author: JUDGE CARROLL

text:
    Esther N. Smith, Plaintiff-Appellant, v. Estate of Theodore O. Womack, Deceased, Cloyce Womack, Defendant-Appellee.
    Gen. No. 10,094.
    Third District.
    February 26, 1957.
    Released for publication March 14, 1957.
    Dyer, Richmond & Moore, of Hoopeston, for plaintiff-appellant; C. F. Dyer, Kenneth L. Richmond, and Joseph C. Moore, of connsel.
    Hntton, Clark & Hntton, of Danville, for defendant.
   JUDGE CARROLL

delivered the opinion of the court.

Esther N. Smith, plaintiff, filed her claim against the estate of Theodore 0. Womack, deceased, in the Probate Court of Vermilion County. Upon a hearing had on August 26, 1955, the said claim was allowed as of the seventh class.

On September 2, 1955, the defendant, Cloyce Womack, one of the heirs of Theodore 0. Womack, deceased, filed an appeal bond in the probate court and on that date it was approved and ordered recorded by the judge of said court. Notice as to the time of presenting the appeal bond to the court for approval was not given to defendant or any of the other parties of record in the estate proceedings. The bond was conditioned upon payment of all costs occasioned by the appeal. The transcript of the record on appeal from the probate court was filed in the circuit court on September 6,1955.

On September 8, 1955, the defendant filed a motion in the circuit court to dismiss plaintiff’s claim on the ground that the same was barred by a prior judgment. This motion contained a detailed statement of the particular facts which allegedly supported the motion. No notice of the filing of this motion was given to plaintiff.

On September 2, 1955, plaintiff entered her special and limited appearance in the cause and moved for dismissal of the appeal on the grounds that notice of application for approval of the appeal bond by the probate court as required by the statute was not given and that said bond was defective in form. The court denied plaintiff’s motion and allowed that of the defendant and ordered plaintiff’s claim dismissed.

In appealing from the above order, plaintiff makes the following contentions: (1) that the circuit court did not acquire jurisdiction of the appeal because of defendant’s failure to give notice of the presentation of the appeal bond for approval; (2) that the appeal bond was defective and should have been stricken; (3) that- plaintiffs claim was not barred by a prior judgment.

Attention will be first directed to the contention challenging the jurisdiction of the court since the sustaining thereof obviates the necessity of considering other points urged.

Prior to May 12, 1955, Sec. 330 of the Probate Act, Chap. 3, [§ 484] Ill. Rev. Stat. 1955, which relates to appeals from the probate to the circuit court, provided in part as follows:

“An appeal from any other order, judgment, or decree of the probate court may be taken by any person who considers himself aggrieved to the circuit court by the filing in, and the approval by, the probate court of an appeal bond and the payment of the costs and fees of the appeal.”

As of the above date, this section was amended by adding thereto the following:

“The person taking the appeal shall give such notice as the court directs of the time when the appeal bond will be presented to the court for approval to each person who has entered his written appearance in the proceeding in which the order,- judgment or decree of the probate court was entered.”

It is admitted that defendant did not comply with the requirement provided by the 1955 amendment. He argues however that his appeal was perfected by the filing and approval of the bond and payment of costs. As a result the only question to be resolved is whether despite defendant’s failure to follow the statute the circuit court nevertheless acquired jurisdiction of the cause.

An appeal to the circuit court from an order of the probate court in estate proceedings is wholly statutory and strict compliance with the statute granting such right is required. Davison v. Heinrich, 340 Ill. 349; McCormick v. Meisenheimer, 337 Ill. 65; In re Hills’ Estate, 305 Ill. App. 193.

Prior to its amendment in 1955, the three essential steps in perfecting appeals from the probate to the circuit court required by Sec. 330 of the Probate Act were (1) filing in the probate court an appeal bond (2) approval of such bond by the probate court and (3) payment of the costs and fees of the appeal. By the amendment the legislature saw fit to provide that in addition to complying with the above requirements, a person taking such an appeal shall give such notice as the court directs of the time when the appeal bond will be presented to the probate court for approval to all persons who have entered their appearances in the proceeding in which the appeal is taken. It thus appears that subsequent to the amendment the taking of only the first three steps mentioned does not constitute compliance with Sec. 330 as amended.

The question which logically follows is whether the probate court had authority to approve the appeal bond in the absence of an order directing the giving of notice and proof of compliance therewith.

Precedent as to the interpretation of the statutory amendment under consideration is not available since no case arising thereunder appears to have reached a reviewing court. However, in several cases, our courts have dealt with questions arising under other statutes sufficiently analogous to Sec. 330 as amended, to be helpful in determining the construction to be placed thereon. In Reizer v. Mertz, 223 Ill. 555, the court considered the effect of the failure of an executor or administrator to comply with Sec. 112 of the Administration Act as then in force which provided “no final settlement shall be made and approved by the court, unless the heirs of the decedent have been notified thereof, in such manner as the court may direct.” Without applying to the county court for any directions with reference to notice to the heirs, the executor published a notice addressed to the heirs and creditors of the estate in a newspaper that upon a certain date his final report would be presented for approval. No notice was actually served upon the heirs. An appeal was prosecuted by one of the heirs from an order of the county court approving the executor’s final report. The Supreme Court held that since the executor’s notice to the heirs was published without direction of the county court, it was published without authority of law and failed to confer upon such court jurisdiction as against the appellant and its order approving the final report was void as to him.

In the case of In re Estate of Wolz, 7 Ill.App.2d 517, the question presented was the propriety of an order of the circuit court dismissing an appeal because of appellant’s failure to pay fees and costs in the probate clerk’s office within the twenty days provided by Sec. 330 of the Probate Act. The appellate court in affirming the judgment of the trial court had this to say:

“The statute makes mandatory two conditions of appeal. One is furnishing bond and the other is payment of costs. Both requirements are for the benefit of other people and both are necessary to perfect appeal in accordance with the statute. In the light of the clear meaning of Sec. 484, the Circuit Court properly dismissed the appeal from the County Court. Any different action in this Court would clearly be judicial legislation.”

We think the ruling in both the Wolz and Reiser cases applicable to the situation presented on this appeal. Clearly the 1955 amendment to the statute has in addition to requiring the furnishing of bond and the payment of costs, imposed the further condition that the appellant give notice of the application for approval of the bond in such manner as the probate court directs. Until compliance is had with this mandatory requirement of the statute, the probate court is without authority to approve an appeal bond. No other conclusion can he reached unless the plain language of the amendment is ignored. If this court should hold compliance with the amendment unnecessary, then it would in effect be rewriting a statute which is beyond its powers.

Since this record fails to indicate that the probate court directed the giving of notice by defendant of his application for approval of the appeal bond, we are of the opinion that it lacked jurisdiction to approve such bond. The judgment of the circuit court is therefore reversed.

Reversed.


source: Caselaw Access Project

license: Public Domain

text:
    Ronald Vandeveer, a minor, by Eunice Seaman, next friend, Plaintiff-Appellant, v. George W. Preston, d/b/a Preston’s Liquor and Food, et al., Defendants. Arthur Magrini, d/b/a Liquorette, Defendant-Appellee.
    Gen. No. 10,087.
    Third District.
    February 26, 1957.
    Released for publication March 14, 1957.

      Ralph E. Suddes, of Mattoon, for plaintiff-appellant.

      Prank Gr. Schubert, of Springfield, and Dobbins & Praker, of Champaign, for Arthur Magrini, d/b/a Liquorette, defendant-appellee; Prank Gr. Schubert, of Springfield, and French L. Praker, of Champaign, of counsel.
   JUDGE CARROLL

delivered the opinion of the court.

This is an appeal by plaintiff from a judgment in favor of defendant Arthur Magrini, entered upon a jury verdict in an action for damages under the Statute commonly referred to as the Dram Shop Act. (Sec. 135, Chap. 43, Ill. Revised Statutes 1953.)

The suit was brought by Ronald Vandeveer, a minor, by his next friend against Arthur Magrini and George W. Preston. The complaint charged that the defendants brought about the intoxication of Donald Boucher; that while so intoxicated he operated an automobile in which Dorothy Raner, plaintiff’s mother, was riding; that he so operated the said automobile as to bring it into collision with a telephone pole causing injury to and the subsequent death of Dorothy Raner; and that as a result thereof, plaintiff was injured in his means of support.

At the close of plaintiff’s evidence, the court allowed the motion of defendant Preston for a directed verdict. The jury returned a verdict in favor of the defendant Magrini. Plaintiff’s post-trial motion for judgment notwithstanding the verdict and for a new trial was overruled.

Pacts not appearing to be disputed are substantially that on September 5, 1954, decedent, accompanied by Darlene Gunn, drove her car from Charleston, Illinois to Rantoul, Illinois, where they arrived at about 8:30 p.m. and were joined by Donald Boucher, who was 19 years old, and Walter Guziec; that with Boucher driving, a stop was made at defendant’s place of business, known as the Liquorette, where four 6-Packs of beer were purchased and placed in the car; that the party then proceeded to a drive-in theatre where they remained until about 11:30 o’clock; that while at the theatre they consumed the beer or the major portion thereof; that Boucher and Guziec each drank about six bottles; that Darlene Gunn drank one and one-half bottles and Dorothy Raner had three or four bottles; that with Boucher driving, the car proceeded over country roads towards the Rantoul Air Base; that the car made a stop along the road a short distance from where the accident occurred, but as to whether any beer was consumed by members of the party at that time is not clear; that in making a turn at a T-intersection, the car left the road and crashed into a telephone pole; that all of the occupants of the car were injured; that the injuries sustained by Dorothy Raner caused her death and that decedent and plaintiff’s father had been divorced and the latter was not contributing to plaintiff’s support.

Points urged as warranting reversal are that (1) the verdict is against the manifest weight of the evidence (2) the court erred in its ruling as to the admissibility of certain evidence and (3) the court erred in giving instructions on behalf of the defendant and in refusing to give certain instructions on behalf of the plaintiff.

The basic question confronting the jury in this case was whether or not Boucher was intoxicated. Darlene Gunn testified that in her opinion Boucher was under the influence of intoxicating liquor. She further testified that when she and decedent met Boucher he was sober; that at the drive-in theatre there was nothing about Boucher’s manner of speaking which would indicate his intoxication; that he spoke normally and acted normally and behaved properly; that he acted as a sober person; that his conversation was clear and lucid; that while driving he had the car under control; that he sat behind the wheel paying attention to his driving; that the speed of the car just prior to reaching the intersection was about 70 miles per hour which was no faster than it had been earlier in the evening; and that her opinion as to Boucher’s intoxication was based on his failure to answer certain questions which she asked of him while he was driving.

Walter Guziec testified that he was not intoxicated at the time of the accident; that he rode in the back seat of the car; that he did not know how fast Boucher was driving; that he heard no one say anything about the manner in which the car was being driven; and that in his opinion Boucher was not drunk at the time the accident occurred.

Dr. Elting Johnson testified that some four hours after the accident he detected the odor of alcohol on Boucher.

Boucher, who suffered a brain concussion in the accident, testified but had no recollection of events preceding the accident.

It thus appears that the opinions of the two witnesses who were in a position to observe the condition of Boucher prior to the accident were in direct conflict. The jury were not bound to accept the opinion of either as conclusive upon the question of Boucher’s intoxication, but it was their special province to consider the same together with all the other facts pertaining to such question and determine therefrom where the truth lay. Matkins v. Fenorsky, 348 Ill. App. 125; Hudson v. Leverenz, 9 Ill.App.2d 96.

In deciding the weight to be accorded to Darlene Gunn’s opinion that Boucher was intoxicated, the jury may well have considered the failure of this witness to give any basis for her conclusion. It was undoubtedly difficult for the jury to reconcile her statement that there was nothing in Boucher’s manner different than normal with her opinion that he was under the influence of intoxicating liquor. The witness was not a casual observer of Boucher but was with him all evening and if his acts or speech evidenced lack of clearness of mind or of control of himself, it would seem that such condition would have been apparent to her. Failure of this witness to recall anything abnormal about Boucher’s condition might well have been taken as corroborative of the opinion given by Walter Guziec.

As to whether all the evidence on the issue of the intoxication of Boucher including his admitted consumption of beer and the circumstances surrounding the accident preponderates in favor of plaintiff was for the jury to decide. While there was testimony that prior to the accident the car was being driven at 70 miles per hour, there was also evidence that it was under the driver’s control and that no one in the car complained about the manner in which Boucher drove. The evidence also discloses that Boucher was driving on a country road with which he was not familiar; that it was either a mud or oiled road and that there were no signs or warnings as to its condition. These circumstances as shown by the evidence bear upon the question as to whether the manner in which Boucher drove tended to support plaintiff’s charge of intoxication. However, the issue with which the jury was concerned was whether Boucher was intoxicated and not as to whether he was negligent in the operation of the automobile. We do not think that the evidence in the record as to the speed of the car alone compels a unanimity of opinion that Boucher was intoxicated.

It is only where the verdict of a jury is clearly and palpably against the manifest weight of the evidence that a reviewing court is justified in disturbing its finding on questions of fact. Citation of authority in support of this well-established doctrine is unnecessary.

So far as the direct testimony on the issue of intoxication is concerned, it is to be observed that the jury saw and heard the witnesses and was in a far better position than is this court to judge their credibility and to determine the weight to be accorded their testimony.

In this case, we are unable to say that the findings of the jury on the disputed fact questions involved is so clearly erroneous as to warrant interference therewith.

The second point argued by plaintiff is that the trial court erred in allowing certain opinion evidence to be introduced over his objection thereto. The contention is made that the witness Gfuziec was permitted to express an opinion as to the nonintoxication of Boucher without a sufficient foundation being laid. There is no merit in this argument as the record shows the witness to have been in the company of Boucher for several hours before the accident and in a position to observe his actions and appearance. A witness may state the fact of intoxication, a fact which may be ascertained as is any other fact by personal observation. City of Aurora v. Hillman, 90 Ill. 61. Suppe v. Sako, 311 Ill. App. 459. For the same reason a witness may state that a person whom he has observed was not intoxicated.

Plaintiff further contends that the trial court erred in giving and refusing certain instructions. A general criticism directed at the instructions given on behalf of defendant is that an excessive number thereof reiterated the fact that the defendant was not guilty or plaintiff could not recover. It is also insisted that the proposition that plaintiff was required to prove his case by a preponderance of the evidence was so often reiterated in the instructions as to constitute an argument on the part of the court.

Our appellate courts in numerous cases have condemned the practice of giving an excessive number of instructions on a single proposition of law. The soundness of such doctrine cannot be doubted. A jury hearing the trial court repeatedly tell it, that a party cannot recover might reasonably conclude that the court was expressing an opinion as to how the case should be decided. However, in the instant case we perceive no basis for the complaint that an inordinate number of instructions peremptory in form were given. Eight instructions tendered by the defendant were given, and in only two thereof were the jury told that under certain circumstances the plaintiff could not recover. The circumstances referred to in each of these two instructions were entirely different and neither can be said to be repetitious.

Plaintiff complains of the court’s refusal to give his tendered instructions numbers 2, 6 and 13. Plaintiff’s instruction number 2 recited the provisions of Sec. 131, Chap. 43, Ill. Revised Statutes 1955 which prohibits the sale of alcoholic liquors to a minor. This instruction was properly refused as it is clearly not applicable in a Civil Action brought under the Dram Shop Act. Instruction number 13 would have informed the jury that plaintiff was not required to prove the intoxication of Boucher but that it would be sufficient for plaintiff to show that the beer consumed by him would result in his intoxication. In order for the plaintiff to recover it was incumbent upon him to show the intoxication of Boucher. Since this instruction did not correctly state the law, it was properly refused.

Instruction number 6 is an abbreviated statement of the Dram Shop Statute. Plaintiff’s instruction 3, which was given, sets forth fully the Statute as it applied to the case. Instruction 6 was merely repetitious and was properly refused.

In support of the argument that the trial court erred in giving numerous peremptory instructions, plaintiff points to a number of cases in which the courts have held that under the facts and circumstances appearing therein, the trial court erred in giving repetitious peremptory instructions.

Upon examination of all these cases we find in each a situation readily distinguishable from that presented on this appeal. Typical of the authorities cited is Randal v. Deka, 10 Ill.App.2d 10, where out of 19 instructions given for the defendant, 8 concluded “you should find the defendant not guilty” or similar language. In addition there were other instructions not peremptory in form but in which the jury were informed that under certain circumstances the plaintiff would not be entitled to recover. There were also 7 of the given instructions which referred to the plaintiff’s contributory negligence. In its opinion, the Appellate Court said:

“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 law suit. 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.”

In Triolo v. Frisella, 3 Ill.App.2d 200, also cited by plaintiff, there were 37 instructions given on behalf of the defendant, 23 of which contained the language “you must find” the defendant not guilty or “plaintiff cannot recover.”

In these cases and many others in harmony therewith, the vice condemned is the practice of attempting to pervert the function of instructions from that of serving as an aid to the jury in arriving at a just verdict to a means of impressing upon it by repetition the importance of certain propositions of law. Obviously, the employment of a court’s instructions for such purpose can only result in prejudice to the rights of one of the litigants.

In the instant case, it appears that the trial court in giving a minimum number of instructions on behalf of the defendant and in rejecting repetitious instructions tendered by plaintiff indicated a conscientious effort to advise the jury fairly as to the law applicable to the case.

Since we are of the opinion that the record herein discloses no reversible error, the judgment of the circuit court is affirmed.

Affirmed.


author: JUDGE ROETH

text:
    Helen L. Leonard, Administratrix of the Estate of Ross Vincent Leonard, Deceased, Plaintiff-Appellant, v. Carl Murphy and Margaret Murphy, Defendants-Appellees.
    Gen. No. 10,085.
    Third District.
    February 26, 1957.
    Released for publication March 14, 1957.

      Omer Poos, and Vandever and Vandever, of Hillsboro, for appellant.
    Binaker, Smith and Hebron, of Carlinville, Bulling-ton and Bullington, of Hillsboro, for appellees.
   JUDGE ROETH

delivered the opinion of the court. This is an action brought by plaintiff, Boss Vincent Leonard, against the defendants, Carl Murphy and Margaret Murphy, growing out of a collision between the car of defendant Carl Murphy driven by Margaret Murphy, and an automobile driven by one Mike Snopko in which the plaintiff was riding. The issues were tried before a jury and on March 16, 1955, the jury returned a verdict finding defendants not guilty. On April 4, 1955, plaintiff filed a motion for new trial. The motion for new trial was denied November 21, 1955, and judgment entered on January 18,1956. This appeal followed. Pending the hearing on this appeal the plaintiff died and his wife, Helen L. Leonard, as administratrix of his estate, was substituted as plaintiff.

The record shows that the plaintiff had asked a neighbor, Mike Snopko, to his home the morning of September 15, 1952, to help him repair a refrigerator. After working with the refrigerator, the two of them drove into Farmersville in Snopko’s car for the purpose of replacing or repairing a broken part to the refrigerator. On returning home they were proceeding in an easterly direction upon a gravel road, with Snopko driving and the plaintiff seated at his right. The gravel portion of the road was 20 to 22 feet in width. The entire road from fence to fence was approximately 32 feet in width.

The defendant .Margaret Murphy was traveling in a northerly direction along a North-South road that intersected with the gravel road upon which Snopko was driving. This road was approximately 22 feet in width from ditch line to ditch line. A strip from 10 to 11 feet in width down the center of the North-South road was oiled. It appears that the oiled portion of the North-South road did not intersect the East-West road. It stopped at the south line of the East-West road. The oiled portion then continued at the north line of the East-West road continuing northward. The undisputed testimony reveals that the view of plaintiff, Snopko, the driver, and Margaret Murphy the defendant, was unobstructed. The southwest corner of the intersection is an open field. These physical facts are graphically portrayed by the photographs admitted in evidence.

The only witnesses to testify about the collision were the plaintiff and Snopko the driver. The defendant Carl Murphy was not present at the time of the accident and Margaret Murphy testified that she had no recollection of the collision or events immediately prior thereto, having sustained a severe head injury and lost all memory of the events.

Plaintiff and Snopko testified that as they approached the intersection in question they were traveling 35 or 40 miles an hour. Plaintiff testified that at about 330 to 340 feet from this intersection he looked to the right and saw the Murphy car heading in a northerly direction; that at the time the Murphy car was approximately 730 to 740 feet south of the intersection. He next saw the Murphy car, when the car in which he was riding had entered the intersection. At that time the Murphy car was approximately 20 feet south of the intersection. He further testified that the impact took place when the front of the Snopko car was 6 feet east of the east line of the oiled portion of the North-South road and that the front of the Murphy car struck the right side of the Snopko car, the impact being at the rear of the front door and the rear of the front fender on the right side.

Snopko testified that he first observed the Murphy car when his car was approximately 350 feet west of the intersection and the Murphy car was approximately 750 to 775 feet south of that intersection. That he next saw the Murphy car after the front of his car had entered the intersection to a point where the front seat of his car was about even with the west ditch of the North-South road and that the Murphy car was from 25 to 30 feet south of the intersection. He testified that the front of his car was 6 feet to the east of the east line of the oiled portion of the North-South road at the time of the collision. Plaintiff and Snopko both testified that the impact forced the Snopko car a distance of approximately 30 feet north and 10 feet east of the intersection facing in a northeasterly direction. The Murphy car came to rest at a point about 30 feet east of the east line of the North-South road facing in a northeasterly direction on the north side of the Bast-West road. They both testified that plaintiff immediately prior to the collision said, “Here we go”. The testimony as to the widths of the roads, the lack of obstruction in the southwest corner of said intersection, and the relative position of the cars after the collision is substantiated by other witnesses for both sides.

Defendants’ witnesses testified that they observed skid marks in the oiled section of the road and that these skid marks started at a point approximately 20 to 25 feet south of the intersection and ran north to the south end of the gravel road veering slightly to the right before they came to a stop. The only testimony regarding the speed and distances of the two vehicles is that by Snopko and the plaintiff and it appears from that testimony that the Murphy car was traveling approximately twice the speed as that of the car in which the plaintiff was riding. From the testimony of witnesses, the evidence that the right side of the plaintiff’s car was struck by the front of the Murphy car, the place where the impact occurred, the relative position of the two cars after the accident, and the skid marks in the 11 foot oiled strip, the record clearly indicates that the car in which plaintiff was riding* was the first to enter the intersection.

In this state of record, in a case involving an intersection collision and the rules applicable to right of way, it was imperative that the jury be properly instructed as to the law.

It is urged by plaintiff that defendants’ instruction Number 4 was erroneous. Instruction Number 4 was:

“You are instructed that the Statute of this State provides that motor vehicles traveling on public highways shall give the right of way to vehicles approaching along intersection# highways from the right and shall have the right of way over those approaching from the left. A vehicle is approaching an intersection from the right, within the meaning of the Statute, and entitled to the right of way when, on its left, on an intersecting street, another vehicle is approaching whose driver, in the exercise of due care, would or should see that, considering the relative distances and speed of the vehicles, unless he yields the right of way, the vehicles may or will likely collide.”

An almost identical instruction was held by this court to be an incorrect statement of the law and very misleading in Alexander v. Sullivan, 334 Ill. App. 42, 78 N.E.2d 333. In that case we said,

“The instruction in substance and effect placed no duty whatever on the defendant and told the jury that the defendant’s car had the right of way regardless of its speed and what distance it was away from the intersection when the plaintiff’s car entered the intersection.” Citing Salmon v. Wilson, 227 Ill. App. 286; Heidler Hardware Lumber Co. v. Wilson & Bennett Mfg. Co., 243 Ill. App. 89.

It has been repeatedly held by the courts of this state that the statute on right of way does not contemplate that this right may be invoked, when the car from the right is so far from the intersection at the time the car from the left enters upon it, that with both running within recognized speed limits, the latter will reach the line of crossing before the former will reach the intersection.

Plaintiff also urges that defendants’ instruction number 5 was erroneous and that instruction states:

“You are instructed that if you believe from the evidence in this case that the plaintiff and the defendant were both approaching the intersection in question at about the same time and at about the same speed and distance from said intersection, it was the duty of both drivers to proceed with due care and caution so as not to come into collision with each other, and if you believe from a preponderance of the evidence, that both failed in this respect, and that a collision resulted, from which either or both suffered damages, neither can recover from the other.”

This instruction can have no application to the case at bar. It contemplates a situation where the driver of one car is suing the driver of the other car who in turn has counterclaimed for his damage. It undertakes to say, that if both were negligent neither can recover from the other. Here the suit is by a passenger in one car against the driver of the other car. Also the uncontradicted evidence indicates that the vehicles were not approaching the intersection at about the same speed and distance from the intersection. This instruction should not have been given.

Plaintiff also contends that the giving of defendants’ instruction Number 6 was error. This instruction states:

“You are instructed under the law that the mere fact that the plaintiff was a guest or passenger in the automobile in which he was riding at the time of the collision in question, does not excuse him from the duty of exercising due care and caution for his own safety, and if he was in a position in the automobile where he could by the exercise of reasonable care on his part, have seen that a collision was imminent, it was his duty, under the law, to warn the driver of the automobile of such danger in time for him to have avoided the same, if possible.”

Plaintiff contends that the instruction is erroneous, because it in effect, instructs the jury that the passenger must warn the driver of his car of danger and his failure to do so is contributory negligence as a matter of law. He cites the cases of Lasko v. Meier, 327 Ill. App. 5, 63 N.E.2d 531, Staikoff v. Illinois Terminal R. Co., 8 Ill.App.2d 562, 131 N.E.2d 818; Tucker v. Kallal, 350 Ill. App. 325, 112 N.E.2d 731.

The law is well settled in this state, that in a case such as the one at bar, the essential question is whether the guest passenger was or was not exercising due care for his own safety. This question is essentially one of fact to be determined by the jury. There is no rule of law which prescribes any particular act to .be done or omitted by a person so situated. Tbe only requirement of the law is that the conduct of such a guest passenger shall be consistent with what a man of ordinary prudence would do under like circumstances. Lasko v. Meier, 327 Ill. App. 5, 63 N.E.2d 531, affirmed 394 Ill. 71, 67 N.E.2d 162. The law is likewise well settled that a passenger is under no duty to warn the driver of the approach of another automobile which the driver sees. Staikoff v. Illinois Terminal Railroad Co., 8 Ill.App.2d 562, Smith v. Carter, 302 Ill. App. 235, 23 N.E.2d 738, Stitzel v. Johnson, 331 Ill. App. 609, 73 N.E.2d 653, Price v. Chicago Transit Authority, 351 Ill. App. 376, 115 N.E.2d 345. Defendants’ instruction Number 6 told the jury as a matter of law that plaintiff was under a duty to warn the driver of the car in which he was riding. While the instruction is not peremptory, the jury might well have concluded that a failure to perform the duty which the court, by the giving of this instruction, said plaintiff had, barred him from a recovery in this case. This, in our opinion, took the question of fact away from the jury’s determination.

Defendants contend that the instructions given and complained of by the plaintiff come within the harmless error rule. While it is true that if after considering the instructions, the court is of the opinion that substantial justice has been done and that the instructions, though improper, could not affect the result, the decision will not be reversed; however, the errors in the instructions which we have pointed out, in view of the testimony in this case, are of such a serious nature that we cannot hold them harmless. No instructions appear to have been given at the trial which would correct the errors committed. The judgment of the, Circuit Court will be reversed and the cause remanded for a new trial.

Reversed and remanded.


author: PRESIDING JUSTICE SCHEINEMAN

text:
    Fred Woolsey, Plaintiff-Appellee, v. Frederick L. Rupel, Defendant-Appellant.
    Term No. 56-O-2.
    Fourth District.
    March 4, 1957.
    Released for publication March 20, 1957.

      Green and Hoagland, of Alton, for appellant; John T. Roach, and Ehner H. Bernard, of counsel.
    Morris B. Chapman and John Gitchoff, of Granite City, and Irving Wiseman, of Alton, for appellee.
   PRESIDING JUSTICE SCHEINEMAN

delivered the opinion of the court.

Plaintiff suffered injuries when he, as a pedestrian, was struck by defendant’s car on a rural highway. He obtained judgment on a verdict of $20,000 under a count charging negligence of defendant. The jury found defendant not guilty under a count charging wilful and wanton misconduct. On this appeal, the defendant asserts the trial court should have directed a verdict, or, in the alternative, should have ordered a new trial.

The injury occurred on a paved east-west highway opposite a factory where plaintiff was employed, and the place was not in a restricted speed zone. The factory is on the north side of the road, fenced in, with several gates in the south fence along the road.

According to plaintiff, he had parked his car in a lot on the south side of the road, west of a gate. He then walked east along the south shoulder to a point opposite a gate. He observed that there was no traffic approaching from the east, and then looked west. He saw a car coming with a flashing light indicating a right turn. He waited to see if the car really turned, and when it did, he proceeded across the pavement without again looking to the east. He was looking toward the gate, although he knew it was not used as an exit for vehicles.

As he stepped across the center line, he heard a shout, and'upon looking to the east saw a car some 70 feet to the east bearing down on him at about 40 miles per hour. He froze in his position in the west bound lane and was struck by the car. It is disputed whether the horn was sounded, but the defendant unquestionably applied his brakes hard, leaving tire marks about 42 feet long. According to testimony, this length indicates a speed of less than 40 miles per hour. As a reason for not seeing the approaching car, plaintiff testified there was a dip in the road some 660 feet to the east and a car in that area would not have been visible to him.

Another plaintiff’s witness estimated the speed of defendant’s car as 30 to 35 miles per hour, one said 20 to 25; and the latter estimated the distance traveled from the moment of impact to a complete stop at about 20 feet.

There are other variations in the evidence, but for the most part there is little dispute as to facts. On the face of it, there is a close question whether the defendant was guilty of negligence. And defendant sincerely urges that the plaintiff was guilty of contributory negligence as a matter of law.

Upon full consideration, we have decided that, while there is strong basis for the defense arguments, yet we are unable to say that all reasonable minds would agree that plaintiff was clearly guilty of contributory negligence. Hence, the trial judge properly refused to direct a verdict, or enter judgment contrary thereto. Thomas v. Buchanan, 357 Ill. 270; Campbell v. Ragel, 7 Ill.App.2d 301.

The court erred in adopting the theory of plaintiff and instructing that this accident occurred in an “unmarked crosswalk.” The statute gives to pedestrians a preferential status when they are in a marked or unmarked crosswalk. No authority is conferred upon pedestrians to select any place that suits their convenience to cross a street or road and thereby designate it an unmarked crosswalk. The law is specific; the preferential status of a pedestrian in a marked crosswalk is extended to one in an unmarked crosswalk “at an intersection.” Ch. 95½, Ill. Rev. St., Section 171. By the definitions in Sections 109, 110 and 111 of the act, a private lane does not qualify as an intersection. Cihal v. Carver, 334 Ill. App. 234.

Since the case was tried under an incorrect theory of law, the appropriate action is to award a new trial. Randall v. Randall, 281 Ill. App. 169; Cihal v. Carver, 334 Ill. App. 234. However, there are other errors in the instructions in this case, which would also require reversal, and these are mentioned to avoid their use on a second trial.

Plaintiff’s instruction number 2, in some 1300 words, recited to the jury the lengthy charges in the complaint. It is a glaring example of all the evils pointed out in Signa v. Alluri, 351 Ill. App. 11. The charges were in the form of conclusions of the pleader; they might be regarded as fair comment in the attorney’s argument to the jury, but they should not come from the lips of the judge.

It is permissible to inform the jury of the issues of the case, if in succinct form without undue emphasis. Signa v. Alluri, 351 Ill. App. 11; Warnes v. Champaign County Seed Co., 5 Ill.App.2d 151. As noted in the latter case, plaintiff is not absolutely reqnired to tender such an instruction. The instruction in question was not a statement of issues at all, it did not inform the jury what was denied or what defendant contended.

The mere violation of a traffic regulation is not per se negligence. Burke v. Zwick, 299 Ill. App. 558; Miller v. Burch, 254 Ill. App. 387. Hence it is error to give an instruction on the theory that mere violation of a traffic regulation is negligence. Berg v. Michell, 196 Ill. App. 509.

This rule is necessarily violated by the unqualified reading to the jury of the charges in the complaint, since the pleader has assumed and flatly asserted that the defendant was negligent in these respects. If it becomes necessary, in a proper case, to inform the jury of “the charges in the complaint,” the instruction should also inform the jury what is denied, and in this connection it should be made apparent to the jury that, if a factual charge of this type is proved by a preponderance of the evidence, the question remains for the jury to decide whether the conduct thus charged and proved was negligence, as defined in the instructions.

Plaintiff’s instruction number 3 assumed without qualification that defendant was negligent if he “failed to have his said automobile under control so as to stop same and avoid striking plaintiff.” This was error. Defendant had a duty to use due care to avoid striking the plaintiff, but plaintiff was also required to use due care, and had the specific duty of yielding the right of way to the vehicle. Sec. 172 of the Motor Vehicle Act. The mere fact the striking occurred should not be designated as conclusive proof of negligence of the defendant.

Other instructions were given at plaintiff’s request which defined plaintiff’s duty to use the care of an ordinary prudent person “under the circumstances.” If the “circumstances” were created by plaintiff’s failure to use due care and caution for his own safety, the defendant should not be held liable, but the court refused defendant’s tendered instruction on that phase of the case. The cumulative effect of these rulings was to take from the jury the question whether plaintiff had been negligent in having placed himself in the position of danger. This is error. North Chicago St. R. v. Cossar, 203 Ill. 608.

The misleading effect of these rulings was further enhanced by giving plaintiff’s instruction number 7: “You are instructed that the law did not require the plaintiff, Fred Woolsey, to exercise an extraordinary degree of care. All that was required of him was the exercise of ordinary care, and what is ordinary care depends upon the circumstances,” etc.

While this instruction might not be reversible error in all cases, the effect in this series of instructions of singling out the plaintiff as one who was not required to use extraordinary • care, created a false inference that plaintiff’s duty was less than defendant’s.

One other point raised by defendant is now considered. It is urged that the verdict for defendant on count II as to wilful and wanton misconduct, is presumed to include a finding in favor of defendant on every issue in that count, including a finding that plaintiff was guilty himself of wilful and wanton misconduct, and therefore, he is barred from any recovery. Citations include Warnes v. Champaign County Seed Co., 5 Ill.App.2d 151 and Flournoy v. Lastrapes, 131 U. S. 161 [appendix CLXI], 25 L. Ed. 406. The cases illustrate the rule that a general verdict is presumed to include a favorable finding on every issue necessary to support it.

There is no authority for the proposition that a verdict on one count may be used to attack a separate verdict on another count based on a different principle. The two counts in this case presented two theories of liability. The jury sustained one and rejected the other. We hold that neither the verdict on count II nor any allegation in that count may be considered for the purpose of attacking the separate verdict on count I.

For the reasons previously set out, it must be held that the defendant was not accorded a fair trial under the rulings of the court, therefore, the judgment is reversed and the cause remanded for a new trial.

Reversed and remanded.

BARDENS and CULBERTSON, JJ., concur.


author: JUSTICE EOVALDI.

text:
    People of the State of Illinois, Defendant in Error, v. Michael Janoski, Plaintiff in Error.
    Gen. Nos. 11,036, 11,037, 11,038.
    Second District.
    February 21, 1957.
    Released for publication March 11, 1957.
    Harry Fins, and Eudolph A. Vasalle, for appellant; William L. Guild, State’s Attorney, and William J. Bauer, Assistant State’s Attorney, for appellee.
   Opinion by

JUSTICE EOVALDI.

Not to be published in full.


author: JUDGE CARROLL.

text:
    Mary Elizabeth Brown, Plaintiff-Appellant, v. Norman Brown, Jr., Defendant-Appellee.
    Gen. No. 10,097.
    Third District.
    February 26, 1957.
    Released for publication March 14, 1957.

      John W. Russell, for appellant; Alvin G. Whitehouse, for appellee.
   Opinion by

JUDGE CARROLL.

Not to be published in full.


author: Per Curiam.

text:
    Janice Boker, Plaintiff-Appellee, v. Howard Boker, Defendant-Appellant.
    Term No. 57-F-14.
    Fourth District.
    March 4, 1957.
    Released for publication March 20, 1957.
    Ross Armbruster, and Theodore E. Diaz, for appellant. No appearance by appellee.
   Per Curiam.

Not to be published in full.


author: PRESIDING JUSTICE ROBSON

text:
    Walter N. Leaf and Geraldine Leaf, Plaintiffs-Appellees, v. Lucille McGowan, et al., Defendants. Sears-Community State Bank, Garnishee, and Albert Jasourowski, Adverse Claimant, Appellant.
    Gen. No. 46,887.
    First District, Second Division.
    February 19, 1957.
    Eeleased for publication April 2, 1957.
    Albín Y. Spunar and Mitchell Kilanowslri, of Chicago, for appellant.
    Charles Ealph Johnston, of Chicago, for appellees.
   PRESIDING JUSTICE ROBSON

delivered the opinion of the conrt.

This is an appeal from a denial of petitioner Albert Jasourowski’s motion to dismiss a garnishment proceeding in the Circuit Court of Cook County and from a judgment for plaintiffs for $963.38. We have not had the benefit of a reply brief by appellant Jasourowski to the arguments made and cases cited by plaintiffs in their brief.

Plaintiffs, who had secured a judgment for $13,000 against one Lucille McGowan, instituted a garnishment action against the Sears Community State Bank, as garnishee, to satisfy the judgment from money held in a joint savings account with the bank by Lucille McGowan and Jasourowski. The bank answered admitting an indebtedness of $2,732.42 to Lucille McGowan and suggesting that Jasourowski be permitted to intervene as an adverse claimant to this sum. Jasourowski intervened with a motion to dismiss alleging that money held in a joint account is not subject to garnishment, and, in the alternative, alleging that all the money in the joint account was actually his.' The trial court denied Jasourowski’s motion and found for plaintiffs.

The record discloses that the garnishee bank kept a joint savings account in the names of Jasourowski and Lucille K. Pay and that Lucille K. Pay and Lucille McGowan are the same person. The bank cashier, testifying on behalf of plaintiffs, identified nineteen deposit slips in the handwriting of Lucille McGowan totalling $963.38, and three in the handwriting of Albert Jasourowski totalling $196.29. All the deposit slips were subsequent to August 1, 1935. Those prior had been lost or destroyed. Plaintiff introduced the signature card that was signed by Jasourowski and Lucille K. Pay, which is the contract between the parties and the bank. The pertinent provision thereof reads as follows:

“The undersigned hereby agree to the By-laws, Rules .and Regulations governing the Savings Department of Sears-Community State Bank, Chicago, and further agree that all deposits in this account, or any part thereof, or any interest or dividend thereon, may be paid to any one of the undersigned, whether the other or others be living or not, on the receipt or acquittance of any of the undersigned.”

The account was originally opened by Lucille McGowan and Jasourowski’s name was placed on the account subsequently. Also introduced into evidence were four ledger sheets of the bank showing the deposits and withdrawals from the account. These sheets indicate that the account was opened in July of 1931. Numerous deposits were made in the account with only one withdrawal in the sum of $666.75 in February of 1935. The decree in chancery in which a part of the relief granted was the judgment that forms the basis of this garnishment, makes extensive findings as to the fraud perpetrated by Lucille McGowan upon plaintiffs.

Jasourowski testifed that all the money in the account was actually his; that on February 15, 1935, Lucille McGowan withdrew $666.75, which was all the money she had in the account; that any deposits she made thereafter in the account were on his behalf and that her name remained on the account for a matter of convenience. In the course of his cross-examination he admitted that he and Lucille McGowan had been living together; that at one time he claimed to be the natural father of her child.

Two questions are presented by this appeal. The first is whether or not a judgment creditor may prove a garnishable debt by establishing that the judgment debtor holds a bank account jointly with another. The second is whether or not the trial court was justified in disregarding Jasourowski’s testimony that all the money in the account belonged to him.

As to Jasourowski’s first contention, the law in this state setting forth, the rights of a judgment creditor against a judgment debtor who holds a bank account jointly with another is not clear. See Brown v. First National Bank of Chicago, 271 Ill. App. 424 (1933); Comstock v. Morgan Park Trust and Savings Bank, 319 Ill. App. 253 (1943); Hackman v. Platt, 298 Ill. App. 626 (1939); Nudelman v. Stern, 315 Ill. App. 215 (1942). The same problem has arisen in a number of jurisdictions. In each instance the question has been settled according to concepts peculiar to the jurisdiction in which it has arisen. These concepts range in scope and application from specific statutory regulation over bank accounts to the most general common law principles governing contracts and property. Sitomer v. North River Savings Bank, 196 Misc. 870, 95 N.Y.S.2d 402 (1940); Fairfax v. Savings Bank of Baltimore, 175 Md. 136, 199 A. 872 (1938); Dover Trust Co. v. Brooks, 111 N. J. Eq. 40, 160 A. 890 (1930); Cullum v. Rice, 236 Mo. App. 1113, 162 S.W.2d 342 (1942); American Oil Co. v. Falconer, 136 Pa. Super. 598, 8 A.2d 418 (1939). The most recent decisions have allowed garnishment or attachment of the joint account. Republic of China v. Pong-Tsu Mow, 15 N. J. 139, 104 A.2d 322 (1954); United States v. Third National Bank and Trust Co., 111 F. Supp. 152 (D.C.M.D. Penn. 1953); Park Enterprises, Inc. v. Trach, 233 Minn. 467, 47 N.W.2d 194 (1951).

Our Supreme Court in the recent case of In re Estate of Schneider, 6 Ill.2d 180, clarifies the law relative to the rights of depositors as between themselves to a joint bank account. The rights of a creditor in garnishment were not involved. The court’s reasoning, however, is helpful to us in deciding the issue before us. In discussing the nature of joint bank accounts the court said at pp. 183-4:

“The familiar joint bank account has had an uneasy career in the courts because the relationships which it contemplates do not fit readily in common-law categories. The four unities of the common-law joint tenancy, the notion of an undivided moiety in each joint tenant, and the difficulty of applying the common-law concept of joint tenancy to a fluctuating res have caused difficulties. Common-law doctrines governing gifts of personal property have contributed their share to the complex of legal problems stemming from joint bank accounts, for the common law required a complete relinquishment of ownership by the donor in order to achieve an effective gift, while the joint bank account contemplates power of withdrawal by both parties.”

The court held parol evidence is admissible to estab-. lish the rights of parties to funds held by a bank under the terms of a so-called joint tenancy contract. As a result of this holding it is apparent a court has the right to consider the terms of the contract and allow extrinsic evidence as to the ownership of the funds in the account.

In applying this principle, we find that the Supreme Court of Minnesota in the case of Park Enterprises, Inc. v. Trach, 233 Minn. 467, had before it the same issue we are considering. In that case the plaintiff sued the defendant for rent and obtained a default judgment. Plaintiff sought to satisfy his judgment by garnisheeing a joint bank account to which the judgment debtor was a party. The other party to the joint account was permitted to intervene and alleged that a joint bank account was not subject to garnishment. The reasoning of the Minnesota Supreme Court in the construing of the so-called joint tenancy contract is very similar to that of our Supreme Court in the Schneider case, supra. The Minnesota Supreme Court said at pages 469, 470:

“This type of account is difficult, if not impossible, to classify under traditional categories of legal ownership. The account is distinguished from a joint tenancy because of the fact that it is joint and several, whereas in a joint tenancy there is joint ownership only. The survivorship feature of the account readily distinguishes it from a tenancy in common, and yet is not sufficient alone to make it a joint tenancy. . . . Since the type of ownership which the bank and its depositors have created by their contract defies classification under traditional concepts of property ownership, we are forced to treat this case as presenting a contract question and must decide what the incidents of this type of ownership are primarily by reference to the terms of the contract creating it.”

The court then reaches a very pertinent conclusion. On pp. 471-2 it said:

“The peculiar features of a joint bank account, such as this case presents, make it difficult, if not impossible, in most cases, to determine what portion of the account belongs to each depositor. A long series of deposits which cannot be traced to their source, and a similar series of withdrawals which cannot be traced to their destination, are normally involved. This defect is inherent in the severalty feature of such bank, accounts wherein each depositor is allowed to treat joint property as if it were entirely his own. Like any loose system of dealing with money, joint bank accounts sacrifice precision to convenience and becloud the respective rights of the depositors. The courts should not encourage the parties to do their bookkeeping in court when, by their private contract, they have virtually declared that they do not wish to be inconvenienced by any strict accountability as between themselves. . . . The law should take them at their word and give effect to their contract without making detailed and belated evidentiary inquiries to establish factual ownership. Any presumption, whether conclusive or rebuttable, that part or all of these joint accounts are immune from garnishment has the effect of either creating or tending to create a nonstatutory exemption for the parties using them, and any attempt to base the extent of garnishment upon the respective amounts of the account owned by each depositor will compel courts and juries to grope with problems which the depositors themselves have declared to be of no consequence. Let them abide the results which flow from their own declared purposes.” (Emphasis ours.)

The court then concluded that the judgment creditor was entitled to a judgment for the full amount of the joint account.

We believe that this conclusion is unduly harsh and does not coincide with the reasoning of our Supreme Court in In re Estate of Schneider, supra. In Kovich v. Live Stock National Bank, 320 Ill. App. 535, 537, this court said, “G-arnishment as a remedy is administered upon equitable principles.” There are cases where the interests of innocent and unsuspecting parties could become involved in garnishment. They should be entitled to prove their interest, if any, in the joint account. In the instant case, plaintiffs have in effect by this action been subrogated to the rights and interests of Lucille McG-owan in the joint account with the garnishee bank. Under the contract with the bank she would have been entitled to withdraw all the funds from the account to the detriment of Jasourowski. To recover from her he would have to prove what part, if any, of the funds belonged to him. In our opinion it is only fair and equitable that a joint bank account may be garnisheed by a judgment creditor when one of the parties to it is the judgment debtor. This in effect .was the holding in Hackman v. Platt, supra, in which we concur.

When we apply this reasoning, that of our Supreme Court in In re Estate of Schneider, supra, and the statements made by the Supreme Court of Minnesota in Park Enterprises, Inc. v. Trach, supra, particularly the part which we have emphasized, we are of the further opinion that if a garnishee answers that a judgment debtor holds money in a joint bank account, this is sufficient proof to establish a prima facie case for the judgment creditor that the money in the account belonged to the judgment debtor. The burden is then upon the other party to the joint account to prove what part, if any, of the funds in such account belonged to him. This holding is contrary to that in the case of Brown v. First National Bank of Chicago, supra, and Comstock v. Morgan Park Trust and Savings Bank, supra. These cases were, however, decided prior to the Schneider case and our conclusion, we believe, is in line with the law as interpreted by it and with the trend of the law in other states.

In view of our holding, was Jasourowski’s testimony sufficient to overcome the presumption and prove that all the money in the account belonged to him? When we consider the relationship of Jasourowski and Lucille McGowan, the fact that deposit slips totalling $963.38 were admittedly in Lucille McGowan’s handwriting and those totalling only $196.29 in his handwriting, Jasourowski’s unsupported statements that all the money had been earned by him, and his statement that Lucille McGowan had withdrawn all her money from the account, we conclude Jasourowski didn’t sustain the burden of proof and that the trial court was justified in not giving credence to this testimony. As no cross appeal has been filed it is not neces-* sary for us to pass upon the balance of the account in excess of the judgment.

The judgment of the trial court is affirmed.

Judgment affirmed.

SCHWARTZ and McCORMICK, JJ., concur.


text:
    People of the State of Illinois on the relation of Manuel Silverman, Appellee, v. City of Chicago, a municipal corporation; William T. Prendergast, City Collector; Richard J. Daley, Mayor of Chicago; Timothy J. O’Connor, Commissioner of Police, and John C. Marcin, City Clerk, Appellants.
    Gen. No. 46,979.
    First District, Second Division.
    February 19, 1957.
    Released for publication April 2, 1957.

      J ohn C. Melaniphy, Corporation Counsel of the City of Chicago, for defendants-appellants; Sydney R. Drebin, and Robert J. Collins, Assistant corporation counsel, of counsel.
    Libit, Lindauer and Henry, of Chicago, for plaintiffappellee; L. Louis Hartón, of Chicago, of counsel.
   PRESIDING JUSTICE ROBSON

delivered the opinion of the court.

This is a mandamus action by plaintiff, owner of a retail establishment licensed to sell at retail food products, soaps, tobaccos and beverages, requesting that chapter 147 of the Municipal Code of Chicago be declared to be in violation of plaintiff’s rights under the laws of the State of Illinois, and that defendants be commanded to issue to plaintiff a Class B City Retailer’s Liquor License upon the payment of a license fee not to exceed $250. The trial court denied defendants’ motion to strike the petition for mandamus and entered a judgment order directing that the defendants and the Mayor of the City of Chicago, as local liquor commissioner, issue to plaintiff a Class B liquor license at a fee not to exceed $250 per year. Defendants appeal from this order.

In 1955 the Legislature amended Article IV, Section 1, of the Liquor Control Act (Ill. Rev. Stat. 1955, chap. 43, par. 110) to read as follows:

“In every city . . . the city council . . . shall have the power by general ordinance or resolution to determine the number, kind and classification of licenses, for sale at retail of alcoholic liquor not inconsistent with this Act and the amount of the local licensee fees to be paid for the various kinds of licenses to be issued . . . except Glass B retailer’s license shall not exceed $250 per year . . . ; and to establish such further regulations and restrictions upon the issuance of and operations under local licenses not inconsistent with law as the public good and convenience may require; . . . provided, however, that in the exercise of any of the powers granted in this section, the issuance of such licenses shall not be prohibited except for reasons specifically enumerated in Sections 2, 8, 8a and 21 of Article VI of this Act.” (Emphasis added.)

The 1955 amendment, consisting of eleven words pertaining to the Class B license, is italicized.

. The trial court held that the amendment by the Legislature in 1955 pertaining to Class B licenses made mandatory the issuance of such license wherever retail liquor licenses are permitted by ordinance. The ordinance relating to retail liquor licenses (Chapter 147 of the Municipal Code of Chicago) adopted prior to this amendment contains no such classification. The same ordinance is still in full force and effect.

The first question that we must determine is whether the amendment in question required the City to provide for Class B licenses.

Plaintiff contends that the amendment to Article IV of Section 1 setting a maximum fee for local Class B licenses was intended by the Legislature to pre-empt the autonomy of the local commissioner in the classification of retail licenses at the local level. Article IV relates to local control over the retail sale of liquor and Article V to the licensing powers of the State Liquor Control Commission. We must decide whether the 1955 amendments to these articles establishing the types of retail license to be issued by the State Commission, setting the fees to be charged by it and limiting the fee to be charged by a local commission for a so-called Class B license, inhibits the freedom of a local commission to determine the kind and classification of license to be issued by it. A careful reading of the language of Article IV, Section 1, as amended in 1955, reveals no ambiguity. It is clear that the power to determine the kind and classification of local licenses is still left entirely to the discretion of the local governing body. This discretionary power with respect to the enactment of liquor control ordinances by the local governing body has long been recognized by this State. The People v. Village of Crotty, 93 Ill. 180 (1879); The People v. Cregier, 138 Ill. 401 (1891); The People v. Mount, 186 Ill. 560 (1900); The People v. Harrison, 256 Ill. 102 (1912); The People v. Wanmer, 276 Ill. 460 (1917). In Hall v. City of Kewanee, 379 Ill. 176 (1942), our Supreme Court said (p. 180):

“It is true, and it is conceded in the brief for the appellees, that the city may determine the number, kind and classification of licenses for sale at retail of alcoholic liquor not inconsistent with the statute, and may determine the amount of license fee to be paid for the respective kinds of licenses to be issued and may establish or fix such further regulations and restrictions upon the issuance and operation under local licenses not inconsistent with the law, as the public good and convenience may require. It is not even urged in the briefs that the Liquor Control act in any way amended or modified or attempted to amend or modify the law in regard to cities under the commission form of government, nor the manner in which ordinances must be passed by a city council under that form of government. It is to be noted that the provisions of the Liquor Control act are permissive only, — i.e., that the city may determine certain things and make certain regulations and restrictions. There is no mandatory language requiring the city to pass any such acts except at its own discretion and the case therefore falls squarely within the authority of People v. Wanmer, supra.(Emphasis added.)

Plaintiff cites two cases involving a mandamus action for the issuance of a local Class B license. The local governing body had provided in each instance by ordinance that a retailer might have either a Class A or a Class B license. The Great Atlantic and Pacific Tea Co. v. The Mayor of Danville, 367 Ill. 310 (1937); Walgreen Co. v. Garland, 316 Ill. App. 635 (1942). The question presented in each case was whether, where such an ordinance had been enacted, the local governing body could refuse to issue a license for a reason not set forth in the statute. In the case at bar no such ordinance has yet been enacted and the issue presented in the Danville and Garland cases is, therefore, not pertinent.

Plaintiff cites no case which inhibits the power of a local government to classify the licenses issued by it; there is nothing cryptic about the language of Article IY, Section 1, on this point. The 1955 amendment to that section adds no language that can be construed to make a Class B license mandatory, but merely sets a maximum fee where this type of license is adopted. We are of the opinion that the adoption of a Class B type of liquor license pursuant to the amendment of the statute is permissive and not mandatory.

There is also another point which in our opinion is controlling in the instant case. If the provisions of the Local Liqnor Control Act, as amended in 1955, were mandatory (we have held they are not), and the City Council were duty bound to enact an ordinance providing for a Class B license, would the defendants in the instant case have the power to comply with the writ of mandamus without the adoption of an ordinance providing for a Class B license ? The courts of Illinois have uniformly held that an ordinance must be in effect before city officials can issue a license. The People v. Village of Crotty, supra; The People v. Mount, supra; The People v. Harrison, supra; The People v. Wanmer, supra. The instant case does not concern an ordinance. The City Council whose members have not been made parties to these proceedings have not seen fit to enact an ordinance relative to a Class B license. If the statutory amendment were construed to be mandatory, plaintiff would have to compel the City Council to enact an ordinance. The ministerial officers, who are parties defendant to this action, are powerless to perform this act. They have no authority under the statute in question to do so. Mandamus will lie only in cases where the petitioner shows a clear right to the writ and a clear neglect of duty on the part of the defendant to perform the act sought to be enforced. The People v. City of Chicago, 277 Ill. 394 (1917); The People v. City of Chicago, 280 Ill. 576 (1917); Hooper v. Snow, 325 Ill. 53 (1927); The People v. Dunne, 258 Ill. 441 (1913). There has been no such showing in this case.

We conclude, therefore, that the trial court erred in issuing the writ of mandamus against the defendants in the instant case. The order of the trial court is reversed.

Order reversed.

SCHWARTZ and McCORMICK, JJ., concur.


text:
    Irvin Shaffer, d/b/a City Glass Co., Appellant, v. Cullerton Corp., Blue Star Auto Supply, Nathan Flyer & Son, Inc., Appellees.
    Gen. No. 46,926.
    First District, Second Division.
    February 19, 1957.
    Released for publication April 2, 1957.

      Harry L. Yale, of Chicago, for appellant.
    Tannenbaum & Polikoff, of Chicago, for appellee; William M. Tannenbaum, of Chicago, of counsel. Arvey, Hodes & Mantynband, of Chicago, for appellees, Cullerton Corporation and Blue Star Auto Supply; Louis M. Mantynband, and Irwin I. Zatz, of counsel.
   PRESIDING JUSTICE ROBSON

delivered the opinion of the court.

This is an appeal from an order granting defendants’ motions to strike plaintiff’s second amended statement of claim. This is an action against three corporate defendants to recover $600 for labor and material allegedly supplied by plaintiff at the special instance and request of defendants and to enforce a mechanic’s lien pursuant to section 28 of the Mechanics’ Lien Act, Ill. Rev. Stat. 1955, chap. 82, par. 28.

Plaintiff’s second amended statement of claim alleges that during June, 1953, he was hired by the Schor Glass Company to install a metal store front on the premises at 2001-11 South State street, Chicago, Illinois, and that he completed his work on October 8, 1953. He further alleges that defendant Nathan Flyer & Son, Inc. was in the process of remodeling said premises as general contractor for defendant Cullerton Corporation, the owner of the premises, and defendant Blue Star Auto Supply, the lessee, and that Flyer hired the Schor Glass Company to do the glazing and steel front work.

Plaintiff alleges a failure by defendant Flyer to furnish the owner with a written statement of the names of all parties furnishing labor and material and the amount due thereon pursuant to section 5 of the Mechanics’ Lien Act, Ill. Rev. Stat. 1955, chap. 82, par. 5. Other allegations include plaintiff’s demand of payment from defendants, defendants’ refusal, service of notice of a subcontractor’s lien on defendants Cullerton and Flyer, and a general claim that the labor and material furnished by plaintiff enhanced the value of the premises.

Plaintiff’s first contention that the second amended statement of claim states a good cause of action to enforce a mechanic’s lien is without merit. It failed to allege the existence of any contract between either of the defendants, Cullerton Corporation and Blue Star Auto Supply, and defendant Nathan Flyer & Son as general contractor. The lien of a subcontractor can exist only by virtue of the original contract between the owner and contractor. The materials must be furnished or the labor must be done in connection with the purposes of the original contract. Douglas Lumber Co. v. Chicago Home for Incurables, 380 Ill. 87, 95; VonPlaten v. Winterbotham, 203 Ill. 198, 204; Love, Illinois Mechanics Liens 2nd Ed., pp. 330, 331.

The next question presented by this appeal is whether or not plaintiff’s second amended statement of claim establishes his right to maintain a joint action at law against the owner and contractor for the amount allegedly due him.

Ill. Rev. Stat. 1955, chap. 82, par. 28, provides that laborers, materialmen and subcontractors may bring a joint action at law against the owner and contractor, if unpaid ten days after serving notice pursuant to section 24 upon the owner, his agent, or architect, or the superintendent having charge of the building or improvement. Purportedly, this is such an action.

The remedy granted in section 28 may be invoked only after notice has been served upon the owner as provided in section 24 of the Mechanics’ Lien Act. Such notice may be served on the “owner or his agent or architect, or the superintendent having charge of the building or improvement.” The only notice in this instance was served on Nathan Flyer & Son, Inc., the alleged general contractor employed by the owner and the lessee, defendants Cullerton Corporation and Blue Star Auto Supply.

Plaintiff argues that Flyer, as contractor, is a superintendent within the meaning of the statute. He cites no authority to support this contention. We are of the opinion that the contention is without merit. It is conceivable that under the terms of a contract between an owner and an independent contractor, the contractor might be the superintendent of the building or improvement within the meaning of the statute. But where, as here, no contract has been established, and the interest of the alleged contractor may be distinctly adverse to that of the owner, we cannot hold that service of notice on the contractor meets the requirements set forth in section 24. As this court has previously pointed out, notice to the owner is the very substance of the basis upon which a mechanic’s lien may be predicated. Roth v. Lehman, 1 Ill.App.2d 94 (1953). This statement loses none of its vitality in a situation such as this, where the statute specifically provides that notice to the owner shall be a condition precedent to a joint action at law against the owner and contractor.

The order of the trial court striking plaintiff’s second amended statement of claim is affirmed.

Order affirmed.

SCHWARTZ and McCORMICK, JJ., concur.


text:
    Paul Sunga, Appellee, v. Jason Lee et al., Defendants. Appeal of Arthur Song, and Jessie Song, Appellants.
    Gen. No. 46,847.
    First District, Second Division.
    February 19, 1957.
    Rehearing denied March 12, 1957.
    Released for publication April 2, 1957.

      Thomas Masuda and Cherry & Morse, of Chicago, for appellants; Thomas Masuda, Leo J. Spivack and Harry G. Fins, of counsel.
    Sidney S. Altman, of Chicago, for appellee.
   PRESIDING JUSTICE ROBSON

delivered the opinion of the court.

Defendants Arthur Song and Jessie Song appeal from a $9,000 default judgment entered against them, and from the orders of the trial court denying their motions to vacate said judgment.

Plaintiff brought an action to recover damages for personal injuries resulting from an alleged dogbite. Defendants Arthur and Jessie Song are nonresident owners of the premises where the alleged injuries occurred. Jason Lee, owner of said dog, was made a codefendant. Thomas Masuda, listed as the one who paid the taxes on the premises, was subsequently made an additional party defendant. After filing the suit, plaintiff, without notice to the other defendants, sued out a writ of attachment against Arthur and Jessie Song, residents of Honolulu, Hawaii. Personal service was not had upon the Songs, but publication and mailing of the summons was made as required in Ill. Rev. Stat. 1955, chap. 11, par. 22. The summons, which was mailed to them, was merely addressed Honolulu, Hawaii, without any street or house number and as a result was not received by them. It was returned by the United States Post Office to the clerk of the Circuit Court marked “not found.” On January 31> 1955, defendants Arthur and Jessie Song were defaulted, and the court, without a jury, entered judgment against them in the sum of $9,000 on February 4, 1955.

On May 17, 1955, attorneys for the Songs appeared specially to file a motion to vacate the judgment and quash the summons. The only ground for said motion was that the plaintiff did not make a diligent inquiry to ascertain the place of residence of Arthur and Jessie Song, as stated in the affidavit for attachment. There was a hearing on the motion, and on June 30, 1955, the trial court entered an order overruling and denying defendants’ motion and directing the sheriff to proceed with the sale of defendants’ property.

On July 6, 1955, defendants filed a motion for leave to file an appearance, leave to file an answer to the complaint at law, and to vacate the judgment, setting forth again that plaintiff did not make diligent inquiry as to the residence of defendants, and further alleging that defendants acted diligently and had a meritorious defense. These motions were also heard by the trial court, and on September 27, 1955, a final order was entered overruling and denying defendants’ motion to vacate the judgment, and for leave to file an appearance and answer. (Defendants Jason Lee and Thomas Masuda were dismissed from the case by order of court entered July 13, 1955.)

On this appeal defendants assign six grounds for reversal, only one of which was specified in the trial court. This court on numerous occasions has held that an issue not raised in the trial court cannot for the first time be raised on appeal unless such issue goes to the jurisdiction. Haugan v. Michalopoulos, 280 Ill. App. 239.

We will consider two contentions. First, that the attachment affidavit was void because it was vague and uncertain as to whether the Songs were being sued as defendants or as garnishees and thns the court had no jurisdiction over the subject matter, and second, that plaintiff did not exercise due diligence as required by section 2 of the Attachment Act to ascertain the place of residence of the defendants. This was a default judgment and there has been no trial on the merits and therefore the judgment is based on the technique of procedure and is subject to careful scrutiny. Lichter v. Scher, 11 Ill.App.2d 441.

As to the first contention, it is true that an attachment affidavit must meet all the essential requirements of the statute to give the court jurisdiction over the subject matter. If an essential element of the affidavit is omitted, it may not be aided by amendment, and the proceeding is without authority of law. Martin v. Schillo, 389 Ill. 607. Such question relates to jurisdiction and may be raised for the first time on appeal. Jarrett v. Jarrett, 415 Ill. 126. The statute requires that such affidavit contain the following elements: (1) the nature and amount of the claim; (2) one or more of the statutory causes for which attachment may issue; (3) “the place of residence of the defendants, if known, and if not known, that upon diligent inquiry the affiant has not been able to ascertain the same”; (4) a statement to the effect “that the attachment action invoked by such affidavit does or does not sound in tort”; and (5) “a designation of the return day for the summons to be issued in said action.” Ill. Rev. Stat. 1955, chap. 11, par. 2.

The defect complained of relates to language creating an inconsistency by way of surplusage. The statute does not require that the word “defendants” or “garnishees” appear in the affidavit. While both these words appear in this affidavit, we do not feel that this defect substantially affects the affidavit’s conformity to the statutory requirements. Since all the jurisdictional elements appear in the affidavit, the defect complained of does not render the affidavit void or the court without jurisdiction. While such defect may render the affidavit voidable or subject to amendment, it does not relate to the court’s jurisdiction over the subject matter, and thus cannot be raised for the first time on appeal. Erickson v. Gregory, 275 Ill. App. 286.

Defendants’ second contention is that plaintiff did not exercise due diligence, as required by section 2 of the Attachment Act, to ascertain the place of residence of the defendants. That section provides that the affidavit shall state “the place of residence of the defendants, if known, and if not known, that upon diligent inquiry the affiant has not been able to ascertain the same.” The attachment affidavit made by attorney for the plaintiff recites:

“And affiant further says: That the said Arthur Song and Jessie Song, are not (a) residents of this State, and that their place of residence is as follows, to-wit: City and County of Honolulu, in Territory of Hawaii: (1) That upon diligent inquiry, affiant has not been able to ascertain their exact place of residence;

Defendants argue that plaintiff’s attorney could have discovered their exact address by making inquiry of their agent, Thomas Masuda, or by looking in the telephone directory of Honolulu, Hawaii; that in failing to take these steps plaintiff’s attorney clearly did not conduct a diligent inquiry; and that the recitation of “diligent inquiry” in the affidavit is therefore not substantiated by the record, and the affidavit is void.

In the early case of Haywood v. Collins, 60 Ill. 328, our Supreme Court in discussing the action of attachment at pages 333-4 said:

“In this summary proceeding, by which the citizen is deprived of his property without actual notice; without trial, except by an idle form; by which his entire estate may be taken in payment of a feigned indebtedness — a proceeding entirely ex parte — the authority for such remedy should be strictly pursued.”

We must, therefore, carefully consider in view of the facts and circumstances involved in this case, whether plaintiff exercised due diligence in attempting to determine defendants’ place of address. Black’s Law Dictionary defines diligence as “prudence; vigilant activity; attentiveness; or care, of which there are infinite shades, from the slightest momentary thought to the most vigilant anxiety.” Where diligent inquiry is required by statute, it is the duty incumbent upon the court to determine which of the “infinite shades” of care should be adopted to best fit the circumstances of a particular case. Our Supreme Court, in interpreting these words in a similar statute, has laid down an enlightened rule, which we feel is controlling in the instant case. In Graham v. O’Connor, 350 Ill. 36, at 40, 41 (1932) the court said:

“The statute is particular in enumerating the necessary steps. The phrases ‘due inquiry’ and ‘diligent inquiry’ in that statute are not intended as useless phrases but are put there for a purpose. Those two phrases have a well understood meaning that cannot be reconciled with the taking of a chance or guessing that the names and addresses of unknown parties can not be ascertained. A perfunctory inquiry does not comply with the provisions of the statute. An honest and well directed effort must be made to ascertain the names and addresses of unknown parties. The inquiry must be as full as the circumstances of the particular situation will permit. In this case the evidence shows that the defendant was a real estate dealer and at the time she obtained her tax deed was employed in the office of the county clerk of Winnebago county. The record shows she is a person of more than average intelligence, and we are warranted in assuming that she understood the importance and relation of public records to land titles. It is clear that the defendant fell far short of making the ‘due inquiry’ and ‘diligent inquiry’ required by the statute.”

Plaintiff asserts that he exercised due diligence. He states that Thomas Masuda, who was then one of the defendants, was subpoenaed by plaintiff for the purpose of taking his discovery deposition; that he would not answer any questions regarding the defendants; and that plaintiff was required to have the trial court enter an order requiring him to answer questions pertaining to the property involved. The trial court entered an order requiring Thomas Masuda to answer all questions required of him pertaining to the property that were “not subject to attorney-client privilege.”

An examination of the transcript of the testimony, when plaintiff first attempted to take Masuda’s deposition, reveals no question pertaining to the address of defendants. Plaintiff knew that Masuda was defendants’ attorney and their agent for the purpose of collecting rent from the premises involved. While there is no case directly in point in Illinois, we are of of the opinion that the address of the client, under the circumstances involved in this case would not be subject to the rule of privilege (70 C.J. 422-3, sec. 564). He could have asked Masuda this question and required him to answer it. Plaintiff had another opportunity to ask the question at the time of the taking of the second deposition. This he did not do. We conclude that under the interpretation of due diligence as set forth in Graham v. O’Connor, supra, plaintiff should have interrogated Masuda to ascertain the street number and address of the defendants in Honolulu, Hawaii.

Further, in a large metropolitan area such as Chicago where plaintiff’s lawyer practices, there are many sources of information available. This is discussed in the recent opinion of Romain v. Lambros, 12 Ill.App.2d 64 (1956), an opinion of the Third Division of this court, involving the question of due diligence. We take judicial notice of the fact that within a few blocks of plaintiff’s lawyer’s office, the Illinois Bell Telephone Company maintains an out-of-town directory service containing for the use of the general public the telephone directories of all the major cities of the world. The availability of this service is stated in its telephone directory. The Honolulu directory lists the name, number, and street where Arthur P. Song resides. Instead of taking any of these steps, plaintiff’s attorney only, as stated in his counteraffidavit filed to the motion to set aside the judgment, “made a diligent inquiry by checking the title records, wherein he learned that the defendants signed the deed and trust deed, certified copies of which are hereto attached as Exhibits A and B, before a Notary Public in Honolulu, Hawaii.” This inquiry most certainly did not meet the standards set in the Graham case.

On the basis of such a peremptory investigation, to allow plaintiff in this summary proceedings of attachment in rent to have a $9,000 judgment by default would be a grave miscarriage of justice. We conclude that the trial court erred in denying defendants Arthur and Jessie Song the right to file their appearance and defense in the above-entitled cause. The judgment of the trial court in the sum of $9,000 is reversed and set aside and the cause remanded for trial on the issues.

Judgment reversed and cause remanded with directions.

SCHWARTZ and McCORMICK, JJ., concur.