author: JUDGE ROBSON

text:
    Marguerite Dight Turner, Appellee, v. Chicago Housing Authority, a Municipal Corporation, Appellant.
    Gen. No. 46,748.
    First District, Second Division.
    June 26, 1956.
    Released for publication September 11, 1956.

      Eckert, Peterson & Lowry, of Chicago, for appellant; A. ft. Peterson, Harold W. Huff, and Herbert C. Loth, Jr., all of Chicago, of counsel.
    David Alswang, and Schwartzberg & Barnett, all of Chicago, for appellee; David Alswang, of Chicago, of counsel.
   JUDGE ROBSON

delivered the opinion of the court.

This is an action by Marguerite Dight Turner, plaintiff, to recover damages for injuries caused from falling down a stairway allegedly due to the negligence of the defendant, Chicago Housing Authority, a municipal corporation, in the construction and maintenance of a stairway in the Ida B. Wells public housing project. The jury found for the plaintiff and awarded damages in the sum of $25,000. Defendant appeals from the trial court’s denial of its motions for directed verdict, judgment notwithstanding the verdict and new trial.

Defendant’s principal contention on appeal is that the trial court erred in denying its motions for directed verdict and judgment notwithstanding the verdict because plaintiff failed to make out a prima facie case of negligent construction and maintenance of the stairway by defendant. Defendant also contends that errors in the rulings on the evidence and the giving of instructions entitled it to a new trial.

As to defendant’s first contention the evidence, viewed in a light most favorable to plaintiff, reveals that she was, on August 6,1948, a household employee of a third-floor tenant of the Ida B. Wells housing project, which was constructed and maintained by defendant. On that date, as she was descending the front stairway of the project on an errand for her employer, she fell down the steps landing on the small of her back. The plaintiff testified that after having stepped down a couple of steps the ball of her right foot was on the tread and a portion of her toe extended onto the metal nosing of the stair, and that as she reached for the next step with her left foot, both her feet slipped out from under her and she fell. She testified that the metal nosing on the stairs was “worn and they were smooth, shiny, slippery,” and that there was no paint on the metal nosing in the walking area. Several of plaintiff’s witnesses corroborated her testimony that the metal nosing was “slippery” and “unpainted.” Plaintiff, however, was the only witness to her fall. Neither the complaint nor the plaintiff’s witnesses alleged or indicated any defect in the stairs other than the slippery nature of the one-half-inch metal nosing.

Aside from the testimony of the plaintiff and other witnesses that the one-half-inch metal nosing was “slippery” and “unpainted,” the plaintiff relied wholly on the testimony of William Harold Bishop, a witness produced as an expert, to establish defendant’s negligence. Bishop has been in the business of designing, erecting and maintaining buildings, particularly apartment buildings, since 1921. His school training for this field consisted of an architectural course in high school and one year at the Armour Institute, where he studied general architectural education.

On direct examination, Bishop testified that he had made an inspection of the front stairway at the Ida B. Wells housing project at the request of plaintiff’s attorney; that the stairway was of steel pan construction, which means the steel frame is preformed and after being placed in position concrete is poured into the steel tread pans, and that becomes the portion walked on; that he is familiar with and has used steel pan construction stairs; that he is familiar with the customary manner of construction of steps of steel pan construction in public housing or buildings without elevators, particularly with reference to the metal nosing, in Chicago prior to 1941; that in his opinion the stairway of steel pan construction at the Ida B. Wells project was not according to the accepted architectural and engineering standards prevalent in Chicago in 1941; that his opinion is based on the fact that no precaution was taken to prevent the slippery nosings; that the paint had been worn from the one-half-inch metal nosing of the stairs in question making them shiny and slippery.

Bishop further testified that the accepted standard for public housing prior to 1941, with reference to the nosing in steel pan construction, was to use an abrasive material to prevent slipping. This opinion was based on the fact that the three other public housing projects constructed in Chicago prior to 1941 did use an abrasive material for the stair nosings. Bishop concluded his direct examination by testifying that the customary and accepted method of maintaining the one-half-inch metal nosings on steps of steel pan construction in Chicago in 1948, the' year of the accident, was to paint them to keep them from becoming slippery.

It is undisputed that there was no foreign matter on the stairs; that none of the stairs were broken, cracked, irregular, missing or loose; that no nails or strips of metal were protruding, and that the steps were not wet, icy or waxed. There was no allegation of inadequate lighting or improper handrails. It therefore appears that plaintiff based her entire case on testimony that the one-half-inch metal nosing on the concrete treads deviated from the type of nosing used in other public housing projects in the Chicago area prior to 1941, and that nothing was done to prevent the nosing from being slippery. Did this evidence present a prima facie case of negligence?

While evidence of a deviation from customary practice is admissible and may be considered by the jury along with the other evidence in the case tending to indicate negligence, it is not, in itself, proof of negligence and cannot, standing alone, sustain a recovery. Peterson v. Feltenberger, 102 Pa. Super. 6, 156 Atl. 621. So, in the instant case, a showing that the construction of the stairs was not standard is not enough. It must be shown that the deviation from the standard resulted in an unreasonably dangerous and unsafe condition. Kelly v. Loft, Inc., 124 N. J. L. 185, 11 A.2d 58; Kahn v. Werbel, 4 N. J. Super. 184, 66 A.2d 559. There are no Illinois cases in point, but we believe the cases cited are sound in sustaining this reasoning.

Before deciding whether or not the evidence indicated that the alleged deviation resulted in a dangerous and unsafe condition, we feel that the evidence of deviation itself requires some discussion. On cross-examination the plaintiff’s expert witness, Bishop, testified that the type of stairway construction and the one-half-inch nosing used in the Ida B. Wells project was an accepted method of construction in the Chicago area in 1941 for elevator buildings; that this distinction is based on the fact that stairways are not often used in elevator buildings, and that stairways in elevator buildings serve primarily as an emergency means of exit; that, however, such stairs are used when people want to go up or down one or two floors.

It is common knowledge, and this court takes judicial notice of the fact, that the stairways in many elevator buildings, particularly large office buildings, are used as frequently and often more than the stairways in nonelevator buildings. Because of this fact we are unable to find any logical basis for the distinction that the witness Bishop contends is an accepted distinction in the trade. The existence or nonexistence of an elevator in a building has no logical relation to whether or not the stairs in that building are reasonably safe to people rightfully and properly using them.

The trial court limited the evidence of accepted stairway construction to that used in public housing in the Chicago area prior to 1941. This view unduly restricted the controlling question of the case, which is: “Were the stairs in question reasonably safe at the time of the accident?” Overemphasis of narrow and unrealistic standards can lead to absurd results. Thus in stairway construction, if we were to follow plaintiff’s theory, a different standard could be applied to a theater, library, school, department store, office building, public building, factory, et cetera. These narrow standards become even narrower by differentiating between the different types of buildings when they are with or without elevators. When we consider that escalators are now used in addition to stairs and elevators, we realize the absurdity of the standard contended for by plaintiff.

The human mechanics of walking up and down stairs does not vary because of the nature of the building or because there is or is not an elevator. Thus if a stairway in an elevator building, which is of the same construction as the stairway in the Ida B. Wells housing project, is reasonably safe for people to use, the natural implication is that the stairway in the Ida B. Wells housing project is also reasonably safe. It therefore appears that Bishop’s admissions on cross-examination, while not disproving the standard to which he testified, did effectively establish that the deviation here involved was not one which necessarily rendered the use of the stairs unreasonably dangerous.

In Marshall Field & Co. v. LeBosky, 133 Ill. App. 316, this court said at p. 323:

“We are unaware of any authorities and none is called to our attention where it has been held that the owner or occupant of a building must provide a certain kind of stairway for use of persons desiring to go up and down, or be held guilty of negligence. It is no more negligence per se to use one of several ordinary and familiar forms of construction than others. In the use of appliances or machinery the law does not require a master to furnish for employees such appliances as are of the best character or absolutely safe, but to use reasonable and ordinary care and diligence in that respect. I. C. R. R. Co. v. Sanders, 166 Ill. 270, 278; Mattson v. Qualey Const’n Co., 90 Ill. App. 260-263. Upon like reasoning it does not appear why one owning or building a house or store should under ordinary circumstances be required to furnish stairs which shall be absolutely safe, or such as some third party may after an accident conclude might have been better.”

It may be true that architects and engineers develop different standards of stairway construction for different types of buildings. Such standards, however, do not have the effect of establishing negligence or non-negligence as a matter of law. The ultimate inquiry in each particular case is whether or not the stairway in question was reasonably safe. Plaintiff’s expert witness admitted that the type of stairway in question was a familiar, usual and accepted form of stairway construction in elevator buildings. Having decided that the presence or absence of an elevator is an irrelevant factor on the question of the reasonable safety of stairs, we find that the testimony of plaintiff’s expert- establishes that the type of stair nosing in question as well as abrasive nosings, was a familiar and accepted form of stairway construction in the Chicago area.

The language of the LeBosky case, supra, that it “is no more negligence per se to use one of several ordinary and familiar forms of construction than others” is. clearly applicable to this situation. Bishop testified, in effect, that the use of both abrasive and nonabrasive nosings are accepted, but that in his opinion abrasive nosings are better. Such testimony could not establish a prima facie case of negligence. The question is was the stairway reasonably safe. The only testimony that goes directly to this question is that the one-half-inch metal nosing on the stairs was “smooth, shiny, slippery,” and “unpainted.” Was this sufficient evidence on which to submit the negligence question to the jury? In the LeBosky case, supra, the court made the following statement at p. 322:

“There are probably no stairs of whatever construction which do not call for care in their use. It is common experience that persons fall or slip on stairs where the steps are of uniform width, depth and height with straight descent, hand rails and all ordinary appliances. There is no evidence here tending to show that, properly used, steps of the construction employed in the case at bar are not as safe as others.”

The court then quoted with approval the following from Larkin v. O’Neill, 119 N. Y. 221:

“The line must be drawn in these cases between suggestions and possible precautions, and evidence of actual negligence, such as ought reasonably and properly be left to a jury. It is difficult in some cases to determine where the line is to be drawn, but here I have no hesitation in saying that there was no evidence of negligence which could properly be left to the jury. There was nothing unusual in the construction of the staircase. The use of brass for protecting the edges of stairs and absence of a hand rail, which alone are relied on by the plaintiff, are by no means unusual in staircases of a similar description where the traffic is great. They were obvious to everyone using the stairs, and were well known to the plaintiff himself.”

In Walker v. F. & W. Grand 5-10-25 Cent Stores, 5 N. J. Misc. 541, 137 Atl. 563, plaintiff customer sued defendant store owner, alleging that the worn and slippery condition of the metal nosing of the steps on the stairway in the store caused her to slip and fall down the stairs. In reversing a judgment for the plaintiff the court said:

“The facts practically parallel the case of Garland v. Furst, 93 N. J. Law, 129, 107 A. 38, 5 A. L. R. 275, in which the proofs were identical, except in that case the offending instrument was a smooth, slippery floor, and in the present case it was a smooth nosing on the steps. These nosings are such as are commonly placed on stairways where large numbers of people are passing up and down. It is common knowledge that such metals become smooth when worn, but under the case cited it does not constitute negligence to permit their continued use. The tendency of a much-used substance of any sort is to become smooth, and it would be a hard rule to require that floors, stairs, steps, and similar constructions should be changed whenever use might smoothen their surfaces.”

In Security Co. v. Lewis, 127 Colo. 139, the court, in reversing a judgment for plaintiff and ordering that the complaint be dismissed, said at p. 144: “. . . and in fact there is no complaint ahont the stairway, except that the leading edge or ‘nose’ of the steps was smooth, basic metal, and plaintiff, well aware of the condition of which she complained for a long period of time, made no complaint of the condition to the building management; and in substance, her basic complaint seems to be that paint had worn off this rounded metal edge and its smoothness was the cause of her fall. There is an inescapable inference that if plaintiff had been properly descending the stairway by placing her foot on the main portion of the step instead of the metal edge, she would not have fallen unless it was that she made a misstep.”

A directed verdict for defendant was affirmed in Rosenthal v. Central Garage of Lynn, Inc., 279 Mass. 574, 181 N. E. 660, where the court said:

“The testimony of witnesses and photographs which were in evidence show that projections on the treads of the iron stairway were worn shiny and smooth, but no such condition appeared as to warrant the conclusion that the stairway was unsafe merely as the result of wear.”

Judgment for defendant notwithstanding the verdict was affirmed in Stephens v. Sears Roebuck & Co., 212 F.2d 260 (CA 7th, 1954), where the court said “The testimony of plaintiffs’ witnesses that the floor was ‘slick,’ ‘shiny’ or ‘slippery’ fails to definitely show a dangerous condition. These words of description are lacking in precision of meaning.” Also see Dixon v. Hart, 344 Ill. App. 432; Shramek v. Huff, 135 Neb. 178, 280 N. W. 450; MacLachlan v. Perry, 68 F.2d 769; Houston Nat. Bank v. Adair, 146 Tex. 387, 207 S.W.2d 374, and Leach v. S. S. Kresge Co., 147 Atl. 759 (R. I.).

Plaintiff cites many cases in support of the proposition that there was sufficient evidence of negligence for this to go to the jury. Corcoran v. United Markets, Inc., 314 Mass. 26, 49 N.E.2d 250; Di Noto v. Gilchrist Co., 125 N.E.2d 239 (Mass.); Mulloy v. Kay Jewelry Co., 289 Mass. 264, 194 N. E. 116; Paducah Dry Goods Co. v. Thompson, 308 Ky. 12, 213 S.W.2d 440, and Bennett v. Jordan Marsh Co., 216 Mass. 550, 104 N. E. 479, all involved allegations and evidence of actual and substantial wearing down of a portion of the stair. In the instant case the only evidence of wear is that the initial coat of paint on the nosings has been removed. There is no evidence that the metal nosing, itself, or any other part of the stairs had been noticeably worn.

We are of the opinion that the testimony to the effect that the one-half-inch metal stair nosing was “shiny” and “slippery” clearly did not establish that the stairway, if properly used, was in an unreasonably dangerous and unsafe condition. This case was tried twice in the trial court. In the first trial plaintiff’s verdict was set aside on defendant’s motion for new trial. We do not believe that the fragmentary evidence adduced by plaintiff to establish defendant’s negligence would justify our reversing and remanding this cause for a new trial.

We conclude, therefore, that the trial court erred in denying defendant’s motions for a directed verdict at the close of plaintiff’s case and at the close of all the evidence and in failing to render judgment notwithstanding the jury’s verdict.

There have been two trials in this case and it is of course desirable that a final disposition should be had. If plaintiff files a petition for leave to appeal and the court should allow it and should conclude that we were in error in reversing, the final disposition would be advanced by a final determination of all questions of law now before us. Hence, while the ground on which we reverse, if sustained, would end the case, it is desirable that we pass on the other points. This appears to be the policy indicated by the provisions of section 68.1, subsection 6 of the Practice Act (Ill. Rev. Stat. 1955, ch. 110, sec. 68.1(6)) which now requires the trial court to pass on all relief sought in all post-trial motions even though the ruling on a portion of the relief sought renders a ruling unnecessary on other relief.

The reasons heretofore stated in this opinion for reversing this cause would clearly in and of themselves be grounds for granting a new trial.

The trial court admitted into evidence plaintiff’s exhibits six to twelve, which were photographs of the stairs at three housing projects where abrasive or scored treadplates were used. These were offered as showing nonconformance in the instant case. However, the court refused to admit into evidence defendant’s exhibits two to five for identification, which were photographs showing stairways in other buildings using the same type of stairway and nosing as in the Ida B. Wells project. We have said that evidence of deviation from the accepted standard of construction is relevant in a negligence case. Plaintiff’s exhibits six to twelve were properly admitted because they corroborated the witness Bishop’s testimony as to his version of the accepted standard. Defendant’s exhibits two to five for identification, however, were also relevant to the issues of the case to show that the standard to which the witness Bishop testified was not the only accepted standard for stairway construction in the City of Chicago. The failure to admit these was serious error for as we heretofore stated the acceptance of such a narrow and unrealistic standard would lead to absurd results;

Defendant also contends that it was error to permit the testimony of plaintiff’s witness, Ardelle Buford, given at a previous trial, to be read into evidence in the trial below. At the time of the trial the witness was in the State of Georgia. The rule in Illinois is that the absence of a witness from the state is not ground for admitting his testimony, given at a former trial, unless it is shown that neither the presence nor the deposition of such witness could have been procured by the use of reasonable diligence. Stephens v. Hoffman, 275 Ill. 497; Devine v. Chicago City R. Co., 182 Ill. App. 366. The plaintiff knew in January that the witness was in Georgia and was expected back on February 15. The trial commenced on February 7. The record reveals that the plaintiff made no attempt whatsoever to procure the deposition of the witness during the interim period. She made no motion to have the cause continued until the witness returned. .She did no more to procure the witness’s presence than to attempt to serve process on the witness at her Chicago residence when she knew the witness was in Georgia. Eeasonable diligence was not shown and thus the reading of this former testimony was error.

Defendant further contends that the verdict is excessive and reflects, passion and prejudice engendered by the arguments to the jury by plaintiff’s counsel and the trial court’s ruling on the evidence. An examination of the evidence as to the injuries sustained, the permanency thereof, and the expenses incurred by the plaintiff leads us to the conclusion that the verdict was not excessive. We see no basis for the criticism of plaintiff’s argument to the jury.

Other errors are assigned by the defendant in its motion for new trial. We have examined them and find that they are either without merit or would be cured on a new trial as a result of our decision on the principal contentions.

For the reasons heretofore stated the judgment of the trial court is reversed.

Judgment reversed.

McCOEMICK, P. J. and SCHWAETZ, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Richard L. Berdelle, and Steel Machinery Company, Appellees, v. Charles F. Carpentier, Secretary of State of State of Illinois, Appellant.
    Gen. No. 46,798.
    First District, Second Division.
    June 26, 1956.
    Released for publication September 11, 1956.
    Latham Castle, of Chicago, Attorney General of State of Illinois for defendant-appellant; "William C. Wines, Raymond S. Sarnow, and A. Zola Groves, Assistant Attorneys General, all of Chicago, of counsel.
    Richard G. Raysa, of Chicago, for appellees.
   JUDGE ROBSON

delivered the opinion of the court.

This is an appeal by the Secretary of State of the State of Ulinois from an order of the Circuit Court of Cook County commanding him to issue a corporate charter to plaintiffs in the name of “Steel Company of Ohio.” The Secretary of State had denied plaintiffs’ request for a charter for an Illinois corporation to be known by the name of “Steel Company of Ohio,” “Steelco Manufacturing Company” or “Steel Manufacturing Company.” Such denial was made pursuant to section 157.9(c) of the Illinois Business Corporation Act which provides that the corporate name

“Shall not be the same as, or deceptively similar to, the name of any domestic corporation existing under any Act of this State or any foreign corporation authorized to transact business in this State, or a name the exclusive right to which is, at the time, reserved in the manner provided in this Act.” Ill. Rev. Stat. 1955, ch. 32, sec. 157.9(c). (Emphasis supplied.)

The Secretary determined all of plaintiffs’ requested names to be “deceptively similar” to the names of the following existing corporations authorized to do business in Illinois: “Ohio Steel Products Company,” “Steel-Parts Manufacturing Corporation,” “Steel-Cor Manufacturing Company,” “Steel Doors Manufacturing Company,” and “Steel & Iron Products Company.”

The action below was brought pursuant to paragraph 157.148 of chapter 32, Illinois Revised Statutes, 1953, which provides that where the Secretary fails to approve of any “. . . articles of incorporation, amendment, merger, consolidation, or dissolution, or any document required by this Act to be approved . . .” a petition may be filed by the aggrieved party before the circuit or superior court of the county in which the corporation is sought to be organized. The section further provides that the action shall then be tried de novo by the court, and the court shall either sustain the action of the Secretary of State or direct him to take such action as the court may deem proper.

The trial court, “having examined the pleadings and the exhibits submitted therewith and having heard the arguments of counsel with respect to the facts and the law” ordered the Secretary to issue to plaintiffs a corporate charter under the name of “Steel Company of Ohio.”

The defendant has failed to incorporate the transcript of the evidence and certain documents introduced before the trial court into the record. The trial court’s determination of this matter, as stated in its final order, was based upon the pleadings, the exhibits submitted and the arguments of counsel with respect to the facts and the law. Thus defendant has failed to preserve for review many of the evidentiary considerations that were before the trial court and upon which that court relied. ■

It is a well-established rule in this state that where the evidence is not preserved for review it will be presumed that the evidence was sufficient to justify the judgment of the trial court. This rule applies to statutory as well as to common-law proceedings. People v. Illinois Merchants Trust Co., 320 Ill. 365; People v. Mills, 247 Ill. 620. We conclude that the rule applies to this situation.

The question before the trial court was not decided and could not properly have been decided by simply viewing the requested and the existing names in a vacuum. Therefore, we will not disturb the order of the trial court.

Order affirmed.

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


author: JUDGE SCHWARTZ

text:
    Jacqueline Robertson, Administrator of Estate of Steven C. Robertson, Deceased, and Jacqueline Robertson, Appellants, v. Erin White, Harold Weil and Harry Wolff, d/b/a Dearborn Liquor Store and Tavern, and John Blakely, Appellees.
    Gen. No. 46,779.
    First District, Second Division.
    June 26, 1956.
    Released for publication September 11, 1956.

      Joseph Barbera, of Chicago, for appellants; Charles D. Snewind, of Chicago, of counsel.
    Robert L. Brody, and George J. Gore, both of Chicago, for appellees; Robert L. Brody, of Chicago, of counsel.
   JUDGE SCHWARTZ

delivered the opinion of the court.

This is an action under the Dram Shop Act (Ill. Rev. Stat. 1955, Ch. 43, Par. 135). The complaint charges that the defendants in the operation of their dram shop served liquor to one Blakely, contributing to his intoxication; that as a result of his intoxication Blakely drove his automobile over Steven Robertson, plaintiff’s four-year-old son, causing his death, and that thereby plaintiff suffered loss of means of support for which she seeks $15,000 damages. Plaintiff was required to answer interrogatories which disclosed that the decedent had no income by employment or otherwise. On defendants’ motion the action was dismissed, and plaintiff appeals.

The sole question before us is whether a suit by a parent under the Dram Shop Act can be predicated upon the death of a child who at the time of his death was not contributing to the support of the parent. There is no case in Illinois or elsewhere, so far as we can find, which has passed on this specific question.

Two assumptions must be made at the outset in order that the scope of our ultimate conclusions may be properly understood. First, a child of four years who is not shown to have a peculiar ability, such for example as child prodigies of the stage, is unable to contribute to the support of his parents. Secondly, such inability will continue for years, but the period of minority is not necessarily the proper measure thereof.

The Dram Shop Act provides that every person who is “. . . injured, in person or property, or means of support, by any intoxicated person . . . shall have a right of action . . . against any person, . . . who shall, by selling or giving alcoholic liquor, have caused the intoxication, in whole or in part, of such person; and [against] any person owning, renting, leasing or permitting the occupation of any building or premises, and having knowledge that alcoholic liquors are to be sold therein, . . .”

Plaintiff contends (1) that the phrase “means of support” as construed by cases under the Dram Shop Act includes a potentiality of future support adequate to cover the instant case, and (2) that a presumption of injury to means of support should be created by analogy to a similar presumption employed in an action under the Injuries Act or Wrongful Death Act, as we will sometimes refer to it, (Ill. Rev. Stat. 1955, Ch. 70, Pars. 1, 2) by a parent for the death of a minor child.

In all actions under the Dram Shop Act damages are based on a loss of future means of support, but in the ordinary case support is presently being rendered and it is presumed that it will continue. Plaintiff’s argument requires the larger presumption that a child of four would at some time in the future have earned income and contributed- a part of it toward plaintiff’s support. No legal obligation to support would arise unless plaintiff became indigent, within the terms of the Public Assistance Code. Shaver v. Brierton, 1 Ill.App.2d 192, 117 N.E.2d 298 (1951). It should also be noted, however, that despite some earlier decisions to the contrary (see Jury v. Ogden, 56 Ill. App. 100 (1891)), support actually though voluntarily contributed is sufficient and there need not be a legal claim to. support (Pearson v. Renfro, 320 Ill. App. 202, 50 N.E.2d 598 (1943)).

In McClure v. Lence, 345 Ill. App. 158, 164, 102 N.E.2d 546 (1952), the court considered the differences between the Wrongful Death Act and the Dram Shop Act and with respect to the phrase “means of support” used in the Dram Shop Act said it “is literally construed to require as a prerequisite to recovery that the decedent did in fact render support, whether or not he was legally required to do so, and is thus a considerably more restricted measure of damages than the ‘pecuniary injury’ yardstick.” In Buck v. Maddock, 167 Ill. 219, 225, 47 N. E. 208, the court apparently concurred in an instruction that recovery could not be had unless it was shown that there was a “direct loss to their means of support.” The court did say that the instruction was more favorable to the defendants than the law would justify, taking away from the jury entirely the allowance of punitive damages. In Meidel v. Anthis, 71 Ill. 241 (1874), and McMahon v. Sankey, 133 Ill. 636, 24 N. E. 1027 (1890), the courts reject the argument that an immediate reduction in support income must be shown. In both cases language was used defining loss of means of support as embracing all those resources from which the necessaries and comforts of living are or may be supplied- — -“any resource from which the wants of life may be supplied.” This language was taken from the Ohio cases of Schneider v. Hosier, 21 Ohio St. 98, and Mulford v. Clewel, 21 Ohio St. 191, but there is no indication that this capacity need not be presently shown by the earning ánd contributing of services or income.

In Betting v. Hobbett, 142 Ill. 72, 30 N. E. 1048, and Flynn v. Fogarty, 106 Ill. 263 (1883), statements are made that in an action by a wife, loss of means of support is shown by proof of death of the husband. Again, however, these cases make it clear that proof of present earning capacity is a necessary part of the action.

In Leverenz v. Stevens, 124 Ill. App. 401 (1906), it was held that a wife may recover in an action based on the habitual drunkenness of her husband, without proof of support. But that case is one of many which refuses to relieve a defendant from liability on the ground that the husband, prior to the sale in question, had already become a habitual drunkard.

In most of the dram shop cases we have examined action has been instituted by a wife seeking to recover because of injury due to the intoxication of her husband, and in each instance there was an immediate duty to support coupled with the present prospect of such support, save for the intoxication; which served as a base for the assessment of damages. It is a fair conclusion that while more general language than this has been used at times by courts, there is no support in precedent in dram shop cases for damages based on a future potentiality of support not presently provable.

Plaintiff’s second argument draws an analogy between dram shop cases and the Wrongful Death A.ct (Ch. 70, Pars. 1, 2, Ill. Rev. Stat. 1955). The latter creates a right of action for death caused by wrongful act, neglect or default (provided the act, neglect or default is such as would have entitled the deceased to maintain an action therefor), and the measure of damages is fixed as . . pecuniary injuries resulting from such death, to the wife and next of kin of such deceased person, . . .” Courts have agreed that despite the use of the phrase “pecuniary injuries,” a “presumption of loss” exists in cases where the action is brought in behalf of a spouse or by next of kin who bears a lineal relationship to the deceased. Dukeman v. Cleveland, C., C. & St. L. R. Co., 237 Ill. 104, 86 N. E. 712 (1908); Chicago, P. & St. L. R. Co. v. Woolridge, 174 Ill. 330, 51 N. E. 701 (1898); Chicago & Alton R. Co. v. Shannon, 43 Ill. 338 (1867); City of Chicago v. Scholten, 75 Ill. 468 (1874); Wilcox v. Bierd, 330 Ill. 571, 162 N. E. 170 (1928); Howlett v. Doglio, 402 Ill. 311, 83 N.E.2d 708 (1949). Collaterals, including brothers and sisters, do not benefit by the presumption. In such cases, an actual showing of having received financial assistance is required. Rhoads v. Chicago & A. R. Co., 227 Ill. 328, 81 N. E. 371 (1907).

In announcing and stating the presumption in death cases no general rationale is set forth which would serve to explain how it is derived from the phrase “pecuniary -injuries.” “Pecuniary” in the ordinary sense relates to money and monetary affairs. It has been specifically held that the pain and suffering of bereavement is noncompensable in both death and dram shop cases, and this therefore cannot be considered the basis for the presumption. City of Chicago v. Major, 18 Ill. 349, 360 (1857); Flynn v. Fogarty, 106 Ill. 263 (1883); Freese v. Tripp, 70 Ill. 496 (1873). We must examine the precedents further to unearth the real source.

In Howlett v. Doglio, 402 Ill. 311, 315, 83 N.E.2d 708 (1949), a suit under the Dram Shop Act by a mother arising out of the death of her daughter as a result of the intoxication of a third person, the plaintiff contended that she was injured with respect to her property. The court thus described the plaintiff’s theory:

“. . . that the interest which nature and our form of society gives to each person in his lineal next of kin is ‘property,’ within the purview of the Dram Shop Act. She asserts, without citation of authority, that the law has long recognized that each individual has a definite interest or ‘stake,’ real or potential, in his lineal next of kin; that anyone of the lineal next of kin of every person may be presently, or in the future, a source of financial protection and welfare; that one may, at any time, fall upon evil days and, of necessity, turn to parents or children for aid, and on the other hand, in the future, may conceivably inherit a substantial sum of money from a parent, grandparent or child if the person is allowed to live out his reasonable life expectancy.”

In support of her argument the plaintiff in that case relied upon the presumption in cases under the Wrongful Death Act. The court held that injury “in property,” as used in the Dram Shop Act, meant material loss and that the expression “pecuniary injuries” is not synonymous with “injury in property.” As the plaintiff did not claim loss of means of support .but relied solely on injury to property, this would have disposed of the case. However, the court quite obviously recognized that what the plaintiff was trying to do was to find a basis for a presumption in dram shop cases similar to that in wrongful death cases. The court then proceeded to distinguish between pecuniary injuries and loss of means of support and also between the purposes and objects of the two Acts. It states, among other things, that the Dram Shop Act though remedial in purpose is penal in character and should be strictly construed. (Cruse v. Aden, 127 Ill. 231, 20 N. E. 73; Meidel v. Anthis, 71 Ill. 241 (1874).) The liability imposed and the nature of the damages is of statutory origin and is expressly and exclusively defined in the Dram Shop Act. The court quotes with approval the language in Sharpley v. Brown, 43 Hun (N. Y.) 374: “This cause of action was unknown to the common law, and cannot be made analogous to other actions.” The court then says that recovery must be limited to the classes of injury specified in the law or fairly within its terms. It states, as we have found, that most of the actions are predicated upon injuries to means of support resulting from the husband’s loss of earning power.

In Meidel v. Anthis, 71 Ill. 241, 243, the statute is described as “highly penal in its character, and introducing remedies unknown to the common law, in which the person prosecuting had decided advantages over the party defending.” The court does not say what the advantages are, but obviously the sale of an intoxicating drink by a tavern keeper to a sober man is not an event to be noted, so that owners and operators of dram shops may have no knowledge of the facts on which their liability is based. Hence, a plaintiff’s unsupported testimony may go unchallenged. (Orlicki v. McCarthy, 4 Ill.2d 342, 353, 122 N.E.2d 513.) Nor is innocence of any contribution to intoxication a defense. One owning or leasing property for the sale of intoxicating liquors is likewise liable, even though without fault. On the other hand, in actions for wrongful death, the wrong must always be shown and the action is limited to one which the deceased could have brought. There is, moreover, a more fundamental reason for the narrower construction of the Dram Shop Act.

The Wrongful Death Act had its roots in a natural development of justice. Students who have delved into the history of death by wrongful act (Pollock’s “The Genius of the Common Law,” p. 118; Holdsworth’s “A History of English Law,” vol. 3, p. 335) have pointed out that the rule which denied an action for wrongful death rested on a statement by Lord Ellenborough in a nisi prius decision which was not the considered judgment of the court. Pollock attributed the mistaken notion that there could be no action for. wrongful death to the fact that some one got hold of a supposed Roman maxim that “personal actions die with the person” for ■which there was no real authority and that as a result the common law was saddled with the monstrous principle that there could be no cause of action for wrongful death. In Shields v. Yonge, 15 Ga. 349 (1854) the Georgia court more than one hundred years ago refused to accept this version of the common law and in a very persuasive opinion, sustained an action for wrongful death without statutory authority therefor.

We will not attempt to reconcile the allowance of the presumption in wrongful death cases with its denial in dram shop cases by straining for some tenuous distinction between the words “injured in . . . means of support,” and “pecuniary injuries.” Our conclusion should rest on a sturdier basis than the fine act of drawing a desired meaning from ambiguous phrases. The presumption is not an ordinary legal presumption fixing a burden of proof or creating a prima facie case which may be rebutted. It gives the trier of fact a basis upon which to award compensation for those losses which cannot be measured in money, at least not presently. We must recognize the presumption for what it is — not as derived from the language of the Wrongful Death Act, but as a substantive element added to the statutory definition and unique in wrongful death cases. It was a bold stroke in the interest of justice, so that the wrongful death of a parent, spouse or child should not go without some remedial compensation by the wrongdoer, even though no pecuniary loss could be shown. The question which we must accept for decision is whether a similar presumption, unwarranted by the language of the statute should be imported into the Dram Shop Act.

As we have pointed out, the purely statutory nature of the Dram Shop Act; its purpose of disciplining a legal but ill-favored trade; its arbitrary character in that liability is not dependent upon negligence or other wrongful act; the difficulty of defense; the heavy responsibility placed upon owners or lessees of property — all differentiate that Act from the Wrongful Death Act. While the courts should faithfully seek to apply the remedy provided for in the Dram Shop Act in order to serve its purpose of mitigating the evils and dangers which flow from the liquor traffic, yet they cannot enlarge the scope of the Act beyond a reasonable interpretation of its language. No reasonable interpretation warrants the creation of a presumption of injury such as exists in wrongful death cases.

Judgment affirmed.

McCORMICK, P. J. and ROBSON, J., concur.


text:
    Merrionette Manor Homes Improvement Association, Petitioner, v. Burton A. Heda, and Edythe A. Heda, Respondents.
    Gen. No. 46,823.
    First District, Second Division.
    June 26, 1956.
    Released for publication September 11, 1956.

      Leffmann & Lewy, of Chicago, for appellant.
    No brief filed for appellee.
   JUDGE SCHWARTZ

delivered the opinion of the conrt.

The question before this court is whether or not the plaintiff, an association of home owners organized as a nonprofit corporation, whose membership consists of the owners of real property within an area subjected to planned and uniform restrictive covenants, has sufficient interest to bring suit to enjoin alleged violations. The association has no legal title to any property in the area, but the prospect of the formation of such an association for the purpose of requiring conformance was set forth in the declaration establishing the restrictive covenants. On motion of defendants the trial court dismissed the suit, and plaintiff appealed. Defendants filed no brief in this court and we must therefore decide the case on the brief of appellant and our own research.

The original subdivider of the property was the Merrionette Manor Corporation which on December 29,1948, recorded its declaration of covenants designed to preserve the plan of the subdivision, the character of the homes and the arrangement for land usage. The covenant involved in the instant case reads as follows:

“A vestibule, no more than one story in height, may be erected by any owner of any residential unit which shall not extend beyond the confines of the present front stoop, and may only be erected when the owner of the attached adjacent dwelling unit shall simultaneously erect a similar vestibule of tbe same design and construction to conform to the entire residential unit.”

Other covenants prohibited the construction of trailers, tents, shacks, barns, noxious or offensive trades or activities, signs, advertisements, billboards, and other uses considered objectionable. It was further stated that in the event of the formation of a property owners association whose purpose “shall specifically include the control of all properties in the area with respect to conformance,” the declarant could at its option assign the control therein set up to the property owners association.

Following this declaration of covenants, the declarant caused to be incorporated the Merrionette Manor Homes Improvement Association, plaintiff in this case, including in the purposes of the corporation the encouraging of enforcement, preservation and maintenance of protective covenants; safeguarding the owners of residences against improper use of surrounding building sites and generally to promote and encourage pride of ownership and harmonious maintenance of properties among the various owners resident in the subdivision. The plaintiff association is the assignee of the declarant as to the right to bring an action to enforce the covenants.

Defendants purchased the property in question, which was half of a duplex house, in June 1952. The deed to the property provided that title was taken subject to the restrictive covenants referred to. Despite the covenants and the warning that such action would result in plaintiff’s seeking legal and equitable relief, defendants constructed a vestibule without the joint and simultaneous construction of a like vestibule by the owner of the adjacent dwelling unit and without having plans therefor approved by the declarant or the plaintiff or any agent of the declarant or the plaintiff. Thereupon this suit was instituted.

The question is one of first impression in Illinois. Home owners associations such as the plaintiff appear to be a relatively modern device, a natural outgrowth of the development of housing projects on a large scale, particularly in urban communities where the general good of all within the community requires adherence to some common standards. Everybody’s business is no one’s business. Hence, the enforcement of such standards had to be centralized and home owners associations came into being. While the general question of who may enforce restrictive covenants has been discussed in many cases, the particular question here presented has been considered in but one case, that of Neponsit Property Owners’ Ass’n v. Emigrant Industrial Sav. Bank, 278 N. Y. 248, 15 N.E.2d 793. The case is squarely in point. There, as in the instant case, the plaintiff had not succeeded to the ownership of any property in the area nor did the plaintiff own any other property in the residential tract to which any easement or right of enjoyment was appurtenant. The plaintiff association was created solely to act as the assignee of the benefit of the covenant. The court considered the argument that such covenants cannot be enforced when there is no privity of estate between the parties, and pointed out that the' enforcement of such covenants rests upon equitable principles, citing Tulk v. Moxhay, 2 Phillips 774; Trustees of Columbia College v. Lynch, 70 N. Y. 440, 26 Am. Rep. 615; Korn v. Campbell, 192 N. Y. 490, 85 N. E. 687, 37 L. R. A. (N. S.) 1, 127 Am. St. Rep. 925. The court said that no right to enforce a restrictive covenant where the plaintiff did not own property which would benefit by such enforcement had been sustained in New York, but as illustrating that this is not true in some jurisdictions, cited Van Sant v. Rose, 260 Ill. 401, 103 N. E. 194, which we will later discuss. The court concluded that it is not necessary to lay down any definite rule as to “when, or even whether, covenants in a deed will he enforced, upon equitable principles, against subsequent purchasers with notice, at the suit of a party without privity of contract or estate.” The court there considered that the solution was to look at the real character of the association, not to ignore the corporate form nor to draw aside the veil, but to recognize that the association was acting as the agent or representative of the property owners, and that the property owners were expected to and did look to that organization as the medium through which enjoyment of their common rights might be preserved equally for all. The court concluded its opinion with the following:

“Only blind adherence to an ancient formula devised to meet entirely different conditions could constrain the court to hold. that a corporation formed as a medium for the enjoyment of common rights of property owners owns no property which would benefit by enforcement of common rights and has no cause of action in equity to enforce the covenant upon which such common rights depends. ... In substance, if not in form . . . there is privity of estate between the plaintiff and the defendant.”

This is a strong and well-reasoned precedent of the highest court in’the largest state of the union. Unless Illinois decisions are to the contrary, it is one which we should follow. To that end we will examine the pertinent Illinois cases.

In Van Sant v. Rose, 260 Ill. 401, 103 N. E. 194, cited in the Neponsit case, the defendants contended that in order to entitle a complainant to relief against the violation of a restrictive covenant prohibiting the erection of a flat building, such complainant must show some right or beneficial interest in the land affected by the covenant or in adjoining lands which would be injured as a result of failure to keep the covenant. The court held that while a bill to enjoin a breach of restrictive covenants cannot be maintained by one having no connection with or interest in their enforcement, the fact that the plaintiffs owned no property in the vicinity that would be affected by a breach of the covenants or that they would in any other manner sustain damages did not deprive them of their interest and right to sue. The plaintiffs in that case were the original grantors and covenantees, but the opinion makes it clear that the law of Illinois with respect to covenants is. not so strictly defined as to require in all cases that the one seeking enforcement must show some right or beneficial interest in the land affected by the covenant or in the adjoining lands.

In Hays v. St. Paul M. E. Church, 196 Ill. 633, the court refused to enforce the restriction on the ground that it was not intended for the benefit of the complainant, but in its discussion of the general principles applicable to such cases said that in the case of building line restrictions imposed upon land sold in lots or parcels by agreements made with each purchaser, the inference is that the agreements are intended for the common benefit of all and each may enforce the restriction against the others.

In Brandenburg v. Country Club Bldg. Corp., 332 Ill. 136, the court said p. 145:

“The owner of real estate has the right to convey it subject to any restriction he may see fit to impose, and the only restriction upon such right is that it must be exercised with proper regard to public policy and that the conveyance must not be in restraint of trade. The purchasers from the grantee in a conveyance which imposes upon the grantee restrictions in the use of the land not opposed to public policy will be bound by the restrictions, and equity will enforce them upon equitable principles by injunction against their violation at the suit of any person in whom the right to enforce them is vested.”

In Young v. Cramer, 38 Cal.App.2d 64, 100 P.2d 523 (1940), a different view is held. There the court cited with approval Werner v. Graham, 181 Cal. 174, 183 Pac. 945, 947, which adhered to the common-law principle that the owner of land may not create new and heretofore unknown estates. The court says with some regret that while the enforcement of such covenants against the grantees of the original parties is now too well-established to admit of question, the kind of covenants which will be ■ so enforced are limited to what directly concerns and benefits the “dominant tenement.” The facts in these cases are decidedly different from the case at bar, and in any event, the language of the New York court in its concluding paragraph in the Neponsit case is clearly applicable.

Nothing in the Illinois cases we have examined indicates a policy or trend opposed to what we think are the sound conclusions of the Neponsit case. The primary purpose of the plaintiff association is to enforce the covenants on behalf of and for the good of all 541 property owners who constitute its membership. The enforcement of such covenants as those here involved is based on sound equitable principles. It will, in a proper case, extend to requiring a defendant to repair an injury already done or to remove a structure already erected, but it is .not every case which will call for such relief. Bach case must be decided oh its own circumstances. Brandenburg v. Country Club Bldg. Corp., 332 Ill. 136, 146.

The trial court should overrule the motion to dismiss and require the defendants to answer.

The order is reversed and the cause remanded, with directions to take such further proceedings as are not inconsistent with the views herein expressed.

Order reversed and cause remanded with directions.

MoCORMICK, P. J. and ROBSON, J., concur.


text:
    Rose Szcyenpniak, Appellee, v. License Appeal Commission of City of Chicago, A. L. Cronin, Chairman, Richard J. Daley, Mayor, Local Liquor Control Commissioner, Successor to Martin H. Kennelly, Appellants.
    Gen. No. 46,841.
    First District, Second Division.
    June 26, 1956.
    Released for publication September 11, 1956.
    John C. Melanipby, of Chicago, Corporation Counsel of City of Chicago, for defendants-appellants; L. Lonis Karton, Head of Appeals and Review Division, Harry A. Iseberg, and Claude E. Whitaker, Assistant Corporation Counsel, all of Chicago, of counsel.
    No brief filed for appellee.
   JUDGE SCHWARTZ

delivered the opinion of the court.

The Mayor of the City of Chicago, as Local Liquor Control Commissioner, denied plaintiff’s application for a retail liquor license on the ground that the site of the tavern was within 100 feet of a church. Plaintiff appealed to the License Appeal Commission which affirmed the finding. Thereupon plaintiff, pursuant to the Administrative Review Act, appealed to the Circuit Court of Cook County which reversed the order of the License Appeal Commission and directed the Commissioner to issue a license to the plaintiff. The defendants then took this appeal. No brief has been filed by the appellee.

The testimony reveals that the site in question is within 40 feet from the west end of the Alverno Home Nursing Center. The Center is a convent for sisters and is called a nursing home because the sisters are nurses and visit patients. There is a chapel in the center vdiich is open to the public for Mass, benediction, prayers and devotions and which contains everything necessary for all the ordinary functions of the Catholic church. The sister superior testified that Mass is said daily; that the chapel is open to the public for adoration the first Sunday of the month; that it contains the Blessed Sacrament at all times; that the first Mass was said in the chapel July 14, 1948, and that it has been used for religious service continuously since then. To all intents and purposes it is a place for public worship.

Paragraph 127 of the Illinois Liquor Control Act (Ch. 43, Par. 127, Ill. Rev. Stat. 1955) provides in part as follows:

“No license shall he issued for the sale at retail of any alcoholic liquor within 100 feet of any church, school, hospital, home for aged or indigent persons or for veterans, their wives or children or any military or naval station; . . .”

The statute does not define the term “church” as used therein, nor are there any cases in point. There are decisions defining the statute exempting church property from taxations, hut this relates to “property used exclusively for religious purposes.” Such cases are obviously not in point here, except that it should be noted that the legislature did not use similar words in the Liquor Control Act.

In Smith v. Ballas, 335 Ill. App. 418, the building for which a liquor license was sought was situated 101 feet and 1 inch from a high school building and 87 feet and 8 inches from the nearest point of the real estate on which the building was located. The issue involved was whether the word “school” in Section 127 meant the structure or the real estate. The court referred to Paragraph 94 of the Act [Ill. Rev. Stats. 1955, ch. 43, § 94], requiring liberal construction in the interest of the public welfare. It said, at page 421:

“The primary purpose of statutory construction is to ascertain the legislative intent, by examining not only the language employed, but the evil to be remedied and the end to be attained. (U. S. Industrial Alcohol Co. v. Nudelman, 375 Ill. 342). It would seem that the legislature, by the very act of legislating on the subject and enacting paragraph 127, was not unmindful that a tavern does not furnish a wholesome environment for school children.”

Likewise, a tavern does not furnish a wholesome environment for a convent and chapel.

As we have repeatedly pointed out, the scope of review in matters such as this is limited by the Administrative Review Act, the decisions of the courts, and by what ought to be a reluctance on the part of judges to interfere with the proper responsibilities and powers of the administrative department of government. The administrative agencies have concluded that this is a church and the evidence is sufficient to support their conclusion.

Order reversed.

MoCORMICK, P. J. and ROBSON, J., concur.


author: .JUDGE SCHWARTZ

text:
    Tyree Watson, Appellee, v. Eula Watson, Appellant.
    Gen. No. 46,893.
    First District, Second Division.
    June 26, 1956.
    Released for publication September 11, 1956.

      Prescott, Burroughs, Taylor & Carey, of Chicago, for appellant; Euclid Louis Taylor, and Howard T. Savage, both of Chicago, of counsel.
    No brief filed for appellee.
   .JUDGE SCHWARTZ

delivered the opinion of the court.

Tyree Watson sued his wife Eula for divorce and the matter was heard as an uncontested divorce case January 28, 1955. At the conclusion of the hearing the court directed the plaintiff to present his decree which, in the vernacular of the practice, meant that, without conclusively being committed thereto, the court considered the evidence was sufficient and that he would sign the decree if properly presented with an accompanying certificate of evidence. On February 4, 1955, the court signed the decree presented to it. It appears, however, that Eula Watson had married again on February 3, 1955, on the assumption that the divorce had been granted January 28th. On October 1, 1955, Tyree Watson filed a petition stating it was through error that the decree was not presented for signature until February 4, 1955, and, setting forth the facts before stated, prayed the court to amend and correct its records to show that the decree was granted nunc pro tunc as of January 28,1955. A stipulation between Tyree and Eula Watson as to the entry of such an order was presented at the same time. Thereupon, on October 1, 1955, the court entered the nunc pro tunc order and therein found that “judgment was granted and order entered on January 28, 1955, and from examination of the minutes of this Court, it appears that the said judgment was rendered on said date.”

On October 29,1955, one Lewis Sawyer, the new husband of Eula Watson, filed a petition charging that the court was without jurisdiction to enter the amended order and that the sole purpose thereof was to influence the outcome of a separate maintenance suit filed by Eula Watson against him. This was presented by his attorney Richard L. Vaughns upon a motion that he be given leave to appear in the case as amicus curiae. Objections were filed to the granting of leave to Sawyer to appear as such amicus curiae, and a motion to dismiss the petition was made by attorneys on behalf of Eula Watson. The court denied the motion for leave to appear as amicus curiae and then stated:

“The court having further examined the record upon its own motion as to legality and effect of order entered herein on October 1,1955, finds as a matter of law that the Court was without-jurisdiction to enter said Order and that the legal question as to the effective date of said Decree is a matter of law as determined by the original record in said cause.”

Thereupon the court set aside the order of October 1, 1955. The court further denied the motion to vacate that order. An appeal was thereupon taken by Eula Watson to this court. No brief has been filed in this cause by anyone other than Eula Watson.

The case of Moore v. Shook, 276 Ill. 47, is substantial precedent for the validity of the order of October 1, 1955. In that case a bill for divorce was filed in Alton, Illinois, in September 1911 by Isaac Moore. An order of default was entered and a hearing had December 2, 1911. At the close of the hearing the judge announced orally that the divorce was granted and on his docket wrote the following:

“Cause heard. Court finds deft, guilty of extreme and repeated cruelty. Decree for divorce to complainant. Costs to Complainant.”

The court then ordered a decree prepared in accordance with this finding but the formal written decree was not approved until December 15,1911, and was not filed by the clerk until December 16, 1911. On December 9, 1912, being more than a year after the oral announcement of the decree, but less than a year from the signing of the written decree, Moore married the plaintiff. This was at the time marriage within one year was prohibited. The bill filed by his widow alleged that Moore died in 1914 and that his daughter was attempting by proceedings in the Probate Court to have the plaintiff declared not to be a surviving heir on the ground that the marriage was within one year of the divorce and therefore void. The plaintiff alleged that both she and her husband had believed the divorce had been granted December 2, 1911, when the oral announcement was made in open court and prayed that the decree be amended so as to show its entry as of the date when the evidence was heard and the court’s decision pronounced. The trial court found against the plaintiff and on appeal the Supreme Court reversed the trial court. The Supreme Court held that while the mere oral announcement of a decision to enter the decree still left the matter entirely under the control of the court, nevertheless the trial court in the original divorce proceedings could change its record to show the final decree as having been effective on the date the hearing was held. The court said:

“Without doubt, the date of the decree would have been entered as of December 2, 1911, even though the written document had not been presented to the judge until December 16, if the request had been made at that time to have it so entered or if the document as so presented had stated that it was entered December 2. During Dr. Moore’s lifetime, had he filed a petition subsequent to the term at which the decree was granted to have the date changed and have it entered as of December 2, 1911, instead of December 16, the court, on proper notice to the interested parties, would have been justified in making such change.”

We must assume that the court in entering the order of October 1, 1955 in the instant case did so advisedly. However, the only way in winch this order could have been corrected was not on its own motion made as it was on November 16, 1955, but in some proper proceeding in which all interested parties had notice. In Ernst Tosetti Brewing Co. v. Koehler, 200 Ill. 369, the court said, p. 372:

“No error of law of any kind will justify revising or annulling a decree at a subsequent term in a summary way on a motion, but relief against it must be obtained by appeal or writ of error if the error is apparent on the face of the record, and if not, by bill of review or bill to impeach the decree for fraud or other sufficient cause.”

The order of October 1, 1955, was valid. The order of November 16, 1955, is reversed.

Order reversed.

McCOBMICK, P. J. and BOBSON, J., concur.


author: PRESIDING JUSTICE LEWE

text:
    Louis Pimentil, Appellant, v. Milo Brooke, Inc., Appellee.
    Gen. No. 46,753.
    First District, Third Division.
    June 29, 1956.
    Released for publication September 12, 1956.
    Philip E. Blecher, and Joseph Barbera, both of Chicago, for appellant; Charles D. Snewind, of Chicago, of counsel.

      Mulcaliy, Murphy & Dieringer, of Chicago, for appellee; Michael F. Mulcahy, and Henry W. Dieringer, both of Chicago, of counsel.
   PRESIDING JUSTICE LEWE

delivered the opinion of the court.

This is an action to recover damages for breach of an alleged oral contract to insure plaintiff for public liability resulting from any accident involving the automobile purchased by plaintiff from defendant. After the proofs were closed, defendant moved for a directed verdict. Judgment on the motion was reserved and the cause submitted to the'jury. The jury being unable to reach a verdict, defendant’s motion was granted and judgment entered accordingly. Plaintiff appeals.

The principal question presented is, whether plaintiff adduced evidence sufficient to establish the necessary elements of an oral preliminary contract to insure plaintiff against public liability.

The history of the transaction may be briefly stated. Plaintiff, a native-born Puerto Rican, went to defendant’s place of business for the purpose of purchasing a used automobile. After plaintiff decided on a car, he discussed with defendant’s salesman, one Horner, the terms of purchase. During this discussion, the subject of insurance was raised by plaintiff. His testimony on this subject was as follows:

“Then I told him, ‘I want a good insurance for the car.’ I said, ‘I want a good insurance for the car because I don’t want no trouble,’ and he [salesman Horner] asked me what kind of insurance I wanted. I told him, ‘I wanted full cover insurance.’ Then I tell to Mrs. Morreales [a friend of plaintiff] to explain to him because she knows a little Spanish and I tell her in Spanish and then she can explain it in English.

“Then Horner asked what kind of insurance I wanted. He asked me, ‘If you hit some hoy come from school, or another car, cover them?’ I told him, ‘That is what I want because I don’t want no trouble.’ Then he told me, ‘You got it.’ ”

Several weeks later, plaintiff received the insurance documents consisting of a $50 deductible comprehensive policy on the car, a policy on plaintiff’s life to the extent of the financial obligation, and a hail bond. There was no public liability policy included.

In September, 1953, plaintiff was involved in an automobile accident and subsequently was found liable in a negligence action. In that action, judgment was entered against plaintiff in the amount of $35,000. In’the case at bar, plaintiff seeks to recover damages alleged to have been sustained in the former suit.

In considering defendant’s motion for a directed verdict, it is the duty of the court to examine the record and determine whether there is any evidence, which, taken with its intendments most favorable to the plaintiff, tends to prove the essential elements of the complaint. (Sims v. Chicago Transit Authority, 4 Ill.2d 60.)

Plaintiff says that the elements of the oral contract to insure may be implied from the surrounding circumstances.

The law seems well established that preliminary contracts to insure may he proved by parol as well as written evidence. (Welch v. Northern Assur. Co., 223 Ill. App. 77; Concordia Fire Ins. Co. v. Heffron, 84 Ill. App. 610. See also, Cottingham v. National Mut. Church Ins. Co., 290 Ill. 26.) The elements of the preliminary contract may he implied from past dealings between the parties (Fisher v. Underwriters at Lloyd’s London, 115 F.2d 641 (CCA 7th, 1940)); correspondence between the parties (Cottingham v. National Mut. Church Ins. Co., 290 Ill. 26); or from conversations or customs prevalent in the locale (Concordia Fire Ins. Co. v. Heffron, 84 Ill. App. 610).

In announcing the rule in the Cottingham case, 290 Ill. 26, our Supreme Court, adverting to Eames v. Home Ins. Co., 94 U. S. 621, said at page 32:

“It is sufficient if one of the parties to such a contract proposes to be insured and the other party agrees to insure, and the subject, the period, the amount and the rate of insurance are ascertained or understood and the premium paid if demanded.”

In that case, the court found that the parties’ correspondence contained the amount of insurance; the subject of insurance; the first year’s premium, though not designated by amount, in a formula known to the parties; and the period of coverage. Further, there had been no demand for the premium payment. Under these circumstances, the court held in the Cottingham case that there was a valid preliminary contract to insure.

In the instant case application of the tests as announced in the Cottingham case do not sustain plaintiff’s position for the reason that plaintiff has failed to establish the necessary elements for a valid preliminary contract. Here, the conversation alleged to give rise to the oral contract shows a party purporting to be insured, a party agreeing to insure, and a definite subject to be insured, viz., the public liability arising from an automobile accident. But there is no evidence from which it may be implied that the parties understood the period of coverage, the amount of the policy, or the rate of insurance.

Plaintiff argues that Jennings v. Illinois Automobile Club, 319 Ill. App. 587, and Welch v. Northern Assur. Co., 223 Ill. App. 77, hold that when an agreement to provide insurance is silent on the conditions, it is presumed that the parties contemplate a form of policy usually used in similar circumstances. However, in both of the last cited cases, this proposition was merely the contention of the appellants. The question in the Jennings case concerned not the existence of a preliminary contract, but the construction of an established contract. Therefore that case is not applicable here. In the Welch case, the court found in the oral agreement between the parties all the necessary elements except the premium rate. As to the premium rate, the court said the plaintiff had promised to pay the premium so its absence from the agreement did not vitiate the contract. It does not appear, however, from the report of the Welch case that the court had the Cottingham case called to its attention, and we doubt that the absence of the premium rate would permit of a valid contract to insure. But even assuming the rule announced in the Welch case to be a correct statement of the law, plaintiff in the present ease still has not shown the elements of the period of coverage and the amount of coverage.

Plaintiff insists that “full and adequate coverage” used in the conversation with defendants shows that the parties intended “reasonable” coverage. In support of his position, plaintiff relies on Southern Casualty Co. v. Flowers, (Tex. Civ. App.), 23 S.W.2d 507. There the plaintiff wanted an automobile insurance policy transferred from his old car to a newly purchased car, plus additional insurance. The Supreme Court of Texas, affirming the recommendations of the Commission of Appeals, ruled that the agreement between the parties was not for coverage to a “reasonable” amount, but rather, it was for coverage to the amount of the policy to be transferred. Recovery was limited to the amount of the prior policy. (38 S.W.2d 570.) In the case before us, there was no prior contract. Nor was there anything appearing in the conversation to reasonably give rise to the inference that coverage was to be for a “reasonable” amount.

Since we are of the opinion that plaintiff has failed to introduce any evidence tending to prove the requisite elements of amount of policy, duration of coverage and rate of the premium, we are impelled to affirm the judgment.

For the reasons given, the judgment is affirmed.

Judgment affirmed.

KILEY and FEINBERG, JJ., concur.


author: JUDGE EEINBEEG

text:
    State Farm Mutual Automobile Insurance Company, Appellant, v. Ernest E. Madison, Administrator of Estate of John A. Madison, Deceased, and James Dimitrion, Appellees.
    Gen. No. 46,839.
    First District, Third Division.
    June 29, 1956.
    Released for publication September 12, 1956.
    Meyers & Matthias, of Chicago, for appellant; Donald L. Thompson, of Chicago, of counsel.

      Eobert E. MeAuliffe, Clarence J. Walsh, and Mark H. Ellis, all of Chicago, for appellees; Edward Wolfe, of Chicago, of counsel.
   JUDGE EEINBEEG

delivered the opinion of the court.

Plaintiff’s complaint is for a declaratory judgment that certain exclusion provisions in the policy of insurance issued to John A. Madison, now deceased, apply to the particular facts alleged in the complaint; and that there is no liability under the policy for the accident in question. Answers were filed to the complaint, which substantially admitted the facts alleged and raised only an issue of law. Plaintiff’s motion for the declaratory judgment upon the pleadings was denied, and judgment entered for the defendants. This appeal followed.

The provisions of the policy pertinent to the question whether the policy covers the instant accident are:

“I. Coverage A — Bodily Injury Liability. To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person, caused by accident and arising out of the ownership, maintenance or use of the automobile.

“II. Defense, Settlement, Supplementary Payments. As respects the insurance afforded by the other terms of this policy under coverages A and B the company shall:

(a) defend 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; . . .

“III. Definition Of Insured. With respect to the insurance for bodily injury liability, for property damage liability and for medical payments tbe unqualified word ‘insured’ includes tbe named insured and also includes any person while using the automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or with his permission. . . .

“VIII. . . .

“This policy does not apply:

(e) Under coverage A, to any obligation for which the insured or any company as his insurer may be held liable under any workmen’s compensation law; or to the instired or any member of the family of the insured residing in the same household as the insured.” (Italics ours.)

The facts admitted by the pleadings disclose that the deceased and defendant Dimitrion were travelling from the State of Wisconsin to Chicago, in a Ford automobile owned by the deceased and covered by the policy in question, and was then being driven, operated and controlled by defendant Dimitrion with the permission of the insured. While en route to Chicago, the automobile became involved in an accident, resulting in severe injuries to the deceased, causing his death.

It further appears from the pleadings that defendant administrator brought an action against defendant Dimitrion and the plaintiff in the instant case, for damages for the wrongful death of the deceased. Plaintiff disclaimed liability under the policy and refused to defend Dimitrion in the suit for damages.

We think the trial court correctly construed exclusion clause (e) Paragraph VIII of the policy, as referring to and limited to claims under the Workmen’s Compensation Act. Any other construction would nullify the “Definition of Insured,” clearly set out in Paragraph III;-rand render the language of the definition meaningless.

In Schmidt v. Equitable Life Assur. Society of the United States, 376 Ill. 183, 33 N.E.2d 485, the court said:

“No rule in the interpretation of an insurance policy is more firmly established, or more imperative and controlling, than that which declares that in all cases it must be liberally construed in favor of the insured to the end that he will not be deprived of the benefit of insurance for which he has paid, except where the terms of the policy clearly, definitely and explicitly require it (Lenkutis v. New York Life Ins. Co., 374 Ill. 136; Midwest Dairy Products Corp. v. Ohio Casualty Ins. Co., 356 Ill. 389.)” (Italics ours.)

In Mosby v. Mutual Life Ins. Co. of New York, 405 Ill. 599, 92 N.E.2d 103, the court held:

“Ambiguous provisions or equivocal expressions whereby an insurer seeks to limit its liability will be construed most strongly against the insurer and liberally in favor of the insured. Lenkutis v. New York Life Ins. Co., 374 Ill. 136.” (Italics ours.)

In Canadian Radium & Uranium Corp. v. Indemnity Ins. Co. of North America, 411 Ill. 325, 104 N.E.2d 250, it was also stated:

“But because the insurer is the one who prepares the contract, ambiguous, or equivocal expressions whereby the insurer seeks to limit its liability will be construed most strongly against the insurer. Pioneer Life Ins. Co. v. Alliance Life Ins. Co., 374 Ill. 576; Lenkutis v. New York Life Ins. Co., 374 Ill. 136; Midwest Dairy Products Corp. v. Ohio Casualty Ins. Co., 356 Ill. 389.” (Italics ours.)

"We have carefully analyzed the cases cited by plaintiff, and particularly Maryland Casualty Co. v. Holmsgaard, 10 Ill.App.2d 1, and we conclude they are not applicable. In tbe latter case, tbe exclusion clause specifically and clearly excluded tbe damage to tbe car insured, being tbe subject of tbe claim, but covered liability for damage to tbe property of others.

The judgment of tbe Superior Court is affirmed.

Affirmed.

LEWE, P. J. and KILEY, J., concur.


author: JUDGE FEINBERG

text:
    Gerald J. Anderson, Appellee, v. Industrial Molasses Corporation, Appellant.
    Gen. No. 46,849.
    First District, Third Division.
    June 29, 1956.
    Released for publication September 12, 1956.

      Richard P. Lambert, Jr., of Chicago, for appellant.
    Seyfarth, Shaw & Fairweather, of Chicago, for appellee; Thomas G. Yent, Jr., of Chicago, of counsel.
   JUDGE FEINBERG

delivered the opinion of the court.

Plaintiff brought this action to recover an unpaid balance allegedly due and owing to him from defendant. Defendant filed a demand for a jury of twelve. Several continuances had been granted, and when the cause was called for trial, defendant sought another continuance, which the trial court denied. A jury of six was immediately impaneled, and plaintiff proved up his case. Defendant’s counsel, when the motion for a continuance was denied, did not participate in the hearing, although present in court during the impaneling of the jury and the taking of proof. No objection was made by defendant’s counsel to impaneling a jury of six, nor does it appear that defendant’s counsel called the court’s attention to the written demand. There being no defense offered, the court directed a verdict for plaintiff.

Rule 59 (2) of the Municipal Court of Chicago makes provision for a trial of a cause with six jurors under conditions therein specified. The rule is authorized by the Municipal Court Act [Ill. Rev. Stats. 1955, ch. 37, § § 356-426]. The contention here made by defendant for a reversal of the judgment is that having filed a written demand for twelve jurors, the court had no right to impanel only six, and thereby deprive defendant of the constitutional jury trial. '

Do the facts disclosed constitute a waiver by defendant of the right to a trial with twelve jurors? Defendant’s counsel, as already shown, was present in court after the continuance was denied and remained silent during the impaneling of the jury. Upon oral argument defendant’s counsel admitted that if no jury had been impaneled, and he stood by without objection to the cause being heard without a jury, he would be deemed to have waived the right to have a jury trial, but insists that a jury having been impaneled, consisting of six jurors instead of twelve, it was not a constitutional jury guaranteed to the defendant by the State Constitution.

Defendant is in no position to discuss the constitutional question. First, because the constitutional objection was not properly preserved in the court below by raising a timely objection at the time the jury was being impaneled, while counsel for defendant was present in court, and secondly, by appealing to this court, he waives the right to raise the constitutional objection. People v. Cosper, 2 Ill.App.2d 168; People v. Rosenthal, 370 Ill. 244; People v. Terrill, 362 Ill. 61.

Similarly, in Tree v. DeMar, 2 Ill.2d 547, 557, it was held that an appeal to the Appellate Court in a cause where a freehold was claimed to be involved, and no motion was made to transfer the cause to the Supreme Court, constituted a waiver of the objection to the jurisdiction of the Appellate Court.

Povlich v. Glodich, 311 Ill. 149, relied upon by defendant, which holds that where a default had been entered for failure to file a plea, it was error to try the cause with a jury of eight instead of twelve, because it was contrary to the constitutional provision, Section 5, Article II of the Constitution of 1870, is not applicable to the instant case. Though a defendant is in default, he has a right to expect, if a jury is impaneled, that it be a constitutional jury and not one less in number, where he does not. consent to a jury of less than twelve. It is far different, however, where defendant’s counsel is present during the impaneling of the jury and does not bring to the. court’s attention the demand on file for a jury of twelve but remains silent throughout the proceedings. He should be deemed to have waived his right to complain that it was a jury of less than twelve, and his silence should constitute consent to a jury of six as authorized by the rule of the Municipal Court.

As early as Burgwin v. Babcock, 11 Ill. 28, the Supreme Court said:

“It is apparent from the record that the proofs were heard, and the judgment pronounced, immediately after the demurrer was sustained, and the application for a continuance overruled, and while all the parties were before the court. It is a fair inference that the cause was heard by the court by their consent. If the fact was otherwise, the defendants would have objected to the course pursued, and tendered a bill of exceptions. If they were present and interposed no objections, they waived their right to have their cause submitted to a jury, and acquiesced in the trial by the court.” (Italics ours.)

As late as Parrino v. Landon, 8 Ill.2d 468, 472-473, it was said:

“Diligence has always been a requirement of the courts. The means of informing court and plaintiff that a defendant urges he has been improperly joined in an action or that no liability has been asserted against him is very simple. It is the duty of both party and counsel to inform the court of such a condition at the earliest possible moment.”

While the factual situation is somewhat different in the last cited case, the reasoning is readily applicable to the instant situation. To the same effect is Schlossberg v. Lincoln Park West Corp., 10 Ill.App.2d 318, filed May 23,1956, where complaint was made that the party in interest should have been made a party to the proceeding. The party complaining had control of the litigation, and the defendant corporation, and appeared as a witness. We there held that where they stood by, and did not apply to the court for leave to intervene, if they deemed it necessary, to set up their interests, they could not be heard to complain they were not made parties to the action.

We are impelled to hold that under the circumstances disclosed by the record, defendant, by its silence, consented to the cause being tried by a jury of six. The trial court did not abuse its discretion in denying the continuance. There was no showing under oath, by affidavit or otherwise, that would entitle defendant to a continuance.

The judgment is correct, and it is affirmed.

Affirmed.

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


author: JUDGE KILEY

text:
    Ethel V. Johnson, Administratrix of Estate of Edward C. Johnson, Deceased, Appellant, v. Seth Kirkpatrick, and Gene C. Buchanan, Appellees.
    Gen. No. 46,821.
    First District, Third Division.
    June 29, 1956.
    Released for publication September 12, 1956.

      Owens, Owens & Rinn, of Chicago, for appellant; John E. Owens, and Walter B. Bieschke, both of Chicago, of counsel.
    Crowe, Tates, Abrahamson & Fisk, of Chicago, for appellees; Bnrt A. Crowe, of Chicago, of counsel.
   JUDGE KILEY

delivered th§ opinion of the court.

This is a wrongful death- action. The jury returned two verdicts: one found defendant Kirkpatrick guilty, assessing damages at $15,000, and the other found defendant Buchanan not guilty. Kirkpatrick moved for judgment notwithstanding the verdict and plaintiff moved for a new trial as to Buchanan. The trial court granted Kirkpatrick’s motion and entered judgment in his favor. It denied plaintiff’s motion for new trial, and she has appealed.

Plaintiff’s decedent died as the result of injuries suffered March 20, 1950, in an automobile collision on U: S. Route 14 near Woodstock, Illinois. The collision occurred about 7:30 a. m. while the decedent and three fellow carpenters were bound for work. He was sitting in the right rear of a 1948 Plymouth which was struck by a tractor-trailer owned by Kirkpatrick and driven by Buchanan. The tractor-trailer was going southeasterly on the two-lane highway, carrying an interstate shipment of ten- tons of rock wool, and the Plymouth was going northwesterly. The right wheels of the Plymouth went off the pavement onto the shoulder of the road and into a frozen rut.' The driver turned the car back onto the road, which was icy, and the car skidded into the far lane ;and the path of the tractor-trailer. Plaintiff’s decedent-was injured in the ensuing collision.-

The question presented is whether the court erred in sustaining Kirkpatrick’s motion and denying plaintiff a new trial.

The complaint alleged negligence, as to Kirkpatrick alone, in that he, as owner of the tractor-trailer, permitted Buchanan to drivé when the owner knew or should have kridwn Buchanan was incompetent to do so, permitted Buchanan who was under 21 years of age to drive, and permitted Buchanan to drive without complying with the experience requirement and that of the' physical examination, all in violation of regulations of the Interstate Commerce Commission. The complaint also alleged a custom.among common carriers of requiring an employee to gain ¡ sufficient experience before being allowed to operate a tractor-trailer.

Tbe employment relationship between Kirkpatrick and Buchanan was alleged and the latter’s negligence in the scope of his agency in (a) negligent operation; (b) inexperienced and incompetent operation amounting to negligence; (c) failure to use brakes; (d) negligent speed in excess of that which experienced, competent operators would use under the circumstances; and (e) excessive and negligent speed in violation of the Motor Vehicle Act.

The court gave instructions for both parties on the theory of respondeat superior. The defendant’s instruction was peremptory, ending “. . . then the defendant, Buchanan, was not guilty of negligence and you should find the defendants not guilty.” Four forms of verdict were given to the jury: one for a finding of “guilty” and one for a finding of “not guilty” as to Kirkpatrick; one for a finding of “guilty” and one for a finding of “not guilty” as to Buchanan. It will be seen that there was no verdict form corresponding to plaintiff’s respondeat superior theory in the complaint nor to the instructions of both parties under that theory.

There is a dispute between the parties with respect to whether the plaintiff invited the four forms of verdict only. We have denied defendant’s motion to add an additional report of proceedings under authority of Leading Jewelry Mfg. Co. v. Yorkshire Watch Co., 350 Ill. App. 319, and the original record on appeal must settle the dispute. The record does not support the contention that the verdicts submitted were limited, at plaintiff’s request, to the four that were given.

Plaintiff’s motion for new trial as to both defendants set forth the ground, among others, that the court erred in giving “the specific forms of verdict” as to the defendants.

Verdicts must respond to the issues (Gross v. Sloan for Use of Blatchford, 54 Ill. App. 202), and if verdicts find only part of the issues they are bad. (Goldstein v. Smith, 85 Ill. App. 588, 590; Schofield v. Miltimore, 74 Wis. 194, 42 N. W. 212; Burns-Moore Mining & Tunnel Co. v. Watson, 45 Colo. 91, 101 Pac. 335.) There is no basis for finding Kirkpatrick guilty unless the jury found Buchanan guilty of negligence. (Hayes v. Chicago Tel. Co., 218 Ill. 414.) All the charges based on the Interstate Commerce Regulations imply negligent conduct on Buchanan’s part (Rogina v. Midwest Plying Service, Inc., 325 Ill. App. 588, 594) just as the charges under the respondeat superior theory. The jury, therefore, finding Buchanan not guilty and Kirkpatrick guilty, acted inconsistently. We think for this reason the trial court erred in denying plaintiff’s motion for a new trial. (Berger v. Podolsky Bros., 360 Mo. 239, 227 S.W.2d 695; Lowney v. Butte Elec. R. Co., 61 Mont. 497, 204 Pac. 485, 487.)

A reversal and remandment for this error would be unavailing to plaintiff if the implication in the court’s sustaining. Kirkpatrick’s motion for judgment notwithstanding the verdict be justified. The effect of the ruling was a finding that there was no evidence favorable to plaintiff, which taken as true, together with legal inferences drawn most strongly in his favor, tended to prove negligence on the part of Buchanan. This, as in cases of motion for directed verdict, is the test (Merlo v. Public Service Co. of Northern Illinois, 381 Ill. 300, 311), and the ruling was not justified on the ground that the verdicts were inconsistent.

Under the rule, the evidence favorable to plaintiff is that when the Plymouth went off the road the truck was 250 feet away approaching at a rate of 30 miles per hour; that when the Plymouth regained the highway the truck was 200 feet away; that Buchanan observed the Plymouth’s wheels leave the pavement and go into the rut, saw it regain the highway and start to spin; and that the truck neither decreased its speed nor changed its direction before the impact. We think this evidence tends to prove that Buchanan was negligent in not anticipating that the spinning automobile might skid into the path of the tractor-trailer and that he should have taken prudent steps to avoid the collision. The favorable evidence leaves no room for any inference that decedent failed to do anything that he should have done and did not do as a passenger. The trial court erred in granting the motion for judgment notwithstanding the verdict.

This is not a case like Rogina v. Midwest Flying Service, Inc., 325 Ill. App. 588, and similar cases cited by defendant, where the judgment for the employee was final and unappealed and compelled reversal of the judgment against the employer. In those cases there was no other alternative for the reviewing court, but here we have both judgments before us, and we may reverse and remand.

For the reasons given, the judgments are reversed and the cause is remanded for a new trial.

Beversed and remanded.

LEWE, P. J. and FEINBEBG-, J., concur.