author: Mb. Justice Culbebtson

text:
    Floy Walton, Plaintiff-Appellee, v. Greenberg Mercantile Corporation, Defendant-Appellant.
    Term No. 53-O-16.

      Opinion filed December 14, 1953.
    Beleased for publication January 4, 1954.
    Feirich & Feirich, of Carbondale, and Moses Pul-vebman, of Benton, for appellant.
    Leonabd J. Dunn, of West Frankfort, for appellee.
   Mb. Justice Culbebtson

delivered the opinion of the court.

This is an appeal from a judgment of the circuit court of Franklin county in favor of Floy Walton, ap-pellee (hereinafter called plaintiff), as against Green-berg Mercantile Corporation, a corporation, appellant (hereinafter called defendant), on the verdict of a jury in the sum of $12,000 for personal injuries sustained by plaintiff. The action was predicated on injuries sustained when a pattern pamphlet rack in the store of the defendant fell and struck plaintiff on the heel. On appeal in this court the defendant contends that the court below should have directed a verdict on the basis of the contention that the record failed to show any proof that the falling of the pamphlet stand was proximately caused by any negligence of defendant specifically alleged in the complaint. There was also a contention that the trial court admitted improper evidence, gave erroneous instructions, and that the verdict was excessive and manifestly contrary to the weight of the evidence.

The facts as disclosed by the record indicate that the plaintiff, a housewife, 41 years of age, went into a store in West Frankfort, Illinois, which was operated by defendant. She had gone down an aisle which was about five feet wide. As she stood at a point with her back to the pattern pamphlet stand it fell or in some manner was caused to fall against the heel of plaintiff, by reason of which her back was injured when she jerked and turned from her hips with the stand across her heel. The evidence in some phases of the case was conflicting, but there was evidence that the stand had fallen previously, and although the leg of the stand had been straightened, the cabinet was placed in such a position that it could be knocked over by customers using the aisle.

A motion for a directed verdict or for a judgment notwithstanding the verdict raises the single question of whether there is in the record any evidence which, standing alone and taken with all the intendments most favorable to the party reciting the motion, tends to prove the material elements of the case (Lindroth v. Walgreen Co., 407 Ill. 121; Thomason v. Chicago Motor Coach Co., 292 Ill. App. 104; Palmer v. Loveless, 342 Ill. App. 60). On the facts in the record we find no basis for a contention that the motion for directed verdict or for judgment notwithstanding the verdict should have been allowed.

On the question of erroneous instructions, however, we note from the record that an instruction was given by plaintiff which contained upwards of 900 words and occupied three and one-half pages of the abstract. This instruction recited each of the charges of negligence in the complaint and directs a verdict with reference to Count 1 and Count 2 of the complaint. No reference is made to contributory negligence in the answer of defendant, which set up a defense of contributory negligence, or, in the alternative, that the accident was caused by an independent negligent act of a third party not in the employ of the defendant and over whose acts defendant had no control and for whose acts defendant would not be liable. There was evidence in the record which, if believed by the jury, might have justified a conclusion that plaintiff had stated that another lady had pushed the stand over on her (Mooney v. City of Chicago, 239 Ill. 414, 422-423).

An instruction of the type given in this case has been specifically condemned in the cases of Signa v. Alluri, 351 Ill. App. 11, and Pappas v. Peoples Gas, Light & Coke Co., 350 Ill. App. 541. As stated in the case of Signa v. Alluri (at pages 19-21),

“The safe and proper rule, as set forth in a long line of cases ... is for the court to inform the jury in a clear and concise manner of the issues raised by the pleadings. This should be accomplished by a summary of the pleadings, succinctly stated, without repetition and without undue emphasis.

“Judged by these principles we are of the opinion that instruction 13 in the instant case was prejudicially erroneous.

“In the first place it was unduly prolix. It contained almost 800 words or about three printed pages of abstract, exclusive of the concluding portions, directory in the event the jury found defendants guilty of the acts charged in the complaint. . . . If it he held erroneous to send the complaint to the jury room, a fortiori it was error to announce to the jury its counterpart.

“A more serious objection than mere length is that the instruction tends to emphasize plaintiff’s charges of liability by placing in the court’s mouth substantially the entire charge of the complaint. The frequent repetition of such allegations tends to endow them with unilateral significance. ... To hear a judge, the one man in the courtroom whose remarks are most respected and most dutifully attended, solemnly repeat with all the influence of his favored position, minute after minute and sentence after sentence, detailed charges of negligence carefully drawn by partisan attorneys to present one side of the case in its most appealing aspects, must tend to unduly influence a jury toward the side whose charges are so persistently and so effectively presented through such a powerful medium. . . . Moreover, on a charge of such repetitious length, even a most intelligent juror might well be confused to the point of uncertainty as to whether he was hearing the recital of accusations or a summary of evidence.”

The giving of such instruction “D” was obviously erroneous, and requires a reversal and remandment of the cause for a new trial (Signa v. Alluri, supra; Pappas v. Peoples Gas, Light & Coke Co., supra). In addition to the objectionable features outlined above the instruction was defective in that it entirely omitted reference to affirmative defenses, on the basis of the precedent in the case of Mooney v. City of Chicago, supra.

In view of our conclusion as to the necessity for a new trial it would unduly extend this opinion to discuss other matters raised on appeal. The judgment of the circuit court of Franklin county will, therefore, be reversed and the cause will he remanded for a new trial.

Reversed and remanded.

Scheineman, P. J. and Bardens, J., concur.


source: Caselaw Access Project

author: Justice Tuohy.

license: Public Domain

text:
    Wesley M. Cleveland and Irma Cleveland, Appellees, v. Jefferson Ice Company, Appellant.
    Gen. No. 46,066. (Abstract of Decision.)
    Donald J. Seeley, for appellant;
    Louis T. Herzon, for appeUee.
    Opinion filed December 1, 1953;
    released for publication January 22, 1954.
   Opinion by Not to be published in fuU.

Justice Tuohy.


author: Mr. Presiding Justice Dove

text:
    Mildred C. Asselborn, Plaintiff-Appellee, v. State Farm Life Insurance Company, Defendant-Appellant.
    Gen. No. 10,708.

      Opinion filed January 4, 1954.
    Released for publication January 13, 1954.
    Knight, Haye & Keegan, of Rockford, and Fearer & Nye, of Oregon, for appellant.
    Raphael E. Yalden, of Rockford, for appellee.
   Mr. Presiding Justice Dove

delivered the opinion of the court.

Mildred C. Asselborn, instituted this action against the State Farm Life Insurance Company to recover on a life insurance policy issued by the Company upon the life of her deceased husband, Joseph C. Asselborn.

The complaint alleged that the defendant issued the policy on May 8, 1952 and that the insured, Joseph C. Asselborn, died while said policy was in full force and effect and that the insured and the plaintiff had performed all of the conditions imposed upon them by said policy. The answer of the defendant admitted the execution of the policy and set forth portions of the insured’s application for the policy and averred that in the application the insured made statements as to his past physical condition and medical treatment which were false and material to the risk and which were known by said insured to be false. The plaintiff in her reply denied the allegations of this affirmative defense. The issues thus made were submitted to the court for determination, without a jury, resulting in a judgment in favor of the plaintiff and against the defendant for $42,756.07 and the defendant appeals.

The record discloses that Joseph C. Asselborn, the insured, was born on November 30, 1912, and for eight years prior to his death owned and operated an asparagus farm near Rochelle, Illinois where he and his family lived. On May 8, 1952 he made application to the agent of appellant at Rochelle for the policy which forms the basis of this suit. The next day, at the request of the agent, he went to the office of Dr. O. H. Schaller at Rochelle for his physical examination. The application which was made a part of the policy discloses that the insured was asked the following questions and made answers thereto as noted by the physician, viz.: “Has proposed insured had any special study, X ray, E.K.G. Blood sugar, blood serology or other blood chemistry?” Answer: “Yes, E.K.G. taken just for check up, always normal.” Another question: “Does proposed insured have, or has proposed insured ever had, any signs or symptoms of or suffered from any ailment or disease of heart, blood-vessels or lungs?” Answer: “No.” In response to the question for

the name and address of the physician he usually consulted, he answered “Dr. Zack, Rochelle, Illinois.” Question: “When and for what did proposed insured last consult him?” Answer: “Nothing.” Question, “Is proposed insured in sound health, free from disease and without deformity, loss or impairment of limb, sight, hearing and speech?” Answer: “Yes.” In answer to the question that required the proposed insured to state the particulars of all diseases, injuries, ailments, or surgical operations he had had or for which he had been under treatment, observation, or diagnostic study in the past ten years the answer was “none.” To the final question whether he had consulted a physician, specialist or other practitioner or been under medical care in the past ten years, for any reason not stated above, the answer was “no.”

Dr. Schaller, one of the examining physicians for appellant testified that during the course of his examination of the insured he took his pulse and blood pressure, and after doing so required him to hop around and exercise and then took his pulse and blood pressure again: that the examination of the heart showed nothing significant: that there were no murmurs or irregularities and that his blood pressure was 124/80 all the time and that his heart was normal in size and not enlarged. This witness was then asked the following question by counsel for appellant: “At the time you signed defendant’s Exhibit 4 (the medical examiner’s report) did you know at that time or did Mr. Asselborn tell you that in the month of March, 1952, Dr. Zack was called to his home at his request because of pains that Joseph 0. Asselborn was then having in the upper part of his stomach, did he tell you that?” And the physician answered: “Yes” and stated that the insured had also told him he had had some electrocardiograms which the physician noted on his medical history report. One of the questions which the examining physician was required to answer and which appears upon the doctor’s report to the company was: “Do you unreservedly recommend this proposed insured as a first-class, average or fair risk?” Doctor Sehaller recorded as his answer to this question, “First-class.”

Dr. William 0. Townsend, the other examining physician for appellant, also testified upon the trial. His report to the company, dated May 10, 1952, discloses that he had known the insured for six years; that he, Dr. Townsend, was the physician the insured usually consulted; that insured had consulted Dr. Townsend because the proposed insured was slightly overweight; that proposed insured had had a complete physical check-up in February 1952, and was put on a mild reduction diet. In answer to one of the questions, the proposed insured stated he had fractured his left elbow in 1921 and, other than as noted, he had not been under medical care in the past ten years. In his report, Dr. Townsend gave the results of his heart examination, and to the question “Do you unreservedly recommend this risk as a first-class, average or fair risk?” Dr. Townsend answered: “First-Class.”

The record further discloses that about June 10, 1952, the policy dated May 8,1952, was delivered to the insured. The harvest of asparagus was completed about July 1,1952. During the three-month season preceding that date, the insured worked regularly cultivating and fertilizing the crop, and supervising the cutting and hauling of the crop to the canning factory.

On July 2,1952, the insured, accompanied by his wife and two children aged thirteen and fourteen respectively, left their home in Rochelle by automobile for Northern Wisconsin. On July 3rd he examined some property which he was considering purchasing as a summer home. On July 4th he was at Sand Lake near Spooner, Wisconsin. In the morning and afternoon of that day he rowed a boat on the lake and fished. Before eating Ms evening meal he complained of a severe pain in the chest. A physician was promptly called, and he was removed to a hospital at Shell Lake where he died the following afternoon about one o’clock. The death certificate signed by the attending physician gave the immediate cause of Ms death as acute coronary thrombosis.

The record further discloses that the insured was the owner of eighty acres of land near Rochelle valued at $40,000 and also the home where he and his family lived in Rochelle. In the early part of 1952 he purchased an additional 160 acres of land for $45,000, paying $5,000 cash therefor and executing a note, secured by a mortgage upon the land purchased as well as his other real estate. This transaction was completed on April 24, 1952. The evidence is further that during this time he was contemplating the purchase of additional life insurance.

Dr. Russell W. Zack attended the insured at Ms home on the evening of March 6, 1952. He testified that he found the insured sitting in a chair in Ms home and that he complained of pain in his left shoulder, left arm and the substernal area; that an examination disclosed nothing remarkable; that his blood pressure was normal and his pulse regular; that he made no diagnosis but gave him a tablet of nitroglycerine to place under his tongue in order to relieve his pain. On March 7, 1952, Mr. Asselborn went to Dr. Zack’s office in Rochelle as the doctor had requested the day before. At the direction of Dr. Zack, who shares offices with Dr. Townsend, an electrocardiogram was made, and Asselborn was given a prescription for some nitroglycerine tablets to be used by him in case he had more pain. Prior to this date and on February 26, 1952, Dr. Townsend had made an electrocardiogram of Mr. Asselborn and on May 16, 1950, an electrocardiogram had also been made, and these recordings were all sent to Dr. Shea-gren, an expert, for interpretation. None of them disclosed any myocardial damage or coronary insufficiency and were normal electrocardiograms, and the evidence is that those obtained in 1952, when compared with the one obtained in 1950 showed no changes of significance. The evidence is further that on March 14, 1952, and again on March 31, 1952, Asselborn returned to Dr. Zack’s office as requested and reported to the doctor each time that he was feeling fine, had had no recurrence of pain, and the doctor found that his condition, including his blood pressure, was normal.

Counsel for appellant contend that the insured did not state to his medical examiners all diseases and ailments for which he had been under treatment for the past ten years and when he did state on his medical examination that he did not have and had not had any signs or symptoms of any ailment or disease of the heart or blood vessels and told Dr. Schaller that these electrocardiograms had been “taken just for check up” and answered that he had consulted Dr. Zack for “nothing,” he, the insured, was obviously and patently telling falsehoods and knew these answers were false. Counsel further insists that irrespective of insured’s knowledge of the falsity of these answers, they were material to the risk and, therefore, there can be no recovery under this policy.

In support of this contention, counsel state that the evidence shows that the insured consulted his family physician, Dr. Zack, in March 1950, and in March 1952, at which times the doctor prescribed sedatives and deemed it necessary to have electrographic studies made and upon the latter occasion administered nitroglycerine and prescribed additional tablets of the same kind if the pain recurred. Counsel also call to our attention the fact that the insured died of acute coronary thrombosis due to coronary arteriosclerosis and that at the time he was taken to the hospital at Shell Lake, Wisconsin, the insured told Dr. Olson that he had been treated for a heart condition the previous spring. Counsel also refer to the testimony of Dr. Arthur E. K. Matthews who did an autopsy upon the body of Mr. Asselborn on March 26, 1953, his examination being a gross and microscopic one essentially of his heart and gall bladder. Dr. Matthews testified that he found the heart heavier and larger than normal and a marked arteriosclerotic condition in Asselborn’s heart area and a recent thrombus, or clot formed from fibrin in the blood, in the anterior descending artery which supplies blood to the anterior lateral part of the left ventricle and that Asselborn’s death was due to occlusion in this anterior descending artery. From all these facts counsel conclude that the insured must have known he was not a well man when he made his application for the policy sued on and that when he took the nitroglycerine tablets prescribed by Dr. Zack he must have known that he had a specific coronary condition.

Dr. Perry A. Anderson testified on behalf of the defendant than an electrocardiograph is essentially a galvanometer which records electric currents on moving paper and that it records changes in the heart as it beats, and Dr. Zack testified that it is generally used by the medical profession to determine a patient’s heart condition. Dr. Anderson testified that to a trained elec-trocardiographer the nature, type and place of heart damage will be indicated by an electrocardiogram but that the electrocardiograph will not necessarily reflect arteriosclerotic conditions and that it is not accepted diagnostic medical practice to rely alone on electrocardiograms to determine heart damage because there may be areas of injury that cannot be picked up and other factors may distort tracing of impulses.

What the record discloses with reference to Dr. Olson’s testimony is that on July 4, 1952, Dr. Olson was called to attend the insured at Shell Lake, Wisconsin, and when he first saw him that evening, Dr. Olson testified that Mr. Asselborn told him that he, Asselborn, had previously had trouble with his heart. Mrs. Asselborn testified that she was with her husband all the time Dr. Olson was in attendance of her husband and heard what was said and that Asselborn never told the doctor that he had ever had heart trouble. The trial court, in deciding this case, commented upon this evidence and gave credence to the testimony of Mrs. Asselborn.

Section 154 of the Illinois Insurance Code provides that no misrepresentation or false warranty made by the insured shall void a policy of insurance unless it shall have been made with actual intent to deceive or materially affect either the acceptance of the risk or the hazard assumed by the company (Ill. Rev. Stat., 1953, chap. 73, par. 766, sec. 154) [Jones Ill. Stats. Ann. 66.829].

Before an applicant for insurance could make a material misrepresentation as to his health with intent to deceive and defraud an insurance company, he must first have knowledge of such condition, otherwise there could be no intent. In Minnesota Mut. Life Ins. Co. v. Link, 230 Ill. 273, at pages 276-7, it is said: “It is well known, as is observed by the Supreme Court of the United States in Moulor v. American Life Ins. Co. Ill U. S. 335, that a person may have diseases of the presence of which in his system he has and can have no knowledge and which even skillful physicians are unable to discover after a most searching examination. It is therefore unreasonable that persons who organize corporations for the purpose of selling life insurance would exact a warranty of an applicant for insurance of the truth of a matter which, from the very nature of the injury, might be wholly unknown to the applicant, . . .” The court, in its opinion in Minnesota Mut. Life Ins. Co. v. Link, supra, commented on certain questions and answers appearing in the application in that case, referred to the difference between the legal effect of a warranty and a misrepresentation and on page 278 quoted from Moulor v. American Life Ins. Co., Ill U. S. 335, as follows: “The appellant was required to answer ‘yes’ or ‘no’ as to whether he had been afflicted with certain diseases. In respect to some of those diseases, particularly consumption and diseases of the lungs, heart and other internal organs, common experience informs us that an individual may have them, in active form, without at the time being conscious of the fact and beyond the power of any one, however learned or skillful, to discover.”

The only evidence found in this record which might justify the inference that Asselborn knew that he had a bad heart is the testimony of Dr. Olson who stated that the insured told him that he had previously had trouble with his heart and the fact that electrocardiograms had been made and Dr. Zack had administered nitroglycerine and had given him a prescription for nitroglycerine tablets. We have already referred to Dr. Olson’s testimony, and the evidence is that when Dr. Zack prescribed for the insured he told him that the nitroglycerine tablets were to be taken to relieve pain “regardless of where the pain was,” and at that time it appears the pain from which he was suffering was in the upper part of his abdomen.

After reviewing the evidence, the trial court pointed out that at the time the insured applied for this insurance he was a young family man, thirty-nine years of age, who had just placed a $45,000 mortgage on his home and other real estate in order to purchase an additional 160 acres of land; that he had just purchased new machinery to cultivate that land; that just before he was fatally stricken he and his family contemplated the purchase of a summer home in Wisconsin, and at all time before the application for this policy was made and for almost two months thereafter he engaged in strenuous physical labor; that he had consulted physicians who had examined him and who had familiarized themselves with three recordings of an electrocardiograph, and these physicians pronounced him normal and recommended him to appellant as a first-class risk. It is significant that one of these physicians was Dr. Townsend, one of appellant’s medical examiners who made an electrocardiogram in February 1952. Dr. Townsend had this electrocardiogram read and checked by an expert and he, Dr. Townsend, received the report of the expert whose interpretation was: “Normal electrocardiogram — comparison with last E.K.G-. of 5-16-50, there has occurred no change of significance.” Insured had this information, and all of his conduct, demeanor, and activities are those which are associated with life, health, and a future outlook rather than those which are associated with illness, inactivity or death. The record does not disclose that the insured was ever advised or directed by any physician to take a bed rest or not to do any manual labor, and it is common knowledge that a bed rest and no work are prescribed and recognized as accepted treatment for a heart disorder.

It is also significant that not only Dr. Townsend but also Dr. Schaller, both medical examiners for appellant and whose duty it was to ascertain the actual facts as to the proposed insured’s state of health, after thoroughly examining Asselborn and having all the information they possessed and acting for and on behalf of the interests of appellant, unqualifiedly recommended Asselborn to appellant as a first-class risk. The only reasonable conclusion that can be arrived at from this record is that appellant’s physicians and especially Dr. Townsend knew as much about the condition of Assel-born’s heart as Asselborn himself. Therefore, the insured could not have deceived appellant by his answers to the questions asked him. The medical reports of appellant’s examiners accompanied the application for the policy, and the discrepancies and incomplete answers appearing in the reports of the examiners, of which appellant now complains, were evident to appellant at that time. Appellant, however, without making further inquiry issued its policy.

On May 13,1953, the judgment in this case was entered by the trial court. On May 21, 1953, a motion was made by the defendant that the court cause the record of the testimony of Dr. C. H. Schaller to be corrected. The portion of the record sought to be corrected is the answer to the question which was propounded to Dr. Schaller on cross-examination by one of defendant’s attorneys. The question was: “At the time you signed this defendant’s exhibit 4 (the medical examiners’ report) did you know at that time or did Mr. Asselborn tell you that in the month of March, March 6, 1952, that Dr. Zack was called to his home at his request because of pains that Joseph C. Asselborn was then having in the upper part of his stomach, did he tell you that?” The transcript of the record discloses that the answer of the witness to this question was “Yes.” In support of this motion appellant produced Dr. Schaller in court and requested permission to recall Dr. Schaller as a witness and also filed his affidavit in which the doctor states that his answer to this question was “no.” In denying this motion and refusing permission to recall this witness, the trial court stated that the transcript of the court reporter showing that the answer of the doctor to this question was “yes” is correct; that the court kept trial notes and that his notes show the answer to this question was “yes,” and that in addition to his notes, the court had an independent, distinct recollection of Dr. Sehaller’s answer to this question and that his answer was correctly reflected in the transcript prepared by the court reporter. The court then stated that the answer of Dr. Schaller to this question was only a part of the whole picture and did not, of itself, affect the court’s decision. In view of the entire record, the trial court did not err in overruling this motion.

In Security Trust Co. v. Tarpey, 182 Ill. 52, at page 59, it is said: “It has been the rule of this court that an insurance company cannot insist upon the forfeiture of a policy for a cause which was within the knowledge of its agent at the time the policy was issued.” In the instant case, our review of the record convinces us that the agents of appellant knew as much or more about the physical condition of Joseph C. Asselborn at the time he made his application for this policy as Mr. Asselborn himself. The judgment of the trial court is in accordance with the facts as disclosed by this record and the applicable law, and that judgment will be affirmed.

Judgment affirmed.


author: Presiding Justice Dove.

text:
    Grace E. Collins, Plaintiff-Appellee, v. Max Ruby and Bernard Ruby, Defendants-Appellants.
    Gen. No. 10,700. (Abstract of Decision.)
    Edgar J. Elliott, for appellants;
    Hooper & Bunge, for appellee; Gordon C. Bunge, of counsel.
    Opinion filed January 4, 1954;
    released for publication January 21, 1954.
   Opinion by Not to be published in full.

Presiding Justice Dove.


text:
    In the Matter of Estate of Henry Lawrence, Deceased. Henry Lawrence, Jr., Petitioner-Appellant.
    Gen. No. 10,648.
    Opinion filed September 26, 1953.
    Rehearing denied February 3, 1954.
    Released for publication February 3, 1954.

      Hubbard, Hubbard & D organ, of Chicago, for appellant; Alvin Gr. Hubbard, and Dominick Varraveto, Jr., both of Chicago, of counsel.
    Theodore Eubovits, L. A. Wescott, and John S. Woodward, all of Chicago, for appellee.
   Mr. Presiding Justice Dove

delivered the opinion of the court.

William C. Atten, as the guardian ad litem for Henry Lawrence, Jr., filed, in the probate court of the Du Page county on July 24,1950, his second amended petition in the estate of Henry Lawrence, deceased, in which he alleged, among other things, that Henry Lawrence died on the 9th day of March, 1949, and that letters of administration on his estate were issued to his widow, Maxine Lawrence, who is still acting as such administratrix, that at the time of the death of Henry Lawrence, and thereafter, the Oak Park National Bank of Oak Park, Illinois, was the trustee under three certain trust instruments known as trusts Nos. 1992, 1474 and 1244: that Maxine Lawrence was named sole beneficiary of said trusts in each of said three trust instruments : that Henry Lawrence, deceased, was during his lifetime the actual beneficiary under said trusts, and as such was entitled to all of the rents, earnings, avails and profits from the rental, management or sale of the properties described in said trust agreements and that Maxine Lawrence acted as beneficiary of said trusts solely for and on behalf of Henry Lawrence; that Maxine Lawrence has received from the Oak Park National Bank, as trustee, monies which said bank received from the rental and sale of the properties described in the several trust agreements which monies are in fact an asset of the estate of Henry Lawrence, deceased, and should be ordered turned over to the administratrix of said estate and inventoried as an asset therein.

Citations were issued against Maxine Lawrence and the Oak Park National Bank as prayed in the petition. Maxine Lawrence answered the petition and denied that Henry Lawrence at any time was the beneficiary under the three trusts in question, and denied that under the terms of the trust instruments he was entitled to receive the rents and profits arising from the properties, and denied that she acted as the beneficiary under the terms of the trusts either for herself or on behalf of Henry Lawrence. She further denied that she received any monies from the Oak Park National Bank, as trustee, which belonged to the estate of Henry Lawrence or which should be inventoried as a part of his estate. The Oak Park National Bank also answered the petition and denied that Henry Lawrence or his estate was entitled to any of the rents or profits of the properties described in the several trust instruments.

A hearing was had upon the issues made by the petition and answers and the probate court on August 31, 1950, entered an order directing the Oak Park National Bank to immediately deliver to Maxine Lawrence, as administratrix of the estate of Henry Lawrence, all the rents and profits accruing from said trusts now in her hands or which may hereafter come into her hands. The order then directed Maxine Lawrence as such ad-ministratrix to receive these rents and profits for and on behalf of the estate of Henry Lawrence, and ordered her to file a supplemental or amended inventory on or before September 20, 1950 and charge herself with these rents and profits accruing from said three trusts and retained jurisdiction to compel performance of the order.

Maxine Lawrence took an appeal from the above order to the circuit court. After the appeal had been duly perfected, Maxine Lawrence died. The Oak Park National Bank was appointed executor of her last will and testament. As such executor, it filed a special and limited appearance in the circuit court in the citation proceeding and objected to further proceedings in this case, and assigned as grounds therefor these reasons: (1) Oak Park National Bank, as executor as aforesaid, has never been made a party to this cause by summons or otherwise and (2) By reason of the decease of Maxine A. Lawrence, the appellant herein, as appears of record, this court now has no jurisdiction other than to enter an order vacating and setting aside the order of the probate court of Du Page county herein appealed from. Upon a hearing had in the circuit court that court entered the following order: “It is hereby ordered that by reason of the decease of Maxine A. Lawrence, the appellant herein, as appears of record, that that part of the order of the probate court of Du Page county, herein appealed from, be and the same is hereby vacated and set aside.” It is to reverse this order that Henry Lawrence, Jr., has appealed to this court.

Counsel for appellant contends that the circuit court should have dismissed the appeal of Maxine Lawrence, since it appeared by her sworn pleadings in the probate court, and the record certified to the circuit court on appeal, that she had no interest in the three trusts and was, therefore, not aggrieved by the order of the probate court. The Probate Act (Ill. Rev. Stat., 1951, chap. 3, sec. 484 [Jones HI. Stats. Ann. 110.581]) provides: “An appeal from any other order, judgment, or decree of the probate court may be taken by any person who considers himself aggrieved to the circuit court . . . .” By the second amended petition, Maxine Lawrence was charged with the unlawful possession and withholding of the rents, issues and profits of the three trusts in question, and the order of the probate court directed her to deliver these over to herself as the administratrix of the estate of Henry Lawrence and as such administratrix to accept them. Clearly she was adversely affected by this order, aggrieved by its entry and therefore has a right to perfect an appeal to the circuit court.

It is contended that the circuit court erred in holding that the proceeding abated upon the death of Maxine Lawrence. Section 11 of the abatement statute (Ill. Rev. Stat., 1951, chap. 1, sec. 11 [Jones Ill. Stats. Ann. 107.011]) is as follows: “When there is but one defendant in an action, proceeding or complaint, in law or equity, and he dies before final judgment or decree, such action, proceeding or complaint shall not, on that account abate, if it might be originally prosecuted against the heir, devisee, executor or administrator of such defendant, but the plaintiff, petitioner or complainant may suggest such death on the record, and shall by order of the court, have summons against such person or legal representative, requiring him to appear and defend the action, proceeding or complaint, after which it may proceed as if it had been originally commenced against him.”

In Harvey v. Harvey, 87 Ill. 54, a citation was issued by the county court of La Salle county against a guardian upon a petition of his wards to render an account. Upon a hearing the court found a certain amount due from the guardian to the wards, and, after stating the account, entered an order requiring the guardian to pay over to the wards the amount found to be due. The guardian appealed from this judgment against him to the circuit court, and while the appeal was pending he died. Upon motion of the wards, his executrix was made a defendant to the proceeding on the appeal and the executrix then entered her motion that the suit abate as to her. This motion was allowed and judgment was rendered against the wards for costs. The Supreme Court in its opinion pointed out that the citation of a guardian to account before a probate court is not in the nature of the action of account at law or in equity, but that it is merely a mode provided to ascertain the sum for which a guardian is chargeable in the probate court; that a guardian is appointed by the court and may be regarded as a trustee and that it is a wise provision which authorizes the court to proceed against the guardian in a summary manner by citation. The opinion continues (p. 56): “We perceive no reason, nor are we aware of any principle, which would authorize the county court to proceed by citation against the personal representative of a guardian. If a guardian should die with money in his hands belonging to his wards, his estate could be reached by an appropriate action, and the sureties on the bond would be liable to suit in a proper action; but, in the absence of a statute providing that they might be proceeded against by citation, we are aware of no rule by which a remedy of that character could be invoked.” The court then quoted section eleven of the Abatement Act, then in effect which is identical with the present section eleven of said Act (Ill. Rev. St. 1951, chap. 1, sec. 11 [Jones Ill. Stats. Ann. 107.011]) and said (p. 57): “Under this act, it is apparent the proceeding would not survive, as it could not have been maintained originally against the executor of the guardian, and we are aware of no section of the statute that would save the proceeding after the guardian’s death. The fact that the proceeding was pending on appeal, and the evidence had all been taken, and was ready for trial at the time the guardian died, can not affect the question. The statute gave the guardian the right to appeal from the decision of the county court. The effect of the appeal was to wipe out the decision of the county court, and the matter stood for trial de novo in the circuit court. The circuit court had the right to hear any and all evidence pertinent to the issue, and render such decision as the evidence would justify, regardless of the decision of the county court. We are, therefore, of opinion the wards had no greater rights from the fact the guardian died pending the appeal, than they would have had had the guardian died while the proceeding was pending in the county court, before a decision had been rendered.”

An administrator occupies the same position as a guardian and in the instant case when Maxine Lawrence died, the citation against her, being personal in nature, could no longer be enforced and the citation proceedings necessarily abated. This does not mean that appellant is deprived of any right which he may have against the estate of Henry Lawrence. If Maxine Lawrence owed the estate of Henry Lawrence anything prior to her death, then her estate, now that she is deceased, is liable to the same extent as she would have been had' she not died. The order of the circuit court vacating the order entered by the probate court does not bar appellant, a minor, of any interest which he might have in the estate of Henry Lawrence. It merely abates the citation proceedings insofar as Maxine Lawrence personally is concerned. Her death made it impossible for these proceedings to continue against her.

The judgment of the circuit court vacating the order of the probate court was correct and that order is affirmed.

Order affirmed.


author: Mr. Presiding Justice Schwartz

text:
    Alexander Maxwell, also Known as Alex Maxwell, Ap-pellee, v. Timothy J. O’Connor, Individually and as Police Commissioner of City of Chicago, Appellant.
    Gen. No. 46,167.
    Opinion filed December 22, 1953.
    Released for publication February 19, 1954.
    John J. Mortimer, Corporation Counsel, of City of Chicago, for appellant; L. Louis Barton, Head of Appeals and Review Division, Joseph F. Fox, Assistant Corporation Counsel, A. A. Pantelis, and William J. Kafka, all of Chicago, of counsel.
    Louis T. Herzon, of Chicago, for appellee.
   Mr. Presiding Justice Schwartz

delivered the opinion of the court.

This is an appeal by defendant from an order of the criminal court of Cook county, directing defendant to return to petitioner all records, fingerprints, files, and other memoranda pertaining to two cases against plaintiff filed in the municipal court of Chicago, entitled People, etc. v. Maxwell, No. 49 MC 19158, and People, etc. v. Maxwell, No. 49 MC 29656. The proceeding was instituted to compel compliance with section 780e, chap. 38, Illinois Revised Statutes, 1951 [Jones Ill. Stats. Ann. 37.809], entitled, “Sheriffs and police officers to furnish finger prints to department.” It is therein provided that it is the duty of the sheriffs and chief police officers of cities, villages and towns in Illinois to furnish to the Department of Public Safety copies of fingerprints of persons charged with certain types of crime. It is therein further provided as follows : “All photographs, finger prints or other records of identification so taken shall, upon the acquittal of the person charged with the crime, or upon his being released, without being convicted, be returned to him.” Plaintiff was arrested on a charge of assault and carrying a concealed weapon. He was acquitted by the municipal court on both charges and he then filed his petition in the criminal court, which entered the order here involved.

The question with which we are confronted at the threshold of this case is whether the criminal court had jurisdiction. The sole basis upon which such jurisdiction can rest is that this is a criminal case, a quasi-criminal case or a civil case incident to a criminal or quasi-criminal matter over which the criminal court had jurisdiction. The two cases in question were not in the criminal court; none of the matters sought to be returned ever came under the jurisdiction of the criminal court, nor were they ever introduced in evidence in any proceeding in the criminal court.

The right under the statute which plaintiff seeks to enforce has been adjudged by the courts as being more in the nature of a right of privacy. Miller v. Gillespie, 196 Mich. 423, 163 N. W. 22. In that case the court appeared to consider that a suit seeking to compel the Superintendent of Police to surrender statements and to destroy all books, blotters, statements, histories, and records of an arrest was properly brought in equity, but the relief was denied. In Itzkovitch v. Whitaker, 115 La. 479, 39 So. 499, the court held that an injunction could be obtained to prevent a photograph of an innocent person from being sent to the rogues’ gallery. In Schulman v. Whitaker, 115 La. 628, 39 So. 737, the same relief was granted. Both these cases were treated as civil matters and tried in a civil court. We are not saying that under the statute this is a proper method of procedure. It is clear, however, that in any event the character of relief sought involves a civil right and that there is no basis for assumption of jurisdiction by the criminal court.

Petitioner refers to cases having to do with the return of property or papers seized for purposes of evidence. There, when the court suppresses evidence, it may properly direct a return. That has little or no relation to the instant case.

Order reversed.

Tuohy and Robson, JJ., concur.


author: Mr. Justice Tuohy

text:
    Dart Transit Company, Inc., Appellant, v. Wade W. Wiggins and George E. Hensel, Appellees.
    Gen. No. 46,054.

      Opinion filed December 22, 1953.
    Rehearing denied February 5, 1954.
    Released for publication February 19, 1954.
    Lord, Bissell & Kadyk, of Chicago, for appellant; Gordon- R. Close, and Richard E. Mueller, both of Chicago, of counsel.

      Van Duzer, Gershon & Quinlan, of Chicago, for appellees; John B. Van Duzer, and Horace W. Jordan, both of Chicago, of counsel.
   Mr. Justice Tuohy

delivered the opinion of the court.

Plaintiff, Dart Transit Company, Inc., a corporation, brought suit in the superior court of Cook county against Wade W. Wiggins and George E. Hensel for indemnification and reimbursement of moneys paid by plaintiff to certain third parties. These third persons were injured as a result of a collision involving a tractor-trailer unit owned by defendant Wade W. Wiggins and being driven by his employee, George E. Hensel, and being then and there under lease to plaintiff and operated under interstate commerce permit. The accident happened November 24, 1951 near the city limits of Mt. Prospect, Cook county, Illinois, and as a result of the accident plaintiff, the lessee of the tractor trailer, was compelled to make payments totaling $15,000 to the injured persons in settlement of their claims. Plaintiff thereafter brought suit against the lessor-owner, Wade W. Wiggins, and the lessor’s agent and driver, George E. Hensel, for indemnification and reimbursement of the sums paid to the injured parties (Count I), and against Wade W. Wiggins for reimbursement under the terms of the trip lease agreement under which the movement was being operated (Count II). Service was had on both defendants under the Illinois non-resident service statute, section 20a of the Motor Vehicles Act (Ill. Rev. Stat. 1951, chap. 95%, par. 23 [Jones Ill. Stats. Ann. 85.023]), inasmuch as both defendants are residents of the State of Florida. Both defendants filed a special and limited appearance and motion to quash summons. From an order quashing summonses, plaintiff appeals.

The ground upon which the ruling of the court below seems to have been based was that the cause of action stated in the complaint, not arising ex delicto but arising out of contractual obligations, did not therefore grow out of the use and operation of the motor vehicle over the highways of the State of Illinois. Another point argued here is that plaintiff, being a non-resident, is not entitled to benefits of the Illinois non-resident service statute. Both questions seem to be of first impression in this State.

We consider first the question whether the Illinois non-resident service statute permitting substituted service of process upon non-residents is restricted to actions ex delicto.

The pertinent provisions of the Illinois non-resident service statute (Ill. Rev. Stat. 1951, chap. 95%, par. 23 [Jones Ill. Stats. Ann. 85.023]) are as follows:

“The use and operation by any person of a motor vehicle over the highways of the State of Illinois, shall be deemed an appointment by such person of the Secretary of State, to be his true and lawful attorney upon whom may be served all legal process in any action or proceeding against him, growing out of such use or resulting in damage or loss to person or property, and said use or operation shall be signification of his agreement that any such process against him which is so served, shall be of the same legal force and validity as though served upon him personally if such person is a non-resident of this State or at the time a cause of action arises is a resident of this State but subsequently becomes a non-resident of this State.

This question was before the Supreme Court of Louisiana in Maddry v. Moore Bros. Lumber Co. (1940), 195 La. 979,197 So. 651, and it was held that the non-resident service statute there under consideration was not restricted to actions eco delicto where such grew out of the use or operation of the motor vehicle over the highways of the State. In that case plaintiff, a Louisiana resident, sued defendants, a partnership and the members thereof, all of whom were residents of Texas, for injuries received while riding in an automobile owned by the partnership and driven by its employee. Plaintiff asked in the alternative for an award of compensation under the Employers’ Liability Act if it was held that at the time of the accident he was an employee of the partnership. Service was made against the defendants on the Secretary of State and the defendants claimed the Act did not apply to a compensation claim, as compensation is based on contract and the Act applied only to personal injury actions. The court, in holding the contrary, quoting its statute to the effect that the Secretary of State of Louisiana was appointed by such non-resident “to be his true and lawful attorney for service of process, upon whom may be served all lawful process in any action or proceeding against said non-resident growing out of any accident or collision in which said nonresident may be involved while operating a motor vehicle on such highways, or while same is operated by his authorized employee,” said in part (pp. 652, 653):

“From a reading of the above quoted Section of the Act it is apparent that a non-resident, or his agent, who operates a motor vehicle on the highways of this State, shall be deemed thereby to have appointed the Secretary of State as his attorney for service of process in any action or proceeding against the non-resident growing out of any accident or collision in which the non-resident or his agent may be involved while operating a motor vehicle on the highways of this State. . . . The language used, ‘any action or proceeding,’ is very broad and covers the instant ease. If it had been the intention of the Legislature that the service of process was to be restricted to actions ex delicto, it appears that there would have been some language used to that effect. From the very language used, which is very broad and all inclusive, it would appear that it was the intention of the Legislature to embrace actions of any and every nature growing out of an accident or collision in which the non-resident is involved while making such use of the highways of this State.

“The Louisiana Employers’ Liability Act deals with personal injuries received by accidents arising out of and in the course of employment. It is apparent that the cause of action under the Act grows out of an accident. The Act itself frequently refers to and uses the word ‘accident.’ While it is true that the right of action is based on an implied contract yet if there was no accident there would be no implied contract and no recovery could be had. The implied contract only comes into effect after the accident occurs.”

It is to be noted that the language of the Louisiana statute “in any action or proceeding against said nonresident growing out of any accident or collision in which said non-resident may be involved” is very similar to the language of our own statute, which provides for substituted process “in any action or proceeding against him growing out of such use [highway use] or resulting in damage or loss to person or property.” We are impressed with the argument in the Louisiana opinion that if it had been the intention of the legislature that service of process was to be restricted to actions ex delicto there would have been some language used to that effect. As in the case of the Louisiana statute, there is no qualifying language whatsoever in the language of the Illinois statute restricting the nonresident statute to actions ex delicto. In attempting to distinguish the Louisiana case, counsel argues that the Illinois statute uses more limited language by restricting its application to any action or proceeding growing out of “use or operation” of a motor vehicle over the Illinois highways. We are inclined to believe that “use or operation” is broader in scope than “accident or collision,” rather than more limited. On the whole the language of the two statutes seems to be practically identical in its intent and purpose and we are unable to agree with the distinction sought to be made by defendants’ counsel.

Another case closely in point is Southeastern Greyhound Lines v. Myers (1941), 288 Ky. 337, 156 S.W.2d 161. In that case the facts indicated a collision occurred between a bus owned and operated by plaintiff and a truck owned and operated by defendant as a result of the negligence of both drivers. One of plaintiff’s passengers was injured. Judgment was rendered against plaintiff in a suit wherein defendant was not a party. Plaintiff paid the judgment and defendant upon demand refused to contribute. Suit was brought and defendant’s motion to quash service of summons under the Kentucky non-resident service statute was sustained. This statute provides (sec. 12-1):

“That any non-resident of this Commonwealth, being the operator or owner of any motor vehicle, who shall accept the privilege extended by the laws of this Commonwealth to non-resident operators and owners of operating a motor vehicle or having same operated, within the Commonwealth of Kentucky, shall by such acceptance, and by the operation of such motor vehicle within the Commonwealth of Kentucky, make and constitute the Secretary of State of the Commonwealth of Kentucky his, her or their agent for the service of process in any civil suit or proceeding instituted in the courts of the Commonwealth of Kentucky against such operator or owner of such motor vehicle, arising out of, or by reason of any accident or collision or damage occurring within the Commonwealth in which such motor vehicle is involved.”

Reversing the trial court, the Court of Appeals said (pp. 163-164):

“Appellant contends his cause of action against ap-pellee is one which arose out of or by reason of the negligence of appellee in the operation of his automobile . . . ; while it is the contention of amici curiae that the cause of action, if any there is, arose out of an implied contract .... The primary liability of ap-pellee, if he was negligent, was to the injured person, but, by payment of the claim, appellant became subro-gated to the injured person’s right to recover from appellee to the extent of one-half of any reasonable amount paid by appellant. . . . Section 12 — 1 does not require the plaintiff in such an action to be someone who is not specifically given the right by statute to maintain a suit for contribution, nor does it prohibit institution of the suit by one who has acquired such right by statute. That appellant acquired the right to assert the claim by implied contract does not militate against his right to take advantage of the provisions of section 12 — 1, nor does it alter the fact that the proceeding is essentially a civil case instituted in one of the courts of the Commonwealth of Kentucky against a non-resident operator and owner of a motor vehicle, arising out of and by reason of an accident occurring within the Commonwealth in which such motor vehicle was involved.” (Italics ours.)

This same principle was announced in McKay v. Citizens Rapid Transit Co. (1950), 190 Va. 851, 59 S.E.2d 121, which was a suit for contribution by one secondarily liable, who had paid the claim, against the one primarily liable. Defendants were non-residents. The court, in holding that defendant non-residents were properly served under a non-resident statute which provided that the Commissioner of the Division of Motor Vehicles shall be the true and lawful attorney “of such non-resident upon whom may be served all lawful process against and notice to such non-resident in any action or proceeding against him growing out of any accident or collision in which such non-resident or his agent or employee may be involved while operating a motor vehicle ... on such highway . . .” said:

“As previously stated, McKay and Jones were served with process under . . . section 2154-70 . . . . They contend that this statute has no application and that the process was void. With this contention we cannot agree. We think the statute by express terms specifically covers a situation of this kind and authorizes such process and service thereof.”

Defendants attempt to distinguish these two latter cases by pointing out that Kentucky recognizes the doctrine of contribution among joint tort-feasors by statute and Virginia by common law. They urge that defendants’ liability to plaintiffs in these cases arose directly from the accident and that it made no practical difference whether the liability was enforced by the injured party or by the joint tort-feasor seeking contribution; in either case the action grew out of the accident. While there are Illinois authorities to the effect that Illinois does not recognize contribution among joint tort-feasors, Illinois does recognize the right of a party, who without fault has been compelled to pay damages on account of the wrongful conduct of another primarily liable, to recover from the other for the expenditures properly made in discharge of such liability. Gulf, M. & O. R. Co. v. Arthur Dixon Transfer Co., 343 Ill. App. 148; Palmer House Co. v. Otto, 347 Ill. App. 198, 201.

The causes of action stated by the plaintiff in its complaint clearly appear to be actions or proceedings growing out of the use and operation of a motor vehicle over the highways of the State of Illinois. The single authority cited by defendants in support of their position is that of Brauer Machine and Supply Co. v. Parkhill Truck Co., 383 Ill. 569. There the defendant delivered equipment to plaintiff’s dock by truck. While the truck was being unloaded an employee of the plaintiff was injured through the alleged negligence of the defendant’s employee. Plaintiff sought to recover the amount of compensation paid pursuant to the Illinois Workmen’s Compensation Act and service was obtained through the Illinois non-resident service statute. An order of the trial court quashing this service was affirmed. The court rejected the argument that the loss grew out of the use of the highway because the unloading was part of the contract of transportation over the highway, stating at page 583:

“Here, the truck had left the highway prior to the time the process of the unloading was begun. Both the truck and the load were entirely off the highway and wholly upon private property at the time the injury occurred. The negligent act which is alleged to have caused the injury was in no way connected with the use of the highway. It, in no sense, arose or grew out of the use of the motor vehicle on the highway.”

The case does not appear to be authority in any way for the purpose cited. There the use of the highway, according to the ruling of the court, had ceased and the vehicle was being unloaded upon private property. In the instant case the accident beyond any dispute occurred between two vehicles upon a public highway.

As we stated earlier, we are impressed with the argument that had the Illinois legislature intended to restrict the application of the remedial provisions of the statute it would have incorporated in the statute appropriate language to express such purpose. Illustrative of this principle is the case of Jones v. Pebler, 371 Ill. 309, where plaintiffs sued Pebler, J. H. Cownie Co., a corporation, and John H. Cownie and J. H. Schütz, doing business as J. H. Cownie Co. for personal injuries sustained in an automobile collision which occurred near Glen Ellyn, Illinois. Plaintiffs charged that Pebler was the driver and the agent and servant of the other defendants. Service, which was procured under the non-resident service statute, was challenged as to all except Pebler on the ground that the others did not use or operate the automobile in the State of Illinois. The Illinois Supreme Court held that the word “non-resident” was broad enough to include every non-resident, individual or corporate, owner or non-owner, using or operating a motor vehicle over the Illinois highways, and that the language of the Act was sufficiently comprehensive to apply to non-residents where the motor vehicle is being driven in Illinois by its agents, servants or employees. The court said (pp. 313-317):

“The word ‘non-resident’ appears without definition, does not purport to be limited to non-resident natural persons, and is obviously broad enough to include every non-resident, individual or corporate, owner or non-owner, using and operating a motor vehicle over Illinois highways. . . .

“. . . Had the legislature intended to restrict the application of the remedial provisions of section 20a to those non-residents personally operating or using a motor vehicle in Illinois, appropriate language to express its purpose would undoubtedly have been incorporated in the statute. . . .”

In order to give this statute the interpretation contended for by defendants it is necessary to read into what appears to be the clear language of the statute the words “in any action ex delictoAs stated in American Surety Co. v. Jones, 384 Ill. 222 (p. 231):

“In this regard, it must he kept in mind that the court has no right to read into the statute words that are not found therein, either by express inclusion or fair implication.”

In the recent case of Brandt v. Keller, 413 Ill. 503, where the court held that a married woman could maintain an action for damages against her husband for personal injuries caused by his willful and wanton misconduct, the court said (pp. 512, 513):

“The Appellate Court herein concluded that the phrase ‘in all cases,’ when construed with the phrase ‘without joining her husband,’ designated actions against third persons, rather than actions against her husband. We do not find such a limitation under our analysis of the terms of the statute. The words ‘in all eases’ must be interpreted according to their natural meaning, without the interpolation of additional exceptions.”

We conclude, therefore, that under the language of the statute under consideration the Secretary of State may be served with legal process on behalf of a non-resident in any action or proceeding against such non-resident growing out of the use of the highways of this State, and that' such service of process is not subject to the qualifications urged. Section 20a of the Motor Vehicle Act does not provide for service of summons upon the Secretary of State in any action or proceeding except contract actions. The words “in any action or proceeding” are unqualified, the only requirement for substituted service being that the action must grow out of the use and operation of a motor vehicle over the Illinois highways. We are of the opinion that the accident under consideration grew out of such use, and that therefore the service of summons upon the defendants herein was proper.

In support of the proposition that plaintiff, being a non-resident, is not entitled to the benefits of the Illinois non-resident service statute, defendants cite a single case, that of Jones v. Pebler, 371 Ill. 309, cited above upon another point in this opinion. Defendants rely upon the following language (p. 313):

“In like fashion section 20a expresses the manifest legislative intent of conferring jurisdiction of suits against non-resident motorists on the courts of Illinois to the end that compensation for injuries to local residents may be obtained.”

Defendants urge that this case sets forth the rule that non-residents are not entitled to the benefits of the statute. We think the interpretation given to the language is altogether too restricted. There can be no doubt that the obvious primary purpose of the statute was to protect local citizens, but this does not necessarily exclude other purposes. Had the legislature intended to restrict the application, it could well have done so by appropriate language. While the question has not been raised in this State before, the question was considered in the recent case of White v. March (1951 Maine), 83 A.2d 296, where the plaintiff, a resident of Connecticut, sued defendant, a resident of Newfoundland, for damages resulting from a collision of two automobiles in Maine. The court held that jurisdiction could be obtained over a non-resident defendant in an action by a non-resident plaintiff, stating at page 298:

“By its language this statute does not restrict the right of a non-resident plaintiff to sue in our courts. . . . Why should this court restrict the right of the non-resident plaintiff to sue by inserting in See. 59, supra, something which is not there? Why should he not be permitted to bring suit by substituted service under this statute when he is plainly embraced within its terms? . . . That the plaintiff in this case has the right to bring suit in this state is in accord with authorities with which we agree. Beach v. D. W. Perdue Co., Del. Super. Ct. 1932, 5 W.W. Harr. 285, 163 A. 265; Fine v. Wencke, 117 Conn. 683, 169 A. 58; Herzoff v. Hommel, 120 Neb. 475, 233 N.W. 458; Caron v. Poirier, supra; Sobeck v. Koellmer, 1933, 240 App. Div. 736, 265 N.Y.S. 778; Malak v. Upton, 166 Misc. 817, 3 N.Y.S.2d 248; State ex rel. Rush v. Circuit Court, 209 Wis. 246, 244 N.W. 766; See Martin v. Fischbach Trucking Co., 1 Cir., 1950, 183 F.2d 53; 39 Harv. L. Rev. 563; 32 Mich.L.Rev. 347 et seq.; 37 Mich.L.Rev. 58, 74.”

In State ex rel. Rush v. Circuit Court for Dane County, 209 Wis. 246, 244 N. W. 766, the court said (p. 767):

“Even assuming that the consent upon which the constitutionality of such laws is based is a fiction and that the real basis for sustaining them is the necessity of securing safety on the highways, the extension of the benefits of the act to nonresidents violates no constitutional prohibition. The state has nearly as great an interest in promoting the safety of non-residents using our highways by securing for them convenient redress in case of injury as it has in its own residents. The necessity which justifies such an act with respect to residents is broad enough to justify the inclusion of nonresidents.”

Other jurisdictions contributing similar holdings are Gianetto v. La Delpha, 278 App. Div. 179, 104 N.Y.S.2d 362; Karagiannis v. Shaffer, 96 F. Supp. 211; Chambers v. Baltimore & Ohio R. Co., 207 U. S. 142.

We are of the opinion that there being no expression in the statute contrary, and no reason appearing in the policy of this State for excluding non-residents from the statute, plaintiffs are entitled to the benefit of this substituted service.

Accordingly the judgment order of the trial court is reversed and the cause remanded to the superior court of Cook county with directions to overrule the motion to quash service of summons of defendants Wade W. Wiggins and G-eorge E. Hensel and to proceed in conformity with the views expressed herein.

Judgment order reversed and cause remanded with directions.

Schwartz, P. J. and Robson, J., concur.


text:
    Chicago Bar Association et al., Appellees, v. Elmer L. Clausen. Trading as Clausen and Company, Appellant.
    Gen. No. 46,093.
    Opinion filed December 22, 1953.
    Rehearing denied January 22, 1954.
    Released for publication February 19, 1954.

      Augustus L. Williams, Myer H. Gladstone, and Moore, Wimbish & Leighton, all of Chicago, for appellant; George N. Leighton, and Albert W. Jones, both of Chicago, of counsel.
    Charles Levitón, and John Bex Allen, both of Chicago, for appellees; Boss S. Welch, John F. Sem-bower, Curtis F. Prangley, and James T. Mullaney, all of Chicago, of counsel.
   Mr. Justice Tuohy

delivered the opinion of the court.

Plaintiff Chicago Bar Association and certain of its members, individually and as members of the Committee on Unauthorized Practice of Law of said Association, brought their suit in equity against defendant Elmer L. Clausen, d/b/a Clausen and Company, to restrain said defendant from performing certain acts alleged to constitute the unlawful practice of law. The matter was referred to a master in chancery, and, after a lengthy hearing, exceptions to the master’s report were overruled, and a decree was entered causing an injunction to issue permanently restraining the defendant, his agents and employees from: (1) directly or indirectly engaging in the practice of law; (2) directly or indirectly fomenting and soliciting litigation; (3) directly or indirectly performing, furnishing and rendering legal services and advice; (4) directly or indirectly charging and collecting fees for legal services; (5) directly or indirectly negotiating by himself or through attorneys, on behalf of property owners, for higher condemnation awards than those originally offered by the condemning authorities prior to or subsequent to litigation, or contesting condemnation proceedings, with a view of effecting an increase in damages for persons represented by him; (6) directly or indirectly rendering and continuing to render legal services in connection with condemnation proceedings ; (7) directly or indirectly soliciting or employing attorneys to act for property owners; (8) directly or indirectly dividing the fees paid by property owners for services in settling or contesting condemnation proceedings. The decree further ordered defendant to pay plaintiff master’s fees in the sum of $873, and other taxable costs. From this decree defendant appeals.

Defendant insists he was not engaged in the practice of law or the solicitation of law business; that the acts complained of were legitimate and necessarily incident to the business which he was authorized by state license to pursue, namely that of engineer, appraiser and real estate broker.

We find the material facts, substantially undisputed, to be as follows: Defendant is a professional engineer, real estate appraiser and land surveyor who conducted his business under the name of Clausen and Company from an office at 228 North LaSalle street, Chicago, Illinois; that no lawyers have any space in his office and that he has no space in the office of any lawyer; that for a number of years defendant has circularized and solicited large numbers of property owners affected by condemnation proceedings in Cook county, Illinois, and has entered into contracts of employment within the last five years with approximately 5,000 property owners in connection with these condemnation proceedings ; that defendant’s modus operandi was as follows : A letter would be written to the property owners calling attention to the fact that “we, as engineers, specialize in representing owners on a contingent basis on property damage or condemnation suits”; then, following a recital of a number of similar matters in which defendant had represented property owners, the letter concluded with the suggestion that the recipient call for an appointment. A follow-up letter, again calling attention to the service offered by defendant, concluded with the following paragraph: “Enclosed is the agreement which we regularly employ for this type of case. Inasmuch as an attorney’s services are generally advisable, we shall be glad to work with any one of your choice; or if you desire, we can have our own attorneys handle the legal aspects of this matter at no additional cost to you.” (Italics ours.) A form of agreement enclosed was addressed to defendant and contained the following language:

“You are hereby authorized and requested to survey and make a complete structural report indicating present condition of the property commonly known as

“We understand that all or part of this property will be taken or damaged by reason of the above project. The foregoing work on your part is to be done in preparation for negotiation of settlement of any claim for compensation for such damage to or taking of such property or any part thereof, or for use in connection with the trial of any suit regarding such compensation.

“You are authorized and directed on behalf of the undersigned to do whatever is necessary and proper in order to secure such compensation for the undersigned. You may on behalf of the undersigned, employ an attorney and real estate expert to represent the undersigned in such negotiations or litigation, and specify terms of employment; all subject to the approval of the undersigned.

“You are to receive reasonable compensation for your work, but payment shall be contingent upon recovery of an amount for the damage or taking of said property in excess of the amount offered us by the State of Illinois, or others, for such damage or taking. It is understood that all fees and expenses, including your compensation, attorney’s fees, and real estate expert’s fees, shall be one third of said excess over said offer to us by the State of Illinois, or others.”

Eecently the words “payable only from the award” were added to the last sentence of the contract. Following the contract a questionnaire was sent to the property owner inquiring as to the assessed value, amount of taxes, amount of unpaid taxes, kind and size of building, size of the lot, and value of the property. A further follow-up letter advised the property owner that in accordance with “our agreement” defendant had retained attorneys to represent the client. The letter concluded by suggesting that the property owner have a few of his neighbors contact defendant for the purpose of retaining defendant to represent them.

During the course of the solicitation a letter was sent by defendant to the lawyer whom defendant had selected for the particular case. The pertinent parts of this letter were as follows :

“Dear Sir:

“We have been authorized and directed by--of the property commonly known as-to employ you as Attorney to represent such owners in such negotiations or litigation as may be necessary to recover compensation for damage to or taking of said property or any part thereof by reason of the above project.

“We hereby employ you as such Attorney for said purposes and you are authorized and directed on behalf of such owners to do whatever is necessary and proper in order to recover such compensation, including the filing and prosecution of suit, the defense of any suit instituted in respect thereto, or making settlement, the amount of any settlement, however, to be subject to the approval of the owners.

“We are to survey and make a complete structural report indicating the present condition of said property for such owners in preparation for said negotiations or litigation regarding such compensation, and we are to confer with and assist you in negotiations for settlement and in the presentation of evidence on the trial of the case. You are to receive payment from such owners for said work, contingent upon recovery of an amount in excess of the amount first offered by the State of Illinois, or the municipality concerned, for such damage or taking.

“It is understood and agreed that the fees and expenses which are to be paid by such owners shall not exceed one-third of said excess over said first offer to the owners, and that you shall be entitled to receive two-thirds of such amount as and for your Attorney’s fees for your said services and the remainder shall be paid to us to compensate us for our services and for the services of real estate experts to be employed by us to represent such owners in assisting in connection with said negotiations or litigation. . . .”

Following this letter to the attorney, the latter made contact with the property owner, usually by letter advising the property owner that pursuant to the terms of the property owner’s contract with Clausen and Company the attorney had been retained to represent the property owner in connection with the condemnation matter. The letter concluded by advising the property owner not to sign any papers without the attorney’s consent.

Defendant testified that since 1946 he had solicited approximately 5,000 condemnation cases, and at the time of the hearing had 1,000 cases “just working”; that of these condemnation suits 50% had been instituted in court before he made contact with his client. He testified that from 1948 to May of 1951 he had employed Chicago lawyers and that six lawyers or law firms were sent more than 1,200 cases by him. All these lawyers, by agreement made contemporaneously with their employment, advanced money to the defendant, and when the condemnation awards were paid to the lawyers, defendant had already been compensated in 80% of the cases. It further appeared that at the time of the hearing defendant was indebted to most of the lawyers.

It appears clear to us from a review of these documents and this undisputed proof that defendant was engaged in the solicitation of law business. He sought to become the representative of the defendant in condemnation suits then pending or shortly to be started by the State of Illinois or some municipal body. He was not a lawyer himself, and so he undertook to employ a handful of lawyers to whom he parceled out many hundreds of cases over a period of five years. The master and chancellor would have been guilty of culpable naivete had they not drawn the inference from such conduct that these lawyers were acting under defendant’s control and direction and that in effect defendant was peddling legal services to property owners for a fee. In certain communications and in the oral testimony no attempt was made to conceal the fact that defendant, and not the owners, was employing the attorneys. In most instances, however, the subterfuge adopted was for the purpose of establishing a contract of employment voluntarily and independently made between the attorney and the property owner. Looking through this artifice, it is not difficult to ascertain that the property owner looked to defendant as principal in all the services that were to be performed, the most important of which were legal services, and that in consideration of so performing such services, either directly or by attorneys to be solicited by defendant, defendant was to be compensated on a contingent basis.

Defendant argues at considerable length that being a real estate broker and an engineer, as well as an appraiser, what he contracted to do was for services in accordance with these qualifications; that the property owner was given the right to hire his own attorney and that only when they specifically authorized him did defendant contact a lawyer; that he never prepared a pleading or appeared in court except to testify as an expert witness, never prepared or filed an appearance or answer or any type of legal document; that he appeared only at the attorney’s request. All this is idle in view of the overriding fact that Clausen controlled the litigation by his control of the attorneys. He was capitalizing on legal services of others for his own profit. In People ex rel. Chicago Bar Association v. Chicago Motor Club, 362 Ill. 50, the court said at page 57:

“Legal services cannot be capitalized for the profit of laymen, corporate or otherwise, directly or indirectly, in this State. In practically every jurisdiction where the issue has been raised it has been held that the public welfare demands that legal services should not be commercialized, and that no corporation, association, or partnership of laymen can contract with its members to supply them with legal services, as if that service were a commodity which could be advertised, bought, sold and delivered.”

In the instant case the commercial aspect of the transaction is emphasized by the precaution which defendant took to secure the payment of his own fees before payment of the awards, by accepting “loans” from the attorneys retained, thereby securing his agreed portion of the fee, or more, in advance.

In the case of People ex rel. Chicago Bar Association v. Goodman, 366 Ill. 346, the court found defendant guilty of the unauthorized practice of law, his aetiv-ities consisting, among other things, of handling and adjusting workmen’s compensation claims which he secured by advertising and took on a contingent fee basis. In that case the court said (p. 356):

“The faithful observance of the fiduciary and confidential relationship between attorney and client is one of the greatest traditions of the legal profession. In Goodman’s business that relationship is absent as to the litigant whom the attorney employed by Goodman purportedly represents. The respondent is the attorney’s real client and paymaster, and the one to whom the attorney owes allegiance.”

In Chicago Bar Association v. United Taxpayers of America, 312 Ill. App. 243, the court affirmed an injunction restraining one Teeter and the United Taxpayers of America, a corporation purporting to be acting not for pecuniary profit. Teeter solicited and procured authority to represent persons in the preparation and prosecution of all claims for the credit and refund of Illinois Retailers Occupation taxes illegally collected. Teeter claimed that his activities were proper and were incidental to his profession of certified public accountant. In affirming the injunction the court found that Teeter was engaged in the unauthorized practice of law. In Midland Credit Adjustment Co. v. Donnelley, 219 Ill. App. 271, the court said (page 277):

“It is patent that the combination between complainants was for the very purpose of evading the law regarding its professional practice. The corporation could solicit collections, which is law business, which the lawyer was inhibited from doing by legal ethics, and the lawyer could institute legal proceedings and conduct them to a finality, which the corporation could not do.”

We think that under the facts in this case the matter comes directly within the prohibition of the ruling announced above and that defendant here was attempting to contract with a solicited group to supply them with legal services and was in effect advertising legal services as a commodity which he would deliver for a stipulated fee. The fact that defendant may have performed these other services which he was entitled to perform does not alter the fact that he was also engaged in performing services of a nature that he had not the right to perform, and those are the services against which the prohibition in the decree is directed.

The principles that we have announced here have been frequently repeated by our courts. As prohibiting solicitation of legal services is the recent case of Atchison, T. & S. F. Ry. Co. v. Andrews, 338 Ill. App. 552. McCloskey v. San Antonio Public Service Co. (Tex. Civ. App.), 51 S.W.2d 1088.

Defendant cites the case of Chicago Bar Association v. Kellogg, 338 Ill. App. 618, in support of his argument that the mere fact that he had authority to employ an attorney for the property owner did not constitute the practice of law. The cited case is no authority for the proposition. The case does not purport to lay down an all inclusive definition of what constituted the practice of law. It merely held that the acts performed by the defendant in the case there under consideration were such as to constitute the illegal practice of law; it did not hold that the acts there indicated were the only acts constituting the practice of law.

Defendant cites several cases from other jurisdictions which we do not deem necessary to consider at any length. The law in this State as indicated by the above authorities seems to leave no doubt as to the policy of the State, and no single case in Illinois that we have read supports the contentions argued for defendant.

We have carefully examined the various paragraphs of the injunctive order and we believe that the decree is correct; accordingly it is affirmed.

Decree affirmed.

Schwartz, P. J. and Robson, J., concur.


author: Mr. Justice Culbertson

text:
    Agnes E. Tiernan, Plaintiff-Appellant, v. East Shore Newspapers, Inc., and P. H. Wire, Defendants-Appellees.
    Term No. 53-O-17.

      Opinion filed December 23, 1953.
    Released for publication February 5, 1954.
    Louis Beasley, of East St. Louis, for appellant.
    Pope & Driemeyer, of East St. Louis, for appellees; Frank M. Rain, of East St. Louis, of counsel.
   Mr. Justice Culbertson

delivered the opinion of the court.

This is an appeal from an order and judgment of the circuit court of St. Clair county, entered at the close of appellant, Agnes E. Tiernan’s case, directing a jury to find appellees, East Shore Newspapers, Inc., a corporation, and P. H. Wire, not guilty.

The action was filed against the newspaper publishing company and the general manager (hereinafter referred to as defendants), charging that defendants were guilty of a libel in that the newspaper published by defendant, East Shore Newspapers, Inc., carried in the edition of April 4,1948, a certain article (apparently originating as a letter or communication) concerning plaintiff, which contained the following language:

“Mrs. Tiernan bases her claims of being qualified for office of county auditor because she kept the books and records of her late father P. J. Soucy. His estate has never been closed and at the present time there are approximately $50,000 in debts with a great deal of property in the hands of the heirs. Why don’t they close the estate and pay the bills — she kept the books for her father’s business? Why doesn’t she give the public more information about her bookkeeping experience? Why not be honest Mr. or Mrs. Voter, and vote the way your heart and conscience tells you and not the way they tell you to, and remember don’t do something you may be sorry for later on.

Sincerely Disgusted Voter.”

It was the contention of the plaintiff that the publication was libelous per se.

On the trial of the case, which was had before a jury, the plaintiff sought to introduce evidence of various witnesses who had read the article as to what such witnesses understood the meaning of the article to be, and the court sustained objections to such proof, and also sustained objections to an offer of proof of evidence of this character. It was shown by the evidence that the estate of plaintiff’s father was being administered by the Public Administrator, and not by plaintiff; and that plaintiff had made no contention that she was qualified for the office of county auditor because she had kept the books and records of her late father. It was also disclosed that the estate of plaintiff’s father had not been closed and that an indebtedness of the character referred to in the article apparently existed as to the estate. The evidence also showed that the defendant, P. H. Wire, the general manager, had no prior knowledge of the publication and did not contribute to nor participate in it.

Defendant filed an answer denying that the publication was false, defamatory, scandalous, or malicious, and also filed answers in the nature of justification, on the ground that matters set forth in the letter were true, and published with good motives and for justifiable ends. It is the contention of defendants that fair comments on matters of public interest are not defamatory, particularly since plaintiff held the public office of county auditor by appointment at the time of the alleged libelous publication, and had announced her candidacy for the nomination for the succeeding years, and was conducting an active campaign. She had been disseminating information to the public in an attempt to obtain wide public support. It is contended that under such circumstances she invited public criticism, and everyone became entitled to free discussion of her past activities, character, background, and fitness for office. It is asserted that plaintiff’s rights of privacy which might have been violated had she not been a candidate for public office, could under such circumstances be invaded, and she became a legitimate subject of such comment and criticism as was properly intended to further public welfare.

The basic question before this court on appeal is whether the publication referred to is libelous per se. The determination of this issue is a question of law for the court (1870 Constitution of Illinois, Article 2, Section 4; Ogren v. Rockford Star Printing Co., 288 Ill. 405, 417; Dilling v. Illinois Publishing & Printing Co., 340 Ill. App. 303, 307; Kulesza v. Chicago Daily News, Inc., 311 Ill. App. 117, 123). As the court stated in the case of Dilling v. Illinois Publishing & Printing Co., supra (at page 307), “ ‘One who by his activities and by written or spoken language attempts to influence public opinion in any way is subject to the free and honest criticism of his efforts by members of the public . . . .’ Hence defendants’ right of fair comment in a matter of public interest was properly presented for determination by their motion to dismiss, and it was unnecessary to plead this right as an affirmative defense.”

Our Supreme Court has determined that when anyone becomes a candidate for public office, which is conferred by the vote of the people, he is considered as putting his character in issue insofar as it may respect his fitness and qualifications for the office, and everyone may freely comment on his conduct and actions. His acts may be canvassed and his conduct boldly censured (Ogren v. Rockford Star Printing Co., supra, at page 417).

In testing the libelous character of such commentary the courts have consistently determined that comments or criticisms are not libelous however severe in their terms, unless they are written maliciously (Kulesza v. Chicago Daily News, Inc., supra, at page 123). The alleged slanderous words when susceptible of such interpretation will receive an innocent construction by interpretation, and cannot by innuendo, be extended beyond a reasonable construction (Creitz v. Bennett, 273 Ill. App. 88).

A number of cases have given considerable attention to criticisms substantially similar in nature and which have been potentially more derogatory in nature, such as statements in a campaign for sheriff to the effect. “It is no wonder that these crooks are for him and boast that they will run the county for the next four years.” The court stated in connection with such matters (Davis v. Ferguson, 246 Ill. App. 318, 327), “It may be conceded that the publications do not charge appellant with the commission of any crime, nor with the expression of principles subversive of government. . . . [P. 331.] To say that appellant had done nothing in the enforcement of law, ... is not libelous per se. . . . It was not libelous per se to charge that thieves, burglars, bank robbers, . . . , were supporting appellant for sheriff and boasting that they would run said county for the next four years, because the law will presume that their support was induced wholly by their preference for appellant . . . and . . . may refer entirely to politics . . . , and does not tend to show any criminal connection ... or impugn his honesty or integrity. . . .” To make such publication libelous per se, the court indicated, “ ‘The conduct charged must be of such a nature as to reflect upon the character and integrity of the plaintiff and to subject him to a loss of public confidence and respect; and a writing, although charging wrongful conduct or dereliction of duty, is not libelous per se, within the meaning of the rule, unless it imputes a dishonest or fraudulent motive or interest.’ ” Testing the present publication by such cases it could not fairly be said that there was any charge of dishonesty in the publication referred to. Certainly it is difficult to sustain any theory upon which the publication could be deemed as libelous per se since nothing specifically is charged in the language contained in the communication which comes within the definition of such libels.

Under similar circumstances the courts of this State have, likewise, pointed out that political leaders are subject to criticism and ridicule which is not taken seriously by the reading public. There is no charge in the publication that plaintiff performed an act or omitted any duty which would render her liable to criminal prosecution (McLean v. Caverne, 175 Ill. App. 273). There was a charge.that she kept books for her father, which plaintiff admitted; and that there were over $50,000 in claims filed against her father’s estate, which plaintiff admitted.

Since the publication was not libelous per se plaintiff had the burden of proving malice, falsity, and special damages, in order to justify submitting the case to the jury. The record discloses that she failed to show that there was any malice, and did not plead, nor submit any evidence of special damages. As stated by the court in Campbell v. Morris, 224 Ill. App. 569, 571, “Unless the language used is libelous per se, a plaintiff must aver in his declaration that special damages have resulted, stating what they are and prove it on the trial. It is not sufficient to allege generally, that he was damaged.”

Excluding the evidence of witnesses as to what they understood about a publication was proper. As stated in Ogren v. Rockford Star Printing Co., supra (at page 413), “Where the words are ambiguous or equivocal in meaning, the question of the meaning to be ascribed to them is for the jury, although the question as to whether or not any particular meaning is libelous is for the court. . . . Plaintiff offered witnesses to prove that by the language of the articles they understood the words in question to be spoken of and concerning plaintiff, but on objection the court refused to admit the evidence. . . . where the language is clear and unambiguous, as it is in this case, ... no such evidence is admissible for plaintiff in the first instance, but if the defendant disputes the fact and offers evidence to prove it . . . then it would be proper for plaintiff to offer proof on the question in rebuttal. No such evidence was given for the defendant and we hold that the court did not err in this particular.”

As has been observed by other specialists in the field of the Law of Libel and Slander, a trial would result in a war of witnesses, if innuendo could be proved by witnesses, with each side declaring the words were to be differently understood. The proposed evidence as to what the witnesses understood the language to mean was properly rejected by the trial court.

Obviously, on the record before us, no liability was shown as to defendant, P. H. Wire, under the precedent of the Kulesza v. Chicago Daily News case, supra, but in view of the fact that the court properly sustained the motion for directed verdict and entered judgment for both defendants, it is not necessary that we treat this subject further in this opinion.

The judgment of the circuit court of St. Clair county was obviously proper and will, therefore, be affirmed.

Judgment affirmed.

Soheineman, P. J. and Bardens, J., concur.