial Com. 397 Ill. 474.

In our opinion the circuit court should not have reversed the original decision of the commission and remanded the cause to the Industrial Commission, and the superior court, upon review of the award in favor of the claimant, should have set it aside.

The judgment of the superior court of Cook County is reversed and the award in favor of the defendant in error, Pauline Suski, is set aside.

ludgment reversed; award set aside.


source: Caselaw Access Project

author: Mr. Justice Bristow

license: Public Domain

text:
    (No. 34016.
    William J. Dowsett vs. The City of East Moline et al., Appellees—(Eugene French et al., Appellants.)

      Opinion filed May 23, 1956
    Rehearing denied June 15, 1956.

      Klingbiel, J., took no part.
    Edward J. Turnbaugh, of Moline, for appellants.
    Huber, Reidy & Katz, of Rock Island, and Roy H. GlocichoEE, of East Moline, for appellees.
   Mr. Justice Bristow

delivered the opinion of the court:

Eugene French, intervening plaintiff, and others appeal directly to this court from decrees of the circuit court of Rock Island County entered on December 2, 1955, and January 25, 1956, holding a proposed waterworks revenue-bond-issue ordinance of the city of East Moline and a referendum election in support thereof valid and denying an injunction restraining the issuance of such bonds.

The trial judge has certified that the validity of an ordinance of the city of East Moline is involved and that in his opinion the public interest requires an appeal be taken direct to this court. Consequently, this court properly has jurisdiction of this appeal.

On March 15, 1955, the city council of East Moline adopted and the mayor approved an ordinance providing for the issuance of $1,050,000 waterworks revenue bonds in order to' provide for certain waterworks improvements and the required publication thereof was duly made. Thereafter a petition for referendum on said ordinance was filed within the required statutory period.

• On April 12, 1955, the city council adopted an ordinance calling a special election to' vote on the bond issue for May 3, 1955. Said ordinance consisted of seven numbered sections: section 1 calling the special election and directing the clerk to publish notice thereof; section 2 specifying the question to be submitted, the hours the polls were to be open and the number of precincts to be used; section 3 specifying verbatim the notice of special election to be published by the clerk; section 4 naming specific persons as judges and clerks for the specified precincts; section 5 specifying verbatim the form of ballot to be used; section 6 directing the clerk to cause publication of a sample ballot; and section 7 providing for the ordinance to- be effective immediately upon passage and approval.

Thereafter, on April 14, 1955, the clerk caused the complete ordinance calling said special election to be published once, which ordinance contained within its text the verbatim form of notice for the special election to be held on May 3, 1955. The city clerk on April 28 caused a sample of the ballot to be used in said special election to be published, but at no time did the clerk publish any notice of election other than that contained in the publication of the ordinance calling the special election.

On May 3, 1955, a special election was held wherein 2,261 total votes were cast, there being 1,217 votes in favor of the bond issue and 1,022 against.

On November 29, 1955, the plaintiff, as a citizen, voter, resident and taxpayer of the city of East Moline, filed his complaint praying that the issuance of said waterworks revenue bonds be enjoined, in which complaint the only issue raised was the validity of the publication in full of the ordinance calling the special election as a valid notice of said special election. Summons was duly issued returnable December 19, 1955, and January 2, 1956, and was served on the city clerk on November 29, 1955, the date of filing the complaint.

On December 1, 1955, a verified answer was filed by the defendants admitting most of the allegations in the complaint and contending that the notice of election was valid.

On the next day, December 2, 1955, evidence was heard and a decree entered by the trial court finding that there was extensive publicity prior to the election and a heavy vote at the election, that no more voters would have participated had a notice of special election been published without reference to the ordinance and decreed that the special election was, in all respects, legal and valid, denying the prayer for injunction and dismissing the complaint.

On January 3, 1956, Eugene French filed his motion for leave to intervene and to vacate the decree for want of jurisdiction or, in the alternative, to open up the decree with leave to plead and file a cross complaint for declaratory judgment. In said motion the intervenor alleged that he was a water rate payer, that the plaintiff in the original complaint was an open and active proponent of the proposition voted upon, that the suit was instituted as a “friendly suit” and hearing had thereon prior to the return date for the purpose of obtaining an adverse adjudication and to cut off the normal time for intervention by those desiring to litigate in good faith, that the plaintiff therein had no standing to enjoin the issuance, that the court had no jurisdiction, that the court went beyond the only issue tendered, that the sample ballot was not published, that the precinct boundaries were inaccurate so as to- invalidate the election, that the council abused its discretion in setting the election only 18 days after publication, and generally that the entire procedure was collusive and fraudulent.

On January 11 defendants moved to strike the said petition for leave to intervene, in which motion it is alleged among other things that the petition for intervention came too late after final decree and that the issues sought to be raised were decided in the main suit.

On January 13, 1956, French was granted leave to make his petition to intervene comply with section 26.1(5) of the Civil Practice Act as amended (Ill. Rev. Stat. 1955, chap, 110, par. 26.1,) and his affidavit at that time sets forth that the circuit clerk’s office was closed January 1 and 2, and that the filing of his motion on January 3, 1956, was within thirty days of the entry of the decree on December 2, 1955.

On January 17, 1956, the trial court entered an order granting leave to French to intervene as a plaintiff provided that in the event defendants answered intervenor’s original pleading within two days and proceeded without delay to final hearing thereon the next day, January 20, 1956, that then the intervenor should be bound by the date of entry of the original decree and the time limited by law for filing notice of appeal therefrom.

On January 18, 1956, the defendants filed their answer to intervenor’s motion to vacate the decree and on January 20 intervenor’s motion to1 vacate the prior decree for want of jurisdiction was denied, and a further hearing was held before the trial court on the alternative prayers.

On January 25, 1956, the trial court entered a decree finding that no grounds had been shown for vacating or disturbing the prior decree and ordering that the decree of December 2, 1955, remain in full force and effect as of the date of entry thereof, that it was binding on all parties including the intervenor and remained the final decree of the court as of December 2, 1955.

On February 27, 1956, notice of appeal from both the final decree of December 2, 1955, and the decree of January 25, 1956, were filed.

Appellants assign three propositions as errors as follows :

1. The trial court erred in specifying that the decree of January 25, 1956, was retroactive as of December 2, 1955.

2. That the trial court erred in denying intervenor’s motion to vacate the decree of December 2, 1955, for the reason that neither plaintiff-appellee nor any other taxpayer, citizen, resident or voter of the city of Fast Moline were proper parties to bring the proceeding for injunction and it does not appear that they have any interest in the revenues of the waterworks from which the bonds are to be repaid or that they have suffered special damages.

3. In the alternative, that the court erred in denying the injunction and dismissing the complaint and adjudging the special election valid because the special election was not valid as required by law.

In support of the alleged invalidity of the ordinance the appellants in their brief argue four propositions as follows: (1) deviation of ballot from statutory form; (2) lack of publication notice; (3) precinct boundaries insufficiently described, and (4) abuse of discretion in fixing election three weeks after adoption of the ordinance.

The original complaint in this case was filed as a friendly suit by the nonappealing plaintiff in a representative capacity as a citizen, taxpayer and voter. The motion of the intervening plaintiff, appellant herein, for leave to intervene and to vacate the decree for want of jurisdiction or, in the alternative, to open up the decree with leave to plead and file a cross complaint was filed on January 3, 1956, after entry of final decree on the original complaint by the trial court on December 2, 1955. The trial court on January 17, 1956, formally granted leave to intervene as a matter of right under section 26.1(1) of the Civil Practice Act as amended after finding that the representation of said appellant’s interest by the existing parties is, or might be, inadequate and that said appellant would, or might be bound by the prior judgment of the court. The record fully sustains the finding of the court in that respect. However, the trial court in granting such leave to intervene affixed conditions to the order that the intervenor should be bound by the date of entry of the original decree on December 2, 1955, and the time limited by law for filing notice of appeal therefrom. Such qualification of the order granting leave to intervene was apparently made by the trial court pursuant to the authority granted in section 26.1(6) of the Civil Practice Act as amended, wherein it is provided that an intervener shall have all the rights of an original party except that the court may in its order allowing intervention provide that the applicant shall be bound by orders, judgments or decrees theretofore entered or that in other respects the application shall not interfere with the control of the litigation as justice and the avoidance of undue delay may require.

Section 26.1 of the Civil Practice Act above referred to is new and was effective as of the 1st day of January, 1956, and provides a modern intervention practice for Illinois analogous to that prevailing in other States and Federal rules of civil practice. Under prior law the right to- intervene was severely limited by the decisions of this court in Bernero v. Bernero, 363 Ill. 328, and Hairgrove v. City of Jacksonville, 366 Ill. 163. This section now provides an intervention remedy of liberalized scope but grants the trial court the power to prevent intervention from unduly hampering or delaying the original plaintiffs in their conduct of the litigation. However, in interpreting and applying said section in a particular case the entire Civil Practice Act and its provisions must be considered. Inasmuch as January 1 and 2, 1956, were each legal holidays (Ill. Rev. Stat. 1955, chap. 98, par. 18,) they should be excluded in computing the 30-day period prescribed by section 68.3 of the Civil Practice Act as amended (Ill. Rev. Stat. 1955, chap, 110, par. 68.3,) for filing motions for rehearing, retrial, modification of decrees, or vacation of decrees, and the trial court properly so found in allowing the motion to intervene.

We are of the opinion that the trial court properly held that its power under section 26.1 to condition the right to intervene upon “the avoidance of undue delay” included authority to shorten the time normally fixed by the statute and rules for the filing of a notice of appeal. But we are of the opinion that the court improperly exercised its discretion in fixing the time within which an appeal was to be taken at the outset before it could be known whether or not the period fixed would be adequate. In this instance there did remain a brief interval for the filing of the notice of appeal before the time limit fixed in the earlier order expired. But it could well be that the hearings would not have been concluded before the time within which the appeal was required to be taken had expired. The appropriate way to handle this problem is for the judge to condition leave to intervene upon a curtailed period for appeal, and then to fix the actual time for filing notice of appeal, at the time that final disposition of the case is made. We hold, therefore, that the present appeal is properly before us.

Although appellants in their brief state that they do not desire decision of this appeal on the point of proper party plaintiff and want of jurisdiction, intervening plaintiff-appellant’s motion to vacate for want of jurisdiction is based on the prior decisions of this court in Price v. City of Mattoon, 364 Ill. 512, and Bowes v. City of Chicago, 3 Ill.2d 175. In the Bowes case this court held that plaintiffs suing as taxpayers to- enjoin the construction of a water filtration plant in the Chicago harbor were proper plaintiffs because the city by its contracts and agreements with the Federal government had obligated general funds of the city although the construction itself was to be from water plant revenues. Here we have the general fund of the city involved because the ordinance binds the city to pay from the general funds for the water used in the fire hydrants and for other city purposes. In the Bowes case the involvement of the general funds of the municipality was more speculative and contingent than the situation here presented. We feel, therefore, that a consideration of the issues involving the merits is appropriate.

After having examined the record and cited authorities, it is our opinion that the trial court correctly decided the issues presented to it by both the original and intervenor’s pleadings. No issue was raised by the pleadings, argued, or passed upon by the trial court concerning any alleged deviation of the ballot from any prescribed statutory form and consequently such is not an issue properly before this court. People ex rel. Toman v. Belmont Radio Corp., 388 Ill. 11; McNeil & Higgins Co. v. Neenah Cheese and Cold Storage Co. 290 Ill. 449.

As to the argument that the publication of notice of election was illegal, there is no question that a notice was published which included the minimum statutory requirements. The objection made to the notice is the surplus information and verbiage contained therein relating to- the proposed bond issue and election. The objection is not to want of notice, which is jurisdictional, but to what might be described as excessive notice. Cases cited where no notice was given are irrelevant. Where electors have been given notice of the time and place of holding an election and the question submitted, substantial compliance with the statute regarding notice is sufficient where no prejudice is shown. (Fiedler v. Sanitary District of Bloom Township, 359 Ill. 221; Natural Products Co. v. Du Page County, 314 Ill. 74.) No prejudice to the electors has been shown, but in fact the evidence discloses extensive publicity concerning the special election, general public interest therein, and a total vote vast of 2,261 at the special election out of 5,327 registered voters, while 2,403 voted at the general election held less than one month previously. Only 675 votes and 468 votes were cast at two previous special elections held in 1954 and 1950.

As to the alleged abuse of discretion by the city council in fixing the election date three weeks after adoption of the ordinance calling the election, the Revised Cities and Villages Act specifies no> minimum or maximum period between adoption of such an ordinance and the election. The only pertinent statutory requirement is publication of notice at least once not more than 30 days nor less than 15 days in advance of the election. (Ill. Rev. Stat. 1955, chap. 24, par. 9 — 3.) The publication was here made 18 days prior to the election, within the scope of time allowed by the statute. The statute is reasonable and valid and the criterion by which to judge validity of the election. The council has not abused its discretion so long as it has complied with the statutory time requirement on publication of notice.

The alleged insufficient description of precinct boundaries is not sustained by the evidence. The boundaries used were those for the regular election precincts in every general election for more than 30 years. The boundary lines had been observed and acted upon by voters and election officials at primaries- and elections regularly, and were shown to be sufficient to be practical. Even though it is possible to point to errors of survey, and the boundaries may not meet the refined requirements of legal conveyancing, we must regard litigation or challenge of precinct boundary lines so long recognized as contrary to public policy, in the same manner as we regarded a similar challenge of county lines. (Edwards County v. White County, 85 Ill. 390.) Descriptions of municipal boundaries are not construed with the same strictness as those outlining boundaries in grants or contracts. (People ex rel. Barrett v. Anderson, 398 Ill. 480.) No showing has been made that voters were misled as to their designated polling places or that any voter was deprived of his franchise to vote by reason of insufficient precinct boundary descriptions.

The trial court decree denying the prayer for injunction and dismissing the complaint for want of equity is affirmed.

Decree affirmed.

Mr. Justice IClingbiex took no part in the consideration or decision of this case.


text:
    (No. 33579.
    Orville P. Fox, Appellant, vs. Fox Valley Trotting Club, Appellee.

      Opinion filed May 23, 1956.

    Irwin Broom, of Chicago, (Wirriam: C. Wines, of counsel,) for appellant.
    Gregory, Girruth & Hunter, of Chicago, (Robert L. Hunter, and Irwin T. Girruth, of counsel,) for appellee.
   Mr. Justice Bristow

delivered the opinion of the court:

This cause arrives here from the Appellate Court of the First District as a result of our allowance of a petition for leave to appeal. The plaintiff, the owner of the Aurora Downs race track located at Aurora, instituted his action in equity praying for an accounting of monies due him on a lease of his racing premises with the defendant. The master in chancery, upon an extensive hearing, recommended a decree allowing plaintiff more than $100,000, including attorney’s fees. The chancellor’s determination that the plaintiff had no cause of action was affirmed by the Appellate Court.

The defendant corporation is engaged principally in staging harness racing meets and allied activities. The lease provided that the premises “are to be used solely” for the staging of harness races, at which pari-mutuel wagering is to occur, horse shows, rodeos, auctions and the like. The stipulated rental was $25,000 per year plus varying percentages in different years of gross receipts from (a) admission fees, (b) the total amount of stakes wagered on races and (c) receipts from the operation or leasing of concessions. The lease was signed in 1946 and provided for a term of five years with an option to renew which was exercised in 1951.

The defendant staged harness racing meets at plaintiff’s track in the years 1947, 1948, 1949, 1950 and 1951. The first three years the lease was increasingly profitable. Defendant then became interested in transferring its operation to the Maywood racecourse, which location offered many advantages and would be vastly more lucrative. Consequently, defendant neglected its operations at plaintiff’s track when assured of a lease at Maywood. This it was able to obtain in 1952, and since that date its meets there have been highly successful. Defendant refuses to pay plaintiff any sum other than the $25,000 base rent.

Does the lease oblige the defendant either to stage its meets on the plaintiff’s property or to pay damages for staging its meets elsewhere?

The complaint alleged that plaintiff’s property had a value of $1,500,000. This allegation was not denied in defendant’s answer. The $25,000 base rental would yield only i2/z per cent on the investment. The contracting parties knew that the premises had previously been rented for $70,000 a year. They were well aware that $25,000 per annum would not enable plaintiff to meet the payments on an encumbrance on the property and taxes. They knew that it was contemplated by the parties to the lease that plaintiff’s return on his investment would yield $125,000 to $150,000. It is the contention of the plaintiff that the above facts which are undisputed can be properly considered in ascertaining the intention of the parties when the lease under consideration was executed. The defendant argues that the terms of the lease are plain and unambiguous; that there is no express language in the lease which directs that the defendant must conduct racing meets on the demised premises; that therefore there is no basis for an implied covenant; and that all other utterances of the parties as to their relationship are legally immaterial. Plaintiff asserts that the parol evidence rule does not inhibit a court from reading a contract, conveyance or other document in the context of the objective facts and circumstances, as distinct from oral agreements designed to vary the terms of a written instrument.

There are many cases cited in both briefs relating to the propriety and impropriety of considering extraneous facts when construing and interpreting a written document. We shall not be detained in this opinion in undertaking the difficult task of applying and reconciling the many conflicting pronouncements of law in that field.

We find validity in the arguments advanced by the plaintiff that recourse to antecedent, extrinsic, objective facts is not necessary; that it is clear from the terms of the lease itself that the parties intended that the premises “are to be used” for the purposes of meets; that they have not been so used; therefore, there was a clear breach of the express terms of the lease. The language of the lease stripped of its meaningless verbiage so far as “use” of the demised premises is concerned is, “The said demised premises are to be occupied and used solely for purposes stated below.” In the provisions governing the “use” of the premises the language of paragraph (a) is as follows : “Conducting and operating harness racing meets (providing it is conducted and operated in conjunction with pari-mutuel wagering), the term harness racing to have the same meaning as designated by the Illinois Harness Racing Act, known as House Bill No. 142 — approved July 17, 1945.”

The striking significance of the language “providing it is conducted and operated in conjunction with pari-mutuel wagering” resides in the fact that the parties to the lease mide it clear that the premises were to be used for harness racing where there was to be pari-mutuel betting and not racing where there would be revenue from only the gate and concessions. It would seem grotesque for us to assume that the landlord would explicitly refuse permission to conduct the relatively unprofitable racing meets which would yield him only a percentage of admission fees and concession revenue at which no wagering was permitted and yet intend that the lessee might conduct no meets at all. Giving the questioned provision a natural and literal interpretation we are of the opinion that the parties agreed that the premises should not only be occupied but that it should “use” the premises for harness racing. Another provision of the lease which sheds light in support of plaintiff’s interpretation reads as follows: “As a special inducement to the Lessor to make and execute this lease, the Lessee covenants to expend or cause to be expended, not less than fifty thousand dollars ($50,000) in repairing and decorating the buildings and altering the track on the said premises, during the first year of the said term.” If the lessee did not intend to use the premises for horse racing, this $50,000 would have been money wasted. Why should the parties agree that the lessee should spend $50,000 for something that was not of any benefit to the lessee and of little or no advantage to the lessor?

The lease also provided for the abatement of rents in the event that “gambling” should become illegal in Illinois or Kane County or if, without fault, the defendant should be outlawed for harness racing by the National Trotting Horse Association or any other authorities having jurisdiction thereof. This is highly suggestive of the intention of the parties that the lessee was to conduct racing meets on the demised premises unless legal barriers arose, in which event there was to be no rental whatsoever.

The Illinois Harness Racing Commission not only requires an applicant for a harness-racing license to have a lease but permits the licensee to stage only one meet a year. The parties to the lease surely did not contemplate that the defendant would obtain permission to stage a meet elsewhere when both the lessor and the lessee well knew that by so doing the defendant would be precluded from holding any meet at Aurora Downs. Finally, there is another significant provision of the lease which appears under the clause captioned “Rights to Inspection of Books and Records.” Here the plaintiff is given the right to “inspect” the lessee’s books and is entitled to “full, true and accurate itemized statements” of the lessee’s receipts.

The strongest case cited in support of plaintiff’s contentions is Stoddard v. Illinois Improvement and Ballast Co. 275 Ill. 199. The lessor in this case owned 480 acres of land. Ten acres were leased to lessee for ten years for the purpose of quarrying stone. Lessee was to pay six cents per yard for stone quarried. Lessor was to have the privilege of examining lessee’s books whenever desired to verify the accounts rendered. Lessee failed to proceed with due diligence to develop said premises. Suit was instituted by lessor to recover damages for the failure of lessee to carry out its obligation or “failure to develop said premises for quarrying purposes contrary to the intent and meaning of said lease.” Lessee contended that the terms of the lease did not explicitly require him to quarry stone. This court in affirming judgment for lessor said: “It very clearly appears from the provisions of said lease that it is one given for the purpose of quarrying stone. The lessees covenanted to pay as rent or royalty only the price of six cents per cubic yard for stone removed from the premises and nine cents per cubic yard for good rubble stone found and sold by them. The lease was to extend 'as long as the property is suitable for quarrying purposes/ and lessees specially covenanted that the lessor was to have the privilege of examining the books of the lessees whenever he desired, after payments were due, to verify the accounts rendered. The accounts thus mentioned necessarily mean accounts for stone quarried by the lessees and sold, and for the sums due the lessor on such accounting he was to have a lien on all buildings and improvements erected on said premises at any time and on lessees’ interest in the lease. In ascertaining the meaning and intent of the lease we are to give meaning and effect to every clause therein, if possible, and from the whole ascertain what is the real intent. We are to suppose, in the first place, that the lease was given for the mutual benefit of the parties, and that they were not joining in a mere nominal lease and using meaningless words and terms as an idle ceremony. If we treat the lease, then, as a lease, there can be no escaping the conclusion that it was given for the purpose of quarrying stone. Defendant in error could receive no rent from the premises by him leased unless stone was quarried. And why should the lessees specially covenant to exhibit their books to verify an accounting if such an accounting was not to be made, and then covenant that the lessor was to have a lien for a claim unless there was to be such a claim ? Not only is the lease given for the purpose of having stone quarried from the premises, but there is also just as clearly an implied covenant that the lessees will quarry stone with reasonable diligence if found and so long as found in quantity and kind that may be quarried at a profit to the lessees.”

In the Stoddard case the defendant made the argument that while the land was not being quarried the plaintiff had a right to use and occupy it for farming and other purposes and so lost nothing, except the profits from the quarrying enterprise. It is important to note that in the instant case the defendant has not only possession but exclusive possession of the plaintiff’s track. The plaintiff in the instant case, unlike the plaintiff in the Stoddard case, can make no use of the premises. The fact that plaintiff in the instant case receives a base rental of $25,000 per year is not a valid distinguishing feature, as urged by defendant, since that sum of money is insufficient to pay interest and taxes. Other cases cited supporting plaintiff’s view are: Daughetee v. Ohio Oil Co. 263 Ill. 518; Seggebruch v. Stosor, 309 Ill. App. 385; Marvin Drug Co. v. Couch, (Tex. Civ. App.) 134 S.W. 2d 356; Cissna Loan Co. v. Baron, 149 Wash. 386, 270 Pac. 1022; Wood v. Duff-Gordon, 222 N.Y. 88; Selber Bros. v. Newstadt Shoe Store, 194 La. 654; Mayfair Operating Corp. v. Bessemer Properties Inc. 150 Fla. 132, 7 So. 2d 342. The Daughetee case involved an oil and gas lease wherein lessor received $100 per year for the gas product of each well, also one-eighth part of oil produced and a ground rental of 25 cents per acre. This court held that the lease obliged the lessee to exploit its leasehold by digging.

The two cases principally relied upon by the defendant are: Cousins v. Hastings, 45 Cal. App. 2d 141, 113 Pac. 2d 878, and Percoff v. Solomon, 259 Ala. 482. In those cases the court held that an implied covenant could not be read into the leases. Significantly, the court said in both cases that implied covenants do not arise unless such becomes indispensable in order to carry out the intention of the parties. Appellee also relies upon another case, Adkins v. Adams, 152 Fed. 2d 489, wherein the court of appeals found no basis for the implication of a covenant to explore for oil, and at page 491 used this language: “However, in order that an unexpressed term may be implied, the implication must arise from the language employed in the instrument or be indispensable to effectuate the intention of the parties.”

The case before us must be construed so that the intention of the parties may be effectuated. It would lay great strain upon our credulity to think that it was not the intention of the parties to the lease that the lessee was to conduct his racing meet at Aurora Downs. Where there is no express provision in the contract governing the disputed matter, courts are not helpless to discern and give effect to the intention of the parties. The bargain implicit in the defendant’s interpretation of the instant case would prove to be a ruinous one as measured in terms of the lessor’s interest. Paraphrasing the language in the Stoddard case, if we treat the lease as a lease, there can be no escaping the conclusion that it was given for the purpose of (quarrying stone) harness-racing meets.

The briefs of both parties were devoted almost exclusively to a consideration of the above issue and only lightly was the damage issue touched. The master in chancery was in error in some of his calculations. Too much emphasis was placed by him on the figures which revealed the defendant’s highly successful operations at the Maywood track. There are so many obvious advantages in holding a meet at Maywood that the results there are not a conclusive indication as to what could have been expected at Aurora. The measure of damages would be the compensation for the loss suffered as a result of the breached lease, taking into consideration the history of the operations on plaintiff’s premises, — bearing in mind the finding of the master that defendant lacked enterprise and promotional zeal during the later years because of the contemplated move to a better location.

The defendant in its lease agreed to pay attorney’s fees in the event of a breach or default in the covenants of the lease. Holding as we do that the defendant did breach the lease, it follows that attorney’s fees were properly assessed.

The decree is reversed and the cause is remanded to the circuit court of Cook County, with directions for a further hearing on the damage issue.

Reversed and remanded, with directions.


author: Mr. Justice Maxwell

text:
    (No. 33683.
    The People of the State of Illinois, Defendant in Error, vs. Merle Prohaska, Plaintiff in Error.

      Opinion filed May 23, 1956.

      Merle Prohaska, pro se.

    Latham Castle, Attorney General, of Springfield, and Carroll V. WinTERSTEEn, State’s Attorney, of Havana, (Fred G. Leach, and Edwin A. Strugala, of counsel,) for the People.
   Mr. Justice Maxwell

delivered the opinion of the court:

The indictment against plaintiff in error, Merle Prohaska, consisted of four counts, in each of which, in varying language, it was alleged that plaintiff in error, Melvin Hod-son and Thomas Skelly did, on April 6, 1947, at Havana, Mason County, kill and murder one John Barclay.

Plaintiff in error was tried jointly with his codefendants, before a jury, and was found guilty of murder as charged in the indictment, and his punishment was fixed by the verdict at imprisonment in the penitentiary for the term of his natural life. A separate verdict was returned by the jury as to each of his codefendants, with the same findings and the same punishment. A written motion for a new trial and an oral motion in arrest of judgment were each made in that order and were each overruled by the court. Judgment was entered by the court upon the verdict of the jury, and thereafter plaintiff in error was committed to the Illinois State Penitentiary where he is now incarcerated. He brings this writ of error to review the record of his conviction.

Plaintiff in error was tried on the theory of an accessory before the fact to murder, that he, being present, had advised or encouraged the perpetration of the crime charged; that he, together with Thomas Shelly and Melvin Hodson, conspired together to intimidate or murder one John Barclay, for which Melvin Hodson was to compensate plaintiff in error and Shelly.

The facts in this case have been fully set out in People v. Hodson, 406 Ill. 328, and People v. Skelly, 409 Ill. 613, and will not be repeated here.

Sixteen errors are relied upon for reversal. The first and third assignments of error, that the trial court erred in overruling plaintiff in error’s motions for a directed verdict at the close of all of the evidence for the People and for a new trial, and in refusing to- give the jury the offered instructions of the plaintiff in error, have not been argued and are waived. People v. Jones, 6 Ill.2d 252.

The second error assigned by the plaintiff in error is that the trial court erred in overruling his oral motion for arrest of judgment. There was no requirement by the court or request by the State’s Attorney to- have the motion reduced to writing or to- have the grounds of the motion reduced to- writing. The State now contends that since specifically assigned errors, if any, supporting plaintiff in error’s oral motion in arrest of judgment were verbal and are no-t shown by the record, plaintiff in error’s assignment of error upon the action of the court in overruling his oral motion in arrest of judgment presents nothing for review. In People v. Jankowski, 391 Ill. 298, relied upon by the State, it was held that since 1933 the requirement that motions for a new trial and in arrest of judgment be in writing is a mandatory one in criminal cases; that the legislature, by the 1933 amendment to section 17 of division XIII of the Criminal Code, intended to require defendants in criminal cases to apprise the trial court in writing of all grounds for a new trial or for arrest of judgment, and that failure to do so precludes assigning as error any point not so specified. However, in People v. Flynn, 8 Ill. 2d 116, the decision on this point, made in the Jankowski case, was specifically overruled. This court, in deciding the Plynn case, held that the 1933 amendment to section 17 of division XIII of the Criminal Code is directory and not mandatory; that the party moving for a new trial and for judgment notwithstanding the verdict may be required by the court or the opposite party to file points in writing specifying the grounds for his motions, and that if the party moving for a new trial and for judgment notwithstanding the verdict submits verbal motions without stating in writing the grounds therefor and without objection, the requirement of such written statements are waived. If the motions have been submitted thus, without specifying the grounds therefor in writing, the party may avail himself of any cause for a new trial which may appear in the record, whether it be the admission or rejection of evidence, the giving or refusing of instructions, the lack.of sufficient evidence or any other error occurring during the trial. The foregoing rules applied to motions for new trial and motions for judgment notwithstanding the verdict are also applied by this court to motions in arrest of judgment and when a motion in arrest of judgment does not specify the ground therefor, it will be presumed, on appeal, that every proper ground for arrest of judgment was presented to the trial court. People v. Goldberg, 287 Ill. 238.

Plaintiff in error contends that as he was tried as an accessory before the fact of murder he has a right to prove that under Illinois law the alleged murder of John Barclay was in reality self-defense by the defendant Thomas Skelly. Further, that under the evidence adduced and the law the killing of John Barclay by Thomas Skelly was self-defense; that therefore plaintiff in error could not be guilty of the crime of murder or accessory before the fact to murder. In People v. Skelly, 409 Ill. 613, we considered and weighed the evidence upon the same issue, that of self-defense as advanced by Thomas Skelly. It was concluded in that case that the jury was justified in rejecting it. The record before us in this case is identical with that of People v. Skelly. Plaintiff in error brings forth no new facts and makes substantially the same arguments as those advanced in the Skelly case. The issue of self-defense raised by defendant in this appeal is controlled by our decision in People v. Skelly. People v. Aversa, 393 Ill. 473; Larson v. Chicago City Bank and Trust Co. 381 Ill. 172.

There were introduced in evidence what purports to be four written confessions signed by the plaintiff in error, being Peoples’ exhibits 51, 52, 53 and 54. These documents clearly admit the charges made in the indictments. But plaintiff in error, then a young man 19 years of age, insists that the purported confession of the 17th of April was induced by threats of the electric chair and promises that recommendation of leniency would be forthcoming at the trial; that his purported confessions of the 17th and 18th of April were not voluntary because dictated by the State’s Attorney; that his purported confessions of the 17th and 18th of April were given for the sole purpose of procuring and guaranteeing the release from jail of his sweetheart or girlfriend, Henrietta Hodson, codefendant Hodson’s sister. Plaintiff in error contends that under the law of the State of Illinois the People must prove by a preponderance of the evidence that a confession is voluntary. He further submits that he signed Peoples’ exhibits 51, 52> 53 and 54 involuntarily and under duress and promises which were made, one of which at least was kept, namely, that Henrietta Hodson would be freed.

The constitution of the State of Illinois provides that no one shall be required to give evidence against himself in a criminal case (article II, section 10). It also provides that no person shall be deprived of life, liberty or property without due process of law (article II, section 2). And likewise, the fourteenth amendment to the constitution of the United States provides that no State shall “deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Plaintiff in error argues that this being the law, the purported confessions as admitted against him at his trial were used against him in violation of his constitutional rights.

Confessions extorted by violence, brutality, promise or unlawful confinement for an unreasonable length of time are illegal and may not be received in evidence against the accused. A voluntary or freely-made confession of guilt is proper evidence of a high and convincing character. The question of whether an alleged confession was voluntarily made is initially one for the trial judge. (People v. Scott, 401 Ill. 80; People v. Ardelean, 368 Ill. 274.) We have held that all of the witnesses to the confession or those taking part in obtaining it must be produced or their absence explained. The burden is upon the State to show the confession is voluntary.

In the instant case a hearing was held before the court out of the presence of the jury as to the admissibility of the purported confessions. Sheriff William K. Sheridan, Assistant State’s Attorney Guy Williams, Rosalyn Heye, the stenographer, Deputy Sheriff Lauren Ollin, State’s Attorney Lyle R. Wheeler, and Robert M. Walker and William Abernathie, investigators for the State Bureau of Investigation testified on behalf of the State. In addition to plaintiff in error, the court heard in his behalf the testimony of Henrietta Hodson, Melvin Hodson and Thomas Skelly.

The facts show that on April 17, 1947, plaintiff in error signed a confession, Peoples’ exhibit 51, in the sheriff’s office in Havana. Present on this occasion were Sheriff William K. Sheridan, State’s Attorney Lyle K. Wheeler, William Abernathie and Robert Walker, investigators from the State Bureau of Investigation, and Rosalyn Heye, the stenographer. On the day following plaintiff in error’s first confession, codefendant Thomas Skelly executed a confession, People’s exhibit 52, which was signed by plaintiff in error. Witnesses were Robert M. Walker and William Abernathie. Later the same day Skelly made another written confession, People’s exhibit 53, in substantially the same form as the one made previously, which was also signed by plaintiff in error. This instrument was executed by Robert M. Walker, William Abernathie and William K. Sheridan, as witnesses. Skelly made still another written statement the same day, People’s exhibit 54, which was also signed by plaintiff in error. In addition to plaintiff in error and Skelly, Deputy Sheriff Lauren Ollin, Sheriff William K. Sheridan, Robert M. Walker, and William Abernathie were present. After the last two statements had been made by Skelly and signed also by plaintiff in error, Hodson, a codefendant, was brought to the sheriff’s office from the county jail. The two^ confessions, as signed by his two codefendants were read aloud in Hodson’s presence and in their presence. At that time, in response to questions put to them by the officers present, plaintiff in error and Skelly each said that the statements contained in the confessions were true.

The record also shows that shortly after the altercation in which Barclay met his death, an abandoned 1939 Plymouth automobile was found near the city of Springfield. The car was promptly identified as belonging to Melvin Hodson. In investigating the death of Barclay, the authorities determined that Henrietta Hodson had possession of the abandoned 1939 Plymouth used later that same day by defendant and Skelly in their search for deceased. She was taken into custody as an accomplice to the murder.

Here the trial court, on the matter of promises or inducements, was compelled to believe either the plaintiff in error and his witnesses or the witnesses for the prosecution. Witnesses for the prosecution squarely denied plaintiff in error’s contention that his confessions were induced by threats of punishment or promises of leniency. The State’s Attorney testified that the confessions of April 17 and 18 were dictated in plaintiff in error’s presence, following discussions with him; that they were read to and by the plaintiff in error; that plaintiff in error was requested to correct the State’s Attorney at any point, that defendant did correct him and that defendant in his own handwriting corrected a small typographical error on the fourth page of his alleged confession of April 17. The stenographer, Rosalyn Pleye, corroborated this testimony. Plaintiff in error’s contention that he was induced to give his confessions only because of his desire to procure and insure the release of Henrietta Hodson was flatly denied by witnesses for the prosecution. The testimony shows that Henrietta Hodson had been confined on the reasonable belief that she might have been in the automobile when Shelly hilled the deceased and she was released some hours after defendant’s confession because authorities were then fully persuaded she had not been involved. In this appeal, defendant has set forth in detail apparent inconsistencies and contradictions in the testimony of the witnesses for the prosecution. After a careful review we cannot say that they are of such character as to destroy or seriously impair the material averments made by these witnesses. There was ample testimony in this case to show that the several confessions of plaintiff in error were voluntary, and the court did not abuse its discretion in allowing the confessions to go to the jury.

Plaintiff in error contends that he was prejudiced by the testimony of four witnesses who stated that codefendant Hodson at various times and places threatened the deceased’s life; by the testimony of a gun dealer, W. A. Phillips, that he sold guns and ammunition to Hodson and plaintiff in error; by the alleged hearsay testimony of three witnesses that plaintiff in error’s confessions were voluntarily given, and generally by the error of the trial court in allowing the jury to^ consider incompetent, improper and prejudicial evidence in arriving at its verdict against plaintiff in error. Plaintiff in error also contends that he was forced by threats of bodily injury to submit to lie detector tests. He further contends that the court erred in submitting the case to the jury upon the theory of a conspiracy, as there was no evidence of a joint agreement or joint action. After a careful consideration of the record before us, we are of the opinion that these contentions by plaintiff in error are without merit and the trial court committed no error in these respects.

Plaintiff in error contends that the testimony of Dorothy Barclay of threats made by Hodson against deceased’s life was prejudicial in that plaintiff in error and his co-defendant, Skelly, were tried on the theory advanced by the State that they conspired with Melvin Hodson to kill the deceased for a sum of money; that any testimony which would tend to show motive on the part of Melvin Hodson would show motive on his part. In support of this contention plaintiff in error cites the general rule of law that in a prosecution for a particular crime, evidence which in any manner shows or tends to show that the accused has committed another crime wholly independent of that for which he is on trial, even though it is a crime of the same sort, is irrelevant and inadmissible. (People v. Meisner, 311 Ill. 40; People v. King, 276 Ill. 138.) Evidence of other crimes is objectionable “not because it has no appreciable probative value, but because it has too much.” (1 Wigmore, Evidence, 3d ed. sec. 194.) The law distrusts the inference that because a man has committed other crimes he is more likely to have committed the current crime. And so, as a matter of policy, where the testimony has no value beyond that inference, it is excluded. But where the evidence is independently relevant, it is admissible to show motive or intent, identity, absence of mistake or accident, or the existence of a common scheme or design. (1 Wigmore, Evidence, 3d ed., sec. 216.) Aside from this, however, it appears from the record that Dorothy Barclay testified without objection in the trial court and, no objection being made to her testimony there, such objection comes too late in this court. People v. Mulford, 385 Ill. 48; People v. Tuttle, 382 Ill. 147; People v. Lanie, 378 Ill. 320; People v. Finch, 394 Ill. 183.

The State produced Herbert L. Herstein, sheriff of Tazewell County, Guy E. Donahue, deputy sheriff of Tazewell County and Arthur Copeland, father-in-law of John Barclay, who testified as to threats made by Hodson against the deceased’s life. Defendant objected to their testimony and the court instructed the jury to disregard the testimony as to plaintiff in error and Skelly. The same was done regarding the gun dealer, W. A. Phillips, whose testimony that he sold a gun and ammunition to plaintiff in error was given without objection by plaintiff in error. Thereafter the gun dealer was examined at length by plaintiff in error’s counsel. Plaintiff in error’s own instruction No. 11 restricted such evidence to the proper defendant in the jury’s determination. Under these circumstances and where the plaintiff in error did not move for a separate trial, plaintiff in error was not prejudiced and he cannot now complain. People v. Swift, 319 Ill. 359.

The plaintiff in error further contends the evidence produced by the People was of such unsatisfactory character as to leave a reasonable doubt as to his guilt. We have many times held that in a criminal case it is the peculiar province of the jury to weigh the evidence and determine the facts, and this court will not reverse a judgment of conviction on the ground that the evidence is insufficient to sustain the finding of guilt unless there is a reasonable and well-founded doubt of the guilt of the accused and the verdict is found to be palpably contrary to the weight of the evidence. (People v. Booker, 378 Ill. 334.) We are unable to say, after a careful analysis of this record, that the evidence indicates a reasonable doubt of guilt. People v. Grove, 284 Ill. 429.

After a full consideration of all the evidence in this case, the procedure of the trial court and the several errors assigned and argued by plaintiff in error, we find no error which would justify us in reversing the judgment of the trial court and that judgment is affirmed.

Judgment affirmed.


text:
    (No. 33897.
    Oscar L. Paris Company et al., Appellees, vs. Richard J. Lyons, Director of Revenue, et al., Appellants.

      Opinion filed May 23, 1956.

      Latham ■ Castle, Attorney General, or Springfield, (William C. Wines, Raymond S. Sarnow, and A. Zola Groves, of counsel,), for appellants.
    Leonard H. Lawrence, and Arthur Morse, both of Chicago1, for appellees.
   Mr. Justice Bristow

delivered the opinion of the court:

The question presented here is whether the plaintiffs are engaged in a service occupation so as to escape the incidence of the Illinois retailers occupation tax, or are they engaged primarily in the “sale of carpeting” at retail so that they incur liability for that tax. The master concluded and the circuit court of Cook County held that plaintiffs were engaged primarily in a “service, not a selling” occupation. The trial court directed the return of the taxes paid under protest and enjoined the future collection of such tax, thus this appeal by the Director to this court.

The complaint filed herein avers that the plaintiffs are skilled craftsmen engaged in a service occupation when, by contract, they furnish and install carpet on special order to fit a certain floor area; that specially trained measuremen draw plans of the floor area to be covered; specially trained craftsmen cut, trim and sew the carpet together to make a complete product ready for installation; specially trained craftsmen prepare the floor area to- be covered by cutting and installing linings or paddings to- specification, and finally the carpet is affixed to the floor by pulling, cementing and nailing; that such carpeting after being cut, sewn and prepared to- order has no value except as salvage and no use other than that for which it was made. In the answer of the defendants, strict proof was prayed, and they denied that such carpeting only had a salvage value.

On behalf of the plaintiffs, Bryan P. Coughlan, an expert of 30 years experience testified as follows: A layout man goes to the job, takes measurements and develops a drawing to- scale. Measuremen sometimes do- this work on a rough chart, and the layout men then make the scaled drawings. The layout men then determine how to run and lay the material so that proper wearing will result, carpet having a pitch to the pile which should run a certain way to- get maximum wear, and to achieve this the layout men must determine the weight and flow of traffic on the area to- be covered. The layout men must determine from the blue prints the proper widths of material to be used and how the pattern should be matched. He must know what is known as a check pattern and whether it will match upon itself; how to- match a drop pattern in every way, a third against a second breadth; ho-w in the drop pattern one must cut one, two and five breadths, then get even breadths to avoid overlapping pattern; how a 36-inch drop pattern, for instance, will cut without waste in multiples of 18 inches whereas a 36-inch set pattern can only be cut in multiples of three feet. For a room 16 feet long using a 36-inch set pattern the material would normally be cut in 18-foot lengths, but an experienced layout man properly handling such material will cut this carpet in 16-foot-six-inch lengths. The layout man employed by plaintiffs has been employed by them for 40 years, and one cannot hold himself out as a skilled layout man without 20 to 25 years experience. After the layout man completes his work, the cutter then cuts the carpet from plans to size and dimensions. A carpet cutter must serve a three-year apprenticeship as well as formal schooling; and a carpet sewer cannot perform his work alone unless he has served three years as an apprentice. The carpet layer has a duplicate set of plans and after spreading his lining he spreads the carpet, starting on what is known as the straight side; fastens the carpet to- the floor; draws it taut with a power stretcher from one joining point to the next for there must be even tension to obviate wrinkles and excessive wear. The layer must have a three-year apprenticeship under a master mechanic and is required to attend school, and after many years of experience he may obtain a master card.

It was further explained that carpet of the same color varies in shading to such an extent that care must be exercised not to use carpet from rolls made on different looms, and from rolls dyed at different times; that looms have different tensions creating varying shades; that no two wools accept the same color with the same result. The foregoing testimony was corroborated by Aaron Greenfield, a partner in Contractor Furniture and Carpet Company, and one with 20 years experience in the contract carpeting business. Both witnesses testified that if for any reason such carpeting thus processed is not used on the job it has only a salvage value ranging from 10 to- 25 per cent. This proof was not contradicted.'

The master found for the plaintiffs and then there was a referral to the master in chancery to hear proof on the salvage issue. The additional proof adduced made no substantial change in the factual picture. The master’s final decree found that the plaintiffs were engaged in the business of furnishing and installing carpeting to the special order and requirements of their customers; that plaintiffs’ contracts with their customers involved the rendering of special services by way of advice, recommendation, measurement and cutting and matching of carpet for specific installation, all by men of special training; that such carpeting thus affixed has no value, commercial or otherwise, except as salvage.

Both sides agree that the facts are undisputed; that plaintiffs are engaged in the special order business; that should the customer not take the carpet, it would be sold for salvage with only a small return. Defendants, however, state that the testimony of Aaron Greenfield and Goughian was “arrantly unbelievable.” They question the truth of the statement that a carpet sewer and a layout man must be men of skill and long experience. It does seem that those witnesses did not leave much unsaid in describing the process of selling carpeting to the special order of their customers. In the complete absence of any contradictory evidence we are compelled to hold that plaintiffs’ operations necessarily involve special skill, talents, training and experience. The defendants were present at two- separate hearings and they failed to introduce any proof that challenged the factual contentions of the plaintiffs.

The defendants here rely solely upon the case of Sterling Steel Casting Co. v. Department of Revenue, 7 Ill.2d 244, wherein it was held that the manufacturer of steel castings on a special order of customers, which customers furnished the patterns, was not engaged in a service occupation but was engaged in the occupation of selling tangible personal property at retail and within the purview of the Retailers’ Occupation Tax Act.

In distinguishing the Ingersoll case (Ingersoll Milling Machine Co. v. Department of Revenue, 405 Ill. 367,) the court, in the Sterling case, said at page 248: “Here the record does not show that plaintiff rendered any engineering or technical service in conceiving or engineering the steel castings produced by it. Indeed, the only evidence of engineering or technical service relating to design is the testimony of plaintiff’s sales manager to the effect that plaintiff helps and suggests in the method the pattern— not the castings — should be made. The patterns which plaintiff uses are produced by its customers through their own engineers or skilled technicians or they may be purchased by the customer from a pattern maker. Plaintiff is not engaged in the fabrication, design or manufacture of patterns. Its business is the volume production of relatively inexpensive steel castings. Such technical skill as is involved relates entirely to- production activities, and no evidence was introduced to show that the skill involved depends in any degree upon whether standard or special order castings are produced.”

It seems to us that this record presents a problem that is distinguishable from the one in the Sterling case, in that although the commodity is sold on special order, the Sterling case merely involved the production and delivery of items on a mass production factory basis according to patterns furnished it by the customers, whereas in the present case the special skills of the plaintiff in determining and selecting the pattern, color and dye of carpeting and in properly cutting, sewing and fitting the carpeting together and installing the same is contracted for. In this case the customers hire the plaintiffs to accomplish a certain end result for a given price, the plaintiffs being relied upon to use specialized skill, knowledge and experience to accomplish such result. In the Sterling case the customer orders from the plaintiff on the basis of quotations previously submitted a certain quantity of a designated article, the detailed specifications of which are determined and furnished by the customer.

In Mahon v. Nudelman, 377 Ill. 331, this court in holding the occupation of a furrier not within the Retailers’ Occupation Tax Act on a fur repair, said: “It is a matter of general knowledge that a fur garment in need of repair cannot generally be restored to a serviceable condition without the installation of some material, either new or used, and that such repairing requires the skill of the furrier to match the fur as well as to fit linings, etc.”

It will be noted therein that the skill of the furrier in matching furs and lining was a decisive factor. Subsequently, the Department of Revenue changed its regulations to hold furriers not liable for tax on receipts from sale of fur coats, capes, etc., made to the special order of the customer. Quite analogous is the situation confronting us. The plaintiffs are engaged in the measuring, matching, sewing, cutting, fitting and installing carpeting much the same as the furrier matches, cuts, sews and fits furs.

Another parallel is that of the custom tailor who malees a suit to- order from a bolt of cloth. Rule No. 23 regulating Custom Tailors which has been in effect 20 years reads as follows: “Custom tailors who, in their own places of business, produce clothing on special order to meet the particular needs of the purchaser, by styling, cutting and fitting, so that such clothing is of, value and use only to- the person for whom it is made, are engaged primarily in a service occupation. To- the extent to which they engage in such service occupation, they are not engaged in the business of selling tangible personal property to purchaser for use or consumption within the meaning of the Act and do not incur retailers’ occupation tax liability measured by any of their receipts therefrom, including receipts from both labor and tangible personal property.”

Ten years later Rule No. 20 was promulgated providing as follows: “Persons who produce portieres, drapes, curtain, marquee curtains, Venetian blinds, window shades, screen door, window screens, storm doors, storm windows, slip covers, tents, metal and canvas awnings, canopies, rollers, tarpaulins and other similar items on the special order of the purchaser and in such a way as to make such items have use or value (other than salvage value) only to the purchaser, are engaged primarily in a service occupation. To the extent to which they engage in such service occupation, they are not engaged in the business of selling tangible personal property to purchasers for use or consumption. Consequently, they are not required to remit Retailers’ Occupation Tax measured by any of their receipts from engaging in such service occupation, including receipts from both labor and tangible personal property.”

We are of the opinion that there is no basic difference between custom tailored carpets and custom made draperies, curtains, slip covers, etc. The exemption arises under this rule even though the service of installation is not essential.

Another regulation, No. 25, covering an operation somewhat less similar, yet recognizing the skill factor, reads as follows: “Persons who sell monuments, grave markers and the like, with respect to which they render any service, such as installing, inscribing, actually producing the stone on the special order of a particular customer, or other service, are engaged in a service occupation and are not required to remit Retailers’ Occupation Tax measured by their receipts from such transactions, including receipts from both labor and tangible personal property.”

Finally, Bulletin No. 9, which is accessory to Rule No. 10 of the Department, deals with parts installed in an airplane by those engaged in such an occupation. Therein it can be noted that items of personalty such as cabins, wings and engines which are quite expensive, are not taxable, even though the cost of installation, necessarily involving skill, is appreciably less.

It is appropriate for this court to give consideration to the foregoing regulations in resolving the problem before us. In Skidmore v. Swift & Co. 323 U.S. 134, where the effect of rulings, interpretations and opinions of the Administrator under the Fair Labor Standards Act was considered, the United States Supreme Court said: “Good administration of the Act and good judicial administration alike require that the standards of public enforcement and those for determining private rights shall be at variance only where justified by very good reasons. The fact that the Administrator’s policies and standards are not reached by trial in adversary form does not mean that they are not entitled to respect. This Court has long given considerable and in some cases decisive weight to- Treasury Decisions and to interpretative regulations of the Treasury and of other bodies that were not of adversary origin. We consider that the rulings, interpretations and opinions of the Administrator under this Act, while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.”

It seems clear that the plaintiffs are in an occupation analogous to several that are exempted by rules of long standing of the Department.

Taxing laws are to- be strictly construed and they are not to be extended beyond the clear import of the language used. If there is any doubt in their application they will be construed most strongly against the government and in favor of the taxpayer. Peoples Gas Light Co. v. Ames, 359 Ill. 152.

The decree of the circuit court entered herein should be and is affirmed.

Decree affirmed.


author: Mr. Justice Maxwell Mr. ChiFF Justicf HfrshFy,

text:
    (No. 33814.
    Ruth Amenda, Admx., Appellant, vs. Glenn Suits, Appellee.

      Opinion filed May 23, 1956.

      Hershey, C.J., dissenting.
    Dixon, Bales & Gunner, of Dixon, and Henry H. Caldwell, of Rockford, (Henry H. Caldwell, and William R. Gunner, of counsel,) for appellant.
    Burrell & Holtan, of Freeport, and Ward and Ward, of Sterling, (David M. Burrell, of counsel,) for appellee.
   Mr. Justice Maxwell

delivered the opinion of the court:

Plaintiff, Ruth Amenda, filed suit in the circuit court of Whiteside County against the defendant, Glenn Suits, for wrongful death of her husband while riding as a guest in the automobile of defendant. The trial court overruled defendant’s motion for directed verdict at the close of plaintiff’s evidence and at the close of the case. Post-trial motions for judgment notwithstanding the verdict and for new trial were overruled and judgment in the amount of $11,000 entered on the jury’s verdict was allowed to stand. On appeal to' the Appellate Court the latter court reversed the trial court’s judgment without remandment. (6 Ill. App. 2d 395) Plaintiff’s petition for leave to appeal to this court has been granted.

After a narration of the testimony of plaintiff’s witnesses the Appellate Court concluded that there was no evidence in this case of any wilful or wanton misconduct on the part of defendant; that there was no proof defendant was exceeding the lawful speed limit, and, even if he had been, that a mere violation of a speed statute is no evidence of wilful and wanton misconduct; that there was no showing that defendant knew or should have known that there was an intersection ahead of him and consequently the fact that defendant attempted to pass other vehicles while approaching this intersection was no evidence of wilful or wanton misconduct. The Appellate Court further declared that the fact that the stop lights on the cars and trucks ahead of defendant were operating when defendant started to1 pass the line of traffic was not sufficient to show his continuing to pass was a wilful and wanton act but only signified that the vehicles were slowing down and did not act as a warning that one of them would turn. It was further pointed out in the latter court’s opinion that no signal of intention to- turn was ever given by the Twin City Produce Truck and the fact that, at the time that this truck turned, one of the other occupants in defendant’s car cried out a warning signified nothing in the circumstances of the present case because at such time there was nothing defendant could do to' avert the collision.

The record of this case reveals that plaintiff’s intestate was riding as a guest in the center front seat with defendant driving and another guest, Jack Bryant, to his right. Defendant was driving his car at a speed of approximately 35 miles per hour proceeding in an easterly direction on alternate U. S. highway No. 30 between Sterling and Dixon, Illinois. Approaching the scene of collision there were two automobiles and two trucks proceeding in the same direction and ahead of defendant. The farthest vehicle was the Twin City Produce truck. A few car lengths to- the rear of it was a Cities Service tank truck and to- the rear of the latter truck were the two automobiles — all the vehicles were approximately equidistant from the other. Upon approaching this line of traffic defendant was on his side of the road and then started to pass and move his vehicle into the left-hand lane. Defendant sounded his horn and there was no- traffic approaching from the opposite direction. The highway was wet and it had been raining. It was a concrete two-lane highway of approximately twenty feet in width. Defendant was increasing his speed from 35 to about 50 miles per hour, whereas the line of traffic was reducing its speed. Bryant testified he could see the stop lights flashing on the cars and trucks ahead of them. After passing the Cities Service truck the Twin City Produce truck started to turn left without any signal. This turning truck was making a left turn into an intersecting road. The collision followed and as a result of the impact decedent was thrown from the automobile and suffered injuries from which he died.

Plaintiff asserts that the Appellate Court opinion is based upon an improper analysis of the evidence adduced at the trial, and particularly in light of some of the pronouncements o-f this court in respect to wilful and wanton misconduct cases. Plaintiff points out that her case was not tried solely upon the theory of excessive speed but upon the entire pattern of circumstances existing immediately before and at the time of the occurrence, namely, control of defendant’s car, failure to- keep proper lookout, attempting to- pass other vehicles within 100 feet of an intersection and driving at a speed that was unreasonable and improper having regard to the traffic and the use of the way, or in such a manner as to endanger the life or person or property of others, contrary to section 49 of the Uniform Act Regulating Traffic on Highways. (Ill. Rev. Stat. 1955, chap. 95par. 146.) Defendant urges that this court define wilful and wanton misconduct within a narrow scope of particularity upon the suggestion that there has been a misunderstanding and confusion in respect to the judicial usage of this phrase. Defendant further asserts that the conclusion of the Appellate Court in its appraisal of the evidence is correct.

It must be noted that the powers of this court in appeals from the Appellate Court are limited. Section 92 of the Civil Practice Act specifically provides, in subparagraph (3) (b), that error of fact, in that the judgment, decree or order appealed from is not sustained by the evidence or is against the weight of the evidence, may be brought up for review in any civil case: Provided, that, except as to equitable issues, the Supreme Court shall re-examine cases brought to- it by appeal from Appellate Courts, as to questions of law only. In Seeds v. Chicago Transit Authority, 409 Ill. 566, we declared that where the effect of the Appellate Court’s holding is that as a matter of law there is no evidence sufficient, when considered alone, to- sustain the charges in the complaint, and the judgment is reversed without remanding the cause for a new trial, it becomes the duty of this court to- examine the record to- determine the question of law as to- whether there is any evidence which, taken with its intendments most favorable to the plaintiff, tends to prove the complaint. In the Seeds case this court reviewed the evidence only for the purpose of determining whether or not there was any evidence to sustain the cause of action charged in the complaint and we specifically pointed out that nothing in said opinion was intended to express any views concerning the weight of the evidence.

We have closely examined the record in the instant case and feel that there is some significance in plaintiff’s contentions. Under the circumstances o-f defendant’s attempting to pass a line of traffic on a wet pavement with clear, unobstructed vision, the reasonable inference would be that the driver of such an automobile should have been able to observe that there was an intersection ahead. In addition, the evidence is clear that defendant started to pass four vehicles at a time when all the vehicles were decreasing their speed giving notice of this fact by application of brakes which in turn illuminated the rear stop lights of each vehicle. To the ordinary driver, under such circumstances, notice is given that some unseen condition has caused this decrease in speed of all the vehicles. It is noteworthy that none of the three vehicles to the rear of the Twin City truck attempted to pass but remained in the proper lane of travel. Defendant, however, continued to increase his speed with knowledge of an unseen condition that caused the line of traffic to slow down. Under ordinary circumstances this decrease in speed could well indicate that some other vehicle, object or person was about to enter this highway at a point to the east of the line of traffic, or that one of the vehicles, and most probably the leading one, would leave the highway within a short distance of travel. With notice of such condition, defendant had the choice of either remaining patient as the preceding vehicles had done and continuing in his lane of travel or taking a chance by playing a guessing game as to what might or might not occur. Under such circumstances as indicated by the evidence in this case it is quite understandable that a jury and trial court, who had the opportunity of seeing and observing the witnesses, could reasonably conclude that the defendant was guilty of wilful and wanton misconduct. That reasonable persons might differ as to this conclusion or that a court of review in weighing the evidence might differ is of no consequence.

Concerning defendant’s urging for this court propounding a definition of wilful and wanton misconduct we point out that in the recent case of Myers v. Krajefska, ante, p. 322, a similar contention was made by defendant. What was declared in the Myers case is equally applicable to the instant case. We note that the Appellate Court did not pass on other assignments of error in view of its above noted conclusion. The judgment of the Appellate Court is reversed and the cause is remanded to that court with directions to consider other errors relied upon for reversal, if any such errors exist. In the Appellate Court defendant complained of a certain instruction or instructions. However, defendant’s motion for new trial did not specifically set out or particularize any of the given or reviewed instructions in the trial court as required under the Practice Act.

Reversed and remanded, with directions.

Mr. ChiFF Justicf HfrshFy,

dissenting:

To characterize the defendant’s conduct as “wilful and wanton” seems to me completely unjustified. I believe the Appellate Court correctly stated and decided the case, and its opinion, reported in 6 Ill. App. 2d 395, should be affirmed.