text:
    Louis Parkin, Plaintiff-Appellant, v. Robert M. Rigdon, Defendant-Appellee.
    Gen. No. 9,917.

      Opinion filed March 9, 1954.
    Rehearing denied April 5, 1954.
    Released for publication April 5, 1954.
    Robert Weiner, and Walter T. Day, both of Springfield, for appellant.
    Gillespie, Burke & Gillespie, of Springfield, for appellee; Louis F. Gillespie, and Frederick H. Stone, both of Springfield, of counsel.
   Mr. Presiding Justice Reynolds

delivered the opinion of the court.

This is a personal injury suit growing out of injuries sustained by the plaintiff while crossing Fifth Street in Springfield, Illinois, and being struck by a car driven by the defendant. The plaintiff was a pedestrian. The evidence shows that the street in question is some 40 feet wide, and well lighted at the point of the injury and that there were apparently no obstructions to the view of the motorist or pedestrian. The place where the plaintiff was struck is in dispute, the plaintiff claiming it was in an unmarked crosswalk area and the defendant disputing this point. There is no question that the plaintiff was severely injured. The cause was tried before a jury and the jury brought in a verdict for the defendant. Motion for a new trial was denied and judgment was entered on the verdict of the jury. From that judgment the plaintiff appeals.

The appeal raises three questions as error. 1. That the giving of defendant’s instruction No. 17 was error. 2. That the giving of defendant’s instruction No. 7 was error. 3. That the court erred in refusing to permit X-ray photographs to be taken by the jury to the jury room during their deliberations.

Defendant’s instruction No. 17 was in the following language:

“You are instructed that at the time of the accident in question there was in full force and effect and binding upon the parties hereto, a certain statute of the State of Illinois, providing as follows: ‘Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right of way to all vehicles upon the roadway.’ You are further instructed that a crosswalk under the law of this State is defined as follows:

“ ‘(a) That portion of a roadway ordinarily included within the prolongation or connection of the lateral lines of sidewalks at intersections.’

“ ‘(b) Any portion of a roadway distinctly indicated for pedestrian crossing by lines or other markings on the surface.’ You are further instructed that if you believe from the evidence in this case that the Plaintiff, prior to and at the time of said accident, was proceeding across Fifth Street at a point other than within a marked crosswalk, or within an unmarked crosswalk and that such conduct, if any, proximately caused or contributed to cause the accident and the Plaintiff’s injuries, then and in such state of proof the Plaintiff cannot recover in this case.” Plaintiff objects to this instruction on the ground that it does not correctly state the law with respect to the rights of the pedestrian on the public highway or the duties of a vehicle operator. The instruction correctly quotes part of the statute, but fails to quote subsection (d) of the same section, namely section 172, of chapter 95% Illinois Revised Statutes, 1951 [Jones Ill. Stats. Ann. 85.204], which is in the following words:

“(d) Notwithstanding the provisions of this section every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway and shall give warning by sounding the horn when necessary and shall exercise proper precaution upon observing any child or any confused or incapacitated person upon a roadway.” In the case of Tuttle v. Checker Taxi Co., 274 Ill. App. 525, an ordinance of the City of Chicago to the effect that a pedestrian when crossing at any place other than a crosswalk must yield the right of way to vehicles upon the roadway, was the subject of an instruction which said in effect that if the jury believed from the evidence that the pedestrian had failed to yield the right of way to the vehicle, and as a proximate result of her failure to yield the right of way to the vehicle, was injured, the pedestrian could not recover. That is almost identical with the instruction in this case, except that here a statute is quoted. The court there held that this instruction was error and in holding it error, said:

“The instruction is also objectionable in that it in effect tells the jury that if plaintiff did not yield the right of way to defendants’ cab and because of this was injured, she could not recover. It ignores the rule that both pedestrians and drivers of automobiles on the public streets are required by law to use care to avoid accidents. Drivers of automobiles on the streets must use ordinary care for the safety of pedestrians. . . . The instruction was also erroneous in that it did not tell the jury under what circumstances the automobile had the right of way. There might be a number of circumstances, such as the speed of the automobile, the gait at which plaintiff was walking, her distance away from the automobile at the time she was attempting to cross the roadway, which would determine the right of the vehicle to proceed.

“The instruction is also objectionable in that it ignores the rule, stated in many cases, that the violation of an ordinance is only prima facie evidence of negligence. Jeneary v. Chicago & Interurban Traction Co., 306 Ill. 392; United States Brewing Co. v. Stoltenberg, 211 Ill. 531; Commonwealth Elec. Co. v. Rose, 214 Ill. 545; Price v. Illinois Bell Tel. Co., 269 Ill. App. 581; Culver v. Harris, 211 Ill. App. 474.

“The instruction directed a verdict, and errors it contains are not cured by other instructions.”

In the case of Breitmeier v. Sutera, 327 Ill. App. 221, an instruction, again, almost identical with defendant’s instruction No. 17 in this case, was held objectionable because it did not correctly state the law with respect to the rights of a pedestrian on the public highway or the duties of a vehicle operator. The Breitmeier case cited the case of Moran v. Gatz, 390 Ill. 478. In the Moran case the situation is the reverse of the present case, but the reasoning of the court may well be applicable to this case. There the court said: “Our conclusion, from the language of the act and the authorities cited, is that the right-of-way statute does not give a pedestrian, on a crosswalk, the right of way over all vehicles on the street under any and all circumstances. Bach case must be considered in the light of the facts and circumstances surrounding it. The pedestrian’s right of way is not absolute because both he and the vehicle happen to be on the street at the same time.” In the instant case, even if the proof showed that the plaintiff was crossing the street at a place other than a marked or unmarked crosswalk, and the vehicle had the right of way, that right is not absolute. It must depend upon the particular facts and circumstances of the case. In the case of Walker v. Shea-Matson Trucking Co., 344 Ill. App. 466, a right-of-way instruction was given. In that case the question was one of right of way between two vehicles in an intersection. The instruction given in that case was much broader than the one given here, as the jury was instructed to take into consideration all the other facts and circumstances in the case. Yet the court in that case held the instruction bad in the following language:

“Our courts of review have repeatedly held that the right-of-way statute does not give an automobile approaching an intersection the absolute right of way over one approaching from the left without regard to the distance that vehicle may be from the intersection or the speed at which the vehicles are traveling. See Gauger v. Mills, 340 Ill. App. 1; Alexander v. Sullivan, 334 Ill. App. 42; Bentley v. Olson, 324 Ill. App. 281; Paliokaitis v. Checker Taxi Co., 324 Ill. App. 21; and Krawitz v. Levinstein, 320 Ill. App. 618. Although the instruction was in the language of the statute a modified construction was placed upon the statute by our courts of review and it should have been framed according to that construction and the jury properly instructed as to its legal effect. (Moran v. Gatz, 327 Ill. App. 480; . . .) This instruction is misleading because it tells the jury in effect that plaintiff had the right of way.”

In the case of Anderson v. Middleton, 350 Ill. App. 59, an instruction was given as to the right of way of a vehicle on a preferential highway. The court in holding the giving of the instruction without qualifications as to the rights and duties of each, was reversible error. The court there said:

“This was a close case factually and it was important that the jury be correctly instructed. It has been held consistently that a right of way is not an absolute right and it cannot be asserted regardless of circumstances, distance, or speed. (Walker v. Shea-Matson Trucking Co., 344 Ill. App. 466.) The giving of this instruction without qualification, constituted reversible error.”

The importance of correct instructions was commented on in the case of Sharp v. Brown, 349 Ill. App. 269, the court there saying: “It has long been the law that a jury must be especially accurately instructed if the case be one where the fact's are close and where a verdict could easily favor either party in the suit.” This is very true where the evidence is in dispute, as in this case, as to whether the plaintiff was crossing in a crosswalk area, and had the right of way, under certain circumstances, or whether or not he was crossing at another point and the vehicle had the right of way, under certain circumstances. In other words, the instruction should take into consideration all the facts and circumstances. If the evidence showed that the plaintiff was crossing the street at a point not within a marked or unmarked crosswalk, and that he was jaywalking, this is only prima facie evidence of negligence on the part of the plaintiff, and not negligence per se, so as to bar the suit of the plaintiff on the grounds of contributory negligence. Rowley v. Rust, 304 Ill. App. 364; Stivers v. Black & Co., 315 Ill. App. 38. In the Rowley case, a pedestrian was walking on the improved highway on the right side of the highway, instead of complying with the statutes of Illinois directing that the pedestrian walk on the left. The defendant there contended that because the pedestrian was guilty of failure to comply with the provisions of the statute, he was guilty of negligence per se, and could not recover. The court citing previous cases held: “Notwithstanding this section, a pedestrian walking on either the right or left unpaved shoulder of a highway in the day time and off the place provided for traffic could not be considered guilty of negligence as a matter of law.” This view of the court is supported in other jurisdictions. Wojtowicz v. Belden, 211 Minn. 461, 1 N.W.2d 409; Hamilton v. Althouse, 115 N. J. L. 248, 178 Atl. 792; Tedla v. Ellman, 280 N. Y. 124, 19 N.E.2d 987. Regardless of the particular view taken as to whether the violation of a statute prescribing where a pedestrian shall walk, constitutes negligence itself, prima facie negligence, or merely evidence of negligence, such conduct on the part of the pedestrian will not of itself preclude recovery on the ground of contributory negligence if the violation of the statute is not the proximate cause of the injury. An instruction that does not recognize this fact is error. Defendant’s instruction No. 17 lacks these necessary elements:— 1. Any reference to the duty of the defendant driver to use ordinary care. 2. To take into consideration all the other facts and circumstances. 3. To tell the jury under what circumstances, the driver of the vehicle had the right of way. In ruling on this instruction, this court might well adopt the language of Walker v. Shea-Matson Trucking Co., 344 Ill. App. 466, when that court said: “It may well be that in the minds of the jury the question of the right of way was one of the circumstances, if not a controlling circumstance, that influenced them in reaching their verdict.”

The defendant takes the position that instruction No. 17 correctly stated the defendant’s theory of the case, and that this instruction is based upon the evidence in the case, and is the converse of the instructions given in behalf of the plaintiff, as to the right of way. In support of the defendant’s theory, he cites the case of Green v. Drew, 324 Ill. App. 84. That case is abstracted in the printed volume and the defendant has supplied the full case in his brief. In that case, defendant’s instruction 25 quoted the statute defining a crosswalk and the law governing a pedestrian crossing at a point other than a crosswalk, and stated that if the jury believed from the evidence that the defendant was not guilty of wilful and wanton misconduct, and that the plaintiff was crossing at a point other than a crosswalk, and in so doing was guilty of negligence which proximately caused or contributed to cause the collision and her subsequent injury, the plaintiff could not recover and the jury should find the defendant not guilty. Citing Minnis v. Friend, 360 Ill. 328, 338, as authority for the instruction. This court has carefully read the case of Minnis v. Friend, and fails to find any language in that case that would support defendant’s instruction No. 25 in the Green v. Drew case. The opinion in the case of Green v. Drew is in direct contradiction to the law as announced in the cases heretofore cited, namely Breitmeier v. Sutera, 327 Ill. App. 221; Anderson v. Middleton, 350 Ill. App. 59; Walker v. Shea-Matson Trucking Co., 344 Ill. App. 466. These cases were decided by the Appellate Court after the decision in the Green v. Drew case, are well reasoned and in the opinion of this court correctly state the law in Illinois at this time. In our opinion defendant’s instruction No. 17 was prejudicially erroneous.

The defendant argues that if defendant’s instruction No. 17 was erroneous, that plaintiff’s instructions No. 4 and 19 were also erroneous, and that a party cannot complain of an erroneous instruction where his own instruction is subject to the same criticism. It is true that one party cannot complain of an erroneous instruction where his own instruction is subject to the same criticism. Spring Creek Drainage Dist. v. Greenawalt, 335 Ill. 147; People v. Rudnicki, 394 Ill. 351; Hookersmith v. Cox, 407 Ill. 321; Allied Cab Co. v. Hopkins, 325 Ill. App. 265. A reading of those cases will disclose that the instructions objected to all relate to the same particular matter. In this case, if the plaintiff had submitted instructions as to the right of way, as contained in defendant’s instruction No. 17, directory in character, and clearly erroneous as that instruction was, then the plaintiff could not be heard to complain of the instruction of the defendant on that matter. But here, plaintiff’s instructions No. 4 and 19 do not relate to the same matter, are not directory, and do not preclude the right of the plaintiff to challenge defendant’s instruction No. 17. This is true in interpreting the language of the case of Allied Cab Co. v. Hopkins, 325 Ill. App. 265. There, the cab company complained of an instruction, but the record showed that it had submitted and had given an instruction almost identical with the one complained of. In reading the language of plaintiff’s instruction No. 4, it is hard to follow the argument of the defendant. That instruction recites that if the jury find that the plaintiff had the right of way, and if the jury believe that the plaintiff was in the exercise of due care, that until there was notice to the plaintiff to the contrary, he had a right to assume in the exercise of ordinary care that the vehicle would yield the right of way. This court fails to perceive any error in plaintiff’s instruction No. 4. Plaintiff’s instruction No. 19 sets out the language of the statute. There is nothing peremptory or directory in it. There is no direction as to what the jury should do under any given circumstances. The giving of the hare language of the statute, without modifications placed upon that statute by our courts might be error. We do not see any error in this instruction. All three instructions relate to the right of way. There the similarity ends.

The next point assigned as error by the plaintiff is the giving of defendant’s instruction No. 7. This instruction is a so-called “unavoidable accident” instruction. The plaintiff contends that there is no evidence in the case to support such an instruction; that without such supporting evidence, the giving of the “unavoidable accident” instruction is erroneous. We cannot subscribe to this contention. This would be a question of fact, and a matter for the jury to determine. Certainly every litigant is entitled to have his own theory of the case. The defendant is entitled to his theory of an unavoidable accident, if there was the slightest evidence in the case that would support such a theory. In Kirchner v. Kuhlman, 334 Ill. App. 339, this was recognized, when the court there said: “The law is well settled that each party to a cause of action is entitled to direct and specific instructions embracing his theory of the facts where his evidence tends to prove such facts.” In this case, the defendant and his wife both testified that they did not see Parkin until the exact moment of the impact, or a split second before. There is evidence that the plaintiff was hit about 60 feet north of the intersection. Certainly there is sufficient evidence in the record to entitle the defendant to claim an unavoidable accident and it would be up to the jury to decide if it was unavoidable or not. There was no error in giving of this instruction.

The third error assigned by the plaintiff is that the trial court erred in refusing to permit the jury to take the X-ray exhibits with them to the jury room. The cases cited by the plaintiff are not on this point. Rather they are to the effect that it was not error to permit them to go to the jury. Whether or not, after X-ray pictures are admitted in evidence, refusal to let the jury take them into their jury room for their deliberations, is not passed upon in the cases cited. In this case we are not prepared to hold that the action of the trial court in refusing to permit the jury to take the pictures with them into the jury room was error. Certainly the jury had an opportunity to examine the exhibits when admitted. WTiether or not further examination would have been of benefit to the jury in arriving at their verdict is a matter that should have been considered by the trial court. If they were admissible in the first instance, then we can see no valid reason why they should not have been allowed to go with the jury for such benefit that the jury might derive from a further examination. Section 191 of chapter 110, Illinois Practice Act [Jones Ill. Stats. Ann. 104.067] provides that papers read in evidence, other than depositions, may be carried from the bar by the jury. By implication at least, this would extend to exhibits. Here again, we come to the right of the litigant to present his theory of the case. If it was the theory of the plaintiff that the X-rays would show his injuries were such that would in turn show his position when struck, and the X-rays were admitted into evidence, we can see no good reason why the jury were not permitted to take the X-ray exhibits into the jury room for further examination. Kavale v. Morton Salt Co., 329 Ill. 445. As this case is reversed on other grounds, we only call attention to the above matter without ruling thereon.

Reversed and remanded.

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


source: Caselaw Access Project

author: Mr. Presiding Justice Reynolds

license: Public Domain

text:
    Edward Jackson, Plaintiff-Appellee, v. Charles Hursey and Wardel Jackson, Defendants-Appellants.
    Gen. No. 9,923.

      Opinion filed March 9, 1954.
    Rehearing denied April 5, 1954.
    Released for publication April 5, 1954.
    John Alan Appleman, of Urbana, and Edwin W. Collord, of Champaign, for appellants; John Alan Appleman, of Urbana, of counsel.
    W. C. Noel, of Urbana, Joseph M. Williamson, and C. E. Tate, both of Champaign, for appellee.
   Mr. Presiding Justice Reynolds

delivered the opinion of the court.

This is an appeal from judgment entered against the defendants in the circuit court of Champaign county. The verdict of the jury was for $6,800, and the trial court deducted $3,500 from the verdict, this being the amount of a prior payment received by the plaintiff from Hursey’s public liability carrier for damages sustained by the plaintiff in the same occurrence upon which this suit, a dramshop action is based. To get a clearer picture of the entire action, a brief review of the facts is necessary..

On March 15th, 1952, the plaintiff Edward Jackson, Ralph Massey, Wilbur Hurst, and a waitress named Jean Blake were seated at a table in the tavern operated by the defendant Charles Hursey. The premises were owned by the defendant Wardel Jackson. An altercation arose between Wilbur Hurst and the waitress Jean Blake, and after some words, Hurst struck the waitress Blake and knocked her down. She ran back of the bar, grabbed an empty beer bottle, and threw it at Hurst. He ducked and the bottle struck the plaintiff, injuring him. Subsequently, the plaintiff entered into an agreement with the defendant Charles Hursey, and executed a covenant not to sue the said Hursey, for damages for general negligence, but specifically reserved Ms rigM to sue said Charles Hursey and others under the Illinois Dram Shop laws. For tMs covenant not to sue for damages sounding in general negligence on the part of Hursey, the plaintiff received $3,500. Afterwards, the plaintiff brought his suit against the defendants Hursey and Jackson under the Illinois Dram Shop laws. The jury returned a verdict in favor of the plaintiff in the amount of $6,800 and the trial court deducted the amount received by the plaintiff for the covenant not to sue, namely $3,500, leaving a judgment of $3,300 in favor of the plaintiff. From that judgment the defendants appeal.

The appeal assigns as error a number of points and they will be taken up in order. The first error assigned is that the trial court permitted prejudicial error in refusing to permit the testimony of Joseph Hern and the defendant’s offer of proof to impeach the testimony of Benny Robinson and Ralph Massey. The trial court held that this evidence was cumulative and not admissible. The trial court permitted the plaintiff to put in evidence that Hurst was intoxicated. From the record it would seem that several witnesses for the plaintiff testified on this point. To refuse to permit the defendants to refute this testimony, either by direct testimony, or by impeachment would seem to refuse to the defendants one of the principal parts of their defense. If, as the defendants contend, the witnesses testified one way in the trial and made contradicting statements before the trial, the defendants should have been entitled to show such contradictions. This character of testimony is not cumulative but more in the nature of refutation of the witness’ testimony, and goes to the truth of the testimony by the witness. Certainly the trial court should have the right to refuse testimony that would serve no useful purpose in the trial. Whether or not the trial court has the right to arbitrarily limit the number of witnesses offered to combat the testimony of witnesses offered by the other side, is subject to question. In the case of Green v. Phoenix Mutual Life Insurance Company, 134 Ill. 310, which was a suit to set aside a sale of real estate, claiming that the sale was invalid because of insanity on the 1 part of the plaintiff at the time of the sale, there were thirteen witnesses offered to show insanity, and the trial court then stopped this line of testimony on the ground that three experts was the rule and that he did not want to permit everyone who knew the complainant to testify. The court in that case, distinguished between the number of witnesses permitted to testify on conceded fact, or a collateral issue, but held that where the fact is in dispute, the court erred in limiting the number of witnesses. In this case, the matter of intoxication of Hurst and the waitress Jean Blake was a very material part of the case, and was not conceded. In the case of Chicago City Railway Co. v. Wall, 93 Ill. App. 411, the trial court limited the number of witnesses, and that court said: “The court might have ruled that, after a given number of witnesses had been examined upon the matter, all witnesses thereafter called and examined only upon the same matter should be made witnesses only at the cost of the party calling them. But beyond this we think the court could not thus impose such an arbitrary limit upon the amount of evidence which the litigant might present to maintain a material issue in the cause.”

The case of the People v. Pruszewski, 414 Ill. 409, while not directly in point, does establish the point that testimony of a non-expert witness, offered on a material point, is admissible, and the exclusion of the testimony of such a witness is prejudicial error in that it deprives the defendant of a fair opportunity to fully and completely present his defense.

Because of testimony of witnesses on the part of the plaintiff, showing intoxication of the moving parties in the action, it was error for the trial court to refuse to permit the defendants to contradict such testimony by direct or impeaching evidence.

The next point urged as error is that the trial court permitted testimony as to the intoxication of the waitress Jean Blake, although the complaint did not so allege, and that there was no testimony that the defendants had sold or given any alcoholic liquor to her. The complaint did allege: “That at said time and place aforesaid, there was upon said premises a certain person or persons who was or were then and there intoxicated and whose intoxication was then and there wholly or in part caused by the selling or giving of intoxicating liquors to him or them by the agents or servants of the defendant Charles Hursey, who was at said time the owner and operator of said Harlem Deluxe Tavern.” There is the testimony of Wilbur W. Hurst that Jean Blake was drinking beer. Other witnesses were permitted to testify that Jean Blake was drunk. The defendants take the position that it was necessary to establish the sale or gift by the defendants of alcoholic liquors to Jean Blake and in the absence of evidence showing such sale or gift, it was reversible error to permit testimony to show she was intoxicated. In support of this position they cite the case of Blackwell v. Fernandez, 324 Ill. App. 597. In that case the court held that a sale or gift was necessary in order to establish liability under the Dram Shop Act. The case of Gunderson v. First National Bank of Chicago, 296 Ill. App. 111, is also cited by the defendants. That case also holds that in order for plaintiff to recover under dramshop law for personal injuries, it was incumbent upon plaintiff to prove that the tavern operator either sold or gave liquor to the plaintiff’s assailant. The other cases cited are to the same effect. None of the cases cited, however, go to the exact point raised by the defendants, that it was reversible error to allow evidence of the intoxication of Jean Blake, without showing that the defendants had given or sold her intoxicating liquor. This court cannot agree with the defendants’ contention in that regard. There is evidence that the waitress Jean Blake was drinking. The complaint does allege that there were on the premises, persons who had been sold or given intoxicating liquors. There is ample testimony that intoxicating liquor had been sold to Hurst, and that Hurst started the chain of events that led to the injuries to the plaintiff. It may well be that the evidence as to the intoxication of Jean Blake is outside the pleadings. However, if there is error in that respect, this court does not regard it as reversible error. As was said in the case of Klopp v. Benevolent Protective Order of Elks, 309 Ill. App. 145, “It is a frequent occurrence in our nisi prius courts that suits seeking recovery of damages under the Dram Shop Act arise wherein altercations so begun have ended in fights and result in injuries to the person, property or means of support of some other person or persons. To hold that a sober person who happened to be in a position to be injured in consequence of a condition cafised by a dispenser of liquor could not recover would defeat the purpose of the statute.”

The next point urged by the defendants as error is that the trial court gave instruction No. 2 for the plaintiff. This instruction set forth in haec verba the entire statute, and the defendants contend a large portion of the statute, so given in the instruction, had no possible relevancy to the present case. Our courts have held that in a close case factually it is important that the jury be instructed correctly. Anderson v. Middleton, 350 Ill. App. 59. It has been held that the construction and interpretation of a statute belongs to the court and should not have been left to the jury. People v. Peden, 109 Ill. App. 560. Here, the entire section of the statute was submitted as an instruction. It was held in Magill v. George, 347 Ill. App. 6, that instructions must be based upon the issues raised by the evidence, and it is reversible error to give instructions where there is no evidence upon which the instruction can be based. Citing in that case, Rosenkrans v. Barker, 115 Ill. 331; Russell v. Consolidated Forwarding Corp., Inc., 327 Ill. App. 204; City of Taylorville v. Stafford, 196 Ill. 288. In this case we must hold that the giving of plaintiff’s instruction No. 2 was reversible error. More than one half of the instruction had no possible application to the issues in this case. At best it would tend to confuse the jury as to the real issues before it. It must be remembered that juries are composed of laymen who are not trained to separate issues and to disregard the irrelevant matters. That function should be performed by the court, and to give an instruction that raises other issues not in the trial is reversible error.

The next matter assigned as error, is alleged prejudicial conduct on the part of counsel for the plaintiff. This court has read the questions and answers complained of, and while we are of the opinion that the questions and answers were deliberately designed to create in the minds of the jury sympathy for the plaintiff, and antagonism to the defendants, yet the conduct of the trial judge was such that if there was error, it should have been corrected by the rulings of the trial court. In the heat of litigation, such things occur, questions are asked and intended to prejudice the jury, yet the trial court, by his rulings and instructions can prevent any damage in the minds of the jury. In reading the testimony of this case, the many objections and rulings thereon, it would seem that the trial court did an admirable job in his rulings and instructions as to the evidence. While it is apparent that counsel for the plaintiff went far afield in Ms questions, and the conduct of counsel for plaintiff is certainly subject to criticism, yet because of the rulings and instructions by the trial court, we do not believe that this constituted reversible error.

The next error assigned by defendants is that the plaintiff split a single cause of action for personal injury. The plaintiff had already received $3,500 for general negligence on the part of the defendant Hursey. For this $3,500 he had executed and delivered his covenant and agreement not to sue or molest the said Charles Hursey for damages sounding in general negligence. In this covenant and agreement it was specifically reserved on the part of the plaintiff a right to sue Hursey and others under the Illinois Dram Shop Act. It is true that the injuries sustained by the plaintiff all happened at one occurrence. The defendants contend that there was only one loss or injury and he is entitled to only one satisfaction for that loss or injury. In support of this the defendants cite the case of McClure v. Lence, 345 Ill. App. 158, where five young people were in a car which was struck by a train, and three of the young people were killed. The representatives of the deceased persons executed a release under seal with the railroad company, and were paid. Later, they brought suit against a tavern operator, claiming that the tavern operator had sold the young people liquor and was therefore liable. In that case, the court said: “Therefore, under the Dram Shop Act, where the injury results in death under circumstances where the decedent himself might have maintained an action for injuries had he lived, a situation is created where two remedies are potentially available to the next of kin: an action for pecuniary injury under the Injuries Act and an action for injury to means of support under the Dram Shop Act. Does this require the conclusion that the legislature by its action intended that two recover-

ies should be available for a single ascertainable injury? We think not, for overriding all the multiple remedies and actions created by these two statutes is the salutary principle rooted deeply in our law that for one injury but one satisfaction may be had.” This view was reaffirmed in McClure v. Lence, 349 Ill. App. 341. In that case, a release under seal was signed and delivered. It is a well known and accepted rule of our law that the release of one tort-feasor will release the other tort-feasors in the same matter. That is not the law as to a covenant not to sue. In the McClure case, the next of kin had two remedies. They could sue the railroad which was the immediate cause of death, or they could sue the tavern operator who had sold the deceased intoxicating liquors. They chose to settle with the railroad and thereby released the tavern operator, although the two remedies were under different theories of damages. One under the Injuries Act, and the other under the Dram Shop Act. Here the plaintiff executed a covenant or agreement not to sue the defendant Hursey under the Injuries Act, but specifically reserved his right to sue under the Dram Shop Act. The defendant Hursey claims this was without his knowledge or consent. This we think is immaterial. If the defendant can claim that he is exempt from suit because of the execution of this covenant or agreement not to sue, under the Injuries Act, he cannot take advantage of it in one breath and deny its validity in the other. Here there was a definite agreement between the parties to split the causes of action. We do not think the defendant can complain of its effect at this time.

In the case of De Lude v. Rimek, 351 Ill. App. 466, the court there held that while a plaintiff is entitled to only one satisfaction for the same injuries sustained in any accident, that where a plaintiff receives a payment for a covenant not to sue from one against whom tort liability could lie, such payment, made before or after judgment, might be deducted from the damages recoverable from persons whose tort liability arises out of the same circumstances. But this is not a case of joint tort-feasors, since there was only one party, as tort-feasor, so the law as to release of one joint tortfeasor releasing other joint tort-feasors will not apply. It is not really a case of splitting the causes of action, since the plaintiff had two causes of action, and only collected under one. Under the authority of De Lude v. Rimek, 351 Ill. App. 466, any money he received should be credited against his total damages, but that would not prevent him from pursuing both remedies, to the end that he might be fully compensated for his injuries. This was recognized in the covenant or agreement not to sue between the parties. The defendant cannot be permitted to take refuge behind an instrument wherein he specifically agreed that the plaintiff could pursue another remedy to receive full compensation for his injuries. It is true that any payments he received must be credited against his total amount of injury or damages, but that would not, in this case, which in effect amounts to an agreement between the parties, deny the plaintiff the right to follow up with suit under the Dram Shop Act.

For the reasons stated, we are of the opinion that the plaintiff is entitled to sue under the Dram Shop Act, and that any money received for the covenant not to sue under the Injuries Act must be deducted from the total amount decided by a jury to be compensation for his injuries.

Because of the other errors noted, the judgment is reversed and remanded.

Reversed and remanded.

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


author: JUSTICE EOVALDI

text:
    Maryland Casualty Company, Plaintiff-Appellant, v. John Holmsgaard et al., Defendants-Appellees.
    Gen. No. 10,898.
    Second District.
    April 9, 1956.
    Released for publication May 14, 1956.

      Welsh and Welsh, and John T. Holmstrom, Jr., of Rockford, for plaintiff-appellant; John T. Holmstrom, Jr., of counsel.
    Maynard & Maynard, of Rockford, for John Holmsgaard, defendant-appellee; Foltz, Haye & Keegan, of Rockford, for Ellis L. Grove, and Ronald Grove, defendants-appellees; Frederick H. Haye, of Rockford, of counsel.
   JUSTICE EOVALDI

delivered the opinion of the court.

Appellant, an insurance corporation, brought suit for declaratory judgment against the appellees for construction of a certain policy issued by it to the defendant, Ellis L. Grove. The relief asked for in the complaint was two-fold: (1) that the court declare and determine that the company be not required to defend-, and (2) that the company be not required to pay any judgment that might be entered against its assured, or his agent, in a suit brought by defendant, John Holmsgaard, against the assured, Ellis L. Grove, and his agent, Ronald Grove, in the circuit court of Winnebago County, Illinois, in Cause No. 65101. The circuit court by. its judgment and order found that appellant was obligated under the policy of insurance to furnish defense and pay any judgment within the limits of its policy obtained against its assured, Ellis L. Grove, or his agent, Ronald Grove, in said suit brought by John Holmsgaard against them. From said judgment and order this appeal is taken.

Plaintiff’s contentions are as follows: (1) the policy of insurance in question excluded from coverage property in the insured’s hands as a bailee for hire, or in his care, custody, and control; and therefore, by the terms of the policy the company was neither obligated to defend the suit nor to pay any judgment entered against its assured arising out of the occurrence alleged in the amended complaint filed in said Cause No. 65101 ; (2) that the terms and provisions of the policy of insurance were plain and not ambiguous; and (3) that the judgment and order of the circuit court was contrary to the law.

Defendant, John Holmsgaard, was the owner of a 1954 Dodge four-door sedan on July 20, 1954, and his wife drove this car on the above date to the Gem Welding and Machine Shop owned and operated by Ellis L. Grove to have a trailer hitch installed beneath the car by welding to the frame. The automobile was left in said shop. Holmsgaard’s amended complaint alleged that the defendant, Ellis L. Grove, by and through his agent and servant, Ronald Grove, was guilty of various negligent acts dr omissions, and as a direct and proximate result of the defendants’ negligence, the automobile then and there owned by the plaintiff, while under the sole care, custody and control of the defendants, and while the trailer hitch was being welded to the frame by the defendant, Ronald Grove, as said agent, was set on fire or ignited by the welding torch or welding equipment then and there used by said defendant and said automobile was totally consumed and destroyed by fire. At the trial defendant Holmsgaard asked and was given leave to amend the amended complaint in said Cause No. 65101 on its face by striking out the language “sole custody and control” and inserting in lieu thereof, “while in the possession of the defendants as bailees for hire, . . . .” While the trailer hitch was being welded to the frame by Ronald Grove, as agent of Ellis L. Grove, the automobile was set on fire and totally destroyed.

On October 25, 1953, E. L. Grove, doing business as Gem Welding and Machine Company, was issued Manufacturers’ and Contractors’ Schedule Liability Policy by the Maryland Casualty Company, which bore number 53-227954 and shows a renewal of identical policies written for prior years. The policy was in effect on July 20,1954. Ellis L. Grove had paid all premiums due.

The policy states on its face:

“The insurance afforded is only with respect to such and so many of the following coverages and divisions thereunder as are indicated by specific premium charge or charges. The limits of the company’s liability against each such coverage and division thereunder shall be as stated herein, subject to all of the terms of this policy having reference thereto.

The attached schedule above referred to is as follows:

“Supplement to Item 3 of the Declarations

(For attachment to Schedule Liability Policies 52 and 53)

In said policy plaintiff insured said Ellis L. Grove as follows:

“Insuring Agreements
I Coverage A — Bodily Injury Liability Coverage B — Property Damage Liability To pay on behalf of the insured all sums which the insured shall become obligated to pay by reason of the liability imposed upon him by law for damages because of injury to or destruction of property, including the loss of use thereof, caused by accident and arising out of the hazards hereinafter defined.
Definition of Hazards
Division 1. Premises — Operations. (1) The ownership, maintenance or use of the designated premises, and all operations which are necessary or incidental thereto, or (2) the maintenance or use of alienated premises as defined herein.
II Defense, Settlement, Supplementary Payments
As respects such insurance as is afforded by the other terms of this policy the company shall
(a) defend in his name and behalf any suit against the insured alleging such injury, sickness, disease or destruction and seeking damages on account thereof, even if such suit is groundless, false or fraudulent; but the company shall have the right to make such investigation, negotiation and settlement of any claim or suit as may be deemed expedient by the company; ....
The company agrees to pay the amounts incurred under this insuring agreement, except settlements of claims and suits, in addition to the applicable limit of liability of this policy.
Ill Definition of ‘Insured’
The unqualified word ‘insured’ includes the named insured and also includes any partner, executive officer, director or stockholder thereof, while acting within the scope of his duties as such.
Exclusions
This policy does not apply:
. . . (g) under Coverage B, to injury to or destruction of (1) property owned, occupied or used by or rented to the insured, or (2) except with respect to liability assumed under sidetrack agreements and the use of elevators, property in the care, custody or control of the insured (Italics ours) . . .”

The facts are not in dispute. The question presented is whether the exclusion clause (reciting that the policy does not apply, under the coverage for property damage liability, to injury to or destruction of property in the care, custody or control of the insured) relieves the company from furnishing defense or paying any judgment against the insured obtained by Holmsgaard.

Defendants’ theory of the case is that the judgment of the circuit court is correct for the following reasons : the loss was sustained during the course of the operations described in the insuring and coverage provisions of the policy; the exclusions of the policy do not, when considered with the other provisions of the policy, deny coverage for loss sustained to Holmsgaard’s automobile; the work being done by Grove, the insured, upon Holmsgaard’s automobile, was within the coverage provided by the policy and within the hazards insured against; the declarations of the policy providing for the use of the insured premises, being typewritten upon the policy, supersede printed exclusion provisions of the policy; and the construction of the policy sought by plaintiff would result in no coverage to the insured so far as property damage is concerned.

In support of the above contentions, defendants argue (1) that the intention of the whole agreement, expressed in the contract of insurance, is that coverage is provided where damage is sustained to property owned by some person other than the insured; (2) that inconsistent provisions of the policy are resolved in favor of the insured and to provide coverage; and (3) that the provisions of a typewritten rider attached to an insurance policy govern over printed portions.

Plaintiff does not challenge the correctness of the last two contentions of the defendants. Its answer is, that those principles of law do not apply in cases where there is no ambiguity in the provisions of the policy, or no conflict in the terms of said policy and the provisions of the rider attached to same. Plaintiff’s position is correct. There is no ambiguity. There is nothing in the rider attached to the policy which is in conflict with the exclusions appearing in the policy. The reason for attaching the rider to the policy is evident from an examination of the policy as shown by the photo static copy of same appearing in the record. The form of policy does not have sufficient room on its face to include the necessary terms which appear in the rider. As to the first contention of defendants, we cannot see how these exclusions can be read in any other manner than to bar recovery. Policies should be construed according to the sense and meaning of the terms used and if the language is clear and unambiguous it must be taken in its plain, ordinary and popular sense. Illinois State Trust Co. v. Employees Life Co., 8 Ill.App.2d 455, 131 N.E.2d 789; Zitnik v. Burik, 395 Ill. 182; Tadro v. United States Fidelity & Guaranty Co., 4 Ill.App.2d 477; Bridge v. Massachusetts Bonding & Ins. Co., 302 Ill. App. 1.

Whether we take the allegation, as shown in the amendment to the amended complaint made at the trial, that the automobile in question was delivered into the possession of Grove, the owner of the welding shop, as bailee for hire, or whether we take the allegation that the car was in Grove’s care, custody and control, the result¿s the same. Grove had actual possession of the automobile. He had dominion over it. He managed and controlled it at his place of business and was in the act of welding a trailer hitch to the automobile at the time of the damage complained of. Under our statutes, he was entitled to a lien for his services. There can be no doubt that a bailment carries with it the surrender of possession and custody. In 6 Am. Jur., Sec. 27, page 189, the writer states:

“Moreover, it is a generally recognized feature of bailments that possession of the thing bailed is severed from ownership; the bailor retains the general ownership, while the bailee has the lawful possession or custody for the specific purpose of the bailment. Most courts, especially with respect to a bailment for compensation, agree that the bailee’s possession of the bailed property in such a case is more than a bare custody and is such as would, for the purposes and during the period of the bailment, give the bailee such control and dominion over it as would entitle him to exclude the possession of others, even that of the bailor.”

In the instant case, the pertinent exclusion clause is broken down into two categories: “(1) property owned, occupied or used by or rented to the insured, or (2) . . . property in the care, custody or control of the insured; . . . .” These categories spell out different relationships. The first deals with ownership or incidents thereof. Plainly, if the insured owned or occupied or used or rented an automobile under number (1) above, the exclusion would apply. No coverage would be afforded under the policy to an automobile over which the insured exercised the relationships therein expressed. We here are concerned with exclusion (2), which spells out an entirely different classification of property, that is, property in the “care, custody or control” of the assured. Bailment includes custody and control. Care, custody and control are possessory in nature. The language of the policy is clear. The rule that ambiguous language is to be construed most strongly against the insurer does not authorize a perversion of language or the exercise of inventive powers for the purpose of creating an ambiguity where none exists. Yadro v. United States Fidelity & Guaranty Co., supra; Canadian Radium & Uranium Corp. v. Indemnity Ins. Co. of North America, 342 Ill. App. 456, at 473.

The policy and rider in this case contain no inconsistency or ambiguity as applied to the facts. The judgment of the lower court therefore is reversed and the cause remanded with directions to enter a decree in conformity with this opinion.

Reversed and remanded with directions.

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


author: PRESIDING JUSTICE McCORMICK

text:
    Earl Randal, Appellant, v. Clarence Deka, Appellee.
    Gen. No. 46,743.
    First District, Second Division.
    April 24, 1956.
    Rehearing denied May 3, 1956.
    Released for publication May 15, 1956.

      Arthur S. G-omberg, and Joe Beiff, both of Chicago, for appellant; Samuel Nineberg, of Chicago, of counsel.
    Erwin H. Wright, and James E. Hastings, both of Chicago, for appellees.
   PRESIDING JUSTICE McCORMICK

delivered the opinion of the court.

An action was brought by the plaintiff against the defendant for personal injuries sustained by the plaintiff, a pedestrian, when he was struck by the automobile of defendant at the intersection of North avenue and Linder street in the City of Chicago. At the trial the jury returned a verdict in favor of the defendant. The trial court overruled plaintiff’s motion for new trial and entered judgment on the verdict, from which judgment this appeal is taken.

The plaintiff urges that the court erred in giving instructions to the jury on behalf of the defendant and in certain rulings on the evidence, and that the the verdict is against the manifest weight of the evidence.

The defendant’s theory is that the plaintiff was guilty of contributory negligence in crossing the street directly in front of defendant’s automobile; that the plaintiff was not crossing the street at a crosswalk and that, even if he was, he nevertheless was guilty of contributory negligence since he had been standing in a place of safety on the raised center portion of North avenue and left that place of safety when the defendant’s car was so close to him that it could not be stopped; that the defendant was proceeding at a reasonable rate of speed and was in the exercise of ordinary care.

North avenue at the scene of the accident is about fifty feet wide. Down the center of that street is a raised concrete abutment two or three feet wide and four or five inches high. The east and west drives of North avenue are each approximately twenty-seven feet wide. Linder avenue from curb to curb is about twenty-five feet wide, and as it crosses North avenue jogs west, that is, Linder avenue on the south side of North avenue is farther west than Linder avenue on the north side of North avenue. The accident occurred September 6, 1954 at about eight o’clock in the evening. The pavement was dry. The weather was clear, and though it was dusk at the time of the accident, visibility was good.

At the time of the accident plaintiff was going south across North avenue. The evidence is in conflict as to whether or not at the time he was within the lines of the east crosswalk of Linder avenue. There is no dispute that the automobile driven by the defendant struck the plaintiff, and that he was thrown forward and to the right of the car. He was thrown five feet according to testimony of defendant’s witness. Plaintiff was a man thirty-two years of age in previous good health, and he sustained serious injuries. The defendant at the time of the accident was eighteen years old. The evidence is in conflict as to the speed at which the defendant was traveling and as to the efforts he made to avoid striking the plaintiff.

The plaintiff urges that the jury was improperly instructed.

The court gave nineteen instructions at the request of the defendant. Eight of these concluded with “you should find the defendant not guilty” or similar language. In addition, other instructions, while not peremptory in form, contained statements to the effect that under certain circumstances the plaintiff would not be entitled to recover. Seven of the instructions were concerned with the contributory negligence of the plaintiff. Two separate instructions which we will discuss later set out in haec verba the identical statutory provision governing the duty of a pedestrian crossing a roadway at any point other than a marked crosswalk.

In Chism v. Decatur Newspapers, Inc., 340 Ill. App. 42, the court uses language which is particularly apt and applicable to the case now before us. In the opinion the court says:

“The defendant tendered 25 instructions, of which 21 were given. Six of these instructions concluded ‘The jury must find for the defendant,’ or ‘You must find the defendant not guilty,’ or words to that effect. Nine instructions mentioned that the plaintiff must be in the exercise of ordinary care for his own safety or that he must not be guilty of contributory negligence.

“One instruction, defendant’s (a), mentioned the matter of due care twice; and defendant’s instruction (1) three times mentioned the duty of the jury to disregard sympathy.

“This was not a complicated case. It was a typical negligence action, and no unique legal points were involved. It is true that the theories of how the accident occurred were in conflict, but we see nothing about the case that should make the instructions so lengthy, involved and repetitious. The wise trend of the courts of this State is definitely against such instructions. Baker v. Thompson, 337 Ill. App. 327, and the cases therein referred to.

“It is not proper for a party to a lawsuit to ask a witness to repeat eight or nine times a bit of evidence that is favorable to the interrogator for the purpose of impressing that fact upon a jury, and by the same token a jury should be told once only about each proposition of law. To do otherwise will lead to a contest between the litigants to see how often they can repeat that which seems favorable to their cause.

“We are fully in accord with the view expressed in Baker v. Thompson, supra, and feel that when defense attorneys in negligence actions tender an excessive number of instructions, filled with repetition and containing many of a peremptory nature, they do so at their own peril in the event the case is reviewed. Such instructions cannot aid the jury members, but rather will hinder them in the performance of their duty of giving to each side a fair and impartial trial.”

This case was decided in 1950. Since that time our Appellate Courts in the other Districts have similarly condemned the practice of giving an inordinate number of instructions peremptory in form. Stone v. Warehouse & Terminal Cartage Co., 6 Ill.App.2d 229; Schacht v. Elliott, 345 Ill. App. 302; Loucks v. Pierce, 341 Ill. App. 253; Triolo v. Frisella, 3 Ill.App.2d 200; Moore v. Daydif, 7 Ill.App.2d 534.

The warning contained in these decisions has not been heeded by many counsel who still seem to believe that in order to fulfill their duty to their client it is necessary that they overwhelm the trial court with a plethora of instructions peremptory in form. It would seem that many counsel have riot as yet fully grasped the fact that the purpose of giving instructions is to enlighten the jury and not to create confusion. A constant repetition by the court in its instructions to the jury of the peremptory demand that under certain circumstances they shall find for one party or the other may cause the jury to believe that the court has taken a definite stand upon the issues involved in the lawsuit. There is such a thing as a litigant being instructed out of court. Under the facts and circumstances in the case before us the court erred in giving the eight peremptory instructions which are objected to.

The defendant argues that most of the instructions given in the instant case were instructions which had been approved by some reviewing court in this State, and, therefore, the trial court properly submitted them to the jury. The fact that an instruction has been approved by a reviewing court in some case does not confer an unlimited license upon a trial court to read it to the jury in each and every case before it. The propriety of the instruction depends upon the nature of each individual case.

Many of the instructions were repetitious and the defendant in his brief admits that at least one of the instructions could have properly been combined with another instruction. Instructions which repeat the same legal proposition to the jury are not proper:

The plaintiff also urges that many of the other instructions were erroneous in form, among these being defendant’s instructions 35 and 36. Instruction 35 merely quoted the following subsection of the statute (Ill. Rev. Stat. 1955, chap. 95%, par. 172(a)): “Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right-of-way to all vehicles upon the roadway.” Instruction 36, after repeating the section of the statute contained in instruction 35, added the following language:

“If the jury believe from the evidence in this case that the plaintiff, while crossing North Avenue at a point other than a marked crosswalk, or an unmarked crosswalk at an intersection, failed or refused to yield the right of way to the automobile of defendant and that such failure on his part, if any, was negligent and that such negligence, if any, proximately caused or contributed to cause the accident in question, then your verdict should be for the defendant.”

The plaintiff urges that the instruction was erroneous in that it omitted the subparagraph of the same statute which provides:

“(d) Notwithstanding the provisions of this section every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway and shall give warning by sounding the horn when necessary and shall exercise proper precaution upon observing any child or any confused or incapacitated person upon a roadway.”

Both instruction 35 and instruction 36, because sub-paragraph (d) of the statute was omitted therefrom, did not fully and completely state the law governing the issue before the court. Stegall v. Carlson, 6 Ill.App.2d 388; and see Taylor v. Ries, 3 Ill.App.2d 256 ; Parkin v. Rigdon, 1 Ill.App.2d 586; Breitmeier v. Sutera, 327 Ill. App. 221. The defendant cites Green v. Drew, 324 Ill. App. 84, as approving the instructions in the form given. It may be noted that in Parkin v. Eigdon, supra, at page 594, the court discusses the case of Green v. Drew, and says:

“In support of the defendant’s theory, he cites the case of Green v. Drew, 324 Ill. App. 84. That case is abstracted in the printed volume and the defendant has supplied the full case in his brief. In that case, defendant’s instruction 25 quoted.the statute defining a crosswalk and the law governing a pedestrian crossing at a point other than a crosswalk, and stated that if the jury believed from the evidence that the defendant was not guilty of wilful and wanton misconduct, and that the plaintiff was crossing at a point other than a crosswalk, and in so doing was guilty of negligence which prosimately caused or contributed to cause the collision and her subsequent injury, the plaintiff could not recover and the jury should find the defendant not guilty. Citing Minnis v. Friend, 360 Ill. 328, 338, as authority for the instruction. This court has carefully read the case of Minnis v. Friend, and fails to find any language in that case that would support defendant’s instruction No. 25 in the Green v. Drew case. The opinion in the case of Green v. Drew is in direct contradiction to the law as announced in the cases heretofore cited, namely Breitmeier v. Sutera, 327 Ill. App. 221; Anderson v. Middleton, 350 Ill. App. 59; Walker v. Shea-Matson Trucking Co., 344 Ill. App. 466. These cases were decided by the Appellate Court after the decision in the Green v. Drew case, are well reasoned and in the opinion of this court correctly state the law in Illinois at this time.”

With this statement we are in accord.

The defendant, however, argues that the cases condemning the instruction are not in point because instruction 36 by apt language left it to the jury to determine whether or not failure to yield the right of way was negligence, and whether such negligence, if any, proximately caused or contributed to the accident. This argument is completely disposed of in Parkin v. Eigdon, supra, where the court holds that the statute in question confers no absolute right either upon the pedestrian or the vehicle. The right must be determined upon the particular facts and circumstances of the case. In support of that view the court cited the case of Walker v. Shea-Matson Trucking Co., 344 Ill. App. 466, which was a case dealing with the right of way between two vehicles in an intersection. The instruction as given there did not set out the law fully, and while the instruction left it to the jury to determine whether or not the violation was negligence, nevertheless the instruction was held to be bad. Instructions which merely quote a statute in haee verba have been criticized, and in any case, where by the instruction it is left to the jury to determine whether or not a violation of a statute is negligence, it is essential that the court set out the law declared in the statute fully and completely. This was not done in the instruction before us.

The instruction should be condemned for an additional reason. In telling the jury that if they believe from the evidence in this case “that the plaintiff, while crossing North Avenue” etc., the instruction assumed that the plaintiff was crossing North avenue at a point other than a marked crosswalk, which was one of the matters in dispute. It was a question of fact for the jury and not for the court. The instruction is bad and should not have been given.

The plaintiff also objects to the following instruction given by the court on behalf of the defendant:

“The court instructs the jury that while voluntary intoxication does not constitute negligence in law, proof of that fact is competent to be considered in determining whether the person was taking that care for his safety which a reasonably prudent man who was sober would take under the same circumstances.”

The only evidence in the record with reference to intoxication of the plaintiff was that of a witness for the defendant who testified that when he saw the plaintiff five or six minutes before the accident the plaintiff walked “kind of weak, sick or something. He was sick guy.” He further testified that he could not say if plaintiff walked with a steady motion, “he walked the way a drunk”; “he kind of sick.” The defendant and the man riding with the defendant testified that immediately after the accident they smelled liquor on the plaintiff’s breath, and the defendant testified that at that time the plaintiff said to him: “I know I am a drunkard, but I am hurt.” Two police officers who arrived at the scene of the accident immediately after the accident testified on behalf of the plaintiff that they smelled no liquor on the plaintiff’s breath. One police officer was asked by plaintiff’s counsel as to whether plaintiff had been drinking, to which question the court sustained an objection by defendant. The plaintiff testified that he did drink, but that he did not on the day in question stop any place to have a drink, and he further testified that at the time he was in good health.

Evidence with reference to the intoxication of the plaintiff could be properly admitted for the purpose of determining whether or not at the time and place in question he was guilty of contributory negligence (Moore v. Daydif, 7 Ill.App.2d 534), and the jury could by a proper instruction have had their attention called to the alleged intoxication of the plaintiff, scanty as the evidence of such intoxication was. However, in the instruction before us the court instructs the jury that they might consider “proof” of voluntary intoxication. The jury might have been properly told that they could consider “evidence.” In Jones Commentaries on Evidence, 2nd Ed., vol. 1, sec. 7, it is said:

“Though the two terms are often needlessly and carelessly confused, accurately speaking ‘proof’ is only the effect or result of evidence, and ‘evidence’ is only the medium of proof. ... It is declared that ‘the former, in legal acceptation, includes the means by which any alleged matter of fact the truth of which is submitted to investigation is established or disproved. The latter is the effect or result of evidence.’ [Latikos v. State, 88 So. 45] . . .

“We find occasionally direct judicial condemnation of the indiscriminate use of the two words [Snowden v. State, 62 Miss. 100; Glenn v. State (Miss.) 2 So. 109]; and authorities are plentiful in which their use interchangeably is deprecated, and the distinction pointed by such statements as: ‘Proof, taken literally is the perfection of evidence’ [Hill v. Watson, 10 S. C. 268]; ‘proof is that which convinces; evidence is that which tends to convince’ [Jastrzembski v. Marxhausen, (Mich.) 79 N. W. 935]; ‘proof is the perfection of evidence, for without evidence there is no proof, though there may be evidence which does not amount to proof’ [Schultz v. Plankington Bank, 40 Ill. App. 462].

The dictionary definition of “proof” is not the same as that of “evidence.” It is true that the terms are frequently used as though they meant the same thing, but where the evidence as to intoxication was extremely slight, as it was here, an instruction which could be deemed to intimate that the court considered the intoxication to be proved is one which is, to say the least, confusing;. and under the facts before us the giving of such an instruction is error.

In support of the instruction defendant urges the elementary rule that lay witnesses might properly testify concerning a person’s condition of sobriety or intoxication. There is no question that such is the law in Illinois. The right of the witnesses to testify is not an issue in the objection to the instruction, and consequently any discussion concerning it is idle.

Instruction 47 was bad in that it limits the question of sympathy to only one party, and it falls within the rule laid down in Rogers v. Mason, 345 Ill. App. 560..

Instruction 51, which told the jury that “if they believe from the evidence in this case that while the defendant was exercising ordinary care in the management and operation of his automobile, the plaintiff, at the time and place of the injury, suddenly and unexpectedly and without the knowledge of the defendant, walked into the path of the defendant’s automobile and thereby placed himself in a position of danger” etc., was not supported by the evidence, since the record shows that the defendant saw the plaintiff “about one-half block or so away,” at which time the plaintiff was standing on the raised divider in the center of the street; that at the time the defendant was going 20 to 25 miles an hour close to the center lane; that when he was “25 to 35 feet away from him” plaintiff took a “couple of fast steps” and hesitated and started to move and that was when he hit him.

Instruction 52 instructs the jury that if the defendant was faced with “sudden and imminent danger” he is not held to the same degree of judgment and presence of mind as one acting under different circumstances. This instruction is in no way applicable to a case of this character.

It is urged by the plaintiff that some of the remarks of the court made during the course of the trial invaded the province of the jury and that the .verdict is against the manifest weight of the evidence. Since this case must be tried again, we will make no comment upon the evidence.

The case was close and therefore the jury should have been properly instructed. Moreover, the defendant, discussing the abstract and objecting to plaintiff’s omissions therefrom, points out certain testimony in the record from which it might be inferred that the plaintiff was not a very stable citizen, or as the defendant puts it in his brief:

“The complete omission in the abstract of plaintiff’s work background which showed him to be a West Madison Street drifter; a man who had been with the Milwaukee Railroad only 6 days prior to the accident, September 6, 1954; but he did not even know the months in 1954 he had worked for his previous employer, the Burlington Railroad, or who his foremen were; he stayed at two hotels on Madison near Halsted, sometimes paying for a day, sometimes for a week.”

In a footnote the defendant makes this statement:

“In bringing up this evidence we do not mean to suggest that plaintiff’s rights as a pedestrian were less than anyone else’s; but this evidence was part of the full picture of the man which the jury had before them and which should have been in the abstract.”

The defendant further says that this omission gives a distorted picture of the evidence, apparently indicating that in his opinion the facts concerning the plaintiff’s way of life might have had some influence upon the jury in causing them to come to the conclusion they did. We think that such evidence might and probably did carry some weight with the jury. It would certainly have a tendency to place a handicap upon the plaintiff’s cause. Considering such circumstances, together with all the other facts and circumstances in the case, it was highly essential that the jury should have been properly and accurately instructed as to the law governing the case. We do not feel that they were so instructed.

The judgment of the Circuit Court of Cook County is reversed and the cause remanded for a new trial.

Reversed and remanded.

ROBSON and SCHWARTZ, JJ., concur.


author: JUDCE ROBSON

text:
    Thomas M. Morris, Appellee, v. Pennsylvania Railroad Company, Appellant.
    Gen. No. 46,732.
    First District, Second Division.
    April 24, 1956.
    Rehearing denied May 15, 1956.
    Released for publication May 15, 1956.

      Robert H. Bierma, P. J. Cronin, Arthur L. Foster, and Charles F. White, all of Chicago, for appellant; Edward J. Fleming, of Chicago, of counsel.
    Thomas M. Morris, of Chicago, for appellee; Henry E. Saks, of Chicago, of counsel.
   JUDCE ROBSON

delivered the opinion of the court.

This is an action by "Thomas M. Morris, petitioner, to enforce an attorney’s lien for fees by virtue of an alleged contract with one John W. Shultz, which petitioner claimed entitled him to one-third of the amount of a $40,000 settlement that the respondent had made with Shultz after petitioner had been discharged as his attorney. The respondent defended on the ground that the contract was obtained by solicitation. After a bench trial the court entered an order sustaining the petition and entering judgment against respondent for the sum of $13,333.33. Appeal was taken from this judgment order.

If petitioner’s contract of employment was obtained through solicitation, it is void and unenforceable. The opinion in Atchison, T. & S. F. Ry. Co. v. Andrews, 338 Ill. App. 552, 88 N.E.2d 364, where leave to appeal was later denied by the Supreme Court, is extremely illuminating on this subject. Andrews, whose name was stricken from the roll of attorneys after the case had been decided, was there enjoined, together with two other defendants, from soliciting the claims of injured employees of two railroad companies through ambulance chasers. The court there said at p. 567:

“Barratry, champerty and maintenance were offenses at common law. Each is malum in se. (Gilbert v. Holmes, 64 Ill. 548, 555; Geer v. Frank, 179 Ill. 570, 574.) The public policy of Illinois against fomenting and maintaining litigation is declared by the statutes and decisions of our courts. Paragraphs 65 and 66, chap. 38, Ill. Rev. Stat. 1947 [Jones Ill. Stats. Ann. 37.040, 37.041], makes barratry and maintenance unlawful .... The same public policy is declared in the statutes of California, Arizona and New Mexico. The evidence in support of the charges of champerty and maintenance shows a brazen contempt for the law, legal ethics, and the rights of plaintiffs.”

See also Puls v. Chicago & N. W. Ry. Co., 233 Ill. App. 625; Brink’s Inc. v. Gravesen, 309 Ill. App. 571, 33 N.E.2d 497; People v. Berezniak, 292 Ill. 305, 127 N. E. 36; Ingersoll v. Coal Creek Coal Co., 117 Tenn. 263, 98 S. W. 178, 9 L. R. A. (N. S.) 282. In order to decide this issue it is necessary for us to review the evidence.

Petitioner was his only witness. He testified that he has practiced law in the State of Illinois since 1926. In November 1953 petitioner while on his way to Connecticut stopped at Fort Wayne, Indiana. There he met one James F. Forbes, a friend of his for thirty years, whose residence was in Lawrence, Michigan. Forbes did not appear in the ease as a witness, and it is not shown what his vocation was. However, from the record he appears to have been the contact man for petitioner in at least two personal injury cases; that of Leland L. Hart and John W. Shultz. It does not appear from the record how the meeting between Forbes and petitioner was arranged. In any event, Forbes met with petitioner and they went to the Keenan Hotel where Forbes introduced him to Hart. Petitioner had had some correspondence with Hart pertaining to a claim which Hart had settled with respondent. Hart, Forbes and petitioner discussed Hart’s ease. In the course of. the discussion it was mentioned that John W. Shultz, an employee of respondent who lived in Fort Wayne, had been injured. Forbes and Hart asked him to go visit Shultz that evening. Hart called Shultz on the phone and made the arrangements for the visit. The three of them went to Shultz’s home and discussed his claim against the respondent. Petitioner told Shultz that he ought to have a lawyer. He said, “Look at what they did to Lee Hart, but I don’t have to be the lawyer. Of course, I would like to represent you but you don’t have to hire me.” There was no discussion on what basis he would handle the claim. He was not retained at that time. Sometime later he was again in Fort Wayne and again met Hart and Forbes. They went to Shultz’s house. Shultz came out and petitioner and Forbes talked with him about his case again. Shultz came to Chicago on February 24, 1954. Forbes met Shultz at the station and they came to petitioner’s office. The three of them discussed the case. Shultz signed a contract retaining petitioner to prosecute Shultz’s claim against respondent for one-third of any amount collected from the claim. Shultz told petitioner he had talked to Jerry Gerhart, a former client of his, about his case. Ger-hart told him that he had checked petitioner’s reputation through Notre Dame University and a banker on La Salle Street and it was good.

Petitioner further testified that suit was filed, and a letter enclosing a copy of attorney’s lien was sent to respondent notifying it.that he had a contract with Shultz for his claim against respondent. He testified that he had no agreement to pay Forbes for obtaining the Shultz case, that he did not pay any of Forbes’ expenses, and that Forbes did not investigate the case. Later Shultz came to Chicago and was examined by Dr. Zeitlin. Petitioner did not know whether Forbes went with Shultz to Zeitlin’s office. He may have. Two pretrial conferences were held. The petitioner submitted a figure of $90,000 to respondent to settle Shultz’s claim. On June 28 a letter was written to Shultz informing him that the case was set for trial on July 13. A check for $200 payable to Shultz was enclosed with the letter. Shortly thereafter he received a letter from Shultz discharging him as his attorney and enclosing a check for $900 payable to his order for expenses that he had advanced. The $900 was advanced to Shultz so that he would have money to support himself until the case was tried. No advancements were made previous to February 24. Petitioner did not know whether Forbes had advanced any money, but doubted it. Morris saw Shultz again in October of 1954 at Rochester, Indiana. Forbes was with him. Shultz answered some typewritten questions that he had prepared, which we discuss later.

The witnesses for the respondent were John W. Shultz and Leland L. Hart. John W. Shultz testified that on March 11, 1953, he was employed by the respondent. On this day, while at work, he was injured and as a result four fingers on his left hand were amputated. About two or thr'ee weeks after the accident, while he was in the hospital, Leland Hart, an employee of respondent, visited him. He had known Hart for several years. Hart said he would like to have him talk with Morris’ representative, Jim Forbes. Hart said Morris represented him in trying to set aside a poor settlement which he had made, without a lawyer, with respondent for injuries he had incurred. .Shultz told Hart that he was going to give the railroad a chance to settle and he would rather not talk to anybody until then. Some weeks later when he was at home Hart called again and brought Forbes to see him. On two different occasions Forbes and Hart discussed the case with him. On one of these visits Forbes advised him to get himself legal counsel and that he, Forbes, was there to represent a firm. On another occasion Forbes told him that if he decided on Tom Morris whom he, Forbes, represented, Shultz could recover $125,000 clear.

Shultz further testified that in June of 1953 Hart called him and said that Morris was in town and that he, Forbes and Morris would like to see him. They came to his home. Morris told him that he had a serious case; that if he dealt with respondent they would do the same thing to him that they did to Hart. He told him if he had a lawyer this wouldn’t happen. He was told his case was worth a lot of money. Forbes told him $125,000; Morris $95,000 to $96,000. Morris told him he should obtain a good lawyer but that he didn’t have to hire him. He told Morris that if he hired a lawyer he would give Morris the first chance to settle the case. Shortly after this meeting Forbes and Hart again visited him and talked about the case. About 60 days later Morris, Forbes and Hart again came to his home. Morris again told him he should get a good lawyer to handle his action but that he did not have to hire him. Shultz said he was waiting to see if respondent would give him a reasonable settlement. Forbes and Hart called on him several times after that about the case. Forbes wrote bim about the case on a number of occasions and asked him to come to Chicago and sign up. He finally told Forbes he would come to Chicago and see Morris because he was not satisfied with the figure that respondent had submitted for a settlement. Before doing it, however, he talked with a man by the name of Jerry Gerhart who was an employee of respondent and had been injured. Morris had represented him until another lawyer had taken over the case. Gerhart told him that Morris was a good lawyer.

Shultz further testified that on February 24 he went to Chicago and met Forbes. He went with him to Morris’ office where he, Morris and Forbes discussed his case. He signed a contract employing Morris as his attorney. Morris called him about the middle of June. He couldn’t make out what he was trying to say. He asked Morris how he was getting along with the case and never got an answer. After this phone conversation he got disgusted with Morris. He was also upset because he was not being supplied with enough money on which to live. Thereafter he went to see respondent’s claim agent about settling his case. He was informed that before he could settle it he had to discharge his lawyer. He went to see a Fort Wayne attorney who was also attorney for respondent. He told this lawyer’s secretary what he wanted in a letter and she wrote it for him. The letter expressed his dissatisfaction with Morris’ handling of the case and discharged him. He enclosed a check for $900 repaying the advancements made to him by petitioner. This was withdrawn from his own funds on deposit at the Anthony Wayne Bank in Fort Wayne. After sending the letter to Morris he settled his claim with respondent for $40,000. Respondent agreed to protect him from any claim Morris might make for attorney’s fees. He next saw Morris in October of 1954 in Indiana. There he filled out a prepared list of questions which were submitted to him. One of the questions was:

“Was it solely as a result of your conversation with Gerhart and Lee Hart, together with your own impression of me, that made your mind up to seek my services ?

“The Witness: I did.”

Leland L. Hart, testifying for the respondent, said that he was now employed as a local freight conductor for respondent. He had known Shultz for twelve years. He first met Forbes through a Pete Biker. His brother, Jake Biker, was a brakeman on the Nickel Plate Railroad and was a former client of Morris. Pete Biker brought Forbes to Hart’s house and talked to him in regard to injuries he had received. He had settled with the railroad but did not figure he received just compensation. Forbes told him he thought he could get his case reopened and produced a contract which he signed for the Morris firm to represent him. He called Forbes about the Shultz case. Forbes came down and they went to see Shultz. Hart corroborated Shultz’s testimony as to the various conversations that took place between Forbes, Shultz and himself. He had had correspondence with Morris about his case, but did not meet him until introduced to him by Forbes at the Keenan Hotel in Fort Wayne in June 1953. Morris told him he wanted to meet Shultz. He called and made the appointment for Morris, Forbes and himself. He corroborated Shultz’s testimony as to the subsequent meetings at Shultz’s home. Some sixty days later he took Forbes and Morris to Shultz’s home again. After this meeting with Shultz, Morris and Forbes came to his home. Morris and Forbes promised him that if Morris got the Shultz case he would be compensated for it. He said he later talked with Forbes about it and Forbes said he would get financial compensation if the Shultz case came into Morris’ office. Later he received a letter from Forbes which stated that it was worth $5,000 if he got the Shultz case for Morris. He never asked Morris for the $5,000 but did borrow $25 from Morris to pay a debt.

The undisputed testimony discloses a clear pattern of persistent solicitation by Forbes to obtain Shultz’s claim against respondent for petitioner. The record contains no explanation of why Forbes undertook all these strenuous activities in petitioner’s behalf, other than the fact that they knew each other for many years. Petitioner argues that even if it were to be conceded that there was solicitation, it was not solicitation on his part, but by Forbes. Was Forbes petitioner’s agent? Agency can be proved by the relation of the parties and the circumstances under which the action took place. Lake Shore Country Club v. Brand, 339 Ill. 504; Haugens v. Foster, 320 Ill. App. 212; People v. McCallum, 341 Ill. 578, 590.

Although petitioner denied that Forbes was his agent, we believe that the unrebutted testimony, in an unsatisfactory record, shows the contrary. Petitioner has failed to explain the circumstances of his relationship with Forbes. Why was Forbes, who lived in Lawrence, Michigan, constantly in Fort Wayne, Indiana, representing himself as petitioner’s representative? Why did he induce Leland Hart to sign a contract employing petitioner to handle his claim against respondent? There is more that remains unanswered. On two occasions Forbes was with petitioner in Fort Wayne and discussed with Shultz his claim against respondent. On one of these occasions Forbes told Shultz his case was worth $125,000. Forbes was with petitioner when Hart was promised financial remuneration if petitioner got the Shultz case. On several other occasions he was in Fort Wayne importuning Shultz to hire petitioner. Forbes met Shultz in Chicago and was with him in petitioner’s office when Shultz signed the contract with petitioner to represent him. Again, after the disposition of Shultz’s claim, Forbes was with petitioner in Indiana when certain questions were put to Shultz relative to the present action for fees.

In the case of Puls v. Chicago & N. W. Ry. Co., supra, the action involved a petition for attorney’s fees. In considering the issue of solicitation of the case by an agent of petitioner, the court said:

“The evidence of her activities in behalf of this partnership, and her solicitation of the Puls’ claim is such as to furnish another reason why the petitioner should not be given the benefit of an attorney’s lien, quite apart from the question of whether he was dis-charged as the respondent claims, or when he was discharged, if at all. The manner in which this claim was solicited, is, in our opinion, inconsistent with and contrary to the ethics of the profession and the public policy of the State, and in such case attorney’s fees may not be recovered. Ingersoll et al v. Coal Creek Coal Co., 117 Tenn. 263; The People v. Berezniak, 292 Ill. 305.”

A comparable pattern of solicitation was indicated in this case. We also find a similar pattern of solicitation in In re McCallum, 391 Ill. 400. We cannot close our eyes to the realities of common experience in dealing with the issue before us. We are of the opinion that the evidence of the relation of Forbes and petitioner and the circumstances through which petitioner obtained the Shultz case is sufficient to prove Forbes was petitioner’s agent.

Petitioner did not testify in rebuttal. He appears not to have been aware of the serious character of the testimony of respondent’s witnesses. If he was, we believe he would have testified. Further, there is no showing why Forbes, petitioner’s friend for over thirty years, who traveled on many occasions from Lawrence, Michigan, to Fort Wayne and Chicago in behalf of petitioner’s interests, was not present to deny his soliciting activities on behalf of petitioner if he could. Under such circumstances, we think it proper to apply the rule that there is a presumption against the party failing to produce the contradictory testimony. Pipal v. Grand Trunk Western Ry. Co., 341 Ill. 320; Flannery v. Flannery, 320 Ill. App. 421; Mantonya v. Reilly, 184 Ill. 183.

Petitioner cites Kusak v. Karnik, 323 Ill. App. 277, 55 N.E.2d 98, Ryan v. Pennsylvania R. Co., 268 Ill. App. 364, and Sutton v. Chicago Rys. Co., 258 Ill. 551, in support of his contention that respondent failed to prove that he either personally or by an agent in his employ obtained the contract of employment from Shultz through solicitation. We have read these cases. They are clearly not in point in that the question of agency was either rebutted or not proven. Here we have unrebutted testimony that strongly indicates an agency relationship.

Petitioner argues that the trial court had the opportunity to observe the witnesses and their demean- or while testifying and thus could best determine their credibility, interest and motives. We are here confronted with the fact, however, that the testimony of unimpeached witnesses pertaining to the solicitation of the ease by Forbes, stood uncontradicted by the testimony of petitioner or by circumstances that would indicate that such testimony was inherently false or improbable. It is our opinion that under the circumstances it was error for the trial court to reject this testimony of the witnesses of respondent. Porter v. Industrial Commission, 352 Ill. 392, 398; Kelly v. Jones, 290 Ill. 375, 378-9; Mammina v. Homeland Ins. Co., 371 Ill. 555, 560; Tenerelli v. Eddy Stoker Corp., 9 Ill.App.2d 390.

The issue of solicitation involved in the instant case is one of the gravest problems that confronts the bench and bar of this community. Its evils have been intensified by the tremendous increase in personal injury litigation and the fact that those who benefit by it have by the use of large expenditures organized the business on a vast scale. This is illustrated by the description of a single lawyer’s activities in the case of Atchison, T. & S. F. Ry. Co. v. Andrews, supra, at page 559. The court quoted from the report of the master in chancery:

“The magnitude and character of the business [Andrews’ business] is demonstrated by these facts. There are ninety-two claims involved with aggregate damages claimed approximating $5,000,000. This does not embrace all the business done in the course of a few months. In that short time Sol Andrews had made an investment of approximately $200,000 in advances for the scheme, of which Joseph D. Shane advanced approximately $50,000. Bailroad employees who were in key position to influence the selection of lawyers were enticed into becoming ‘chasers’ of law business on a full or part time basis. Each claimant was urged to become a solicitor for additional claims and arrangements were made to pay him a percentage of the fees.”

It is true that only a small minority of the profession are thus engaged, but nevertheless their activities bring the entire profession into disrepute. The Canons of Ethics adopted by every bar association in the country have condemned the practice. The practice finds no support in any decision in any jurisdiction; still less, that of this state, where the Supreme Court ordered the disbarment of the respondent in In re McCallum, 391 Ill. 400, and a suspension of five years in In re Veach, 1 Ill.2d 264.

Our conclusion in the instant case cannot be based merely upon the citation of legal authorities. We are of the opinion we would be remiss in our duty if we did not point out the sordid realities of solicitation as it is known to exist. This may best be done by quoting rather liberally from an article in the Northwestern University Law Review, issue of J anuary-February 1953, Volume 47, Number 6, page 895, where there is a complete and thoroughly documented discussion covering what is termed “the chaser problem.” It is there said at pp. 898-9:

“Up to this point the term ‘chaser’ involves two groups: the original informant, and the man who originally contacts the injured person. Actually, the chasing racket involves at least three, and sometimes four groups. The ‘contact’ man is seldom a lawyer himself. He either works for a lawyer or free-lances, selling the contract to the highest bidder. Thus, the contract passes to a third group, a relatively small number of the personal injury lawyers in Chicago, who traffic in the chaser-type contract. Before he even knows of the case, there have been two bites taken out of his fee — one to the informant, and one to the ‘contact’ man. Partly because of the cost of procurement, the old ‘one-fourth if settled, one-third if it goes to trial’ rule has become a flat one-third to one-half of whatever is realized, encouraging the lawyer to settle rather than go to court. Another factor stimulating settlement in these cases is that the chaser attorney is seldom a trial lawyer, so that to go to court would mean the necessity of hiring a successful trial attorney on a flat fee or percentage basis.

“While the various groups involved under the term ‘ambulance chaser’ may be regarded as black sheep by their brethren, they play a significant role in settlement practices and personal injury litigation in the Chicago area. Almost all serious personal injury cases are chased, and estimates of the number in which a chaser contacts the injured party run as high as 95%. Over half the claims presented for personal injury of any degree of seriousness are probably handled by these lawyers.”

It is stated that from 80 to 95 percent of all serious personal injury cases are chased (page 899, Note 24a) ; that the ambulance chaser has taken over a large part of the personal injury practice (page 903), and that (page 904):

“First, the chaser is basically dishonest when soliciting a client. He is interested primarily in getting a contract signed, thus virtually assuring himself of a one-third cut of any settlement figure or jury verdict. To get the contract the chaser often vastly exaggerates the worth of a claim, playing subtly on emotions of greed and avarice, assuring the injured person that his services will net a handsome figure. Actually, the chaser is well aware of the true value of a case, and in settlement negotiations will often agree to a figure little higher than the injured might have obtained by direct negotiation.

“Second, this dishonesty extends to cases which are properly the subject of litigation rather than settlement. The ambulance chaser is rarely a trial attorney. He aims at settlement, and if a case is to be litigated, he must usually retain another attorney for this purpose. This, however, involves splitting the one-third contingent fee into several pieces. Bather than do this the chaser may settle a claim for an amount considerably less than it is actually worth.

“Third, an especially vicious practice has been developed by the chasers with the evident approval of insurance companies. This involves the so-called ‘package-deal’ whereby the two parties settle as many as 40 or 50 cases at one time. Cases where the liability of the insurer is non-existent or doubtful will be given some recovery, and cases where liability is clear and the injury more serious will be scaled down to a comparatively low figure. Thus, everyone gets something, but at the expense of the more deserving victims.”

There is another aspect of the evils of this practice that is not commented upon in the article but of which all judges who have sat in pretrial in the courts of Cook county are aware. The unethical lawyer who is the recipient of cases procured by “chasers,” if he is to maintain his source of supply, must of necessity take the bad cases along with the good. A very substantial portion of these cases have no real merit and an ethical lawyer would not file suit on them. The unethical lawyer must file suit. These cases either become a part of the package settlement that is discussed in the article, are settled at the pretrial conference for their nuisance value, or must be tried before a jury by the court. As to the out of state cases, the “chaser” induces the party who is injured to retain a lawyer in Cook county using as a lure the larger settlement or verdict that can be obtained if suit is filed here. See Atchison, T. & S. F. Ry. Co. v. Andrews, supra, at page 566. It has been estimated that the overall cost of operating a courtroom with a jury in Cook county is approximately $800 per day. The average time required to try a law jury case is two and one-half days. However, in actions involving substantial damages and severe injuries, trials of from one to two weeks are not uncommon. Thus not only does such out of state litigation add to the case load of our courts but the taxpayers of this state must assume the burden of paying the expenses of litigation for nonresidents. It is, therefore, clearly apparent that solicitation not only brings the legal profession into disrepute, but it also increases the burden of expense in operating our courts and is one of the principal factors creating the overwhelming backlog of negligence eases, which results in litigants waiting about four and one-half years for a trial in the Circuit and Superior Courts of Cook county.

The existence of these evils is not new. They have repeatedly been commented upon in other jurisdictions. (See State Bar Journal of California, Volume 6, No. 4, page 79. See In re Bar Ass’n of City of New York, 222 App. Div. 580, 227 N. Y. Supp. 1.)

If we were to affirm the judgment of the trial court on the basis of the record before us, we would in effect be placing our stamp of approval on all of the venal aspects of solicitation. We in effect would be encouraging vicious activities comparable to those of the defendants in the case of Atchison, T. & S. F. Ry. Co. v. Andrews, supra. We would be abandoning the ethical and professional standards that the bench and bar have been striving to build over the centuries. This we cannot do.

We find, therefore, that the order of the trial court allowing attorney’s fees is against the manifest weight of the evidence. The judgment of the trial court is reversed and the cause remanded for a new trial.

Judgment reversed and cause remanded for new trial.

McCORMICK, P. J. and SCHWARTZ, J., concur.