author: JUSTICE EOYALDI

text:
    Albert S. Villegas, Jr., a Minor, by Josephine Villegas, His Mother and Next Friend, Plaintiff-Appellant, v. Emerson K. Kercher, Administrator of Estate of Edward H. Kercher, Deceased, and Electrolux Corporation, Defendants-Appellees.
    Gen. No. 10,944.
    Second District.
    August 22, 1956.
    Released for publication September 25, 1956.

      Kramer & Kramer, of Elgin, for appellant; Robert B. Kramer, of Elgin, of counsel.
    Charles G. Seidel, of Elgin, for appellee Emerson Kercher; George D. Carbary, of Elgin, for appellee Electrolux Corporation.
   JUSTICE EOYALDI

delivered the opinion of the court.

This action was brought to recover damages suffered by the plaintiff occasioned by the alleged negligence of defendant administrator’s decedent in driving his automobile while acting as a salesman and agent of the defendant, Electrolux Corporation. At the close of all the evidence, the court granted the motion of both defendants for directed verdicts, instructed the jury to find both defendants not guilty, upon which instructions the jury rendered a verdict for the defendants. The court entered a judgment on the verdict, and later denied plaintiff’s motions for a judgment notwithstanding the directed verdict-, and for a new trial, from which this appeal is taken. To the plaintiff’s allegations of negligence, the administrator filed a general denial of negligence and injury; and for a further plea in defense of. the case, said that at and immediately prior to the occurrence in question, the said Edward H. Kercher, now deceased, had departed this life and was dead. The corporation filed a general denial of negligence and injury, admitted deceased’s agency during his lifetime, neither admitted nor denied deceased was in the scope of his employment at the time of the occurrence ; and for a further defense, said that at or immediately prior to the occurrence in question said Edward H. Kercher had departed this life and was dead, and that the cause of his death was a cerebral hemorrhage, or that immediately prior to the occurrence in question, life was leaving the body of the decedent, that he was unconscious and died immediately thereafter. Plaintiff’s replies denied both defendants’ affirmative defenses.

The plaintiff’s theory is that as a matter of law the decedent was guilty of negligence as charged, that he was a salesman and agent of the corporation and acting within the scope of his employment at the time of the occurrence, that the defendants failed to meet their burden of proof of their affirmative act of Grod defense by a preponderance of the evidence, or by any evidence, and that the trial judge should have granted the plaintiff a judgment notwithstanding the directed verdict ; or, in the alternative, the trial judge should have denied defendants’ motions for directed verdicts and allowed the decision to go to the jury.

The appellees contend that the trial court should have instructed the jury, as he did, to find the defendants not guilty, since all reasonable minds would conclude from the evidence that the plaintiff had not proven his case.

Plaintiff, Albert S. Villegas, Jr., was a five-year-old school boy on October 1,1953 when the injuries in question were suffered. Edward H. Kercher was an agent and salesman for the corporation. Electrolux furnished their salesmen with a kit and vacuum cleaner and sent them out after sales-meetings to sell house to house or by contact. Salesmen sold any time of the day or evening, usually in the customer’s home, and in any area. When a sale was made, a contract was signed by the salesman and the buyer, and the sale was consummated. The salesman received a commission and the corporation made a profit.

Edward Kercher made an appointment with Mrs. Martin Skok, Jr. for the evening of October 1, 1953 and came with his cleaner, giving a demonstration from about 7:30 p.m. to 8:30 p.m. or 8:45‘ p.m. at the Skok home. A contract was signed and Mrs. Skok made a purchase about 8:30 p.m. A cleaner was left with her. On October 11,1953 she paid for the machine by check to George Scbini, who was the manager of the Waukegan branch where Kercher was employed. Kercher lived at Cedar and Cooper Avenues in Elgin, east of the Fox Biver, in the northeast corner of Elgin. Mrs. Skok lived at McClure and Lawrence, four blocks west of the river and Kimball Street Bridge. North Grove Avenue is the first block east of the river and Cherry Street is the third block north of Kimball Street. The contract between Mrs. Skok and Edward Kercher was ratified by the corporation, a commission was paid on the sale, and a profit was made by Electrolux.

Edward Kercher left the Skok home between 8:30 p.m. and 8:45 p.m. in his auto, a Buick four door sedan. George Harvey, sometime about 8:30 p.m., saw Kercher’s car approach North Grove on Cherry Street from the east. The car was estimated as going twenty to twenty-five miles per hour. The car ran the stop sign, turned right (north) with its parking lights on, its right turn signal blinking, and with its tires squealing. It did not slacken its speed or weave. At the second house from the corner, after running on the west side of North Grove, the car went over a six to seven inch curb, bumping a utility pole and continued directly over the narrow Villegas front yard between the sidewalk and trees and the house. It struck the plaintiff who was in the yard or on the walk, knocked the Villegas car in the street, and finally came to a stop against the Atlas Boiler Company brick wall. Plaintiff was knocked into semi-consciousness and deep shock and suffered a compound comminuted fracture of the left femur. At the time of the trial, it was the opinion of his doctors that he had a permanent ten per cent loss of flexion and use of the left leg due to his injury.

Cherry Street is downhill as it approaches Grove from the east. There were no cars parked on Grove. It was fairly dark, there was no precipitation. The roads were dry, concrete surfaced and average width. The car was estimated to have gone about 225 feet from the corner of Cherry north to the point where it was stopped by the Atlas Boiler building brick wall. It was about a 90 degree turn from Cherry Street onto Grove Avenue.

Harvey testified further that he saw Albert Villegas, Sr. (since deceased), holding plaintiff and that he then went over to the Kercher car which was up against the wall of Atlas Boiler. “The window on the left hand was open but first I noticed when I walked up there, the right blinker was still working. Then I walked to the side of the car and the window was open and the man was slumped over the steering wheel with his head bent forward.” He testified that a hat was in the middle of the seat, and a set of false teeth; and that it was approximately five to ten minutes before the police came. On cross-examination by the attorney for one of the defendants, witness Harvey testified that Kercher was seated in the left front seat of the car bent over the steering wheel. The car engine was stopped. Next to Kercher on his right and on the seat were a set of teeth and a hat alongside the teeth. “I only saw one plate not two plates and I don’t know whether it was upper or lower. Kercher didn’t speak or look at me. I don’t know whether he was unconscious. The hat was not on his head; it was on the seat.” On cross-examination by the attorney for the other defendant, witness Harvey stated that Kercher made no movements that he saw. “ . . . There was no indication of life that I saw. . . . Kercher remained in the same position.” On re-direct examination, witness Harvey testified “I didn’t touch or do anything to Kercher.”

Norman A. Palmer, testified for plaintiff, that he was a son-in-law of witness Harvey; that he lived upstairs, at 52 Cherry Street, Elgin, and that he was upstairs watching television when he heard the squealing of brakes. He got up and looked out the window facing Cherry Street and didn’t see anything. “Then I heard a sound like two wagons banging together and soon after a louder bang. I ran downstairs.” He went to the scene, saw no police around, and stayed with Villegas, Sr., until the first squad car came, then went to the Kercher Buick which was up against the wall. “There was a fellow sitting or slumped over the wheel, in the car. I didn’t talk to the man.” On cross-examination he testified the man in the Buick was slumped directly over the wheel. “His head was laying on the wheel and he had no hat on. I didn’t notice a hat or false teeth in the car or whether his mouth was open. I saw no bruises or blood on Kercher. I didn’t observe him closely. I just looked in there and walked off. I noticed no signs of life. I don’t know where his arms were.”

David Henry McBride testified for plaintiff that he was secretary of the company, and in charge of the service department of same, which sold the 1953 Buick Roadmaster to Edward H. Kercher in 1953; that all of those models had turn signals as standard equipment, including the Kercher car; that the direction signal lever was located on the left side of the steering post, underneath the steering wheel, and it was to be operated manually. “For a left turn you would pull down on the lever and for a right turn you would turn the direction of the steering wheel and turn it up. And you had signal indication that would flash on the left or right both in the front and rear. This signal is operated only manually by the use of a hand or arm. The left hand is usually most convenient. Moving it up would give you the right hand turn and pulling it down would give you the left turn. Without this the signal stays in neutral and nothing happens.” On cross-examination he stated that the turn signals automatically are shut off as soon as the car comes back into a 45 degree angle. “As soon as the wheel is brought back from the turn to approximately a 45 degree angle, it would turn off.”

On behalf of defendants, Dr. Andrew J. Nowakowski testified that about 9:00 p.m. he received a call from the police department; that he drove from his office to the hospital, and was told to see E. H. Kereher. “I went to the ambulance drive and found a dead man. I examined the body. I found unequal pupils and no bleeding from the head. This indicated death from either a cerebral hemorrhage or coronary thrombosis. I found no fractured ribs, no contusions or abrasions. From the chest up the body was cyanotic or blueish color. Badly cyanotic. This indicates cerebral hemorrhage. That indicates this man had a massive cerebral hemorrhage and he died suddenly — instantly or within a minute or so.” On cross-examination the doctor admitted that no autopsy was held on Kereher, and that the above was his presumptive diagnosis. “It might have been a coronary occlusion. Without an autopsy, it would be difficult to say which was the cause of death. A stroke is a cerebral hemorrhage.”

Norman D. Smith, an Elgin City policeman, testified for defendant that he was cruising in a squad car with officer Santanni and at about 8:51 p.m. received a call to go to the scene of an accident, arriving there about two minutes later. “We saw Mr. Villegas with the child and the Kereher car. Another squad car came up a minute or two later. I saw Kereher in the Buick and noticed no signs of injury. Kereher was leaning straight ahead over the steering wheel with his head on his chest. His arms were just dropped at his side. I was unable to find any pulse or breathing. His mouth was somewhat open. His teeth were laying on the seat just to the right of him. I don’t remember seeing a hat or glasses. My opinion was that Kereher was dead when I saw him.” On cross-examination he stated, “My report shows that the man in the Buick was unconscious and doesn’t say he was dead. We don’t send persons to the hospital if they are dead. We sent Mr. Kereher to the hospital by ambulance. We didn’t know he was dead at that time.”

Officer Santanni testified as to receiving the call with Lt. Smith and going to the car. “I noticed the left turn signal was on. I opened the door and a man was slumped over the steering wheel. He was leaning forward and his head was resting on the wheel. His arms were in his lap. Glasses and upper false teeth were on the seat to the right of the man. I don’t recall seeing a hat. I made an examination of his pulse and couldn’t get a heartbeat. The man’s mouth was open. I know the man to be Mr. Kercher. There was no evidence of life in the man. He was sent to the hospital in an ambulance. My opinion was he was dead.” On cross-examination he testified that he knew that the left rear blinker was going but he didn’t know about the front one. “We sent him to the hospital for medical treatment, if necessary.”

It is contended by appellant that the court erred in not admitting in evidence a photograph of the plaintiff in traction. The trial court did not abuse its discretion in denying this exhibit. There was ample evidence as to the boy’s -condition and as to the length of time he was in the hospital in traction. Dr. Howard Knight testified in detail as to the injury sustained by plaintiff, as to the length of time the plaintiff’s leg was in traction and as to the opportunities he had to observe the plaintiff in bed and in traction. The boy’s mother testified as to his leg and condition of health before and after the injury sustained on October 1, 1953; as to his treatment, disability and number of days in the hospital, and as to his five-month loss of schooling. Under this state of the record, the rulings were within the discretion of the trial judge and we are not inclined to disturb same.

Complaint is made by plaintiff as to the trial court’s refusal to allow plaintiff to demonstrate his injuries to the jury. In Stegall v. Carlson, 6 Ill.App.2d 388, at p. 391, this court had occasion to review the authorities on this subject and we held that plaintiff should have been permitted to demonstrate the nature and extent of his injuries, or disability, resulting therefrom. We adhere to that decision. While the defendants did not object to plaintiff standing before the jury and allowing the jury to observe his legs, they did object to the attempt by the plaintiff’s attorneys to have the witness “bear down and bend his leg.” The court sustained the objection to this request. In Springer v. Chicago, 135 Ill. 552, wherein damages were sought against the city of Chicago because of the construction of a bridge and viaduct, the Supreme Court reviewed the authorities from other jurisdictions in accident cases, and stated, p. 562, as follows:

“It was also held in Hatfield v. Railroad Co., 33 Minn. 130, on the trial of an accident case, that the trial court had the power to require the plaintiff to walk across the court room, in the presence of the jury, in order that the jury might see how she had been affected by the injury. It is there said: ‘As the object of all judicial investigations is, if possible, to do exact justice and obtain the truth in its entire fullness, we have no doubt of the power of a court, in a proper case, to require the party to perform a physical act before the jury that will illustrate or demonstrate the extent and character of his injuries.’ This is in accordance with analogous cases in other branches of the law.”

Defendants contend that the trial court properly granted their motion for directed verdict, relying on the proposition of law that where a loss or injury is occasioned by natural causes, such as could not be prevented by human skill and foresight, then the loss or injury is due to the act of God, for which defendants are not liable. Five cases are cited by defendants to support this contention. One of the cases relied on is Blue v. St. Clair Country Club, 4 Ill.App.2d 284, which

was reversed and remanded by the Supreme Court in 7 Ill.2d 359, 131 N.E.2d 31. Tbe principal case relied on by defendants is Wald v. Pittsburg, C., C. & St. L. R. Co., 162 Ill. 545, wherein an unprecedented flood caused the baggage of a passenger to be swept away and the defense was, as in our case, that the loss was occasioned exclusively by natural causes, such as could not be prevented by human care, skill and foresight. At the close of all the evidence the court instructed the jury, as requested by defendant, that plaintiff was not entitled to recover, and that a verdict should be returned for defendant. On the verdict so returned, judgment was entered, and this judgment was affirmed by the Appellate Court. The case was brought to the Supreme Court under a certificate of importance. The Supreme Court reversed and remanded stating that this was a question of fact and that the common carrier was not exempt from liability for a loss occasioned by an act of God if the carrier had been guilty of any previous negligence which brought the property in contact with the destructive force or unnecessarily exposed it thereto, and that unnecessary delay of the carrier which subjected the goods in its possession to a loss by an act of God which they would not otherwise have met with was of itself such negligence as would make the carrier liable for the loss. To the same effect is another case relied on by defendants, Sandy v. Lake St. El. R. Co., 235 Ill. 194, wherein the court held, at p. 202, “If there is any intervening human agency which contributes to cause the damage it cannot be considered as caused by an act of God.” Defendants rely on McClean v. Chicago G. W. Ry. Co., 3 Ill.App.2d 235. This case is also cited by plaintiff, and will be referred to hereinafter. The remaining case cited by appellee is Welfelt v. Illinois Cent. R. Co., 149 Ill. App. 317. That case also held, at p. 326:

‘A loss or injury is due to the act of God when it is occasioned exclusively by natural causes such as could not be prevented by human care, skill and foresight.’ ‘If there is any intervening human agency which contributes to cause the damage it cannot be considered as caused by an act of God.’ ”

Appellant contends that there was ample evidence in the record to take the case to the jury. In McClean v. Chicago G. W. Ry. Co., supra, the court held that the defense of an act of God was an affirmative defense and that it was for the jury to determine whether the driver of the defendant’s truck had an attack of illness. In Meyer v. Buckman, 7 Ill.App.2d 385, we held that the party asserting an affirmative defense had the burden of proving such defense. In the case of Geraghty v. Burr Oak Lanes, Inc., 5 Ill.2d 153, the Supreme Court held, at pp. 163-164:

“It is fundamental law in our jurisprudence that all controverted questions of fact, in a jury trial, must be submitted to the jury for decision. This is primarily the exclusive function of the jury, and to withhold such questions from its consideration is to usurp its function.”

A motion for a directed verdict or for a judgment notwithstanding the verdict presents the single question whether there is in the record any evidence which, standing alone and taken with all its intendments most favorable to the party resisting the motion, tends to prove the material elements of his case. Seeds v. Chicago Transit Authority, 409 Ill. 566; Lindroth v. Walgreen Co., 407 Ill. 121 at p. 130; Gorczynski v. Nugent, 402 Ill. 147, 156; Weinstein v. Metropolitan Life Ins. Co., 389 Ill. 571, 576. We are not concerned with the weight or credibility of the evidence, but only with the narrow question whether there is any evidence, together with all reasonable inferences to be drawn therefrom, which would justify submission of the case to the jury. Lindroth v. Walgreen Co., supra, at p. 130.

Examination of the evidence in this case discloses that plaintiff, without fault, was seriously injured as a result of being run over by deceased’s car. Deceased Edward Kercher was driving his Buick Roadmaster sedan down Cherry Street, which was a fair grade. He had, within minutes before, made a sale as an employee of the Electrolux Corporation in the customary manner. The scene of the occurrence (Grove Avenue north of Cherry) was between his residence (Cedar and Cooper) and the place of the sale (McClure and Lawrence). His parking lights were on. His right blinker, indicating a right turn, was in operation; his car turned the corner; his tires squealed. All of these actions required the exercise of judgment. The evidence further shows that the car went on the west side of Grove Avenue, jumped the curb and humped the utility pole a glancing blow on the yard side. The six to seven inch curb did not deflect the driver into either the house or the pole, but the car proceeded through the relatively narrow space between the Villegas house, and the pole and the trees, as shown in photograph marked plaintiff’s exhibit 5. The objects struck were a small boy, difficult to see, and an automobile parked in the dark, without lights, and finally a brick wall where the car came to a stop. We are called on by appellees to say that all minds would agree that Kercher was either dead, or in the process of dying, during this entire period of time. It can as easily he contended that his death was caused as a result of going through this harrowing experience, during all of which time he was able to maneuver his car past and between immediately visible obstructions. It can as easily be contended that he had been dozing, that as a result thereof he had no proper and sufficient control over his car and did not keep a proper lookout, and when he struck the curb this brought him hack to his senses and he was able to operate his car. After the impact his glasses, his upper plate and his hat were all resting on the seat beside him. It can as easily be contended that his hat, his plate and his glasses were placed on the seat by him, as it can be said that these were thrown there by the resultant shock of the collision. While Dr. Nowakowski testified that he went to the ambulance drive at the hospital and found a dead man and gave his presumptive diagnosis that deceased Kercher died suddenly, his language was qualified by stating, “This indicated death from either a cerebral hemorrhage or coronary thrombosis. . . . From the chest up the body was cyanotic or blueish color. Badly cyanotic. This indicates cerebral hemorrhage. That indicates this man had a massive cerebral hemorrhage and he died suddenly.” He admitted on cross-examination that no autopsy was held on Kercher and that without an autopsy “it would be difficult to say which was the cause of death.” We cannot say that all reasonable minds would reach the conclusion suggested by defendants. We cannot say as a matter of law that the injury in this case was occasioned exclusively by natural causes, such as could not have been prevented by human care, skill and foresight.

For the error of the trial court in directing verdict in favor of the defendants, the cause is reversed and remanded for a new trial.

Reversed and remanded.

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


source: Caselaw Access Project

author: PRESIDING JUSTICE REYNOLDS

license: Public Domain

text:
    Illinois Power Company, Plaintiff-Appellee, v. Vetrice E. Miller, et al., Defendants-Appellants.
    Gen. No. 10,056.
    Third District.
    September 10, 1956.
    Released for publication September 26, 1956.

      Hutton, Clark and Hutton, of Danville, for defendants-appellants.
    Acton, Baldwin, Bookwalter and Meyer, of Danville, and Fred P. Schuman, of Granite City, for plaintiffappellee.
   PRESIDING JUSTICE REYNOLDS

delivered the opinion of the court.

This case arises out of the construction, operation and maintenance of a 138 KV. electric transmission line by the Illinois Power Company, in Vermilion County and Champaign County. The Hlinois Commerce Commission authorized the construction of the line and the power company began the acquisition of the right-of-way for the line, either by consent easements or by condemnation. The power company did not seek title to the land needed, but only a perpetual easement over a strip of land 50 feet in width, with the right of access for maintenance and operation. For condemnation purposes and possibly for identification, the tracts were numbered. Only three tracts are involved on appeal, namely Tracts Nos. 10, 11 and 14. Tract No. 13 was involved in the trial in the Circuit Court, but is not involved in this appeal.

The power company secured an easement for Tract No. 10, but was- unable to secure easements from the owners of Tracts Nos. 11 and 14, and condemnation proceedings were instituted in the Circuit Court of Vermilion County against Vetrice E. Miller, and James Miller, as owners of Tract No. 11, and against the Equitable Life Assurance Company, as mortgagee; against Mary Illk, Glenn Illk and Gladys Illk, as owners of Tract No. 14. The condemnation suit proceeded to trial and condemnation was ordered and the jury awarded compensation to Yetrice and James E. Miller as to Tract No. 11 and to Glenn Illk, Mary Illk and Gladys Illk, as to Tract No. 14 for land occupied by tbe poles of the power company, use of the right-of-way strip, and for damages to the lands of said owners. The jury awarded compensation to Yetrice Miller and James E. Miller in the amount of $1,751.01 and the sum of $648.91 to Mary, Gladys and Glenn Illk. The amount of the judgment was paid by the power company to the County Treasurer and the money was in turn paid by the Treasurer to the Millers and the Hlks.

Later, when the power company began the construction of its transmission line, Wendell Miller, claiming to be a tenant on Tracts Nos. 10 and 11, and Harold Long, claiming to be a tenant on Tract No. 14, refused it permission to erect the line.

The power company then instituted the present suit, which prayed for a declaratory judgment and injunction against Yetrice E. Miller, James E. Miller, Wendell Miller, Howard Richter, Glenn Illk, Gladys Illk, Mary Illk, Prank Hayes, Harold Long, Percy E. Stephens, Ruth Stephens, and D. E. Hager. In the alternative the power company prayed condemnation under the Eminent Domain Law and judgment against the tenant defendants, and for judgment over against the owner defendants, for the amount of any award returned by a jury in favor of the tenant defendants. The court overruled motions to strike and dismiss the complaint and upon trial without a jury rendered a declaratory judgment and decree in favor of the plaintiff against all defendants for the declaratory relief prayed. Seven of the defendants, namely Yetrice E. Miller, James E. Miller, Wendell Miller, Harold Long, Glenn Illk, Gladys Illk and Mary Illk have prayed an appeal to this court.

For the purposes of this appeal it is not necessary to discuss any matters concerning those defendants who did not appeal, namely Howard Richter, Frank Hayes, Percy E. Stephens, Ruth Stephens and D. E. Hager.

In reciting the facts as they appeared in evidence, it is best to discuss each tract separately.

Tract No. 10.

This tract was owned by Willis E. Penfield and Marshall Gr. Penfield and was managed by the Second National Bank of Danville, Illinois. The land was an 80 acre tract, and no one resided on it. Elmer Smith, farm manager for the Second National Bank of Dan-ville, testified that he managed the Penfield land; that he leased the land to J. E. Miller by written lease in 1949 for a term from March 1, 1949 to February 28, 1950; that after the expiration of that lease, J. E. Miller, who is the same James E. Miller, who resides on and is part owner of Tract No. 11, continued on as a tenant on a year to year basis until January 5, 1955, when another written lease was entered into between Smith, as manager, and James E. Miller as tenant, this second lease to run from March 1, 1955 to February 28, 1956. Wendell Miller, son of James E. Miller and Yetrice E. Miller, also claimed to be a tenant on the Penfield land, but there was no testimony as to a lease between Wendell Miller and the bank. It was Wendell Miller who refused permission to the power company to erect the line across the Penfield land. If Wendell Miller had any lease or was a tenant on the Penfield land it was as a sub-lessee of his father and was oral.

Tract No. 11.

This tract was owned by Yetrice E. Miller and James E. Miller as owners of record. There was a mortgage to The Equitable Life Assurance Society of the United

States. This tract was a compact farm of 320 acres. Wendell Miller lived on the farm, and claimed to be a tenant but there was no written lease agreement between himself and his parents.

Tract No. 14.

This tract was a 96 acre farm which was part of a larger, compact farm of 268 acres. It was owned by Mary Illk, Glenn Illk and Gladys Illk, as owners of record. No one lived on the 96 acre tract, but Harold Long claimed he had a written lease to farm the land for three years, the lease expiring March 1956.

None of the leases were a matter of record, and the power company in the original condemnation proceeding proceeded only against the owners of record.

The appellants raise five points on appeal. One, that the Declaratory Judgment Act does not apply to a cause of this nature. Second, that the declaratory judgment of the trial court was erroneous. Third, that the finding of fact by the court as to the interest of defendant Wendell Miller as to Tract No. 11 was unsupported by any evidence. Four, that the finding of fact by the court as to the interest of defendant James E. Miller as to Tract No. 10 is contrary to law and the evidence. Five, that the complaint was multifarious.

The first point raised by the appellants is that a declaratory judgment action is not the proper proceeding to determine questions of construction or validity of a judgment rendered in another suit, nor to elucidate or declare rights or legal relations of plaintiff and persons thereunder who were not parties to such prior judgment. In support of this position the appellants cite a number of decisions of other jurisdictions, but only one from Illinois. The one cited from Illinois, Burgard v. Mascoutah Lumber Co., 6 Ill.App.2d 210, referring to decisions from other states said this: “Since this statute was enacted in 1945, not many cases thereunder have reached our courts of review. However, this statute is quite similar to those of Kansas and Kentucky, and other States, which have been in effect much longer, therefore we refer to precedents from other jurisdictions.” Because the Illinois statute is an adaption of the declaratory judgment law of a number of States, it is almost necessary that reference be made to the decisions of other jurisdictions to determine the intent of our own lawmakers. The Illinois statute is essentially the form of the Michigan declaratory judgment statute, with adaptions taken from English Order XXY, Buie 5, and the Uniform Declaratory Judgment Act (9 Uniform Laws Annotated). The Michigan act was patterned after the Kansas statute, and the provisions of the Illinois act bear striking resemblance to the Kentucky statute. But, the cases cited by the appellants do not bear out their contention as to the instant case. It is true that the case Heller v. Shapiro (Wis.), 242 N. W. 174, 175, held that the Wisconsin act was not intended to elucidate, •modify or declare rights under an existing decree. In the ease of Ladner v. Siegel (Pa.), 144 Atl. 274, 276 that court held that the Declaratory Judgment Act of Pennsylvania was not designed to secure interpretation of judicial decrees already entered. And in the case of Back’s Guardian v. Bardo (Ky.), 27 S.W.2d 960, 963, that court held that the Declaratory Judgment Act could not entertain a suit to determine whether a former judgment or the proceeding leading to the former judgment were legal and proper. In other words, as this court interprets those decisions, those courts held that a court acting under the declaratory judgment law could not interpret, define, elucidate, or declare rights under a former judgment or decree. Insofar as any part of the decision in this case attempts to define, interpret, enforce or declare rights under the condemnation suit between the Hlinois Power Company and the owners of record, namely Vetrice E. Miller, James E. Miller, as owner of Tract No. 11, Glenn Illk, Gladys Illk and Mary Illk, we must hold it improper under the Declaratory Judgment Act. Those rights were determined and settled in the original condemnation suit. But does this mean that the court could not determine under the Declaratory Judgment Act, the rights of the Illinois Power Company, and the rights of those claiming as tenants of the lands involved in the original condemnation suit? To properly pass upon that point, we must look to the words of the Illinois act itself. 181.1 (Civil Practice Act Section 57%) Declaratory Judgments. Chapter 110, Illinois Revised Statutes 1953, says: .

“ (1) No action or proceeding in any court of record shall he open to objection on the ground that a merely declaratory judgment, decree or order is sought thereby, and the court may, in cases of actual controversy, make binding declarations of rights, having the force of final judgments, whether or not any consequential relief is or conld be claimed, including the determination at the instance of anyone interested in the controversy, of the construction of any statute, municipal ordinance, or other governmental regulation, or of any deed, will, contract or other written instrument, and a declaration of the rights of the parties interested, but the foregoing enumeration shall not exclude other cases of actual controversy.”

Prom a reading of the statute it is clear that there must be an actual controversy. Certainly in this case there is an actual controversy between the persons claiming as tenants and the power company. There is an actual controversy as to whether or not they were entitled to damages, whether or not the construction of the power transmission line would invade their rights, and whether or not under the Eminent Domain Act, they were entitled to have their day in court. And referring again to the case of Burgard v. Mascoutah Lumber Co., 6 Ill.App.2d 210, at page 219, that court in considering the general purpose of the statute and viewing the precedents on the subject, said: “If the complaint fails to show a controversy exists, or that the question involved is moot, the suit should be dismissed on motion. But if an actual controversy is disclosed and is adjudicated by the court, whether upon demurrer or motion or otherwise, the suit should not be • dismissed; the proper practice is for the court to enter an order declaring the rights of the parties as was done in this case. Obviously, to avoid needless duplication, this rule is especially necessary where factual issues have been litigated and decided..

“There is no technical form prescribed for the declaration of rights; it is sufficient if the rights may be ascertained therefrom in connection with the findings of court or jury in view of the controversy presented. R. G. Hamilton Corp. v. Corum, 218 Cal. 92, 21 P.2d 413.” And in the Burgard case the court further defined the purpose of the statute by saying: “The ultimate purpose is to secure a declaration of rights binding upon both parties, regardless of which may prevail.”

In the ease of Jones v. Hodges, 2 Ill.App.2d 509, at page 515, this court said: “A declaratory judgment was unknown to the common law, is a creature of the statute and the Act providing for such an adjudication is to be liberally construed.” But, this court continuing, said: “The provisions of the statute are to be strictly complied with and the prescribed rules of procedure followed.” In other words, while the rules of procedure must be strictly adhered to, the act itself providing for declaratory judgments shall be liberally construed. But, this does not mean that the Declaratory Judgment Act was designed to supplant existing remedies, but is an alternative or additional remedy to facilitate administration of justice. Coven Distributing Co., Inc. v. Chicago, 346 Ill. App. 448.

In the light of the few cases which have passed upon this question, and from a reading of the statute itself, this court is constrained to interpret the statute liberally and hold that this case comes within the intent and provisions of the Declaratory Judgment Law of Illinois, and that the Circuit Court had full authority to hear and pass upon the controversial questions involved. As to point 2 of the appeal, we must hold that having authority to hear the cause under the Declaratory Judgment Act carries with it the authority to settle the rights between the parties in this case.

Points Nos. 3 and 4 of the appellants’ appeal all involve an interpretation of the Eminent Domain Act, and a decision as to who are necessary parties.

Under the Eminent Domain Act, Chapter 47, Illinois Revised Statutes, Section 2, in part provides: “. . . it shall be lawful for the party authorized to take or damage the property so required, or to construct, operate and maintain any public road, railroad, plankroad, turnpike road, canal or other public work or improvement, to apply to the circuit or county court of the county where the said property or any part thereof is situated, or to the judge thereof in vacation by filing with the clerk a petition, setting forth, by reference, his or their authority in the premises, the purpose for which said property is sought to be taken or damaged, a description of the property, the names of all persons interested therein as owners or otherwise, as appearing of record, if known, or if not known stating that fact and praying such court or judge to cause the compensation to be paid to the owner to be assessed. If the proceedings seek to affect the property of persons under guardianship, the guardians, or conservators of persons having conservators, shall be made parties defendant, and if of married women their husbands shall also be made parties. Persons interested, whose names are unknown, may be made parties defendant by tbe same descriptions and in the same manner as provided in other civil cases.”

Section 11 provides: “Any person not made a party may become snch by filing his cross petition, setting forth that he is the owner or has an interest in property, and which will be taken or damaged by the proposed work; and the rights of such last named petitioner shall thereupon be fully considered and determined.”

There can be no question that leasehold interests are property rights that can and will be compensated for in condemnation proceedings. The law in Illinois is well stated in the case of Leonard v. Autocar Sales & Service Co., 392 Ill. 182, at pages 190 and 191, where the court there said: “The right of eminent domain is an inherent attribute of sovereignty. It is defined as the right of the Nation or State, or those to whom the power has been lawfully delegated, to condemn private property for public use, and to appropriate the ownership or possession of such property for such use, upon paying the owner just compensation, to be ascertained according to law. (Sanitary Dist. v. Manasse, 380 Ill. 27.) It extends to every kind of property, including not only that which is tangible, but all rights and interests of any kind. (South Park Com’rs v. Montgomery Ward & Co., 248 Ill. 299). The right of the citizen to own, possess and enjoy his property must necessarily give way to the right of the sovereign to appropriate it to public uses, when, in the judgment of the sovereign power, public interest will be promoted. (Penn. Mutual Life Ins. Co. v. Heiss, 141 Ill. 35.) A lessee, as tenant of an estate for years, takes and holds his term in the same manner as any other owner of real property holds his title, subject to the right of the sovereign to take the whole or any part of it for public use, upon the payment to him of just compensation. (Corrigan v. Chicago, 144 Ill. 537; Stubbings v. Village of Evanston, 136 Ill. 37.) That appellant is entitled to receive from the government full compensation for so much of its leasehold estate as is appropriated to public use and thereby obtain complete indemnity for its loss is not open to question. (United States v. General Motors Corp., 323 U. S. 373, 65 S. Ct. 357.)”

And it is equally true that the decree or order of condemnation does not bind any proper party to the condemnation, unless due service was had on such party. St. Louis and Cairo R. Co. v. Postal Tel. Co., 173 Ill. 508; South Park Com’rs v. Livingston, 344 Ill. 368. The question arises, whether or not the holder of an unrecorded or oral lease is a proper party. The Eminent Domain statute requires that the petition contain the names of all persons interested therein as owners or otherwise, as appearing of record. In support of their contention that the tenants here were necessary parties, the appellants contend that the case of Hooper v. Finlay, 331 Ill. 132 is not in point; that it does not say that only owners of recorded interests are necessary parties; that it does not say that unrecorded tenants are unnecessary parties, and that it does not say that where there is actual or constructive notice of an unrecorded interest, the owner thereof is an unnecessary party. But the Hooper v. Finlay case, supra, does say this: “The statute in this State, as we have seen, requires that the petition contain the names of all persons interested in the premises £as owners or otherwise, as appearing of record.’ ” That was a case where a judgment creditor claimed to he a necessary party in a condemnation proceeding. The court held that the judgment creditor was not a necessary party in the following language: “There was nothing of record to show that she had any interest in the land, and therefore nothing of record to show that her judgment creditor had any such interest. The condemnation proceedings complied with the statute.” While the Hooper v. Finlay case does not in so many words say that unrecorded tenants are unnecessary parties, and does not say that only owners of recorded interests are necessary parties, it does say that the statute is complied with when the petition fails to name a judgment creditor who was not a creditor of record. The court does base its opinion on the proposition that there is nothing of record to show an interest. Here there is nothing of record to show any interest of Wendell Miller to Tract 11, nothing of record to show any interest of James E. Miller to Tract 10 and nothing of record to show any interest of Harold Long to Tract 14. But the appellants contend that the power company had knowledge of their tenancies. We cannot agree with this contention. Tract No. 10 was unoccupied. Tract 11 was occupied by James E. Miller and Vetrice E. Miller, record owners. Wendell Miller lived on the tract. Tract No. 14 was not occupied by Harold Long, and the Illks were the record owners. We do not find any holding under the Eminent Domain Law as to what constitutes notice, but the decision of our courts on other matters may shed some light as to what is notice.

In the case of Union Bank of Chicago v. Gallup, 317 Ill. 184, it was said: “Where the record owner of property is in possession and a second party is likewise in possession, the possession of the latter is not notice to purchasers or judgment creditors of rights which he may claim in the premises, but his possession, in order to be such notice, must be exclusive and unequivocal.”

As to Tract No. 11, James E. Miller and Vet-rice E. Miller, record owners were in possession. It is true that Wendell Miller also lived on the property, but there is nothing in the evidence to show any notice to the power company that he claimed any interest, until the power company began to build the transmission line. The same is true as to James E. Miller as to Tract No. 10 and Harold Long as to Tract No. 14. Undoubtedly they were aware that the easement right had been condemned or was being condemned. They had a right to intervene, under the provisions of Section 11 of the Eminent Domain Act, but chose to remain silent and do nothing. It must be assumed that the jury-awarded full compensation for the rights taken, including crops. If these unrecorded lease holders have any rights, they can be asserted against the persons who received the award. Yellow Cab Co. v. Howard, 243 Ill. App. 263.

The Hlinois statute requires that all persons interested in the premises, as owners or otherwise, as appearing of record, must be made parties defendant in a condemnation proceeding. This would appear to require the plaintiff in such suits to proceed only against persons who appear of record as owners or otherwise. Here the owners of record were named defendants. There is nothing to show notice sufficient to put the plaintiff on notice that these persons claiming as tenants had any interest. There was nothing of record and no notice otherwise. We must therefore hold that James E. Miller as to Tract No. 10, Wendell Miller as to Tract No. 11 and Harold Long as to Tract No. 14 Avere not necessary parties to the condemnation proceeding, but that they had a right but did not assert that right to intervene, and that any rights to compensation for their leasehold interest must be asserted against the receivers of the awards.

As to the fifth point raised in the appeal, on the ground that the complaint is multifarious, this court can see no merit in that point. While the tracts were different, the points at issue were for the three claiming tenancies practically identical, and could be and wére disposed of in a single suit.

For the reasons above stated, the judgment of the Circuit Court was correct and is hereby affirmed.

Affirmed.

CARROLL, J., concurs.

HIBBS, J., took no part in the consideration of this case.


text:
    Jesse M. Thomas, Florence Thomas, Betty Lou Thomas, a Minor, by Jesse M. Thomas, her Father and Next Friend, Jesse M. Thomas, Administrator of Estate of Charles Ray Thomas, Deceased, and Jesse M. Thomas, Administrator of Estate of Vickie Lee Thomas, Deceased, Plaintiffs-Appellees, v. Andy Edwin Smith, and Corrine Wilson, Defendants-Appellants.
    Gen. No. 10,071.
    Third District.
    September 10, 1956.
    Rehearing denied October 2, 1956.
    Released for publication October 2, 1956.

      LeForgee, Samuels & Miller, of Decatur, for defendants-appellants; Carl R. Miller, and Jerald E. Jackson, both of Decatur, of counsel.
    McMillen, Carman and Owen, of Decatur, for plaintiffs-appellees.
   PRESIDING JUSTICE REYNOLDS

delivered the opinion of the court.

This cause arises out of a collision between a Buick automobile driven by Jesse M.' Thomas, one of the plaintiffs, and a Ford automobile driven by Andy Edwin Smith, one of the defendants, and owned by Corrine Wilson, the other defendant. The collision occurred about 2:00 o’clock a.m. on July 2, 1954, at the intersection of U. S. 51, and the Mount Zion-Elwin Blacktop Road, in the town of Elwin, in Macon County, just a short distance south of Decatur, Illinois. At the point of collision, the intersection is level, and for some distance both to the north and south on U. S. Highway No. 51, and to the east on the Mount Zion-Elwin Blacktop Road, the highway is straight. At the intersection to the east and west of U. S. Highway No. 51, there are “Stop” signs requiring vehicles entering the intersection to stop before entering the intersection. About 300 feet east of the intersection, on the Mount ZionElwin Road there is a warning sign that there is a stop ahead. Jesse M. Thomas was driving north and Andy Edwin Smith was driving west. In the Buick automobile with Jesse M. Thomas was his wife Florence Thomas, his daughter, Betty Lou Thomas, 18 years of age, and Ms two small cMldren, Charles Ray Thomas, and Vickie Lee Thomas. Betty Lou Thomas has married since the accident and is now Betty Lou Woodward. In the collision the two small cMldren, Charles Ray Thomas and Vickie Lee Thomas were killed. In the Ford automobile with Andy Edwin Smith, there was Corrine Wilson, the owner of the car, James Albert Warner, and Mrs. Lil Chapman. In the collision Mrs. Lil Chapman was killed. With the exception of the two drivers, all the other persons in the cars were either asleep or dozing. Both the drivers suffered amnesia as to what occurred just before and at the time of the accident. Jesse M. Thomas was injured about the head and suffered some brain injury and remembers nothing after coming around a curve south of Elwin. Andy Edwin Smith doesn’t remember anything after leaving the Blue Mill, a tavern and restaurant, where they stopped for a short time.

Both cars were badly damaged, and J esse M. Thomas, Florence Thomas, and Betty Lou Woodward were severely injured. Suit was brought by Jesse M. Thomas, individually, for his own injuries, Florence Thomas for her injuries, Betty Lou Thomas Woodward for her injuries, and by Jesse M. Thomas, as Administrator of the Estate of Charles Ray Thomas, Deceased, and as Administrator of the Estate of Vickie Lee Thomas, Deceased. The jury returned verdicts against both defendants, Andy Edwin Smith as the driver, and Corrine Wilson, as the owner of the car, in the following amounts: For Jesse M. Thomas, the sum of $10,000; for Jesse M. Thomas, as Administrator of the Estate of Charles Ray Thomas, Deceased, the sum of $7,500; for Jesse M. Thomas, as Administrator of the Estate of Vickie Lee Thomas, Deceased, the sum of $2,500; for Betty Lou Thomas Woodward, the sum of $20,000; for Florence Thomas, the sum of $10,000. Judgment was entered on the verdicts, and the defendants appeal to this court.

The defendants assign as error that the trial court should have entered a judgment for the defendants, notwithstanding the verdicts, because the plaintiffs failed to prove negligence on the part of the defendants, and failed to prove due care on their own part; that the verdicts are against the manifest weight of the evidence and the court erred in giving certain instructions. Two other points are assigned as error, but only by way of argument and no authorities in support are cited.

The defendants cite a number of cases where the courts have held that the plaintiffs have failed to prove negligence on the part of the defendants, or have failed to prove due care on the part of the plaintiffs. The difficulty of applying those cases to this case arises from the fact that each case presents a different set of circumstances. Several of them are cases where there were no witnesses to the accident, and reliance had to be on the circumstantial evidence in the case. That is the case here. Neither of the drivers remember just how the accident occurred. There were no eyewitnesses other than the drivers. The others involved in the accident were either asleep or dozing. The only facts from which conclusions can be drawn are those facts presented by the conditions of the cars themselves after the accident, the condition of the intersection, the position of the stop signs at the intersection, and the testimony of the officers and others who came to the scene of the accident a short time after-wards. To attempt to differentiate or distinguish between the facts in this case and the facts in other cases decided by our courts would be difficult and at best inconclusive. Bach case must rest upon its own facts. It must be conceded that the question of whether or not the defendants were negligent and whether or not the plaintiffs were in the exercise of due care for their own safety are questions of fact. If there is any evidence in the record which, taken with its intendments most favorable to tbe plaintiffs, tends to support tbe verdict of the jury, the trial court had no right to enter a judgment notwithstanding the verdict. Pitrowski v. New York C. and St. L. R. Co., 4 Ill.2d 125, 126; Mueller v. Elm Park Hotel Co., 398 Ill. 60, 63. It is only when there is no evidence as a matter of law to sustain either the plaintiff’s or the defendant’s claims that a judgment may be rendered notwithstanding the verdict. Egner v. Fruit Belt Service Co., 318 Ill. App. 37. A motion for judgment notwithstanding the verdict for plaintiff presents to the trial court questions of law whether from evidence in favor of the plaintiff, standing alone and when considered to be true, together with inferences which might legitimately be drawn therefrom, a jury might reasonably have found for the plaintiff. Russell v. Richardson, 302 Ill. App. 589; Morris v. Silver, 312 Ill. App. 472. Trial courts in considering defendant’s motion for judgment notwithstanding verdict must take evidence together with all reasonable inferences arising therefrom most strongly in favor of plaintiff. Gill v. Lewin, 321 Ill. App. 633.

Where the questions of negligence or due care cannot be proved by direct evidence they may be proven by evidence entirely or largely circumstantial in nature. As was said in the case of Ruspantini v. Steffek, 414 Ill. 70 at page 74: “The exercise of due care need not be established by direct and positive testimony but may be inferred from all the facts and circumstances shown to exist prior to and at the time of the collision. (Shaffner v. Massey Co., 270 Ill. 207.)”

Because each case must necessarily rest upon its own facts, whether proven by direct evidence or by circumstantial evidence, in order to properly decide this case, it is necessary to examine the evidence here. U. S. Highway No. 51 was a through highway, and the Mount Zion-Elwin Blacktop Eoad was a crossroad. Traffic entering onto or crossing U. S. Highway No. 51 was required to come to a stop before entering the intersection. There was a stop sign warning some three hundred feet to the east. All things being equal, the driver of the car proceeding on U. S. Highway No. 51 had the right of way over a vehicle approaching from the east on the Mount Zion-Elwin Blacktop Road. If the driver of the Buick, Thomas, saw the lights of the car driven by Andy Edwin Smith, approaching from the east, he, Thomas, being on the through and preferential highway, had a right to assume that the Smith car would come to a stop before entering the intersection. The case of Citizens Nat. Bank of Decatur v. Doran, 3 Ill.App.2d 383, on page 389, presented a like situation. There, there was a stop sign and the car was being driven on U. S. Route 51, proceeding to the north. U. S. Route 51 there, as here, was a through highway and traffic crossing or entering had to come to a stop before entering or crossing. And the court in that case said: “It is true that the existence of the stop sign on Division Street did not relieve the appellee’s ward from the exercise of due care and caution, yet he had a right to assume that the appellant approaching on Division Street would not negligently fail to reduce his speed as he approached the intersection and would at least have his car under control so as to give preference to the right of way of the northbound car. (Thomas v. Buchanan, 357 Ill. 270, 277; Roberts v. Cipfl, 313 Ill. App. 373, 375; Franks v. Childs, 345 Ill. App. 83.)”

The evidence shows that the two cars after the accident, were at the northwest corner of the intersection, near the building of the Checkerboard Feed Company. The front of the Ford automobile was pushed back and badly damaged. The right side of the Buick automobile was pushed in and broken. There were some marks on the pavement but the evidence concerning them is rather indefinite. They do not shed much light on what happened. There was a gouge mark in the pavement, and this may or may not have been made by the broken frame of the Bnick. All these facts and circumstances present questions of fact for the jury to determine what did actually happen. The questions of due care on the part of the plaintiffs, and the negligence of the defendants, are essentially questions of fact for the jury to determine from all the evidence and surrounding circumstances. Citizens Nat. Bank of Decatur v. Doran, 3 Ill.App.2d 383, 390. Ruspantini v. Steffek, 414 Ill. 70.

In this case the jury did, by their verdict, find that the plaintiffs were in the exercise of due care and caution for their own safety and that the defendants were guilty of negligence. It is not the province of this court to disturb the verdicts of juries on questions of fact, unless clearly and palpably erroneous. This rule has been so well established that it is not necessary to cite authorities. Considering all the facts and circumstances in evidence in this case, this court cannot say that the verdict of the jury in this case was clearly or palpably erroneous.

The defendants assign as error that the verdicts of the jury are against the manifest weight of the evidence. And in support of their position on this point, they cite the case of Sharp v. Brown, 343 Ill. App. 23. The Appellate Court in that case reversed and remanded a judgment for the plaintiff because of the unsatisfactory state of the evidence and held that it could not be said that the preponderance of the evidence indicated that the plaintiff was in the exercise of due care, or that the verdict was not against the manifest weight of the evidence as to this issue. But, as we have previously observed in this opinion, each case must stand upon its own facts. It might well be that the evidence in the Sharp v. Brown case, supra, failed to establish by a preponderance of the evidence that the plaintiff Sharp was in the exercise of due care, hut we are not prepared or disposed to so hold in this case that the same state of facts exist. The condition of the automobiles, showing where they collided with each other, the fact that this was a through highway on which the plaintiffs were riding, the presence of signs requiring the defendants to stop before entering the intersection, all are mute witnesses and present questions of fact for the jury to resolve and determine as to just how the collision occurred. We cannot say in review that the jury returned verdicts against the manifest weight of the evidence.

Another point assigned as error is that the trial court erred in admitting into evidence the testimony of the officer that in his opinion the defendant Andy Edwin Smith was under the influence of intoxicating liquor, the testimony being based solely upon smelling the defendant’s breath. This point was not raised by the defendants in their motion for a judgment notwithstanding the verdicts, nor in the alternative for a new trial and under our procedure cannot be raised now. However, solely by way of comment on this matter, the jury is entitled to hear all pertinent facts, and this testimony as to the alleged intoxication of Smith was admissible for whatever value it may have had.

The next error assigned is that the trial court erred in giving the jury instructions which referred to “issues under the complaint,” “issues made by the complaint,” and “answers of the defendants,” without any other instructions apprising the jury of the issues made by the complaint and the answers of the defendants. Nothing is said about instructions in the motion of the defendants for judgment notwithstanding the verdicts, but in the motion for a new trial, complaint is made about plaintiffs’ instructions Nos. 5, 12, 13, 14, 15, 16, and 17. In support of this point, defendants cite some fourteen cases, but these cases relate generally to one point, namely that it is error to give instructions that refer the jury to the declaration or complaint to determine the issues in the case. Fraider v. Hannah, 338 Ill. App. 440; Lerette v. Director General of Railroads, 306 Ill. 348; Krieger v. Aurora, E. & C. R. Co., 242 Ill. 544; Stivers v. Black & Co., 315 Ill. App. 38.

Taking up the disputed instructions in order, we should first consider plaintiffs’ instruction No. 5. This instruction is assigned as error for the reason that it contains the words “fact sought to be proved.” This instruction is identical with one approved in The United States Brewing Co. v. Stoltenberg, 211 Ill. 531. But the defendants rely upon the case of O’Gallagher v. Finkel, 7 Ill.App.2d 296, which is an abstract opinion and holds that the giving of an instruction which failed to contain within itself all material elements or issues of the plaintiff’s case was error. We do not believe the law of the O’Gallagher case, supra, is applicable and must hold that the law of the United States Brewing Co. case, supra, is still the law in Illinois, and that the giving of plaintiffs’ instruction No. 5 was proper.

In the defendants’ motion for new trial; the point is raised that, the trial court erred in giving-plaintiffs’ instructions Nos. 12, 13, 14, 15 and 16 but no question is raised in the defendants’ brief, and questions on these instructions will be considered as abandoned by the defendants. Plaintiffs’ instructions Nos. 18, 20, 21 and 22 are raised in the defendants’ brief, but were not raised in the motion for new trial and were therefore waived. This leaves plaintiffs’ instruction No. 17. The defendants complain of the use of the words “issues under the complaint” and “under the complaint” in this instruction without any other instruction apprising the jury of the issues made by the complaint and the answers of the defendants. The instruction was in the following words:

“The Court instructs the jury that under the complaint of the plaintiffs, Jesse M. Thomas; Florence Thomas; Betty Lou Thomas, a minor, by Jesse M. Thomas, her father and next friend; Jesse M. Thomas, Administrator of the Estate of Charles Ray Thomas, Deceased; and Jesse M. Thomas, Administrator of the Estate of Vickie Lee Thomas, Deceased, the following are the defendants:

Andy Edwin Smith Corrine Wilson

You are further instructed that in order to decide the issues under the complaint of the said plaintiffs, it will be necessary that you return a verdict as to each of said plaintiffs against each of said defendants, finding each of said defendants either guilty or not guilty.”

This instruction was an instruction as to verdict and in no way referred to the evidence or facts in the case. It is difficult for this court to believe that the rights of the defendants were prejudiced or injured in any way by this instruction or that the jury could be, or was, in any way confused or misled. As was said in the case of Fraider v. Hannah, supra, at page 450: “We have carefully considered the arguments pro and con on this subject, and have reached the conclusion that there was no error committed by the trial court that would justify a reversal. The jury was fairly instructed. It is true that certain instructions which are the subject of criticism are not without imperfection, and it is extremely difficult for a trial court to select, modify, and correct a large group of instructions without incurring the risk that some reviewing court has held that the giving of several of the instructions is error, reversible or otherwise.”

In this case, taking the instructions as a whole, we believe that the jury was fairly instructed and that there is no reversible error in the instructions.

The plaintiffs filed a motion to affirm the judgment pro forma, or in the alternative to dismiss the appeal in this court, on the grounds that the Abstract of the Record filed by the defendants-appellants did not show that any judgment was entered by the trial court on the verdicts of the jury, rendered in said cause. This court later granted leave to the defendants-appellants to file a supplemental abstract, which they filed showing judgments on the verdicts in the trial court. The motion of the plaintiffs-appellees for an affirmance, or in the alternative, to dismiss the appeal, was taken with the case. Both sides have cited authorities supporting their different positions.

Suffice it to say, we feel that the granting of the leave to file a supplemental abstract, and the filing of said abstract, cured the deficiencies in the original abstract, and the ends of justice were best served thereby. The motion of the plaintiffs-appellees is therefore denied.

The other two points raised by the defendants, namely that the verdicts of the jury are grossly excessive, and that sympathy should not be permitted to nullify the law, are raised by way of argument only. While the verdicts are for substantial sums, it can hardly be disputed that each of the plaintiffs was severely injured. In view of the seriousness of their injuries, and the possibility of continued pain, suffering and disability, this court is not disposed to substitute its judgment for that of the trial court and jury.

We feel that this record is reasonably free from error, and though a close case on facts, should be, and is, hereby affirmed.

Affirmed.

CARROLL, J., concurs.

HIBBS, J., took no part in the consideration of this case.


author: PRESIDING- JUSTICE REYNOLDS

text:
    Russell Laver, Plaintiff-Appellant, v. Delbert Kingston, Defendant-Appellee.
    Gen. No. 10,081.
    Third District.
    September 10, 1956.
    Released for publication September 26, 1956.
    Louis L. Mason, and Francis R. Wiley, both of Decatur, for plaintiff-appellant.
    Earl S. Hodges, of Springfield, for defendant-appellee; Samuel C. Patton, of Springfield, of counsel.
   PRESIDING- JUSTICE REYNOLDS

delivered the opinion of the court.

This case arises out of a collision between a motorcycle ridden by the plaintiff Russell Laver and a truck driven by Delbert Kingston, on North Jasper Street, Decatur, Illinois, on January 26, 1954. The truck was owned by Archer-Daniel-Midland Company, and at the time of the accident Delbert Kingston was an employee of that company. Suit was filed in the United States District Court, Southern Division, Southern District of Illinois, by Russell Laver and his wife, Anna Laver, against Archer-Daniel-Midland Company and Delbert Kingston. The court dismissed Counts II, III and IV of the complaint, leaving Russell Laver as sole plaintiff in Count I. Before trial the plaintiff dismissed without prejudice as to Delbert Kingston and upon trial of the cause, a jury returned a verdict in favor of the plaintiff in the amount of $7,500. Judgment was entered on the verdict and later the defendant Archer-Daniel-Midland Company paid off the judgment and costs of suit and the judgment was released by the plaintiff. Afterwards, on May 5, 1955, plaintiff Russell Laver filed suit in the Circuit Court of Macon County, Illinois against Delbert Kingston, the driver of the truck. The defendant Kingston filed a motion to dismiss the complaint, or in the alternative to enter judgment for the defendant, supported by affidavit, setting forth the judgment in the United States District Court and its satisfaction, claiming that the cause of action in this case and the one in the Federal Court was one and the same, and presented the identical facts and issues, and that by reason of the judgment and satisfaction of judgment in the Federal Court, the plaintiff was estopped against the employee Delbert Kingston. To this the plaintiff filed his motion to strike the motion to dismiss and the affidavit, and on November 9, 1955 the court allowed the defendant’s motion to dismiss and the complaint was dismissed and judgment entered for the defendant for costs. From that order the plaintiff has appealed to this court.

The plaintiff raises three points as grounds for appeal, but the disposal of the second point will dispose of all three. The second point, which is the law involved herein, is whether or not the suit by the plaintiff and subsequent judgment and satisfaction of judgment is res adjudicata and a bar to the present suit. Does the suit and judgment against the employer, payment of judgment and release thereof, bar a suit against the employee? We have been unable to find that this precise point has been passed upon in Illinois. In the case of Aldridge v. Fox, 348 Ill. App. 96, at page 101 the court said: “In this case both defendants were sued in separate counts of the same complaint. They were not sued in any count as joint tort-feasors. Separate verdicts were submitted as to each defendant without objection, both defendants were found guilty, and verdicts in varying amounts returned. The liability of master and servant for the act of the servant is deemed that of one tort-feasor and is a consolidated or unified one. Where one party acting for himself and his employer causes the unwarranted arrest of a third person a single wrongful act is committed. Sarine v. American Lumbermen’s Mut. Casualty Co., 258 App. Div. 653, 17 N.Y.S.2d 754. If the employer and employee had here been sued jointly as they might legally have been, verdicts assessing damages against each could not have been permitted to stand for it has long been the law in this State a jury may not apportion damages among joint tort-feasors. If separate suits had been started against the principal and the agent and a recovery been had and satisfied against one, such satisfaction would operate as a discharge of the entire obligation. We do not interpret section 50 of the Practice Act as an attempt to. change the substantive law of this State by permitting multiple recoveries against the principal and the agent through the device of suing each in separate counts of the same complaint. The Practice Act (sec. 50) merely liberalized the rules of pleading by permitting the introduction into a single suit of all parties in interest.” The court further stated on page 103: “Particularly is.this true where the employer is a corporation, in which case both employer and employee are active tort-feasors, as a corporation must of its nature act only through employees and agents.” It seems to us that the above case disposes of the question in this case. The defendant cites a number of cases involving situations where suit has been instituted against either the employer or the employee and the decision as to one has been held to be a bar to suit against the other, but none of them are decisive of the point raised here. The case of Anderson v. West Chicago St. R. Co., 200 Ill. 329, involved two railroads, one the owner of the line and one a lessee. Suit was brought against the owner company, and trial resulted in judgment for the defendant. This was not appealed, but later suit was brought against the lessee company, and the plaintiff recovered a judgment of $1,250. The case was appealed and the Appellate Court reversed the judgment. On appeal the Supreme Court held that the judgment for the defendant in the first case, namely the one against the owner company, was a bar to the suit against the lessee company.

The case of Spitz v. BeMac Transport Co., 334 Ill. App. 508, was a case where there was an employer, and two employees. One of the defendants, a driver, was given a stay under the provisions of the Soldiers’ and Sailors’ Civil Relief Act, and trial was had as to the remaining defendants, which resulted in a directed verdict of “Not Guilty.” The Appellate Court in that case cited with approval the doctrine laid down in the Anderson v. West Chicago St. R. Co. case, supra, and held that a judgment in favor of the employer was res adjudicata as to a suit against the employee. The courts in both the Spitz case, supra, and Anderson case, supra, quoted the following from Emery v. Fowler, 39 Me. 326: “To permit a person to commence an action against the principal and to prove the acts alleged to be trespasses to have been committed by his servant acting by his orders, and to fail, upon the merits to recover, and subsequently to commence an action against that servant and to prove and rely upon the same acts as a trespass, is to allow him to have two trials for the same cause of action, to be proved by the same testimony.” The findings in the Spitz v. BeMac Transport Co. case, supra, were cited with approval in the case of Voss Truck Lines, Inc. v. Pike, 350 Ill. App. 528.

In the case of J. F. Martin Cartage Co. v. Dempster Bros., Inc., 311 Ill. App. 70 is another case where the employee was held to be not guilty, and the court held that since the liability of the employer was predicated upon the alleged negligence of the employee, a verdict in favor of the employee was a bar to a suit against the employer. The same situation arose in the case of Weekley v. Pennsylvania R. Co., 104 F. Supp. 899, where suit was brought against the employee and judgment was entered for the defendant, and then suit was brought against the employer railroad company, and there again it was held that the judgment in favor of the employee was a bar to suit against the employer.

It must first be admitted that the master and servant can be sued jointly or severally. The injured party can elect to sue the master or the servant, or both. The servant is liable because he is the active tort-feasor and committed the act which caused the injury. Being the real actor, he is nonetheless acting for another. The master is liable because of the doctrine of respondeat superior, — the rule of law which holds the master responsible for the negligent acts of his servant while acting within the scope of his employment. Lasko v. Meier, 394 Ill. 71. The plaintiff claims that master and servant are not joint tortfeasors, and cites the case of Berghoff Brewing Co. v. Przbylski, 82 Ill. App. 361, as authority for this position. The law laid down in that case has long since been changed in Illinois, and it is now universally recognized that the master and servant may be sued jointly or severally. If they can be sued jointly it must be held that the employer stands as a joint tort-feasor with the employee, one as the moving actor in the wrong, and the other for whom the servant was acting. To hold otherwise would be to negate the rule that they are jointly liable.

It must be conceded here that the plaintiff was injured in one accident. He was injured by an act of Delbert Kingston, who was then and there acting in the course of his employment. The only premise upon which a judgment against the employer could be entered would be that of action within the scope of his employment. There was one accident, one person injured, and the only people involved were the plaintiff, the driver of the truck, Delbert Kingston, and his employer. So there was one set of circumstances, one wrong, and one injury. For that wrong and injury, the plaintiff has recovered a judgment against the employer in the amount of $7,500 and that judgment has been satisfied by payment in full of judgment and costs. If the judgment had been entered but was unsatisfied, it would not be a bar. The general rule as stated in American Law Reports Annotated Vol. 27, page 805, is that the satisfaction of a judgment against one tort-feasor operates as a release of others involved. Lovejoy v. Murray, 3 Wall. 1, 18 L. Ed. 129; Jones v. Russell, 206 Ala. 215; Chetwood v. California Nat. Bank, 113 Cal. 414, 45 Pac. 704; Ashcraft v. Knoblock, 146 Ind. 169; Putney v. O’Brien, 53 Iowa 117; Union Associated Press v. Press Pub. Co., 24 Misc. 610, 54 N. Y. Supp. 183; Luce v. Dexter, 135 Mass. 23; Johnson v. Conrades (Mo.), 232 S. W. 680; Dicken v. Balbach, 9 Pa. Dist. R. 449.

In the case of Killham v. Chaloupka, 195 Ill. App. 182, which was a dramshop case, the court there held that a recovery and satisfaction against one person selling liquor to a drunkard, in an action by the wife and children for damages for injuries to their support, constituted a bar against another who may have contributed in bringing about the same intoxication.

Another dramshop case, McClure v. Lence, 345 Ill. App. 158 holds that for a single injury but one satisfaction may be had. And the court in passing on the matter said the guiding query in each case is: “Has the injury upon which the action is based already been satisfied or released?”

In view of the language of our courts in cases involving other matters, it would seem that our courts have, in other cases, felt that there can be only one compensation for one wrong. The issues in this case are simple, namely, was the employee guilty of negligence and what was the amount of compensation due the plaintiff for his injuries ? These issues were settled by the trial in the Federal Court. The very same issues in the Federal Court would be the issues in the Circuit Court.

Even in the absence of specific legislation or decisions on this point, this court must hold that the plaintiff is barred from further suit after receiving the amount of judgment against the employer, and entering satisfaction for that judgment. To hold otherwise Avould be to promote litigation, not to settle it. To hold otherwise would permit a plaintiff to recover twice for one injury. The order of the Circuit Court dismissing the complaint was correct and is therefore affirmed.

Affirmed.

CARROLL, J., concurs.

HIBBS, J., took no part in the consideration of this case.


author: PER CURIAM.

text:
    Avis DeLong, Plaintiff-Appellee, v. Elsie Whitehead, and Elvy Rook, Defendants. Elsie Whitehead, Defendant-Appellant.
    Gen. No. 10,050.
    Third District.
    August 27, 1956.
    Rehearing denied September 28, 1956.
    Released for publication September 28, 1956.
    Supplemental opinion filed October 3, 1956.
    Frank G. Schubert, Jack McDonald, and L. K. Hubbard, for defendant-appellant; Frank G. Schubert, of counsel; Edward J. Flynn, and Julian Hutchens, for plaintiff-appellee.
   Opinion

PER CURIAM.

JUDGE HIBBS took no part. Supplemental opinion by JUDGE ROETH.

Not to be published in full.


author: JUSTICE EOVALDI.

text:
    C. M. Woods, Plaintiff-Appellee, v. Harris Home Builders Co., Defendant-Appellant.
    Gen. No. 10,929.
    Second District.
    September 11, 1956.
    Released for publication September 27, 1956.
    Cotton, Fruchtman & Watt, for defendant-appellant; Richard F. Watt, and Helen Hart Jones, of counsel; Rathje & Woodward, for plaintiff-appellee; Bert E. Rathje, and Alfred E. Woodward, of counsel.
   Opinion by

JUSTICE EOVALDI.

Not to be published in full.


author: JUSTICE CROW.

text:
    Betty Hogsett, Plaintiff, v. Wilber Hogsett, Defendant, and Velma Hoyle, Respondent. Velma Hoyle, Appellant, v. Wilber Hogsett, Appellee.
    Gen. No. 10,924.
    Second District.
    September 13, 1956.
    Rehearing denied October 2, 1956.
    Released for publication October 2, 1956.
    Diver, Diver & Ridge, for appellant; Donald Ridge, of counsel; Adeline J. Geo-Karis, for appellee.
   Opinion by

JUSTICE CROW.

Not to be published in full.


text:
    Pauline Lux et al., Plaintiffs-Appellants, Respondents, v. Frank Lelija, Individually and as Administrator of Estate of Anna Lelija, Deceased, and Mary Morse, Defendants-Appellees, Petitioners.
    Gen. No. 10,969.
    Second District.
    September 20, 1956.
    Rehearing denied October 2, 1956.
    Released for publication October 2, 1956.
    Richard A. Mohan, for plaintiffs-appellants; Berry & O’Conor, for defendants-appellees and petitioners for leave to appeal.
   Opinion by

JUSTICE CROW.

Not to be published, in full.


author: JUDGE FEINBERG

text:
    Bankers Life and Casualty Company, Appellee, v. Justin T. McCarthy, Director of Insurance, State of Illinois, Appellant.
    Gen. No. 46,682.
    First District, Third Division.
    November 23, 1955.
    Rehearing denied October 3, 1956.
    Released for publication October 17, 1956.

      Latham Castle, Attorney General of the State of Illinois, and Werner W. Schroeder, Special Assistant Attorney General, State of Illinois, both of Chicago, for defendant-appellant; John L. Davidson, Jr., of Springfield, First Assistant Attorney General, William C. Wines, Raymond S. Sarnow, A. Zola Groves, all of Chicago, and John G. Smith, of Springfield, Assistant Attorneys General, of counsel.
    Brundage & Short, of Chicago, for plaintiff-appellee; Howard A. Brundage, Charles F. Short, Jr., and Narcisse A. Brown, all of Chicago, of counsel.
   JUDGE FEINBERG

delivered the opinion of the court.

Defendant appeals from a decree entered by the Circuit Court, on an appeal taken by plaintiff from a report of the Director of Insurance of an examination made by him of the affairs of plaintiff, pursuant to § 744 of the Illinois Insurance Code, Ch. 73, Ill. Rev. Stat. 1953. The decree in effect affirms in part the report of the Director, reverses it in part and in other instances alters and deletes it in part. The decree also grants injunctive relief as provided by § 1019 (3) of the statute. Admittedly, over one hundred such amendments, alterations and deletions of the report appear in the decree. The power and authority of the Circuit Court to enter such a decree is directly challenged by this appeal.

It appears the Director of Insurance ordered an examination of plaintiff’s assets, conditions and affairs for the period covering July 1, 1950, to and including June 30, 1952. The authority for such examination may be found in § 744 of the statute. Subsection (2) provides:

“Every company or person being examined, its officers and agents, shall produce at its office its books, records and documents and all or any papers in its or their possession relating to the property, assets, business or affairs of the company. The officers and agents of such company or person shall facilitate and aid in such examination so far as it is in their power to do so.”

During the examination, plaintiff refused to allow the examination of an account marked “App.” account, kept separate and distinct by plaintiff from its regular accounts. This account had reference to a plan conceived by its officers, whereby each of plaintiff’s agents was required, with the acceptance of an application for insurance, to remit to the company $1 with each application, and placed by the company in a so-called welfare fund. Throughout the proceeding this account was designated the “App.” account, and for convenience we shall refer to it as the “App.” account. At the time of the examination, there was approximately three million dollars in this account.

Upon such examination witnesses were sworn and testified, and various exhibits received in evidence by the examiners. Upon the completion of the examination the examiners submitted to the Director the report of examination made by them, the evidence heard and exhibits received. The Director, pursuant to statute, served plaintiff on August 26, 1953, with a copy of the report, directing that objections thereto be filed with bim within ten days. Several extensions of the time to file objections were granted, and on November 3,1953, the objections to the report were filed with the Director.

The report of the Director dealt with many items that concerned the accounting’ methods of the company, some of its securities, and certain real estate carried on the books of the company as an asset. It appears from the report of the Director, with respect to the “App.” account, that the minutes of the meetings of the directors and stockholders of the company disclose no provision or authority for the creation or operation of said fund; that the president of the company based his refusal to allow the examiners access to any of the books and records pertaining to this account upon a decree entered by the Circuit Court of Cook County in case No. 49 C 3063.

The suit referred to was instituted by MacArthur, the president of plaintiff, against his wife, and in a cross-complaint by her it was sought to establish the value of some stock in plaintiff company. She claimed that the “App.” account was part of the assets of the company, and that said stock correspondingly had a greater value. The decree in that case found that the fund in question was for the purpose of promoting the health, safety and welfare of all employees and agents of the company, and not of such a nature as need be included in the financial statements of Bankers Life and Casualty Company; that it is not subject to the insurance regulations pertaining to the nature of investments by insurance companies, and not to be regarded as assets of the company. The instant decree finds that the account in question is not subject to the insurance laws.

Neither the State of Illinois, the Insurance Director, nor other agency of the State was a party to the decree in the suit referred to, nor does it appear that any notice was given them of the pendency of such suit or the hearing thereof. We think there was no justification for the refusal of the president of the company to allow the examination of the “App.” account because he regarded said decree of the Circuit Court an adjudication that the fund could not be considered an asset of the plaintiff nor subject to any examination by the Director. In Hedlund v. Miner, 395 Ill. 217, it was held the doctrine of res adjudicata has no application against or in favor of anyone not a party or privy. It was there stated:

“The doctrine is bottomed on the ground that the party to be affected, or someone with whom he is in privity, has litigated or has had an opportunity to litigate the same matter in a former action in a court of competent jurisdiction.”

To the same effect are Gillies v. Little Vermilion Special Drainage Dist., 401 Ill. 344, 349; In re Estate of Betts, 2 Ill.App.2d 453, and cases there cited.

Twenty-one specific objections were filed by plaintiff with the Director, as well as a general objection to the entire report based on the claimed violation of the duties and authority of the Director.

A hearing was had before the Director upon these objections, as provided by statute. He sustained some of the objections and overruled others. Thereupon plaintiff filed its appeal in the Circuit Court, together with a certified copy of the report of the Director and transcript of proceedings before him. It is admitted by the parties upon this appeal that the review by the Circuit Court of the report of the Director is governed by § 1019 (2) and (3), of the Insurance Code. Subsection (2) provides:

“The cause shall be heard by the said court as a civil case upon such transcript of the record and such additional evidence as may be offered at the hearing of said cause before the court by any of the parties.”

Subsection (3) provides:

“The court shall have jurisdiction to affirm or to set aside the order or decision of the Director and to restrain the enforcement thereof.”

In the view we take of this appeal, it will he unnecessary to make specific reference to all the items in the report and to each of the objections.

We agree with plaintiff that the report of the Director contains damaging conclusions, argumentative statements and innuendoes, instead of facts only, in violation of his statutory duty. Subsection (3), § 744, provides:

“The examiners . . . shall make a full and true report of every examination made by them, which shall comprise only facts ascertained from the books, papers, records or documents, examined by them or ascertained from the testimony of officers or agents or other persons examined under oath concerning the business and affairs and the assets of such company or person.” (Italics ours.)

As already pointed out, the statute also requires that before the Director files, publishes or circulates his report of examination, he shall give notice to plaintiff and time to file objections to the report. The obvious intent of the legislature is that no company shall be subjected to any injury by the report before such a hearing is had before the Director, and before the disposition of an appeal to the Circuit Court. Conceivably, a report that did not state facts and contained statements injurious to plaintiff, not justified by the record, could inflict irreparable injury upon plaintiff, not only in this state, but in the other states where it is authorized to do business. That is why subsection (3) of § 1019 gives the Circuit Court the power to restrain the enforcement of the report of the Director in the event the court should set aside the report.

We cannot agree with plaintiff’s contention that the “App.” account and its operation was not a proper subject of examination by the Director under the statute. It will be remembered that the agents of plaintiff were required to pay $1 into this fund with each application accepted. Sections 1065.40, 1065.41 and 1065.49 -of the Insurance Code, which regulate the matter of .payment of money, commission, or brokerage by the agents, and which give the Director the power to regulate the conduct of insurance agents, and to revoke their licenses, would in itself justify examination by the Director of the affairs of the company involving such dealings with the agent, to ascertain whether such transaction violates the letter or spirit of the regulations or the statute.

Under § 1015 of the Code, the Director is given authority to issue subpoenas, examine witnesses and compel production of the books, records and papers of the company or party examined. For refusal to comply with the subpoena, authority is granted to the Director to file a petition in the Circuit or Superior Court of the county in which the testimony is desired, to obtain an order of compliance with the subpoena. In addition, a penalty of $1,000 is imposed upon the party refusing to comply with the subpoena, to be recovered by the State of Illinois.

The Director in the instant case did not pursue the authority granted by § 1015. Had he invoked the jurisdiction of the court under that section, the court would have been in a position to judicially determine whether plaintiff was justified in its refusal to allow the examination of the “App.” account. We think this is the procedure the Director should have followed, instead of reporting that the examination of the “App.” account was incomplete because of plaintiff’s refusal to allow such examination. Such a statement in the report against plaintiff carries with it innuendoes and implications that may be more damaging than the real facts an examination would reveal. As was declared by this court in Gordon v. Checker Taxi Co., 334 Ill. App. 313, 318:

“Innuendoes involved in such questions are sometimes more damaging than an effort to prove the impeaching facts.”

Plaintiff insists that the appeal from the report of the Director to the Circuit Court empowers that court to conduct a hearing de novo under § 1019 (2) and (3). Hence, the court was justified in entering the form of decree already alluded to. Where the statute which grants an appeal from an inferior court or administrative agency does not limit the scope or power of the reviewing court upon such appeal, the reviewing court hears it de novo as an original hearing. This is typical of appeals from the Probate Court and from justices of the peace to the Circuit Court. Carlson v. Avery Co., 196 Ill. App. 262. In Noel v. Noel, 228 Ill. App. 569, 572, this court said:

“On appeal from the latter court [probate] the circuit court does not sit ás a court of errors but to try the cause de novo, and what takes place before the probate court is of no importance. (Barnes v. Earle, 275 Ill. 381, 385.)”

The Workmen’s Compensation Act of June 10, 1911, (J. & A., § 5449) provided for an appeal to the Circuit Court and directed that “upon such appeal the questions in dispute shall be heard de novo, and either party may have a jury upon filing a written demand therefor with his petition.” Carlson v. Avery Co., 196 Ill. App. 262.

It will thus be seen, that Act specifically provided for a hearing de novo, which, of course, is not in the present Workmen’s Compensation Act. Where, however, the statute which grants an appeal from an administrative agency prescribes the scope of review upon such appeal, the court is thus limited in its authority, and cannot enlarge upon the statute. The obvious reason is to prevent courts from legislating by decision, or usurping the functions of governmental agencies.

In Thompson v. Illinois Commerce Commission, 1 Ill.2d 350, which was an appeal from an order of the Commerce Commission, it was held:

On appeal from an order of the Commerce Commission, the circuit court exercises a statutory, not a general appellate jurisdiction, being restricted in its powers to those expressly delegated, and while it may determine the reasonableness and lawfulness of the commission’s order, its inquiry is confined to the jurisdiction of the commission, the sufficiency of the evidence, and the preservation of constitutional rights, and it must either confirm or set aside the order of the commission, and having determined that an order is unlawful and unreasonable, it can only set aside the order and cannot remand the cause to the commission with directions to enter a different order.

The instant statute, § 1019, governing appeals from the Director, does not authorize a hearing de novo by the Circuit Court. That, we think, is clearly evidenced by the statute, which directs the Circuit Court on such appeal to hear it upon the transcript of the record certified by the Director and such additional evidence as may be offered at the hearing of said cause before the court by any of the parties. The parties in the instant case did not offer additional evidence before the court. We regard § 1019 (3), as authorizing the Circuit Court either to affirm or to set aside the order or decision of the Director. The form of the decree entered in the instant case, which deleted, altered, amended, affirmed in part and set aside in part the report of the Director, is not, in our judgment, justified by § 1019.

The instant § 1019 is unlike the provisions governing appeals from administrative agencies under the Administrative Review Act. In the latter Act the legislature specifically granted the Circuit Court the power, under § 275 (f) [Ill. Rev. Stats. 1955, ch. 110, § 275, subd. (f)], “where a hearing has been held by the agency, to reverse and remand the decision in whole or in part, and, in such case, to state the questions requiring further hearing or proceedings and to give such other instructions as may be proper.”

Even under this broad statute of review, this court recently in Nolting v. Civil Service Commission, 7 Ill.App.2d 147, 129 N.E.2d 236, held that the Circuit Court upon review could not reverse the order of the Civil Service Commission, and direct the restoration of the petitioner to the police force “upon condition” that he “waive salary” for the period covering his discharge. Such a condition was held not warranted by the review statute cited.

It follows from what we have said, we must reverse the decree of the Circuit Court, with directions to that court to enter a decree setting aside the report of the Director in toto and enjoining the Director from enforcing the report and order of the Director.

Eeversed and remanded with directions.

LEWE, P. J. and KILET, J., concur.


author: PRESIDING JUSTICE DOVE.

text:
    Cecil O. Libbee, Appellant-Petitioner, v. Harold David Imhoff, County Superintendent of Highways of Woodford County, Illinois.
    Gen. No. 10,968.
    Second District.
    September 17, 1956.
    Rehearing denied October 4, 1956.
    Released for publication October 4, 1956.
    Rae C. Heiple, II, for appellant; Samuel G. Harrod, State’s Attorney, for appellee. No brief filed for appellee.
   Opinion by

PRESIDING JUSTICE DOVE.

Not to be published in full.


text:
    Ruth Amenda, Administratrix of Estate of Henry J. Amenda, Deceased, Plaintiff-Appellee, v. Glenn Suits, Defendant-Appellant.
    Gen. No. 10,792.
    Second District.
    September 24, 1956.
    Released for publication October 10, 1956.

      Burrell & Holtan, and Ward & Ward, for defendant-appellant; David M. Burrell, of counsel; Dixon, Bales & Gunner, for plaintiff-appellee; William R. Gunner, of counsel.
   Opinion by

PRESIDING JUSTICE DOVE.

Not to be published in full.


text:
    J. Edwin Waghorne, Jr., Appellee, v. Edwin F. Hogstrom, and Margaret L. Hogstrom, Appellants.
    Gen. No. 10,904.
    Second District.
    October 3, 1956.
    Released for publication October 20, 1956.
    Boyles-& Fisher, and Holland F. FlaHaven, for appellant; Bernard MeDevitt, for appellant.
   Opinion by

JUSTICE CROW.

Not to be published in fuH.