author: Mr. Presiding Justice Feinberg

text:
    Julia O’Donnell, Appellee, v. Sol Barach, Sol Garfinkle, and Irving L. Barach, Appellants.
    Gen. No. 46,039.

      Opinion filed December 30, 1953.
    Rehearing denied January 20, 1954.
    Released for publication February 3, 1954.
    Egbert L. Brody, of Chicago, for appellants ; Charles D. Snewind, of Chicago, of counsel.
    James A. Dooley, of Chicago, for appellee.
   Mr. Presiding Justice Feinberg

delivered the opinion of the court.

Plaintiff’s action is for personal injuries caused by the alleged negligence of defendants. A trial with a jury resulted in a verdict for plaintiff. After motions for judgment notwithstanding the verdict or a new trial, which were overruled, judgment was entered upon the verdict. Defendants appeal.

The negligence alleged in plaintiff’s amended complaint is the failure to comply with section 34, chapter 64 of the Municipal Code of Chicago, passed August 30, 1939, as amended, in force at the time of the accident. The relevant part of that section provides:

“There shall be a handrail on at least one side of every stairway, and on each side of every stairway which is more than three feet four inches in width. Every interior stairway which is more than seven feet in width shall have double intermediate handrails to divide the stairway into clear widths of seven feet or less. The height of a required handrail shall be not less than two feet six inches, nor more than three feet, measured vertically from the front edge of any tread to the top of the handrail. Every required handrail and railing shall extend from the top of the stair to the front edge of the third tread from the bottom or to a lower point.” (Italics ours.)

Chapter 40 — 2 provides:

“All buildings and structures existing at the time of the enactment of this code, or hereafter designed, erected, altered or converted, shall be classified according to occupancy and use in accordance with the building provisions of this code . . . .”

Chapter 40 — 4 provides:

“A multiple dwelling is hereby defined as a building, or part of a building, designed, intended, or used as an apartment house

Chapter 48 — 1 provides:

“Every building, or part thereof, hereafter designed, erected, altered, or converted for use as a multiple dwelling, as defined in section 40 — 4 shall comply with the general provisions of this code pertaining to buildings, and in addition thereto shall comply with the special provisions set forth in this chapter. In case such provisions conflict, the special provisions of this chapter shall govern.”

Chapter 39 — 7 provides:

“Every building or structure constructed or maintained in violation of any of the building provisions of this code ... is hereby declared to be a public nuisance . . . .” (Italics ours.)

Chapter 39 — 2 provides:

“. . . The general provisions shall govern the construction, alteration, and conversion of all buildings and other structures . . . .”

The evidence discloses that plaintiff was a first-floor tenant in the building owned and controlled by de- ■ fendants. The building is a six-flat, three-story brick apartment building, erected in 1909. At the time of the accident, plaintiff was eighty-two years of age. There was a staircase, consisting of seven marble steps, leading from the first-floor landing of her apartment to the entrance vestibule. The stairway was 5 feet, 11 inches in width.

On the day in question, plaintiff left her apartment and descended the staircase. Her left foot was on the last step, and as she put her right foot down into the vestibule, she felt herself slipping, her foot gave way, and she was thrown over to the south wall. She tried to reach for something to hold, but there were no rails on either side of the stairway, and there was nothing she could take hold of to prevent her falling. The sidewalls of the stairway were of marble.

Defendants contend that the ordinance in question does not apply to the instant building, because it was constructed long before the passage of the ordinance; that the absence of a handrail was not the proximate cause of the accident; that the verdict is against the manifest weight of the evidence; and that it was error to give certain instructions on behalf of plaintiff. No point is made as to damages.

We cannot agree with defendants’ contention that the ordinance in question does not apply. Chapter 39 — 7 includes not only construction of the building but maintenance as well, and that any violation of the provisions of the Code is declared to be a public nuisance. A similar contention in De Wolf v. Marshall Field & Co., 201 Ill. App. 542, was decided adversely to defendant. In that case the building was constructed before the passage of the then ordinance, which contained a similar provision with respect to handrails along the stairway. This court said, p. 548:

“It may be that the city council had in mind the danger which arises by reason of the existence of such stairways and undertook to make them safer for those using them. We, of course, have no right under the law, to pass upon the reasonableness of the ordinance; that is a matter solely within the jurisdiction and power of the city council.

“If the latter believed that handrails, in connection with such stairways, were reasonably necessary for the public safety, it had the right to order that all such stairways be furnished with handrails.

“Bearing in mind, therefore, what the words, To construct or maintain,’ used in the ordinance, mean in their general and ordinary sense, and considering the context and the apparent intention of the ordinance, we are compelled to the conclusion that the legislative body, the city council, in using those words intended to cover, and had in mind, all such stairways built or to be built.” (Italics ours.)

The holding was followed in Doran v. Boston Store of Chicago, 307 Ill. App. 456. Whether the absence of the handrails, under all the circumstances, was the proximate cause of the accident, we think was a question of fact for the jury. Doran v. Boston Store of Chicago, supra, p. 461.

We find no merit in defendants’ complaint of plaintiff’s instructions No. 11, which defined negligence (Perryman v. Chicago City Ry. Co., 242 Ill. 269; Smith v. Illinois Cent. R. Co., 343 Ill. App. 593), or No. 4, which referred to circumstantial evidence (Gallagher v. Singer Sewing Machine Co., 177 Ill. App. 198; Branch v. Woulfe, 300 Ill. App. 472), or No. 15, defining proximate cause (Chapman v. Baltimore & Ohio R. Co., 340 Ill. App. 475). They substantially comply with the rule in the cases cited. The verdict is amply supported by the evidence.

We think upon the whole record the judgment is just, and it is affirmed.

Affirmed.

Kiley and Lews, JJ., concur.


source: Caselaw Access Project

author: Mr. Justice Kiley

license: Public Domain

text:
    John Margevich, Plaintiff-Appellee, v. Chicago and Northwestern Railway Company, Defendant-Appellant.
    Gen. No. 46,055.

      Opinion filed December 30, 1953.
    Rehearing denied January 20, 1954.
    Released for publication February 3, 1954.
    Lowell Hastings, Drennan J. Slater, and Gerald M. Chapman, all of Chicago, for appellants.
    James A. Dooley, of Chicago, for appellee.
   Mr. Justice Kiley

delivered the opinion of the court.

This is a suit under the Federal Employers’ Liability Act (45 U. S. C. § 51 et seq.) by a railroad repairman. Verdict was for plaintiff in the amount of $37,-500. Plaintiff remitted $7,500, and judgment was entered for $30,000. Defendant has appealed.

The accident occurred on September 18,1948. Plaintiff was then sixty-six years old and had been a car repairman for defendant for twenty-eight years. When injured, he was engaged in repairing a grab iron on a boxcar. He fell from a scaffold.

The scaffold consisted of a wooden horse about ten feet high and several feet wide. The top platform was ten or twelve inches wide. There were five rungs at several levels below the platform. The rungs were about %th of an inch thick. The scaffold or horse was placed near the south end of a steel end boxcar so that the bent grab iron on the car could be repaired. On each side of the track where the car was placed were concrete walks. Since the grab iron under repair was on the west side of the car end, the scaffold was placed close to the concrete walk west of the rail. The grab iron under repair was the top-most fixed to the car end. It was about 18 inches wide and about 12 feet above the ground. It was bent in toward the car.

The repair work was the joint operation of a fellow workman, using an acetylene torch to soften the grab iron, and plaintiff, using a crowbar to straighten it. Plaintiff’s companion worked while seated on the top on the scaffold. Plaintiff stood on the second rung on the south side of the scaffold. Consequently the scaffold was between him and the car. After the grab iron was heated, plaintiff was told by his co-worker to “pull.” He placed the crowbar under the grab iron and attempted to pull the bar upward. It did not bend. He moved the bar and pulled upward again. The bar slipped and plaintiff fell to the concrete walk and was injured.

The issues raised here are whether there was any evidence of negligence sufficient to submit the case to the jury; whether the court erred in instructing the jury and in ruling on admission of evidence; and whether the verdict is excessive.

Plaintiff had the burden of proving that his injury was the result in whole or in part of defendant’s negligence or that of its employees. 45 U. S. C. § 51; Payne v. Baltimore & Ohio R. Co., 351 Ill. App. 186; Kloetzer v. Louisville & N. R. Co., 341 Ill. App. 478; Wilkerson v. McCarthy, 336 U. S. 53.

Defendant was not required to furnish the latest, best or most perfect appliances. The general rule imposes the obligation to furnish reasonably safe equipment suitable for the purpose of the work, and where occupations are attended with great and unusual danger, the obligation is to use all appliances readily attainable for the prevention of accidents. Perryman v. Missouri Pac. R. Co., 326 Mo. 176, 31 S.W.2d 4. The rule applied under the F. E. L. A. is that the employer’s duty becomes more imperative as the risk increases. Bailey v. Central Vermont Ry., Inc., 319 U. S. 350; Cheffey v. Pennsylvania R. Co., 79 F. Supp. 252. The testimony of experts with respect to safer methods used on other railroads is an evidentiary basis upon which the jury can decide whether the equipment and method of the railroad were reasonably safe, or whether it should have used safer equipment and methods. Boston & M. R. v. Meech, 156 F.2d 109; Palum v. Lehigh Valley R. Co., 165 F.2d 3.

Defendant’s contention that there is no evidence of negligence on its part is to be tested by the well-known rule applicable in determining whether a jury question was presented by the evidence. Wilkerson v. McCarthy, 336 U. S. 53; Walaite v. Chicago, R. I. & P. Ry. Co., 376 Ill. 59. We shall relate only the testimony favorable to the plaintiff and draw the legal inferences most strongly in his favor: Plaintiff’s coworker was in charge of the work. He made the decision when the grab iron had been heated enough so as to bend easily. After heating the grab iron, he told plaintiff to straighten it. Plaintiff was standing on the ⅞-inch rung on the outside of the scaffold. When he “pulled up,” both of his arms were above his head and his elbows were level with his shoulders. In this operation there is nothing to hold on to. Defendant has weekly safety meetings at which safety in repair operations was discussed and explained. Plaintiff had been instructed by his foreman to do the work the way in which he was doing it.

The foregoing evidence tends to prove negligence in defendant’s repair method and in directing plaintiff’s work.

There is further favorable evidence for plaintiff: The torch which plaintiff’s co-worker was using had close to a three-foot flame capacity. Usually safety paper, asbestos or tin is used to protect the paint during the grab iron straightening process. A good welder can heat a grab iron and not disturb the paint. If paint is burned it blisters. No safety shield was used during the instant work and the paint was blistered.

The foregoing is further evidence of negligence on the part of plaintiff’s co-worker, since an inference is justified that the paint had been softened and could cause the crowbar to slip.

There is further favorable evidence for plaintiff: Any work which is overhead requires good footing. Other repairmen on other roads did this type of work on ladders which enabled the repairman to stand with one foot on one step several inches wide, and one on another, or to sit while working so there is no worry about footing. Neither the “Great Western” nor the “Milwaukee” Railroads use horses such as the one defendant used when the accident occurred. The “Milwaukee” uses platform ladders with ample foot space. If the “Great Western” uses horses, it uses them crosswise and lays twelve-inch planks so as to provide about twenty inches of standing space.

The foregoing testimony tends to prove defendant did not furnish plaintiff reasonably safe equipment for the work purpose.

We think, therefor, that the question of defendant’s negligence was for the jury.

Defendant, to sustain its contention that the equipment was reasonably safe, argues that plaintiff had used this same kind of scaffold for twenty-eight years and had never seen an accident result therefrom. The question is not what equipment defendant furnished, and plaintiff used, customarily, but whether there was evidence that the equipment and method were not reasonably safe. Chicago, R. I. & Pac. Ry. v. Daugaard, 118 Ill. App. 67; Midland Valley R. Co. v. Bell, 242 Fed. 803; Texas & Pacific Ry. Co. v. Behymer, 189 U. S. 468. This conclusion disposes of the argument with respect to the long use, without accident, of the method employed in straightening the grab iron.

Defendant argues also that it is free of any charge of negligence because it was entitled to assume that defendant would use the equipment in a safe manner. The fact that plaintiff may have stood with greater safety between the car and scaffold “would not completely immunize” defendant from liability if the injury was in part due to its negligence, for plaintiff’s contributory negligence would merely diminish damages, not bar recovery. Wilkerson v. McCarthy, 336 U. S. 53; Virginian Ry. Co. v. Viars, 193 F.2d 547. Moreover there is evidence that plaintiff had been instructed to stand where he stood. Also, reasonable men might differ on the question whether standing between the car and the scaffold on the %-inch cross-board, using both hands above the head, would have been an appreciably safer position.

In view of our conclusion with respect to what the evidence favorable to plaintiff tended to show, it follows that we see no merit in defendant’s complaint with respect to plaintiff’s “summarizing instruction.” This instruction summarized the issues. It is not vulnerable to the sole contention made, that the charges of negligence had no foundation in the evidence. It is true that the third charge summarized refers to tools, but it also refers to equipment.

The defendant complains of prejudicial error in the trial court’s refusal to give its tendered instruction #22. It was as follows:

“You are instructed that under the present provisions of the Internal Revenue Code of the United States any amount paid plaintiff by defendant under a verdict of this jury is exempt from the payment of federal income taxes for the year of receipt of said amount, although the amount of any dividends, interest, gain, profits or income derived from any such amount paid plaintiff by defendant under a verdict of this jury would not be exempt from the payment of federal income taxes.”

In support of its claim defendant relies on Dempsey v. Thompson (Mo.), 251 S.W.2d 42 and Hall v. Chicago & N. W. Ry. Co., 349 Ill. App. 175. In the Hall case this court reversed an order of the trial court granting plaintiff a new trial because the defendant in argument told the jury that whatever plaintiff received by way of verdict was not subject to income tax. That case is not authority for the reversal of a judgment for the failure of a trial court to give this cautionary (Dempsey v. Thompson) instruction.

We infer from a study of the Dempsey case that the refused instruction there did not contain the words following the word “although” in the instant instruction. The instruction in that case and this are not the same, and the question before us is therefore different.

Plaintiff in that case argued that if the jury should be instructed as to the tax exemption it should also be instructed that dividends, etc., derived from investment of the award, would not be exempt. The Missouri court said that any reference to the tax liability of future income realized from the investment of the award “would tend to confuse and distract the jury and lead it into speculating on the amount thereof.”

We see no merit in the claim with reference to Instruction #22. The instruction was bad for the reason given by the Missouri court in striking down the contention made there by plaintiff and referred to in the preceding paragraph. The trial court was justified in refusing to give Instruction #22. It is not necessary, therefor, for us to decide the question of the propriety of instructing the jury with reference to tax exemption of personal injury verdicts.

Error is claimed on the basis of the refusal of the trial court to admit into evidence certain posed photographs showing various hypothetical positions in which the work might have been done. These photographs could not have been offered as real evidence, Ellis v. Flannigan, 253 Ill. 397; People v. Crowe, 390 Ill. 294, but merely for the purpose of clarification or for demonstrative purposes. Admission for this purpose is within the discretion of the trial court. Goodrich v. Chicago Great Western Ry. Co., 148 Ill. App. 579; Quincy Gas and Electric Co. v. Baumann, 203 Ill. 295. There has been no abuse of discretion in this case, since the jury was sufficiently informed by the evidence and photographs already in evidence of the position of the scaffold and the workmen.

Plaintiff’s attorney made arguments based upon failure of defendant to supply photographs of the workman doing the work as defendant claims it might have been done. Defendant’s attorney answered the argument. No objections were made by either side. The argument was under control of the trial judge, and there is no showing that there was abuse of discretion in exercising this control. Reinmueller v. Chicago Motor Coach Co., 341 Ill. App. 178.

Defendant contends the verdict is so excessive that a reversal for that reason must be ordered. It says the jury was “fully and fairly instructed on the proper measure of damages” but that the amount of the verdict demonstrates conclusively that the jury gave no heed to the instructions and apparently made no deduction for plaintiff’s contributory negligence.

The jury’s verdict awarded plaintiff $37,500. Was this amount so excessive as to indicate passion and prejudice on the part of the jury or to indicate that the jury failed to diminish its award for plaintiff’s “contributory negligence?” We have shown that the defendant was not prejudiced by any error in the exclusion of evidence or in the giving or refusing of instructions. Moreover we have shown that the jury may have decided that plaintiff was not negligent. Plaintiff’s actual loss of earnings to the time of trial was more than $10,000. In addition to being instructed that actual loss of earnings was a proper element of damage, the jury was told that additional elements were the present value of plaintiff’s loss of future earnings, pain and suffering, and physical injuries including permanent disabilities resulting from the injuries.

The accident occurred in September 1948 when plaintiff was sixty-six years old. There is evidence that he was hospitalized for two months where his arm from wrist to elbow was put in a cast, he had a whistling in his head and was given heat treatment for his back; that up to the trial of the case in October 1952 he had not been able to walk without support for his back; that as a result of his fall he had suffered a fracture of the larger wrist bone at the joint and a fracture of the sacrum; that the fractures of four ribs and a dislocated vertebra could have been caused by the fall; that the back injury could be responsible for his permanently stiff back and for the deficiencies in plaintiff’s achilles and patilla reflexes; that the reflex deficiencies are permanent; that plaintiff used a cane eight or nine months after leaving the hospital; that he has whistling in his head all the time, cannot sleep well, must be given hot baths several times weekly and must spend about three hours daily in bed; that he has lost his appetite; and that since the accident he has lost more than twenty pounds.

Other testimony was that the vertebral injury could have preceded the injury; also that it did precede the injury; that there was enough arthritis to stiffen the back aside from the injury; that all rib fractures were healed at the time of trial; that plaintiff did not complain of the whistling in the head at the hospital; and that plaintiff was given a permit to return to work in January 1949, though the doctor did not know what work plaintiff was engaged in.

Assuming that the jury took as true the testimony favorable to plaintiff, we think reasonable men could differ on the question of excessiveness. Smith v. Illinois Cent. R. Co., 343 Ill. App. 593.

The trial court presumably thought the verdict was excessive by $7,500 but saw no reason to grant a new trial if plaintiff remitted that amount of the verdict. We cannot say that this ruling was insufficient to assure defendant a fair verdict.

For the reasons given the judgment is affirmed.

Judgment affirmed.

Fbihberg, P. J. and Lews, J., concur.


text:
    Adam Schlesna, Appellant, v. Tom Gambino, Appellee.
    Gen. No. 46,094.

      Opinion filed December 30, 1953.
    Rehearing denied February 3, 1954.
    Released for publication February 3, 1954.
    Coghlan & Coghlan, and Ahern & Gtllogly, all of Chicago, for appellant; Daniel 0. Ahern, and Kevin J. Gillogly, both of Chicago, of counsel.
    PoSANSKI, JoHANNSEN, KrOHN & JACOBS, of Chicago, for appellee; Charles D. Snewind, of Chicago, of counsel.
   Mr. Justice Kiley

delivered the opinion of the court.

This is an action for damages for malicious prosecution. Verdict was for $1,000 in plaintiff’s favor. The trial court sustained defendant’s motion for judgment notwithstanding the verdict and entered judgment accordingly. Defendant’s alternative motion for new trial was denied. Plaintiff appealed from the judgment and defendant has assigned error upon the denial of the motion for new trial.

Plaintiff contends that the court erred in entering judgment for defendant.

In disposing of this contention we apply the familiar rule that we should consider only the evidence and inferences most favorable to plaintiff: In September 1948, Gambino was in the scrap iron business in Burnham, Cook county, Illinois. On September 8th two furnaces and a boiler were stolen from his premises. He reported the theft to the Police Chief of Burnham and the next day located the furnaces and boiler in the yard of the Calumet Iron and Supply Company. They had been delivered.there on a flat bottom, yellow or green, old Diamond T truck, with a winch behind the cab and a big red “shoe” on the left-rear tire. The driver was from the vicinity of 88th Street and Houston Avenue, Chicago. Gambino was given the license number of the truck. Subsequently Gambino saw plaintiff’s Diamond T truck near 92nd and Commercial Avenue where plaintiff resided. This truck was green, had a winch, but had steel sides four feet high welded to the bottom, and had no tire repaired with a red shoe. Gambino took the license number of plaintiff’s truck, and signed a complaint charging plaintiff with larceny. A warrant for plaintiff’s arrest was issued, he was taken from his home in the presence of his wife and children at about 4:30 a. m. and was held till a friend furnished bail for him at about 7.00 a. m. Subsequently plaintiff took Gambino to the vicinity of 88th Street and Houston Avenue where the truck as described by the yard foreman of Calumet Iron and Supply Company was found. Gambino admitted he had had the wrong party arrested and the complaint was therefor dismissed.

There is testimony, therefor, tending to prove the six elements of a malicious prosecution case. Shel-

ton v. Barry, 328 Ill. App. 497. There is ample to show that there was no reasonable ground upon which Gambino could form an honest belief or strong ground of suspicion that plaintiff committed the larceny. This was sufficient to make the element of want of probable cause a question for the jury. Harpham v. Whitney, 77 Ill. 32.

The closest question might be said to be on the element of malice. We refer again to the evidence favorable to plaintiff and draw legal inferences in his favor. Gambino was a competitor of plaintiff. After getting information from the yard foreman, he went to the wrong vicinity, took the wrong license number from the wrong truck and from that license number, without further inquiry, caused plaintiff’s arrest and detention. This was done in the light of the knowledge he had of plaintiff’s standing as a business "man. The result of Gambino’s action was loss by plaintiff of business, some to Gambino. This testimony tends to prove Gambino was reckless and malicious. Hirsch v. Feeney, 83 Ill. 548. This question was also for the jury.

As to Gambino’s contention here, we see no merit in the claim the verdict is against the manifest weight of evidence on the essential elements of institution of the complaint, malice and want of probable cause. Also, no prejudicial error in ruling on evidence appears in the record.

For the reasons given the judgment non obstante veredicto is reversed, the order denying motion for new trial affirmed and cause remanded with direction to enter judgment on the verdict for plaintiff.

Judgment reversed and cause remanded with directions.

Feinberg, P. J. and Lews, J., concur.


author: Mr. Justice Lews

text:
    People of State of Illinois ex rel. First National Bank of Stevens Point, Wisconsin, Appellee, v. Village of Stickney et al., Appellants.
    Gen. No. 46,062.

      Opinion filed December 30, 1953.
    Rehearing denied January 20, 1954.
    Released for publication February 3, 1954.
    Joseph Lustfield, of Chicago, for appellants.
    Charles J. Michal, and Donovan, Sullivan, Jeffers & Breen, all of Chicago, for appellee.
   Mr. Justice Lews

delivered the opinion of the court.

Defendants appeal from an order directing that a writ of mandamus be issued commanding adoption of an ordinance providing for issuance of interest-bearing funding bonds by the Village of Stiekney in an amount sufficient to pay the judgment entered against the Village in favor of the relator hereinafter referred to as “the Bank,” and that the bonds so issued in accordance with the Village ordinance either be delivered to the Bank in satisfaction of its judgment or that the bonds be sold and the proceeds thereof be applied to the payment of the judgment indebtedness.

July 13,1944 a judgment was entered in the superior court of Cook county against the Village of Stiekney and in favor of the Bank for the sum of $51,077.13. That cause was appealed to this court where the judgment was affirmed. (First National Bank of Stevens Point, Wisconsin v. Village of Stickney, 335 Ill. App. 596.) The petition alleges in substance that the judgment against the Village is based on the tortious acts of defendants in wrongfully and deliberately withholding and diverting moneys received by the Village as trustee and due the Bank as the owner of certain special assessment bonds; that the Village is charged with the mandatory duty to fund the Bank’s judgment under the provisions of chapter 24, section 23 — 7, Vol. 1, State Bar Edition, Ill. Rev. Stats. 1951 [Jones Ill. Stats. Ann. 21.1638], which reads: “To provide for the consolidation or refunding of maturing bonds and the funding of judgment debts, and to issue bonds in place of maturing bonds or judgment debts.”

The evidence discloses that for each year from 1949 to 1951, inclusive, the amount of money appropriated and required by the Village for corporate purposes far exceeded the money that could be obtained from the collection of taxes by extending the maximum rate against the assessment valuation of property within the confines of the Village. For example, in 1951 the Village levied the sum of $43,570.50. By extension of the legal rate for that year the maximum the Village could receive from tax collections was about $20,000. During the entire period from the entry of the judgment in favor of the Bank until the filing of the instant proceeding the Village has been in straitened circumstances and did not have any funds left on hand which could be applied to the Bank’s judgment.

The judgment order finds among other things that the Village as trustee negligently and wrongfully collected moneys held by it applicable to special assessment bonds owned by the Bank; that the Village has no funds on hand to pay the Bank’s judgment; that the only available means of payment is by the issuance of judgment funding bonds; and that the Bank has offered to accept general obligation funding bonds.

Defendants say that the petition filed by the Bank shows that the Bank in its written demand upon the Village before these proceedings were filed requested the issuance of general obligation bonds for the purpose of paying the judgment indebtedness and that the prayer of the petition also asks for the issuance of general obligation bonds.

Defendants contend that there is a distinction between general obligation bonds and funding bonds, and attempt to justify their refusal to issue general obligation bonds on the ground that such bonds would exceed the statutory limitation on the obligations of the Village. We think this contention is without merit. From a reading of the allegations of the amended petition there can be no doubt that the sole purpose of the present proceeding is the funding of a judgment debt against the Village in accordance with chapter 24, section 23 — 7, Ill. Rev. Stats., State Bar Asso. Ed., Vol. 1,1951 [Jones Ill. Stats. Ann. 21.1638]. Moreover, averment and proof of the demand upon the Village was unnecessary for the reason that the undisputed evidence shows that the Village could not comply with the demand. See People v. McKibbin, 380 Ill. 63. In our view under the pleadings and proof the order for the issuance of funding bonds was proper.

Officials can have no higher duty than the payment of honest debts of municipalities reduced to judgment and it is not discretional with them as to whether or not they shall do so. (Neidhardt v. City of Wood River, 329 Ill. App. 485.) To the same effect see People v. Rice, 356 Ill. 373.

Defendants insist that the court erred in finding that the judgment indebtedness against the Village is “based on a tort claim.” In our former opinion, 335 Ill. App. 596, at page 612 we stated that the Bank’s claim is predicated on the wrongful withholding from payment of special assessment funds collected by the Village acting as trustee on bonds owned by the Bank. This is unquestionably a tortious act (Hayes v. Massachusetts Life Ins. Co., 125 Ill. 626), and the trial court was warranted in so finding. Even so we do not regard this finding as material.

The order further provides that defendants may sell funding bonds in the open market in order to produce sufficient funds to pay the Bank’s judgment, or deliver the bonds to the Bank in satisfaction of its claim. In the recent case of Brenner v. Village of Phoenix, 347 Ill. App. 177, we sustained a similar provision of an order providing for compliance with a writ of mandamus in either of two ways.

For the reasons given, the judgment order is affirmed.

Judgment order affirmed.

Feinberg, P. J. and Kilby, J., concur.


author: Mr. Justice Bardens

text:
    Charles Kabureck, Plaintiff-Appellee, v. Menard C. Stookey and Ruth M. Schmidt, Defendants-Appellants.
    Term No. 53-O-8.

      Opinion filed January 11, 1954.
    Released for publication February 4, 1954.
    Henry A. Schwarz, of Belleville, and McBoberts & Hoban, of East St. Louis, for appellants.
    Johnson & Johnson, of Belleville, for appellee.
   Mr. Justice Bardens

delivered the opinion of the court.

The plaintiff filed his verified complaint and petition for a temporary injunction in the circuit court of St. Clair county alleging that defendants were interfering with his tenancy of defendants’ farm premises. The trial court heard arguments in support of plaintiff’s complaint and defendants’ motion to dismiss and entered a temporary restraining order, conditioned upon plaintiff’s furnishing bond in the penal sum of $8,000 with sureties to be approved by the court. Plaintiff’s bond was thereafter furnished in pursuance to the condition.

Plaintiff’s complaint charged substantially the following: That since 1948 plaintiff had been a tenant from year to year on defendants’ farm premises, had never received the statutory termination notice, and had not surrendered possession; that defendants were presently interfering with his farming operations by plowing and planting crops, and that such conduct would cause plaintiff irreparable injury. Defendants’ motion to dismiss simply charged that plaintiff had an adequate remedy at law and that he would not sustain irreparable damages if denied injunctive relief. In answer to Count II of the complaint, an action at law for damages on account of the trespass of defendants, defendants alleged a surrender of the farm land to them in November 1952, and possession of the premises by them since that date. The decree entered on May 25, 1953, after arguments of counsel found that defendants’ action “could necessarily cause plaintiff to suffer irreparable damage by reason of repeated trespasses, the uncertainty of his lease, the time involved in a final determination of the issues involved, and consequently would not give him an adequate remedy at law; that the present status quo should be maintained; . . .” and enjoined defendants from further interference with plaintiff’s tenancy.

The rule is clear that in reviewing the action of a trial court in issuing a temporary injunction, the allegations of the verified complaint are to be taken as true. Quinn v. Fountain Inn, 218 Ill. App. 260. The question thus presented is simply whether or not plaintiff’s complaint states a cause of action requiring the temporary intervention of a court of equity. This being the case, defendants’ allegation in their answer, repeated in their brief, that they were, in fact, in possession of the land, was properly rejected by the trial court, and can have no bearing on the issues as presented on this appeal. It is likewise clear from an examination of the cases cited by both plaintiff and defendant that there is no absolute or inflexible rule governing the right of a court of equity to enjoin trespass. Among the several elements treated as significant in any case are a concern with the adequacy of the remedy at law, and the maintaining of the status prevailing before the dispute arose. Levy v. Rosen, 258 Ill. App. 262; Scholz v. Barbee, 344 Ill. App. 630, 101 N.E.2d 845. In his evaluation of the issues in the light of these factors, the trial judge is allowed a wide measure of discretion in granting or denying the relief prayed. McDougall Co. v. Woods, 247 Ill. App. 170. On a petition for a temporary injunction, the trial judge would be warranted in ascertaining the last peaceful or agreed status of the parties and preserving such until the issue of- right to possession could be determined in a court of law. Northern Illinois Coal Corp. v. Langmeyer, 340 Ill. App. 423, 92 N.E.2d 802. Any other conclusion places a premium upon seizing and establishing possession in fact by force rather than by altering the status by legal procedure. In the Langmeyer case we said, at page 429 :

“Thus the instant complaint comes within the type governed by the fundamental rule pertaining to the granting of temporary injunctions, namely, that the purpose of a temporary injunction or restraining order is the preservation of the status quo. (Cases cited.)

In 43 C. J. S., supra, Injunctions, § 17, at page 428, status quo is defined as follows: ‘The status quo which will be preserved by a preliminary injunction is the last, actual, peaceable, noncontested status which preceded the pending controversy.’ The necessity of the temporary injunction is usually made apparent by allegations showing that a change in the status would cause irreparable injury.”

As the issues were presented to the trial court, it could properly assume an existing landlord-tenant status and the desirability of its peaceful preservation pending further proceedings.

As has been said, the gauging of the adequacy of the remedy at law as preventing a resort to equity lies largely within the discretion of the trial judge. In the instant case, it would be difficult, indeed, to fix, with any degree of exactness, the damage resulting in being prevented from farming the land in dispute. The end result of farming operations depends to such a large extent upon a group of variable factors (e. g., weather, farming equipment available, soil treatment, individual skill) that plaintiff’s damage in being prevented from farming the land could never be precisely determined. Further, we conclude that the trial court had a right to consider the other factors detailed in its decree, as partially set out above, as going together to make plaintiff’s remedy at law inadequate. Therefore, we cannot say, as a matter of law, that the trial judge abused his discretion in this finding.

The interlocutory order is, therefore, affirmed.

Decree affirmed.

Scheineman, P. J. and Culbertson, J., concur.


text:
    James M. Best, Conservator of Estate of Amanda Best, Plaintiff-Appellant, v. Melvin Best, Defendant-Appellee.
    Term No. 53-O-12.
    Opinion filed January 11, 1954.
    Released for publication February 4, 1954.
    Listeman & Bandy, of East St. Louis, for appellant.
    Pope & Driemeyer, of East St. Louis, for appellee.
   Mr. Justice Bardens

delivered the opinion of the court.

This action was originally instituted hy Amanda Best against Kenneth Nation and Melvin Best to recover damages sustained by her on May 14,1950, when an automobile in which she was a guest collided with an automobile driven by Kenneth Nation. After the suit was filed, James Best was appointed conservator of Amanda Best and was substituted as plaintiff. Plaintiff gave to the defendant Kenneth Nation a covenant not to sue and suit was dismissed as to that defendant. The case proceeded to trial before a jury as to the defendant Melvin Best and the jury returned a verdict of not guilty and judgment was entered thereon. Plaintiff filed his motion for a new trial which was denied and this appeal follows.

The principal assignments of error are that the verdict was contrary to the manifest weight of the evidence; the trial court erred in refusing one of plaintiff’s instructions and in admitting certain testimony.

About ten o’clock on the morning of May 14, 1950, Amanda Best was a guest in an automobile driven by her nephew, the defendant Melvin Best. She was seated on the right-hand side of the rear seat of the car. Next to her, in the middle of the rear seat, was Julia Best, mother of the defendant; and on the left-hand side was James Best. Seated next to Melvin Best, the driver, was his father, Edward Best. The weather was clear and the roadway was dry. Defendant’s automobile was travelling north on the Mt. Auburn Road at a speed of 45 to 50 miles per hour. The Mt. Auburn Road at that point was straight and was surfaced with a concrete slab. Intersecting the Mt. Auburn Road from the west was an all-weather road known as the Edinburg Road. This road was also straight and was of oiled surface. A state stop sign situated about fifty feet west of the Mt. Auburn Road required eastbound traffic on the Edinburg Road to stop before entering the Mt. Auburn Road.

Kenneth Nation was driving a car easterly on the Edinburg Road and entered the Mt. Auburn Road without making a stop. In entering the Mt. Auburn Road, Nation turned towards the left and his car and the Best car collided at the north edge of the intersection or slightly north of the intersection. Amanda Best received a blow on the head which resulted in very serious injury to her which will not be described because it is not material to the decision in this case.

The accounts of many of the facts leading up to the time of the collision and immediately prior thereto did not vary. It is the contention of the plaintiff that from the time the defendant’s car was within five hundred feet of the intersection it became apparent that the Kenneth Nation automobile was going to enter the highway without stopping; that the defendant was charged with the duty of keeping a constant lookout; and that there can be no question that had he discharged that obligation he would have realized that the Nation automobile, proceeding at about the same rate of speed as his automobile, was not going to stop; that he was admonished of this fact and that in spite of the admonishment he failed to stop, slacken his speed, blow his horn, swerve his car, or take any action whatsoever to prevent the accident; and that, therefore, the manifest weight of the evidence showed that the defendant was guilty of wilful and wanton misconduct.

Two witnesses for the plaintiff, namely, William .Ealey and his wife, Dorothy Ealey, were following defendant’s car at a distance of from five hundred to six hundred feet. They testified they saw Kenneth Nation’s automobile proceeding east on the Edinburg Road about the same distance from the intersection as the Best car; that neither car appeared to slacken its speed; that the Best car did not swerve; that they did not hear a horn sounded nor see a signal from the stop light on the Best car that would indicate that defendant slackened his speed. Kenneth Nation, for the plaintiff, testified he was driving east towards the Mt. Auburn Road; that his windows were down and visibility was good; that he saw the Ealey truck which was behind the Best car but did not see the Best automobile ; that he turned into the Mt. Auburn Road without stopping; and, when his automobile was half way across the black line, headed northeast, it was struck on its right side by the Best car. James Best testified that the Best automobile was travelling north at a speed of approximately fifty miles per hour; that when it got within about three hundred feet of the intersection he saw the Kenneth Nation car and said, “Watch, Melvin, I do not think he is going to stop”; and that the defendant replied, “Hell, I have got the right of way.” He also testified Melvin did not sound a horn; did not slacken his speed until the collision occurred; and did not even put on his brakes until he was right at the other car. He also testified that the Nation automobile did not slow up or make any sign to indicate that he was going to stop for the stop sign.

On behalf of the defendant, three eyewitnesses testified. The witness Edward Best, testified that he was riding in the front seat of the Best car; that there was no conversation as described by the witness James Best; and that no one objected to the way in which the Best car was being operated; that the Best car was right at the intersection when the Nation car went by the stop sign. He also testified that defendant, Melvin Best, slowed down before the collision happened. His judgment was that he reduced his speed by twenty miles per hour. Julia Best, mother of the defendant, testified she was sitting in the middle of the back seat right next to James M. Best; that she did not hear James Best warn the driver at any time and did not hear the conversation testified to by him; and then stated, “There was nothing said like that.” The witness James Kunz also testified for defendant. He was following the Nation car on the Edinburg Road and was about three hundred feet to its rear, and when the Nation car was about six car lengths from the intersection it slowed down and took off again. The witness Julia Best was later recalled to the stand and testified that she had noticed the Nation car had slowed down and that the defendant blew his horn when the Nation car was not far away. The defendant was called to the stand and after testifying about his age and the place of his employment and that he served in the United States Army from September of 1950 until October 1952, the question of his competency as a witness was raised and the court sustained the objection and he did not testify further. Amanda Best was unable to testify because of her injuries received in the accident affecting her mental condition.

Because of the contention that the verdict was against the manifest weight of the evidence, we have gone into some detail in reciting the evidence. It shows clearly that there was disputed testimony on certain material facts. This is especially true with regard to whether or not the warning conversation was had and whether or not it was apparent that the Nation car was not going to stop. The verdict, therefore, represented an evaluation of the credibility of witnesses. Considering only the plaintiff’s theory of the case we cannot say that the verdict was contrary to the weight of evidence.

The plaintiff-appellant tendered to the court the following instruction:

“The court instructs you that if you believe from a preponderance of the evidence that the defendant Melvin Best immediately before the collision mentioned in the evidence knew, or by the exercise of ordinary care should have known, that Kenneth Nations was going to drive his automobile onto the Mt. Auburn Boad without making a stop before so doing, and without permitting the automobile driven by Best to pass in front of him, and that collision between the two automobiles would thereby result, then the defendant Best was bound to exercise reasonable care in the operation of his automobile to avoid such collision, even though to do so required him to yield the right of way to the said Nation, or to attempt to stop his automobile upon said Mt. Auburn Boad, without colliding with the automobile driven by said Nations.”

The court refused to give this instruction and its refusal is assigned as error. Without passing upon the propriety of this instruction in an ordinary negligence case is it apparent that, as worded, it is not applicable to this case. The plaintiff was required to prove wilful and wanton misconduct and the instruction as drawn applies to a case of ordinary neglect. For this reason, there was no error in its refusal.

Plaintiff-appellant also argues that the defendant Melvin Best’s testimony concerning his military service was prejudicial and therefore calls for reversal. An affidavit filed with the plaintiff’s motion for new trial set out a conference between the lawyers and the trial judge out of the presence of the jury that was had prior to the defendant’s taking the witness stand. In this conference plaintiff’s attorney stated that he understood that the defendant was to be put on the stand and was to testify concerning his military service and that the attorney for plaintiff objected to such testimony; and that in this conference the court ruled that the defendant’s attorney would be permitted to ask a question as to defendant’s military service. This conference does not appear in the Transcript of Testimony or any place in the Beport of Proceedings, except in this affidavit. Military service is now such a common experience that preliminary questioning of a

witness in this respect without attempt at elaboration is not prejudicial.

Plaintiff-appellant also complains of four of defendant’s given instructions. We have read and considered these instructions and find no error therein.

Finding no reversible error in the proceedings below, it is our opinion that the judgment of the trial court should be affirmed.

Judgment affirmed.

Scheineman, P. J. and Culbertson, J., concur.


author: Mr. Justice Dove

text:
    Ethel E. Shaver, Appellee, v. Richard O. Brierton, Appellant.
    Gen. No. 10,717.

      Opinion filed January 28, 1954.
    Released for publication February 15, 1954.
    Elwin S. Wadsworth, of Dixon, for appellant.
    Warner & Warner, of Dixon, for appellee; Henry 0. Warner, and Warren H. Badger, both of Dixon, of counsel.
   Mr. Justice Dove

delivered the opinion of the court.

This action was commenced in a justice of the peace court by Ethel E. Shaver against her brother, Bichard 0. Brierton, by which she sought to recover a judgment for one-third of the value of services rendered by her in the care and maintenance of her mother and for money expended by her for the benefit of her mother from February 4, 1950 to January 10, 1951. Upon an appeal to the circuit court of Lee county a trial was had before a jury resulting in a verdict in favor of the plaintiff and against the defendant for $350. After a motion for a new trial had been denied the trial court rendered judgment on the verdict and the record is before this court for review upon an appeal by the defendant.

The evidence discloses that the father of the parties died in 1927 leaving him surviving, his wife, Ella Brier-ton and four children. One of the children, Mrs. Eberly, died in 1945. The other children were Sylvester Brier-ton, Ethel E. Shaver, the plaintiff, and Richard 0. Brierton, the defendant. The mother received no part of the estate of her husband, but each child received approximately $10,000.

After the death of her husband, Ella Brierton made her home with her children spending approximately fifteen years at the home of the plaintiff, seven years at the home of Mrs. Eberly, and about six months at the home of the defendant. On May 7, 1946, she left the home of her son, Richard, and came to the home of the plaintiff and continued to make that her home until January 10,1951, when she was removed to a hospital and from there to a nursing home where she died on July 10, 1952.

While at the home of the plaintiff and on February 4, 1950, Mrs. Brierton suffered a stroke and thereafter was practically helpless. During the ensuing forty-eight and one-half weeks, that is — from February 4, 1950, to January 10, 1951, Mrs. Brierton remained in plaintiff’s home and was cared for and maintained by the plaintiff or by persons employed and paid by the plaintiff, and in this proceeding plaintiff seeks to recover from her brother one-third of the value of her services to her mother for the forty-eight and one-half week period from February 4, 1950, to January 10, 1951, together with one-third of $27 paid by plaintiff to a Mrs. Rhodes for nursing services. The care of the mother from May 7, 1946, to February 4, 1950, or the medical, hospital and nursing expense of the mother between January 10, 1951, and July 22, 1952, are not involved in this proceeding.

It is not contended by appellant that the plaintiff did not support, care for, nurse, and maintain his mother in the home of the plaintiff during the forty-eight and one-half week period involved in this proceeding, or that he is not financially able to contribute to her support, or that the plaintiff ever received any compensation for the services she rendered his mother, nor does appellant insist that the judgment is excessive. It is the contention of his counsel, however, that no legal obligation is imposed by the statute of this State upon the defendant to contribute to the plaintiff for the support of his mother during this period; that such services as plaintiff rendered her mother are presumed to be gratuitous, and that the evidence discloses that the plaintiff made no request upon the defendant for payment of any services rendered her mother while the mother was in plaintiff’s home, and that plaintiff’s claim was created after the services were performed.

At common law an adult child is under no duty or obligation to contribute to the support of his parents. Whatever duty rests upon him in this respect must be based on either contract or statute (39 Am. Jur., p. 711, Parent and Child, sec. 70). In People v. Hill, 163 Ill. 186, 46 N. E. 796, 36 L. R. A. 634, the court (p. 189), after stating that the common law required parents to support their offspring until they attain the age of maturity, went on to say: “Nor does any common law obligation impose upon a child the legal duty of maintaining an infirm, aged or destitute parent.”

The Public Assistance Code of Illinois provides, in substance, that every person who shall be in need and unable to earn a livelihood in consequence of any unavoidable cause shall be supported by his father, mother, children, brothers or sisters if they, or either of them, are of sufficient ability; that the children or parents, as the case may be, of such person shall first be called upon for such support. This Code directs the state’s attorney of the county in which the needy person resides to file suit against the persons responsible for the support and provides that the court may order the payment of adequate support money as may be just and equitable and against any or all the defendants and may be based upon the proportionate ability of each defendant to contribute to such support. The statute further provides that such orders may be enforced against the person of the defendant or defendants by attachment as for contempt and, in addition, by execution (Ill. Rev. Stats. 1953, chap. 23, Pub. Assistance Code, Art. TV, sec. 439 — 2 [Jones Ill. Stats. Ann. 18.20A-2]). Section 12 of Article I of the same Code [Ill. Rev. Stats. 1953, eh. 23, § 436 — 12; Jones Ill. Stats. Ann. 18.201-12], after providing that every person who shall be in need and unable to earn a livelihood in consequence of any unavoidable cause shall be supported by his parents, children, brothers or sisters, designates such persons as “responsible relatives” if they “individually or together in any combination have sufficient income or other resources to support in whole or in part the needy person.”

Wyman v. Passmore, 146 Iowa 486, 125 N. W. 213, 27 L. R. A. (NS) 683, was an action brought by a sister against her brother to recover for services rendered by the sister to the mother of the parties for a period of about five years. From the complaint it appeared that the plaintiff had five brothers and sisters. In affirming the judgment of the trial court, which overruled a demurrer of the defendant to the fourth count of the complaint which sought a recovery on a quantum meruit basis, the court said: “There can be no doubt of the proposition that, where one of several children undertakes to keep the parent at the request of others, those at whose request the service is performed are under obligation to make reasonable compensation.”

In the instant case, the plaintiff testified that about the middle of March 1950, which was less than six weeks after the mother had suffered a stroke and was rendered helpless, plaintiff, accompanied by her husband, went to the farm home of the defendant and there had a conversation with him in which she told him that their mother was very sick and needed so much care and asked him to contribute to her support. Her testimony is that he answered and said he would think about it. As abstracted, her testimony continued: “I asked him for funds to help pay the expenses of mother. I did not talk about expenses at the hospital but about expenses at my home. ... I didn’t ask him to pay me for taking care of my mother. I asked him to pay his share of the expenses. The expenses I was talking about were nursing bill, doctor bill, all the bills connected with her personally. I did not name any expenses at that time. I didn’t name any amount to him at that time. I did not give him any idea how much money I was asking for. I didn’t know myself then. ... I asked him to contribute to her support and he said he would think about it.”

Defendant, when called as an adverse witness by the plaintiff in answer to the question “Did Ethel Shaver come to your house in 1950 and talk about the care of your mother?” replied, “No, she wanted to take her to the nursing home.”; and in answer to the following question, “Did she say anything about wanting you to share in care of your mother?” answered, “No, she didn’t.” Upon his direct examination in answer to the question “Did you ever have a conversation with your sister in relation to payment of any expenses of your mother while she lived with your sister?” replied, “No, I didn’t, not until when she was in the nursing home.” Later, however, he testified that he did have a conversation with his sister at his farm while his mother was still there but stated that his sister did not ask for any contribution for taking care of his mother and that he never had any conversation with his sister in relation to paying for his mother’s support while she stayed in Ms sister’s home.

It is true that a person cannot claim the right to keep a relative and charge his or her support partly or wholly to another, but where there are two children equally liable and of sufficient financial ability and one supports while the other refuses, the one supporting may recover contribution from the other refusing (21 R. C. L., p. 726, sec. 29).

It is true, as counsel for appellant state, the parties hereto never came to any express agreement for the payment by defendant to the plaintiff for plaintiff’s time and services which she devoted to the care of her mother, and it is true that the record does not disclose that defendant requested his sister to render his mother the services she did. The plaintiff testified, however, that when her mother came to her home the last time, which was May 7, 1946, she did so after “he (the defendant) told her she had to move.” The evidence is that defendant did not visit his mother after she suffered the stroke, but less than six weeks thereafter the plaintiff went to the home of the defendant and told Mm of the serious illness of his mother and asked him to share her maintenance and to contribute to her support, and the only reply he made was that he would think about it. The evidence is that he never contributed anything, so his conduct was equivalent to a refusal. There is no evidence as to the amount expended by the plaintiff except the payment of $27 to Mrs. Rhodes, although the plaintiff did testify that she spent additional sums and it appears that she furnished a room in her home for her mother and all the food that was consumed, prepared it, and, as one witness testified: “She (Mrs. Brierton) couldn’t have had better care than her daughter gave her. Mrs. Shaver fed her. At times when she was a little bit better her daughter would get her up and dress her. In a few minutes she would have to go back to bed. She was always clean. There was a bathroom in the room at the foot of the bed. When she wanted to signal or call someone Mrs. Shaver had an electric bell. She had it put in right after she had a stroke. She wasn’t always able to ring it but Mrs. Shaver had a day bed outside the door close to her mother when she was not able to ring the bell. She always had spotless, immaculately clean linens.”

Under the evidence found in this record, the only reasonable conclusion that can be arrived at is that prior to February 4, 1950, defendant knew his mother was making her home with the plaintiff and that shortly after that date he learned that his mother had had a stroke and was helpless and that his sister was providing her with a home, caring for and maintaining her. The jury were justified in finding that she had no financial means and was in need of help and care in consequence of an unavoidable cause and that about the middle of March 1950, plaintiff asked the defendant to share her maintenance and to contribute to her support and that he refused, although financially able to do so. Applying the provisions of our statute to these facts, we believe the jury was warranted in making the finding it did and that the verdict is not contrary to the law and evidence as contended by appellant.

Appellant was called by appellee as an adverse witness and, after he had testified that he was the defendant and owned 212 acres of land in Lee county, his counsel objected to such testimony as being relevant or material. Counsel for appellee advised the court that the testimony was offered for the purpose of show-

ing that defendant was financially responsible. He was then asked regarding the extent of his personal property, and his counsel insist this was prejudicial error. Inasmuch as the duty to contribute to the support of a parent is dependent upon financial ability to do so, this evidence was material.

It is also insisted that the court erred in giving the jury improper instructions on behalf of appellee. The two instructions complained of embraced portions of the applicable provisions of the Public Assistance Code. It is also insisted that the court erred in refusing one instruction tendered by appellant. In the abstract of record furnished by counsel for appellant, two instructions given by the court on behalf of appellee and two instructions given by the court on behalf of appellant and one instruction tendered by appellant and refused by the court are set out, but no reference is made to any other instructions. The supplemental abstract of record furnished by appellee sets forth twelve given instructions prefaced by the statement that “The court marked certain instructions given and read same to the jury.” It is not indicated at whose instance they were given, nor does it appear in either abstract whether or not all the instructions are contained in the abstracts. Under these conditions we are precluded from considering this assignment of error. (Seeden v. Kolarik, 350 Ill. App. 238.)

The judgment was warranted by the law and the evidence and is in accord with justice and equity.

Judgment affirmed.


author: Mr. Justice Wheat

text:
    Elmer Poulson, Plaintiff-Appellant, v. Lewis Poulson, Defendant-Appellee.
    Gen. No. 9,909.

      Opinion filed January 28, 1954.
    Released for publication February 15, 1954.
    David Allison, and Bookwalter, Carter, Gunn & Hickman, all of Danville, for appellant.
    Jones, Sebat & Swanson, of Danville, for appellee; John E. Sebat, and Robert J. Banks, Jr., both of Danville, of counsel.
   Mr. Justice Wheat

delivered the opinion of the court.

In this action for personal injuries a jury returned a verdict in favor of the plaintiff-appellant Elmer Poul-son, against the defendant-appellee Lewis Poulson, in the sum of $5,000. The appeal is from an order allowing a motion for judgment notwithstanding the verdict in favor of the defendant. No motion for a new trial was made.

The unquestioned rule is that a motion for judgment notwithstanding the verdict presents only questions of law as to whether, when all the evidence is considered, together with all reasonable inferences to be drawn therefrom, in its aspect most favorable to the plaintiff, there is evidence tending to prove any cause of action stated in the complaint. If there is, the motion should be denied and the weight and credit to be attached to all the facts and circumstances shown in evidence are questions for the jury (Todd v. S. S. Kresge Co., 384 Ill. 524). It therefore becomes necessary to review the evidence to make such determination.

The complaint in substance charged that defendant was the owner and operator of a truck and requested plaintiff to go with him for the purpose of loading a tractor and plow upon the truck; that for the purpose of loading, the truck was backed into a ditch about three feet deep so that the bottom of the bed of the truck rested on the opposite bank of the ditch; that the plaintiff, with the knowledge and consent of the defendant, assisted in moving the tractor for loading upon the truck and that after the same had been backed into the truck from the bank of the ditch the plaintiff, to prevent the tractor from moving, went thereon to place a plank in front of the tractor wheels, at which time the defendant suddenly started the truck, whereby the plaintiff, who was in the exercise of due care and caution, was thrown backwards out of the truck and slipped between the edge of the ditch and the end of the truck, thereby crushing his leg.

Defendant, son of plaintiff, has been operating a garage which was frequented by his father, on at least five days a week, and others, who designated the same as a “loafing place.” On this occasion defendant planned to load a plow and a used tractor onto his truck and to that end furnished an assistant. Plaintiff, the father, desired to visit with one Sylvester who lived on the farm where the used tractor was located. The three in the truck arrived at the farm in question and to facilitate loading, backed into a ditch about three feet deep so that the end gate of the truck was in the proximity of the opposite bank. A plank, 2x8, was placed between the end gate and the opposite bank and the defendant, with his assistant, proceeded to load the plow with its accessories. The plaintiff started the motor on the tractor but because of the January weather hesitated to put the same in gear. Thereafter defendant and his assistant moved the tractor toward the truck and backed the same thereon, at a time when plaintiff was visiting with a neighbor. Defendant’s assistant sat upon the tractor and placed his foot upon the brake thereon. Defendant entered the cab of the truck and had no knowledge that plaintiff was doing anything other than visiting with the said neighbor. Thereafter plaintiff stepped upon the body of the truck, placed the plank under the front wheels of the tractor to prevent its rolling off, about which time defendant started the motor of the truck, put the same in gear and endeavored to get out of the ditch, partially succeeding. Plaintiff was thrown out of the truck between the end gate thereof and the bank of the ditch. The motor of the truck stalled, it backed again into the ditch, pinning the leg of the plaintiff between the end gate and the bank of the ditch.

As to the relationship between father and son, insofar as it relates to being together in the truck, it is clear that the plaintiff at the most was merely a guest and not a passenger for hire. As such guest, defendant would only be liable for willful and wanton misconduct and the evidence in this case clearly shows no such misconduct. If it be said that the injuries arose other than because plaintiff had been an occupant of the truck, that is, that he was injured by the negligence of defendant while assisting in the loading of the tractor, then the evidence shows that plaintiff was a mere volunteer. His sole purpose in making the journey was to visit with his friend Sylvester and his only participation in the tractor transaction consisted of starting the motor and later, while engaged in conversation with a friend, in placing the plank in front of the tractor wheels. Under the ruling in the case of Trainor v. McCann, 344 Ill. App. 262, it must be held that plaintiff failed to prove that he was in the exercise of due care for his own safety, and also that there is no showing of any negligence on the part of the defendant that was the proximate cause of plaintiff’s injuries. However, as a volunteer, the plaintiff was required to prove not merely negligence but willful and wanton misconduct. It is stated in Belt Ry. Co. of Chicago v. Charters, 123 Ill. App. 322, as follows: “If the plaintiff was a volunteer, this suit must fail, for the defendant owed him no duty other than not to injure him wantonly or wilfully. . . . When a volunteer assists the servant of another, he does so at his own risk. Ill. Cent. Ry. Co. v. Godfrey, 71 Ill. 500; Ill. Cent. Ry. Co. v. Eicher, 202 Ill. 556; Flower v. Penn. Ry. Co., 69 Pa. St. 210; Atlanta, etc., Ry. Co. v. West, 121 Ga. 641. The only exception to this general rule is where the alleged volunteer has an interest in the work being done, in which event he is entitled while engaged in the work to be protected from the carelessness of the servants of the master. Cleveland, etc., Ry. Co. v. Marsh, 63 Ohio St. 236; Welch v. Maine Central Ry. Co., 86 Me. 552.”

A trial Judge, after an analysis of the evidence in the case, would be derelict in his duty in not directing a verdict under like circumstances, and inasmuch as the same rules are applicable to a motion for judgment notwithstanding the verdict, as in the case of a motion directing a verdict, it cannot be said that the trial court was in error in entering a judgment notwithstanding the verdict in favor of the defendant. An analysis of all of the evidence, with all reasonable inferences which might be drawn therefrom, viewed in the light most favorable to plaintiff, fails to disclose any evidence as a matter of law which would support a verdict in his favor.

The judgment of the circuit court is therefore affirmed.

Judgment affirmed.


text:
    Susan Kennedy, by Dale Kennedy, her Next Friend, Plaintiff-Appellant, v. Smiley Burnett, William R. Alexander, Harlan Quinn, and Thomas Agans, Defendants-Appellees.
    Gen. No. 9,915.

      Opinion filed January 28, 1954.
    Released for publication February 15, 1954.
    Garrison & Crandall, of Rushville, and Schmiedes-kamp & Deege, of Quincy, for appellant.
    Richard F. Scholz, Sr., of Quincy, and Arnold & Arnold, of Rushville, for appellees.
   Mr. Justice Wheat

delivered the opinion of the court.

This is a personal injury action brought by Susan Kennedy, a minor, by Dale Kennedy, her next friend, against Smiley Burnett and William R. Alexander. Other defendants were originally involved but the case has been disposed of as to them. At the close of plaintiff’s case the court instructed the jury to find the issues for the defendants and thereafter entered judgment accordingly, from which order this appeal is taken.

The complaint as amended charges that on September 12, 1951, at about 7:30 p. m., plaintiff, a minor of the age of sixteen years, was riding as a guest in a certain automobile operated by one Roger Emerick, who was not the agent and servant of the plaintiff; that such automobile was being driven in an easterly direction upon a durable hard-surfaced road in Schuyler county, Illinois, known as U. S. Route 24 about three miles northeast of the City of Rushville, and that plaintiff had nothing whatever to do with the driving or operation of said automobile, which was being driven in the right-hand traffic lane; that plaintiff was at all times in the exercise of ordinary care; that defendant, Smiley Burnett, through his servant and employee, William R. Alexander, was possessed of and operated a Cadillac automobile with a bright metal trailer attached to the rear thereof; that the defendants stopped said Cadillac and trailer so that it was headed in a westerly direction on the south shoulder of said highway ; that the automobile in which plaintiff was riding collided with said Cadillac automobile, whereby plaintiff suffered injuries.

The charges of negligence, in addition to what is designated as common-law negligence, relate to the alleged violation of paragraph 185, chapter 95%, Illinois Revised Statutes 1951 [Jones Ill. Stats. Ann. 85.217], in that defendants left said motor vehicle standing unattended on the improved part of said highway immediately adjacent to the south of the paved portion thereof, notwithstanding the fact that it was practicable for said defendants to leave the said motor vehicle on the north side of said highway, or in the alternative, that the defendants left said motor vehicle headed in a westerly direction upon the south shoulder so that there was not twenty feet opposite said motor vehicle for the free passage of the other vehicles, which is alleged to be contrary to said paragraph 185. It is further charged that the defendants negligently failed to carry in such motor vehicle certain flares or other signals capable of producing at least three warning lights, which is alleged to be contrary to the provisions of sub-paragraph (a) of paragraph 218 of said chapter 95%, [1951] Illinois Revised Statutes [Jones Ill. Stats. Ann. 85.250, subd. (a)], and it is further alleged that the defendants failed to cause such flares or signals to be lighted and placed upon said highway, again allegedly in violation of said paragraph 218.

As to the testimony, the plaintiff Susan Kennedy, by reason of her injuries, had no recollection of the accident. The only occurrence witness who testified was the driver of the car in which the plaintiff was riding, Roger Emeriek, who testified that he was traveling easterly from Rushville toward Astoria at about 7 p. m. on September 12,1951, at a speed of fifty to sixty miles per hour. It was misting and foggy. As his car came over the crest of the hill he saw someone unidentified about one hundred yards ahead waving a flashlight in the middle of the highway, whereupon he turned his car to the right and when he saw the parking lights of the parked vehicle it was too late and his car crashed into the front end of the Cadillac. There were no flares or signal lights of any kind near the parked vehicle. A few days later he went back to the scene of the collision and estimated that it was three hundred feet from the Cadillac to the crest of the hill; that the north shoulder at the point of the collision was about eight feet wide. On cross-examination he further testified that he was familiar with the road; that the distance from the Cadillac to the crest of the hill could be as much as eight hundred feet, as he had never measured it; that his car was traveling thirty to forty miles per hour just prior to the impact. One Davis, a state police officer, had driven his automobile past the location a short while before the accident. The Cadillac and trailer were parked off of the concrete and onto the south shoulder. There was a pick-up truck back of the trailer, that is to the east, and its headlights were shining toward the trailer. There were no flares or flags anywhere in the highway near the parked Cadillac automobile. He did not at that time stop his automobile or make any suggestions as to" moving the parked automobile and trailer, nor as to putting out flares or flags as he considered it unnecessary. The crest of the hill was .2 of a mile west of the scene of the collision. State police officer Bobeson likewise testified that it was .2 of a mile from the collision scene to the crest of the hill; that at the collision scene each shoulder was about eight feet wide so that a car could park on either one. Deputy Sheriff Thompson likewise testified that it was .2 of a mile from the collision scene to the crest of the hill; that the north shoulder at the scene was about eight and a half feet wide and the south shoulder about nine feet wide.

On the basis of this testimony the trial court took the case from the jury and directed a verdict in favor of the defendants. It is obvious that there is no evidence of any common-law negligence. There is no evidence that either defendant, or anyone by their direction, flashed any sort of a light in the center of the highway and it is not negligence at common law to park on the shoulder off of the improved portion of a highway. The important question in this case is two-fold; First, is there any statutory provision prohibiting parldng on the shoulder of an improved highway without using flares or warning signals as required under certain circumstances; and second, is there any statutory provision against parking of a vehicle on the left shoulder rather than the right shoulder of an improved highway. The pertinent section of the statute is found in paragraph 185, chapter 95% of the 1951 Illinois Revised Statutes as follows:

“Upon any highway outside of a business, residence or suburban district no person shall stop, park, or leave standing any vehicle, whether attended or unattended, upon the paved or improved or main traveled part of the highway when it is practical to stop, park, or so leave such vehicle off such part of said highway, but in every event a clear and unobstructed width of at least 20 feet of such part of the highway opposite such standing vehicle shall be left for the free passage of other vehicles and a clear view of such stopped vehicle be available from a distance of two hundred feet in each direction upon such highway.”

Without question from the testimony, after the Cadillac automobile was parked, the entire highway including the north shoulder was unobstructed, which clear and unobstructed width exceeded twenty feet, and it is equally clear that a view of such stopped vehicle was available from a distance of two hundred feet in each direction. It would seem that the plain meaning of the statute is that the paved or improved or main traveled part of the highway referred only to the concrete slab and has no reference to the shoulders, which are provided for the very purpose of carrying out the intendment of the statute, for which reason no reviewing court in Illinois has been called upon to pass upon so obvious a matter. In the Texas case of Jackson v. Ed-mondson (Tex. Civ. App.), 129 S.W.2d 369, the court has passed upon a statute very similar to the Illinois Act, which was interpreted to mean what this court has suggested, to-wit:

“Manifestly it is the paved or hard surfaced portion of the highway which the statute prohibits the parking of vehicles on. It is a matter of common knowledge, as well as the evidence in the instant case, that the paved or hard surfaced portion of a highway is the ‘main travelled portion’ of it. It is also common knowledge that the graveled or caliche shoulder to any paved or hard surfaced highway is the place vehicles are usually parked for temporary repairs or to change tires, etc.”

It is the opinion of this court that the statute in question has no application to a vehicle parked upon the shoulder of a concrete highway. It is urged that the statute was violated by parking on the left shoulder of the highway, but this court finds no prohibition in the statute as to such act nor any requirement that the right shoulder shall be used for stopping or parking. As to the carrying of flares or signal lights, or the lighting of the same and placing on the highway, it is apparent from what we have heretofore said that the statute has no application when a vehicle is parked upon the shoulder, as this section of the Motor Vehicle Act, paragraph 218, likewise has reference only to a vehicle parked upon the main traveled portion of a highway.

In view of what has heretofore been stated, it is the opinion of this court that there was no evidence of any negligence on the part of either defendant and the trial court had no choice but to take the case from the jury. The judgment of the circuit court is affirmed.

Affirmed.


author: Mb. Justice Wheat

text:
    Edward R. Bundy, Plaintiff-Appellant, v. City of Sullivan, Defendant-Appellee.
    Gen. No. 9,918.
    Opinion filed January 28, 1954.
    Released for publication February 15, 1954.
    Kenneth A. G-been, of Mattoon, for appellant.
    Fbank L. Wolf, of Sullivan, for appellee.
   Mb. Justice Wheat

delivered the opinion of the court.

Plaintiff, Edward R. Bundy, sought an injunction in the circuit court of Moultrie county to restrain the defendant, City of Sullivan, a municipal corporation, from draining waters and waste onto Ms lands and, by a separate count, sought to recover damages resulting therefrom. Both counts were stricken on defendant’s motion, and judgment was entered in its favor, plaintiff electing to stand on his complaint.

The complaint alleges in substance that in the year 1949, defendant “. . . construct(ed) a large artificial ditch” (hereinafter referred to as “Ditch A”) and connected one extremity thereof to a second “ditch (hereinafter referred to as ‘Ditch B’) which leads directly onto the land of plaintiff”; that defendant connected the other extremity of “Ditch A” “to a large drainage tile”; and that water from defendant’s streets drains into said drainage tile and thence into “Ditch A” wMch has, “as its only possible outlet,” “Ditch B” which, in turn, drains onto plaintiff’s property, resulting in damage thereto. The following diagram, not purporting to be geographically accurate, indicates the relative position of these component parts of the drainage system which the complaint appears to describe:

Plaintiff’s theory is that surface waters may not lawfully be drained “through artificial channels onto the land of another.”

In the opinion of this court it is immaterial whether the complaint, properly construed, alleges a course of drainage which is “artificial” in its entirety as plaintiff apparently contends. Ill. Rev. Stat. 1953, ch. 42, sec. 85 [Jones Ill. Stats. Ann. 42.149], relied upon by defendant, so far as relevant here, provides:

“Owners of land may drain the same in the general course of natural drainage, by constructing open or covered drains, discharging the same into any natural water-course, or into any natural depression, whereby the water will be carried into some natural watercourse. . .”

Clearly, to allege that the drainage system in question is “artificial,” whether wholly or partially, in the sense of being “manmade” or “constructed” as contrasted with “natural,” is not sufficient to state a cause of action because the statute plainly and positively permits an owner of land to drain the same “by constructing . . . drains.” The decisive question is whether the “artificial” or “constructed” drain is “in the general course of natural drainage.”

Accordingly, the complaint is fatally defective if for no other reason than that it fails to allege that the drainage system complained of is not “in the general course of natural drainage.” This conclusion is confirmed by certain of the decisions relied upon by plaintiff himself, such as Dwyer v. Village of Glen Ellyn, 314 Ill. App. 572; Elser v. Village of Gross Point, 223 Ill. 230.

Plaintiff has cited certain other cases concerned primarily with the question of liability for damage resulting from discharge of surface water in unnatural quantities onto a servient estate. In this court’s opinion that issue is not raised by the complaint and plaintiff has not argued to the contrary. Accordingly, the judgment of the trial court dismissing both counts was correct and will be affirmed.

Judgment affirmed.


text:
    Charles R. Tosh, Jr., Plaintiff-Appellee, v. Meta Grace Tosh Jones, Defendant-Appellant.
    Gen. No. 9,924.
    Opinion filed January 28, 1954.
    Released for publication February 15, 1954.
    Hemphill & Kelsey, of Carlinville, for appellant.
    Rinaker, Smith & Hebron, of Carlinville, for appel-lee.
   Mr. Justice Wheat

delivered the opinion of the court.

On October 28, 1950, the circuit court of Macoupin county, Illinois, entered a divorce decree in this cause, awarding custody of Michael Dean Tosh, minor child of the parties, to defendant, Meta Grace Tosh Jones, subject to visitation rights of plaintiff, Charles R. Tosh, Jr. Subsequently defendant remarried and, with the child and her husband, removed her residence to the State of Oregon. Plaintiff then instituted proceedings to obtain custody of the child and a stipulation between the parties resulted. Pursuant thereto the Macoupin county circuit court entered an order on April 26,1952, modifying its original decree to provide that plaintiff should have the child’s custody from April 8 to June 10, 1952, and at other times not material. The child was then removed to plaintiff’s residence in Illinois and has since continuously resided there without being returned at any time to defendant’s custody.

Thereafter, upon hearing of plaintiff’s motion filed in the Macoupin county circuit court on June 10, 1952, and in his subsequent supplemental petition and defendant’s answer thereto, the decree was again modified by order entered January 20, 1953, awarding the child’s custody to plaintiff subject to defendant’s right of reasonable visitation. It is from this order that defendant appeals, her theory being that the prior order of April 26, 1952, was final on conditions then existing and that there was no subsequent change in conditions which warranted entry of the order of January 20, 1953.

The parties are in substantial agreement that, after entry of a divorce decree, custody of a child of the parties is subject to order of the court and may be changed from time to time as the child’s best interests demand, the decree being res judicata, however, as to facts existing at the time the decree was entered. (Nye v. Nye, 411 Ill. 408.) Accordingly, it is unnecessary to consider or review the facts, detailed at length in the briefs, which occurred prior to April 26, 1952, and on which the custody order of that date was based. For the same reason, as the child’s welfare is the primary issue, it is pointless in the circumstances existing here to weigh the relative culpability of the parties implied in the charge that defendant contemptuously removed the child from the court’s jurisdiction without its permission and in the countercharge that plaintiff’s failure to return the child to the custody of its mother on June 10, 1952, was in violation of the terms of the then existing decree. Moreover, defendant’s suggestion that the trial court’s intention to punish her for disobeying its prior order motivated entry of the order appealed from is without foundation in the record. Similarly, the record fails to support the contention that custody was awarded plaintiff because his financial position is superior to that of defendant or because of change in plaintiff’s, rather than defendant’s, circumstances.

The order appealed from specifically finds:

“. . . That since the last modification of such decree by this Court, substantial and material changes have occurred affecting the welfare of said minor child in that the said defendant, who heretofore resided in the State of Oregon, has returned to the State of Illinois and is now residing in the City of Jerseyville . . . Illinois, and further, that the said defendant is employed and will be employed and away from her said home in Jerseyville on each of three shifts of work, requiring the employment, if said child’s custody is returned to her, of a person or persons to care for and supervise said child during her periods of employment; and further, that it appears from the Court’s own investigation of such matter that said defendant and her present husband are estranged from each other and will be living separate and apart from each other, whereas the said plaintiff and his present wife are maintaining a comfortable and desirable home for the said minor child and that said minor child has become settled and accustomed to residing in the home of his said father and his wife, and from all of the evidence heard by this Court, it is apparent that the welfare of said minor child will be best served by permitting him to reside with his said father, subject, however, to liberal rights of visitation on the part of the said defendant mother . . .”

Defendant’s categorical statement that no changes affecting the welfare of the child have occurred since the custody provisions of the decree were last modified on April 26, 1952, is manifestly contrary to the foregoing specific findings and defendant has not undertaken to point out in what respect those findings are contrary to the manifest weight of the evidence.

This court has carefully reviewed all of the testimony and is of the opinion that each of the findings of fact quoted above, with the exception of the statement therein contained based upon the court’s own investigation, is clearly supported by the manifest weight of the evidence. In what sense defendant and her present husband are “estranged” is not clear on this-record. It is clear, however, that at the time of the hearing, by defendant’s own testimony, she and her husband were not living together and accordingly were not maintaining a home where the child could be reared in the security of a family relationship. Defendant testified: “I expect my husband back by Christmas. He brought me here in September. As far as I know he is going to stay when he comes Christmas.” Assuming on this record that these expectations would materialize, the significant fact remains that it was defendant’s intention, by her own testimony, to continue to work outside the home, even after the contemplated return of her husband, and to leave the care of the child to others outside the home.

Defendant’s domestic situation, whether existing or contemplated at the time of hearing, stands in distinct contrast with that apparently existing as of April 26, 1952, when defendant and her husband were living and maintaining together a home in Oregon and when her employment apparently consisted of caring for the children of others in circumstances such that she could keep her own child with her while engaged in such employment.

So far as appears on this record both parties are entirely fit and proper persons to have custody of the child and from all that appears the child has, in the past, received proper care while in its mother’s custody. Nevertheless, in the opinion of this court the discretion accorded the trial court by section 18 of the Divorce Act (Ill. Rev. Stat. 1951, ch. 40, par. 19 [Jones Ill. Stats. Ann. 109.186]) was properly exercised in view of its findings of fact. The order of January 20, 1953, will accordingly be affirmed.

Judgment affirmed.


author: Presiding Justice Schwartz.

text:
    Leo Krzyzanowski, Appellant, v. Anna Makowski et al., Appellees.
    Gen. No. 46,079. (Abstract of Decision.)

      Jacob Levy, for appellant;
    Louis T. Herzon, for appellees.
    Opinion filed December 22, 1953;
    rehearing denied February 16, 1954;
    released for publication February 19, 1954.
   Opinion by Not to be published in full.

Presiding Justice Schwartz.


text:
    Arnold Asplund, Appellee, v. Roy O. Pavlik, Trading as Pavlik Brothers, Appellant.
    Gen. No. 46,116. (Abstract of Decision.)
    B. F. Martin, and Thomas K. Gifford, for appellant;
    Thomas C. Angerstein, George W. Angerstein, and Charles T. Shanner, of counsel;
    Joseph Barbera, for appellee.
    Opinion filed December 22, 1953;
    rehearing denied January 22, 1954;
    released for publication February 19, 1954.
   Opinion by Not to be published in full.

Presiding Justice Schwartz.


text:
    George Eckel and Pearl Eckel, Appellees, v. Wole Koleff, Appellant.
    Gen. No. 46,132. (Abstract of Decision.)
    Schwartz, Allen & Shriman, for appellant;
    Harry Shriman and Herman Feldman, of counsel;
    Bernard J. A. Dahl, and Alphonse Cerza, for appellees.
    Opinion filed December 22, 1953;
    released for publication February 19, 1954.
   Opinion by Not to be published in full.

Presiding Justice Schwartz.


author: Justice Robson.

text:
    Mildred E. Magill, Executrix of Last Will of Clark R. W. Magill, M. D., Deceased, Appellee, v. Paul P. George, Appellant.
    Gen. No. 46,038. (Abstract of Decision.)
    John J. Maeiejewski, for appeUant;
    Charles D. Snewind, of counsel;
    Francis J. Gariepy, for appellee;
    John Spauld-ing, of counsel.
    Opinion filed December 22, 1953;
    rehearing denied and additional opinion filed February 18, 1954;
    released for publication February 19, 1954.
   Opinion by Not to be published in full.

Justice Robson.


author: Justice Tuohy.

text:
    Joseph Hutton, Appellee, v. Morgan Packing Company, Appellant.
    Gen. No. 46,119. (Abstract of Decision.)
    Crowe & Abrahamson, for appellant;
    Burt A. Crowe, of counsel;
    Earl Little, Marion J. Hannigan, Warren Hickey, and Edward Wolfe, for appellee; Edward Wolfe, of counsel.
    Opinion filed December 22, 1953;
    released for publication February 19, 1954.
   Opinion by Not to be published in full.

Justice Tuohy.


text:
    Halvdan Reinholdt et al., Plaintiffs Below, and Harry S. Posner, Petitioner Below, Appellee, v. Carl C. Mobrich, Defendant Below, Appellant, and Arthur S. Gomberg, Intervening Petitioner, Appellant.
    Gen. No. 46,165. (Abstract of Decision.)
    Samuel Nineberg for appellants;
    Harry S. Posner, pro se, appellee.
    Opinion filed December 22, 1953;
    rehearing denied January 22, 1954;
    released for publication February 19, 1954.
   Opinion by Not to be published in full.

Justice Tuohy.


author: Presiding Justice Feinberg.

text:
    Harry Lipton, Appellee, v. Pennsylvania Rubber Company, Appellant.
    Gen. No. 46,024. (Abstract of Decision.)

      Teller, Levit & Silver-trust, for appellant;
    Leon Silvertrust, and H. J. Goldberger, of counsel;
    Grossman & Grossman, and Kelner & Kelner, for appellee;
    Lester N. Grossman, and Louis N. Grossman, of counsel.
    Opinion filed December 30, 1953;
    released for publication February 3, 1954.
   Opinion by Not to be published in full.

Presiding Justice Feinberg.


author: Justice Bardens.

text:
    Andrew Watts, Plaintiff-Appellee, v. Staunton Lumber Company, Inc., Defendant-Appellant.
    Term No. 53-O-14. (Abstract of Decision.)
    James L. Reed, by James H. Parsons, Jr., for appellant;
    Wesley Lueders, and Randall Robertson, for appellee.
    Opinion filed January 11, 1954;
    released for publication February 4, 1954.
   Opinion by Not to be published in full.

Justice Bardens.


author: Justice Dove.

text:
    Sadie Lee Lester, Plaintiff-Appellee, v. Monica Elevator Company, Defendant-Appellant.
    Gen. No. 10,712. (Abstract of Decision.)
    Galbraith & Baymiller, for appellant;
    Leiter & Durfee, for appellee.
    Opinion filed January 28, 1954
    released for publication February 15, 1954.
   Opinion by Not to be published in full.

Justice Dove.


text:
    S. Lawrence McHard et al., and Midway Oil Company, Plaintiffs-Appellees, v. Gibb Motors, Inc., and Raus Gibb, Defendants-Appellants.
    Gen. No. 10,729. (Abstract of Decision.)

      Hebei, Ives & Davis, for appellants; Allen & Allen, for appellees.
    Opinion filed January 28, 1954;
    released for publication February 15, 1954.
   Opinion by Not to be published in full.

Justice Dove.


author: Justice Wolfe.

text:
    Harry D. Lucas, Appellant, v. Frederick E. Hambrecht, M. D., Appellee.
    Gen. No. 10,711. (Abstract of Decision.)
    Jack E. Walker, for appellant;
    Charles D. Snewind, of counsel;
    Burrel Barash, and Robert C. Stoerzbaeh, for ap-pellee.
    Opinion filed January 28, 1954;
    released for publication February 15, 1954.
   Opinion by Not to be published in fuU,

Justice Wolfe.


text:
    Helen Ridge, Appellee, v. John E. Ridge, Appellant.
    Gen. No. 10,715. (Abstract of Decision.)

      L. E. Ellison, for appellant;
    Dixon, Bales & Gunner, for appellee;
    William R. Gunner, of counsel.
    Opinion filed January 28, 1954;
    released for publication February 15, 1954.
   Opinion by Not to be published in full.

Justice Wolfe.


text:
    Anthony Sparacino, Plaintiff-Appellant, v. Joe Ferona, Defendant-Appellee.
    Gen. No. 10,721. (Abstract of Decision.)
    John R. Snively, for appellant;
    Thomas & Davis, for appellee;
    Charles H. Davis, of counsel.
    Opinion filed January 28, 1954;
    released for publication February 15, 1954.
   Opinion by Not to be published in full.

Justice Wolfe.


text:
    John Steele, Plaintiff-Appellee, v. Mary Steele et al., Defendants-Appellants.
    Gen. No. 10,726. (Abstract of Decision.)

      Walter C. Overbeck, for appellants;
    John J. Wosik, Josef T. Skinner, and L. D. Spaulding, Jr.,
    for appellee.
    Opinion filed January 28, 1954;
    released for publication February 15, 1954.
   Opinion by Not to be published in full.

Justice Wolfe.