author: MR. JUSTICE ROBSON

text:
    Charles Ford & Associates of the Midwest, Inc., Appellant, v. Charles Goldberg and Rosetta Goldberg, Appellees.
    Gen. No. 46,597.
    First District, Second Division.
    October 4, 1955.
    Released for publication November 3, 1955.

      Sidney Z. Karasik, of Chicago, for appellant.
    Harry G. Fins, of Chicago, for appellees.
   MR. JUSTICE ROBSON

delivered the opinion of the court.

Plaintiff appeals from an order of the trial court, entered on June 28, 1954, denying its motion to vacate an order of dismissal entered on defendants’ motion to dismiss its original statement of claim, and for leave to file instanter an amended statement of claim.

Plaintiff’s cause of action arises out of a broker’s agreement executed by defendants and one Leroy Solk, a licensed broker, who plaintiff alleges was its agent for the sale of defendants’ business. Its original and amended statements of claim aver that defendants contrived with the buyer to deprive plaintiff of its rightful commission by purporting to sell their haberdashery shop for $15,000, while in reality selling it for $37,500. Plaintiff claims an additional commission of $610.

The principal questions this court is called upon to decide are, first, need a motion to vacate a judgment filed within thirty days after entry of the judgment be verified or supported by affidavit as apparently required by Rule 75(7) of the Civil Practice Rules of the Municipal Court of Chicago. Second, does the plaintiff’s amended statement of claim state a cause of action in its favor.

Rule 75(7) reads, “The court may in its discretion before final judgment, set aside any default, and may within thirty days after entry thereof set aside any judgment upon good cause shown by affidavit, upon such terms and conditions as shall be reasonable.” Rule 75(7) is in substance Section 50(7) of the Civil Practice Act, Ill. Rev. Stat. 1953, ch. 110, par. 174(7) [Jones Ill. Stats. Ann. 104.050, subd. (7)].

Section 2 of “An Act in relation to final judgments, decrees and orders,” etc., Ill. Rev. Stat. 1953, ch. 77, par. 83 [Jones Ill. Stats. Ann. 104.100], provides that a “judgment, decree or order may hereafter be modified, set aside or vacated prior to the expiration of thirty days from the date of its rendition or in pursuance of a motion made within such thirty days, wherever, under the law heretofore in force, it might have been modified, set aside or vacated prior to the expiration of the term of court at which it was rendered or in pursuance of a motion made at that term.”

In the case of Geisler v. Bank of Brussels, 316 Ill. App. 309, Third District Appellate Court, abstract published only, the contention in substance urged upon this court was decided and disposed of, that court, holding an affidavit unnecessary, saying:

“The question raised on the conflict of these two statutes is disposed of by the Supreme Court in the case of Frank v. Salomon, 376 Ill. 439, in which the Court stated: ‘Section 3 of “An act in relation to final judgments, decrees and orders of courts of record in criminal and civil proceedings and the power to modify, vacate or set aside the same” (Ill. Rev. Stat. 1939, chap. 77, par. 84) was enacted at the same session of the General Assembly as the Civil Practice Act and they are in pari materia. . . . (and) are to be construed together. (People v. Wallace, 291 Ill. 465; People v. Cleveland, Cincinnati, Chicago and St. Louis Railway Co., 306 Ill. 459.) .... The well-settled rule of statutory construction is that where there is found in a statute a particular enactment, it is held to he operative as against the general provisions on the subject either in the same act or in the general laws relating thereto. (Robbins v. Comrs. of Lincoln Park, 332 Ill. 571; Handtoffski v. Chicago Consolidated Traction Co., 274 Ill. 282.) Where, as here, the legislature reenacts a former statute, the effect of which has been judicially construed, it is presumed to have been reenacted in view of such construction. (People v. Illinois Central Railroad Co., 337 Ill. 276; Spiehs v. Insull, 278 Ill. 184.)’

“Applying these principles to the act in relation to final judgments, chapter 77, section 83 will control. It has long been the established law that the court during the term in which a judgment was entered could amend it or vacate it during the term. Unbehahn v. Fader, 319 Ill. 250. The amendment to the statute made in 1933 simply limited the time to thirty days after the entry of a judgment rather than during the term.

In accord, see Weinberg v. Larson, 275 Ill. App. 475, 484-6; Nichols Illinois Civil Practice Act (1941) secs. 4631, 4632; 49 C. J. S., Judgments, sec. 289, p. 534. See also People ex rel. Elliott v. Benefiel, 405 Ill. 500, 505-6. Relying upon, approving and citing the Geisler case, supra, is the comment on Section 50(6) of the Tentative Final Draft of Proposed Amendments to the Illinois Civil Practice Act prepared by the Joint Committee of the Illinois State and Chicago Bar Associations on Illinois Civil Procedure, published in September, 1954, by Burdette Smith Company, Chicago, Illinois. Section 50(6), which is present Section 50(7) of the Act and Rule 75(7) of the Municipal Court Rules, omits the language “upon good cause shown by affidavit. . . .” It was adopted by the legislature as a part of the Act without change and becomes effective January 1, 1956.

Defendants, in support of their contention that verification is mandatory, cite this court’s decision in Soverino v. Baltimore & O. R. Co., 2 Ill.App.2d 357. In the Soverino case, holding that the trial court’s denial of plaintiff’s unverified motion to vacate the judgment of dismissal was not an abuse of discretion, this court said that plaintiff’s failure to file an affidavit in support of his motion “was not compliance with the statute,” viz., Section 50(7) of the Civil Practice Act. Ibid., at 362. In the Soverino case the plaintiff failed wholly to allege any facts showing the trial court that there was merit in his motion to vacate. On appeal, plaintiff argued that within the thirty-day period the court should have vacated the judgment “as a matter of course.” After analyzing the issues, only one of which was the plaintiff’s failure to verify his motion, this court held that under all the circumstances the trial court did not abuse its discretion in denying the motion. As this court stated in Weinberg v. Larson, supra, at 484, “Filing or the failure to file a verified petition in support of her motion affected her showing on the motion rather than the jurisdiction of the court to hear it.” Cf. further Shannahan v. Stevens, 139 Ill. 428; Sanford v. Thompson, 397 Ill. 353.

An opposite conclusion from that in the Geisler case was reached in a case cited by neither party, Atlas Finishing Co. v. Anderson, 336 Ill. App. 167, involving an appeal from the Municipal Court of Chicago, and was decided in the First Division of this court. A persuasive dissenting opinion was filed by Niemeyer, J., in which the substance of the Geisler case, not cited in the Atlas case, was adopted. The majority opinion in the Atlas case, as in the Geisler case, cited and purported to follow the rule laid down in Frank v. Salomon, 376 Ill. 439, 445-6, to-wit: that the statutes are in pari materia. But Judge Tuohy, who wrote the majority opinion, reasoned that a construction must be given the statutes which would not render meaningless the requirement of an affidavit in Section 50(7). Judge Niemeyer, while proceeding upon the same broad premise laid down in the majority opinion, reasoned instead that Section 50(7) did not provide litigants with an exclusive practice in moving to vacate judgments, citing Department of Public Works & Buildings v. Legg, 374 Ill. 306, 309, because all courts of record have inherent power to vacate or set aside judgments or orders during the term (now thirty days) at which rendered. See also People ex rel. Elliott v. Benefiel, supra. The majority opinion in the Atlas case has been criticized on several grounds by recent comment writers. See 27 Chi-Kent L. Rev. (1949) 251, 253; 28 ibid. (1949) 1, 45.

While by the Municipal Court Act, Ill. Rev. Stat. 1953, ch. 37, pars. 356-426 [Jones Ill. Stats. Ann. 108.027-108.094], the Municipal Court of Chicago is empowered to formulate, adopt and promulgate its own rules of practice and procedure (Secco v. Chicago Transit Authority, 6 Ill.App.2d 266), the power to vacate or set aside its judgments or orders is jurisdictional and not procedural, is a power inherent in that court itself, as a court of record, and exists independently of any statute. See the cases and authorities cited earlier in this opinion, and cf. further Trupp v. First Englewood State Bank of Chicago, 307 Ill. App. 258, 266. The Municipal Court Act does not empower that court to formulate, adopt or promulgate rules extending, limiting or otherwise changing its jurisdictional status as a court of record. Cf. Barry v. Knight, 296 Ill. App. 277. Moreover, the Municipal Court Act in no manner delimits or restricts the inherent power of the Municipal Court of Chicago to vacate or set aside its judgments or orders (within thirty days) in anywise inconsistent or in conflict with Section 2 of the Judgments, Decrees and Executions Act, Ill. Rev. Stat. 1953, ch. 77, par. 83. See Section 21 of the Municipal Court Act, Ill. Rev. Stat. 1953, ch. 37, par. 376. The Judgments, Decrees and Executions Act governs the substantive or jurisdictional powers of all courts of record over their judgments, decrees and orders. Cf. Trupp v. First Englewood State Bank, supra. It has therefore been held that Section 50(7) of the Civil Practice Act does not provide an exclusive remedy in matters of vacating or setting aside judgments or orders within thirty days after rendition. Geisler v. Bank of Brussels, supra; and see also dissenting opinion of Niemeyer, J., in Atlas Finishing Co. v. Anderson, supra. This court, in reason, must therefore also hold that Rule 75(7) of the Municipal Court of Chicago does not derogate from the inherent powers of the Municipal Court of Chicago, in the absence of a statute to the contrary, and does not therefore provide an exclusive remedy in matters of vacating or setting aside its judgments or orders within thirty days thereof.

In many instances the requirement of an affidavit would be superfluous since as noted by the dissenting judge in the Atlas case, supra, many times the matters raised by the motion are already of record. In the instant case, plaintiff’s motion, although not verified, was supported by credible exhibits signed, some of them, by the parties, and another by an officer of this State, all of them lending at least prima facie credence to plaintiff’s allegations that it is the real or principal party in interest in this cause of action and, further, that it has the legal capacity to sue.

Defendants’ second contention, therefore, that plaintiff’s amended statement of claim failed to state a cause of action in favor of plaintiff, this court finds to be without merit. Plaintiff’s attached Exhibit “A,” showing a broker’s form, the broker’s name, Leroy Solk, and the title “Affiliated with Charles Ford & Associates of the Midwest, Inc.,” together with its attached Exhibit “B,” showing a contract signed by defendants and the buyer and designating and commissioning plaintiff’s services unequivocally support its allegation that defendants had knowledge that they were dealing with plaintiff. Its attached Exhibit “B-1,” which is a letter from Vera M. Binks and Fredric B. Selcke, respectively, Director and Superintendent of Registration of the Department of Registration and Education, states that Leroy Solk is a duly licensed broker; that while under law the Department cannot license a corporation as a broker, “Charles Ford & Associates, a corporation, by having two or more of its officers licensed as real estate brokers, is in compliance with Section 1, of the Illinois Real Estate Brokers and Salesmen.Law;” and that “all brokers so affiliated are regarded as being members of or associated with the corporation.” See further Ill. Rev. Stat. 1953, ch. 114½, par. 1 [Jones Ill. Stats. Ann. 115.01], which, under the facts referred to in the Department’s letter, permits a “corporation to engage in the business or capacity, either directly or indirectly, of a real estate broker or real estate salesman. . . .” Plaintiff’s amended statement of claim alleges that Leroy Solk at all times was its stockholder, officer, employee and agent. We find no reason why plaintiff cannot sue upon the broker’s contract, given the circumstances hereinbefore set forth and the law applicable.

Bint even assuming that plaintiff cannot sue upon the broker’s contract, defendants offer no good reason why it cannot maintain an action on an obligation impliedly due and owing, in view of the facts hereinbefore set forth. Defendants’ contention that plaintiff cannot argue this point on this appeal because plaintiff brought its action below solely on the express contract is totally lacking in merit. Plaintiff’s written motion filed with its amended statement of claim alleges “an obligation expressly or impliedly due and owing to plaintiff from defendants.”

This court is of the opinion. that the trial court abused its discretion in denying plaintiff’s motion to vacate the order of dismissal, to reinstate its cause of action and for leave to file instanter an amended statement of claim.

The order of dismissal is reversed and the cause remanded with directions to vacate the order of dismissal and allow plaintiff to file an amended statement of claim.

Order reversed and cause remanded with directions.

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


source: Caselaw Access Project

author: MR. JUSTICE SCHWARTZ

license: Public Domain

text:
    Mary Kathryn Keller, Appellant, v. Paul Menconi, Appellee.
    Gen. No. 46,625.
    First District, Second Division.
    October 4, 1955.
    Released for publication November 3, 1955.

      Arthur S. Gomberg, and Joe Reiff, both of Chicago, for appellant; Samuel Nineberg, of Chicago, of counsel.
    Kirkland, Fleming, Green, Martin & Ellis, of Chicago, for appellee; Max E. Wildman, John M. O’Con-nor, Jr., and John J. Edman, all of Chicago, of counsel.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

This is a personal injury suit growing out of a collision between two automobiles at a street intersection. Plaintiff sued for $35,000. Defendant filed a counterclaim for $1,000. Issues were joined and the cause was submitted to a jury which found both parties not guilty. A judgment was entered on the verdict. The plaintiff has appealed.

The first error charged is that the verdict is against the manifest weight of the evidence. Plaintiff was the only eyewitness testifying in her behalf. Defendant testified for himself and in support of his version produced two other eyewitnesses. Plaintiff was going north and defendant was going east. According to defendant, he entered the intersection first but plaintiff was traveling at such a fast rate of speed that when he saw her he was unable to stop his car in time to avert the collision, with the result that the front of his car collided with the left side of plaintiff’s car. Defendant testified that he was traveling slowly, 15 to 20 miles per hour, but that plaintiff was going 40 to 45 miles per hour. A disinterested witness, Elkins, testified that defendant was traveling 15 to 20 miles per hour and that plaintiff was going 30 miles per hour. Another eyewitness, Helen Irma Denst, testified that her attention was attracted to plaintiff’s car by the fast rate of speed at which it was traveling.

Plaintiff makes much of the fact that she had the right of way and that the witness Denst testified that plaintiff entered the intersection first. This does not conclusively establish that the verdict is against the manifest weight of the evidence. It was still for the jury to find the actual facts and to reach a conclusion based on them.

The next ground urged for reversal is that the court made improper comments on the evidence. This occurred in connection with a question asked of the eyewitness Elkins: “Who ran into who?” There was an objection to the question which the court sustained. In discussing defendant’s conduct, plaintiff’s counsel in his argument to the jury said: “Then he runs into the side of the lady’s automobile.” The court sustained an objection to this statement, saying: “Sustained, yes it does not make any difference.” In personal injury cases it is not uncommon for an attorney to make much of the fact that the opposing party’s car collided with the other on the side or rear, and this is often done by asking the question: “Who struck who?” (or “whom,” if a purist is doing the questioning). It is a loaded question, implying guilt by mere reason of the point of contact. The point of contact may be a fact to be taken into consideration in determining negligence, but it is improper to ask a witness a question which in itself contains the inference of guilt. In argument to the jury, it was within proper bounds for counsel to urge a conclusion drawn from the facts relating to the point at which the two automobiles collided. We do not, however, consider the ruling on this point nor the comment of the court reversible error.

Plaintiff complains of the instructions given on behalf of defendant. The original motion for a new trial assigned error with respect to instructions as follows : “The Court committed error in giving each of the instructions tendered by the defendant.” In our opinion this does not comply with the requirement of Sec. 68(1) of the Civil Practice Act (Ill. Rev. Stat., Ch. 110, Par. 192 [Jones Ill. Stats. Ann. 104.068]). A motion for new trial should state the ground for such objections. Rudolph v. City of Chicago, 2 Ill.App.2d 370, 374, 375, and cases there cited. Plaintiff’s counsel sought to amend the motion for new trial by simply filing an amendment with the clerk. He gave no notice to opposing counsel and obtained no order of court. The purported amendment was not, therefore, before the court. However, we have examined the instructions and we find no reversible error. The instructions as a whole correctly advised the jury on the law.

Instruction No. 11, of which plaintiff complains, placed an equal duty on plaintiff and defendant to look out for each other. This instruction, plaintiff says, is wrong because it does not give plaintiff the advantage of her right of way. A specific instruction (No. 8) was given with respect to the right of way and taking that into consideration we cannot see that plaintiff was prejudiced by the language of instruction No. 11.

Instruction No. 12 told the jury that the happening of the accident in itself raised no presumption of negligence on the part of defendant. To be literally correct, it should have stated that it raised no presumption of negligence on the part of either plaintiff or defendant. However, that is not basis for reversal here.

Plaintiff complains of the language in instruction No. 13, requiring her to prove that the “injuries were not brought about or contributed to by any failure on her part to exercise ordinary care. •. . .” This, plaintiff says, is error because it omits the word “proximate.” Under the circumstances of this case failure to state that the want of due care should be such as proximately caused the injury is not reversible error.

Instruction No. 17 told the jury that sympathy for plaintiff’s injuries should not influence their verdict. This instruction was criticized in Rogers v. Mason, 345 Ill. App. 560, at p. 569. There, the court said that while it was correct to tell the jury that sympathy should not influence their verdict, the instruction should not have pinpointed the plaintiff but should have been made applicable to both parties. In the matter of instructions courts are always striving for perfection in the use of words and nothing is more difficult to find than an unambiguous word. Costello v. Warnisher, 4 Ill.App.2d 571, at p. 580. A reading of the opinion reveals that Rogers v. Mason was not reversed on account of the error referred to but because of more serious error discussed in the opinion. We cannot believe that the jury was prejudiced by this instruction.

The same criticism applies to instruction No. 21 which refers to speed and also singles out plaintiff. The trial court should have on hand for its advisory assistance the excellent forms of instructions prepared under the auspices of the Chicago Bar Association. We do not mean to and cannot here approve those instructions in toto. We only suggest that the trial court have them at hand and compare them with instructions presented by partisan counsel. Any difference should put the court on guard for error. The comparable instruction set out in the forms referred to is as follows:

“You must not allow sympathy or prejudice to influence your verdict, but you must be guided solely by the law and the evidence.”

This would have been ample and it would have avoided the argument made in this case. The error is not such as to warrant reversal.

Instruction No. 24 tells the jury that if plaintiff, by using her faculties with ordinary and reasonable care . . . could have avoided the injury, the jury must find the defendant not guilty. The objection is that the word “would” should have been substituted for “could.” The criticism is made in Cassens v. Tillberg, 294 Ill. App. 168, which in turn relies upon Gehrig v. Chicago & A. R. Co., 201 Ill. App. 287. There were other errors in both of those cases. On the other hand, in Kehr v. Snow & Palmer Co., 225 Ill. App. 403, 410, the court approved of an instruction which contained the word “could” instead of “would.” In Kavanaugh v. Washburn, 320 Ill. App. 250, 253-4, the court thought it was highly speculative to believe that the jury was influenced by the difference between the words “could” and “would.” We agree with the court in that case.

We find no reversible error in the instant case.

Judgment affirmed.

MoCOBMICK, P. J. and BOBSON, J., concur.


author: MR. JUSTICE DOVE

text:
    Wilmer Stehl et al., Plaintiffs-Appellants, v. County Board of School Trustees of La Salle County, Illinois et al., Defendants-Appellees.
    Gen. No. 10,842.
    Second District.
    October 11, 1955.
    Released for publication October 31, 1955.

      Walter D. Boyle, of Hennepin, for appellants.
    McNeilly, Ryan & Olivero, of Pern, for appellees.
   MR. JUSTICE DOVE

delivered the opinion of the court.

A petition was filed with the County Board of School Trustees of La Salle County in accordance with the provisions of Article 4A of the School Code (Ill. Rev. Stat. 1953, chap. 122, par. 4B—1 et seq. [Jones Ill. Stats. Ann. 123.754B(1)] et seq.). The petition was signed by nineteen of the twenty-three legal voters residing in a territory comprising two and one-half sections of land located in Hopldns Township High School District No. 536, requesting the detachment of said territory from said district and annexing it to Tónica Community High School District No. 360. The hearing by the Board of Trustees resulted in an order granting the petition. Upon a review of such decision, under the provisions of the Administrative Review Act (Ill. Rev. Stat. 1953, chap. 110, par. 264 et seq. [Jones Ill. Stats. Ann. 104.094(1) et seq.]), the circuit court affirmed the order of the Board of School Trustees, and this appeal follows.

Only two contentions are made by counsel for appellants: (a) that the decision of the County Board of Trustees is manifestly against the weight of the evidence; and (b) that said decision is in violation of section 4B-3 of the School Code [Jones Ill. Stats. Ann. 123.754B(3)] and, therefore, void inasmuch as the Tónica High School District has a population of less than 1,600 after the annexation of the lands involved in this proceeding.

Section 4B-1 of the School Code provides that new school districts lying entirely within any county may be created and the boundaries of existing school districts lying within any county may be changed by detachment, annexation, division, dissolution or consolidation, or by any combination thereof by the County Board of School Trustees of such county, when petitioned by the boards of each district affected or by a majority of the legal voters residing in each district affected or by two-thirds of the legal voters residing in any territory proposed to be detached from one or more districts or in each of one or more districts proposed to be annexed to or consolidated with another district. The provisions of section 4B-2 [Jones Ill. Stats. Ann. 123.754B(2)] are applicable to school districts lying within two or more counties. Section 4B-3 then provides: “No petition shall be granted under sections 4B-1 or 4B-2 of this Act:

“(a) If there will be any non-high school territory resulting from the granting of the petition.

“(b) Unless after granting the petition any community unit district or high school district created shall have a population of at least 2000 and an equalized assessed valuation of at least $6,000,000.00 based upon the last full, fair cash value as equalized by the Department of Revenue as of the date of filing of the petition.

“(c) Unless the territory within any district so created and any district whose boundaries are affected by the granting of such petition shall after the granting thereof be compact and contiguous except as provided in section 4B-4 of this Act.

“(d) To create any school district with a population of less than 2000 unless the Superintendent of Public Instruction and the County Superintendent of Schools of each county in which the proposed district will lie shall certify to the county board or boards of school trustees that the creation of such new district will not interfere with the ultimate reorganization of the territory of such proposed district, as a part of a district having a population of 2000 or more.”

Counsel for appellant argue that the legislature has by these provisions adopted an express policy that a high school district must contain a population of at least 2,000 and has prohibited the changing of the boundaries of a district unless the change will create a district of that population.

These sections of the School Code authorized the County Board of School Trustees to act in two situations: (a) the creation of new school districts; and (b) the changing of boundaries of existing school districts. The word create used in these provisions of the School Code has reference to new, not existing, school districts, and when a boundary change is mentioned it is in connection with an existing school district. This is what the statute says, and this must be what the legislature intended. The instant case involves a change of boundaries to existing districts and, therefore, section 4B-3(b) is not applicable. It might be noted that section 4B-3(c) provides that no petition shall be granted unless the territory within any district so created and any district ivhose boundaries are affected by the granting of such petition shall after the granting thereof be compact and contiguous except as provided in section 4B-4 [Jones Ill. Stats. Ann. 123.754B(4)] of this Act; and section 4B-3(d) provides that no petition shall be granted to create any school district with a population of less than 2,000 unless the Superintendent of Public Instruction and the County Superintendent of Schools of each county in which the proposed district will lie shall certify to the County Board or Boards of School Trustees that the creation of such new district will not interfere with the ultimate reorganization of the territory of the proposed district as a part of a district having a population of 2,000 or more.

In Kinney v. County Board of School Trustees of La Salle County, Gen. No. 10841, an opinion being this day filed therein, it was insisted that the Lostant High School District, to which the County Board of School Trustees annexed 6¼ sections of land, was not shown to have a population of 2,000 after granting the petition, but it was there held that section 4B-3 did not apply to a case of annexation to an existing school district. It is interesting to note that Article 4B-3 of the School Code was amended on July 9, 1955, by adding thereto subpar. (e), so that as now amended, section 4B-3 provides that no petition shall be granted under section 4B-1 or 4B-2 of the School Code, if, after the change of boundaries any district has less population or assessed valuation than required for the creation of a district of like type. (Smith-Hurd Ill. Anno. St. 1955, ch. 122, sec. 4B-3.) Prior to this amendment, the statute applied to the creation of a new district and the trial court did not err in so holding. (Kinney v. County Board of School Trustees of La Salle County, supra.)

Section 11 of the Administrative Review Act [Ill. Rev. Stats. 1953, ch. 110, § 274; Jones Ill. Stats. Ann. 104.094(11)] provides that the hearing by the court to review any final administrative decision shall extend to all questions of law and fact presented by the record and that the findings and conclusions of the administrative agency on questions of fact shall be held to be prima facie true and correct. Under the authorities, it is the duty of this court to consider the evidence found in this record and determine whether the decision of the County Board of School Trustees is sustained by the evidence. (Secaur v. Illinois State Civil Service Commission, 408 Ill. 197; Mohler v. Department of Labor, 409 Ill. 79; Wallace v. Annunzio, 411 Ill. 172; School Dist. No. 79 v. County Board of School Trustees of Lake County, 4 Ill.2d 533.)

The record discloses that the territory involved in this proceeding has been in the Hopkins School District for thirty-five years. It consists of two and one-half sections of land in La Salle County and lies between the Village of Tónica in La Salle County and the Village of Granville in Putnam County. The county line between these counties forms the western boundary of the territory in controversy. The brick school buildings, including a recently built gymnasium of the Hopkins School District, are located in the Village of Granville. All of the territory of the Hopkins School District lies in Putnam County except four sections of land in La Salle County and the district covers an area of fifty-two square miles, and the length of its bus routes to transport pupils is 96.8 miles. While the two and one-half sections of land involved herein are in the Hopkins High School District, they are also in the Tónica Grade School District. The Tónica High School District and the Tónica Grade School District each own its school buses, and the same bus is used to pick up students at their several homes and transport both grade and high school students to their respective schools in Tónica and return them to their several homes. The Hopkins School District does not own any buses but hires them, and in a few instances students walk or ride a bicycle short distances from their homes, never more than one-half mile, in order to meet the school bus. The distance from the territory involved to either Tónica or Granville is substantially the same. One section of the land involved is a little closer to Tónica than Granville, and the other section and half-section lie a little nearer Granville. The roads are equally good. In going through the Village of Tónica, in order to reach the high school, the buses cross the Hlinois Central railroad tracks, the crossing being equipped with electric signal lights. In going to the high school at Granville, the buses cross the C. M. & St. P. railroad tracks, which crossing is not equipped with electric signal lights.

The Hopkins School District has an enrollment of 130 pupils, a population of 2,300, and the property in the district has an assessed valuation of $8,951,675. Its schools are recognized by the State Superintendent of Public Instruction, and the standard course of study, including English, history, mathematics, arts, science, vocational agriculture and home economics, is offered the students, who are taught by nine full-time teachers and by one part-time teacher whose salaries aggregate $33,460 per year.

The Tónica School District has an enrollment of 100 pupils, a population of 1,500, and the property of the district has an assessed valuation of $10,699,537. The assessed valuation of the territory sought to be detached is $383,722, yielding a tax of $1,822.92. The Hopkins High School District has been levying the maximum tax rate for educational purposes and operating with an annual deficit in this fund of approximately $2,500.

From the foregoing facts counsel for appellants argue that the annexation of this additional territory to the Tónica High School District will endanger the recognition status by the Superintendent of Public Instruction of the Hopkins High School District; that it will not be for the best interests of the schools of the area or for the educational welfare of the pupils to detach this territory from the Hopkins High School District and that the only benefit derived therefrom will go to the Tónica High School District, which will receive a windfall of more than $1,800 each year in taxes.

Paragraph 4B-4 of the School Code (Ill. Rev. Stat., chap. 122, par. 4B—4) provides that the County Board of School Trustees, in order to determine whether it is to the best interests of the schools of the area and whether it is to the best interests of the educational welfare of the pupils to grant the prayer of a petition of this character, should consider the financial and educational conditions of the districts involved and the probable effect of the proposed changes, the school needs and conditions of the territory in the area within and adjacent thereto, the ability of both districts to meet the standards of recognition as prescribed by the Superintendent of Public Instruction, and also the division of funds and assets which will result from the change of boundaries.

The County Board of School Trustees in the instant case had before it evidence bearing upon the several elements which the School Code provided it should consider, and this Board concluded that it was for the best interests of the schools of the area and for the best interests of the educational welfare of the pupils to detach the two and one-half sections of land involved in this proceeding from the Hopkins District and annex it to the Tónica District. Under the authorities this court is not called upon to substitute its judgment for that of the County Board of School Trustees. Our duty is to read and consider the record in order to ascertain whether there is substantial evidence to support the order of the County Board of School Trustees. If there is, their judgment is conclusive. (Mohler v. Department of Labor, 409 Ill. 79, 85.)

The argument of counsel for appellants is that the detachment of the land involved in this proceeding will result in the Hopkins District being unable to raise, in its educational fund, sufficient revenue by taxes to meet the standards of recognition required by the State Superintendent of Public Instruction and that the pupils remaining in that district will therefore be deprived of adequate school facilities. During the hearing before the County Board of School Trustees, the County Superintendent of Schools of Putnam County, testifying as a witness on behalf of the objectors, in response to this question: “If a tax referendum were had raising the educational tax rate from .50% as it now is, to .71%, would you then state that the (Hopkins) high school district would have sufficient funds to operate in a manner accredited by the Superintendent of Public Instruction?” replied, “Yes, I would say that.” The same witness further testified that there was “a strong possibility the (Hopkins) district will not be able to meet recognition standards” if the territory involved is detached and that the school needs of the territory would best be served if no change was made and concluded that it was educationally unsound to detach this territory by giving more territory to a school district that does not need it.

In every instance where territory is detached from a school district, that district is hurt in a financial way. The Hopkins High School District is no exception. It will lose $1,800 in taxes, but it does not follow that the educational opportunities of its pupils will be curtailed or lowered. The loss in revenue can be made up by increasing the tax rate as prescribed by the legislature. In Community Consol. School Dist. No. 201 v. County Board of School Trustees of La Salle County, Gen. No. 10862, this court stated in an opinion recently filed that while the loss of property by detachment proceedings would reduce the assessed valuation of the property of the district and would cause an increase of the tax rate, it was certainly not the intention of the legislature to freeze the boundaries of school districts in order to prevent an increase of the tax rate. It was stated in Trustees of Schools v. School Directors Dist. No. 2, 190 Ill. 390, 393, that a court cannot say that it is unreasonable, unjust and oppressive to levy a tax within the limit fixed by the legislature.

While it is true there are no children of high school age residing in the territory effected at the time of this hearing before the County Board of School Trustees, there have been in the past and, in all probability, will be in the future. The parents of children going to grade school residing in this territory desire their children to attend high school in the same town where they attend grade school, and where children of the same family are attending grade school and high school their parents want them to go to the same town and be transported on the same bus and this will be accomplished under the order appealed from.

There is substantial evidence in this record that the best interests of the schools will be subserved by detaching the territory involved herein from Hopkins High School District because that district need not provide bus service for this territory, and the Tónica High School District is benefited because its buses can transport its high school students at no extra cost because its buses serve this area for grade school students. Pupils in this area will go to the same town when attending the grade school and when attending high school, and students from the same family may go to the same town and ride the same bus.

In School Dist. No. 79 v. County Board of School Trustees of Lake County, 4 Ill.2d 533, at p. 541, it was stated: “We recognize that in all matters concerning a change in school boundaries or annexation to or detachment from territory of an existing school district certain inequities to individual taxpayers will probably arise and disagreement over proposed changes may be present. However, such disagreement cannot be used as a valid argument to overthrow a valid judicial decision of the issues.”

The judgment of the Circuit Court of La Salle County affirming the decision of the County Board of School Trustees must be affirmed.

Judgment affirmed.

EOVALDI and CROW, JJ., concur.


author: MR. JUSTICE CROW

text:
    Louis Rose et al., Plaintiffs, v. Andrew Dolejs et al., Defendants. Andrew M. Dolejs, and Marie Dolejs, His Wife, Cross-Plaintiffs-Appellants, v. Victor Schiller, and Olga Schiller, His Wife, Cross-Defendants-Appellees.
    Gen. No. 10,840.
    Second District.
    October 11, 1955.
    Released for publication October 31, 1955.

      Hadley, Leren & Burek, of Wheaton, and Alfred M. Looser, of Chicago, for appellants.

      Harry Gr. Fins, of Chicago, for appellees.
   MR. JUSTICE CROW

delivered the opinion of the court.

This is an appeal from a final order of the Trial Court sustaining the counterdefendants Victor Schiller’s and Olga Schiller’s motion to strike the counterclaim of the counterplaintiffs Andrew M. Dolejs and Marie Dolejs, and entering final judgment for the counterdefendants, the counterplaintiffs having elected to stand on their counterclaim. The motion to strike the counterclaim alleged, in substance, that the matters therein were decided adversely to the counterplaintiffs by the Supreme Court on a prior appeal in this same cause, Rose v. Dolejs (1953), 1 Ill.2d 280. It is now claimed by the counterdefendants that the Supreme Court determination involved the same subject matter, the same parties, and the same issue as the present counterclaim, and, that therefore, the doctrine of res judicata applies, and the counterplaintiffs cannot now relitigate the subject matter of the counterclaim.

For a full understanding of the issues herein, it is necessary to review to some extent some of the facts incident to the litigation between the parties prior to the dismissal of the present counterclaim. Some of the facts are to be ascertained from the allegations of the present counterclaim of Andrew M. Dolejs, et al., some from other portions of the present record, and some from the opinion of the Supreme Court on the prior appeal, above, in this same cause. The present cross-plaintiffs, Andrew M. Dolejs and Marie Dolejs, and the present' cross-defendants, Victor Schiller and Olga Schiller, ■ were all parties defendant in the original cause, and all of them are necessarily bound by the facts therein found and the determination therein made; so far. as presently material. To the extent the present record does not specifically include matters having to do with the prior appeal, we shall take judicial notice of the record on the former appeal: Lee v. Finley (1953), 413 Ill. 445. On this appeal, the briefs of neither side contain a plain, simple, clear-cut, detailed, and orderly statement of the facts, and we have had to reconstruct the same, as best we can, as an original matter.

In July 1950, Victor Schiller, one of the counter-defendants, asked Andrew M. Dolejs, one of the counterplaintiffs, to purchase a certain 40-acre farm of Schiller’s in DuPage County, or procure a buyer therefor. Dolejs procured Anton Koncil as a buyer, and then Victor Schiller and Olga Schiller, his wife, agreed by contract of August 2, 1950, to sell the real estate to Anton Koncil for $10,000, the Schillers to convey a good title, by warranty deed, subject, however, so far as material, to “Articles of Agreement for Warranty Deed, Form 75, as more fully set forth on reverse side of this contract.” On its reverse side that contract contained the following provisions:

“Sale of the premises set out on the reverse side of this contract are subject to the terms of an Article of Agreement for Warranty Deed form 75, entered into between Victor Schiller and Olga Schiller, his wife, party of the first part, and Louis A. Rose and Margaret Gallery Rose, his wife, on the 10th day of May, 1948. Said Agreement provides for the sale of the premises for the sum of $15,000.00. There has been a payment of $5,000.00 plus interest on the 1st day of June, 1948; interest was paid on said contract on the unpaid balance on June 1,1949; the sum of $5,000.00 plus interest on the unpaid balance was due June 1, of 1950 but said principal sum and interest is unpaid. A further sum of $5,000.00 plus interest on the unpaid balance is due June 1, 1952.”

On August 15, 1950, the counterdefendants Victor Schiller and Olga Schiller, executed a warranty deed to Anton Koncil, and assigned to him their interests as sellers under the prior contract of May 10, 1948 with Louis A. Bose et al. Thereafter, though on the same date, Koncil executed a warranty deed to the counter-plaintiffs Andrew M. Dolejs and Marie Dolejs, and again on August 17, 1950 assigned to the Dolejs the seller’s interests under the prior contract of May 10, 1948 with Louis A. Bose et al., and further assigned to the Dolejs his buyer’s interests under his contract of August 2,1950 with the Schillers.

It appears that Louis A. Bose and Margaret Gallery Bose, the original buyers under the contract of May 10, 1948 with the sellers Schiller, and whose contract is mentioned, as above, in the later contract of August 2, 1950, between the Schillers and Koncil, were actually in possession of the premises at all material times and were building a house thereon.

Long prior to the Schiller-Koncil-Dolejs transactions in 1950, the Schillers had, in July 1949, orally given Louis A. Bose and Margaret Gallery Bose, the original buyers under the original contract of May 10, 1948, an extension of time to Jnne 1,1951 to make a $5,000 payment otherwise due June 1, 1950, and by that oral agreement another payment thereunder otherwise due June 1,1952 was accelerated to June 1,1951.

This original cause, from which the appeal was taken in Rose v. Dolejs (1953), 1 Ill.2d 280, was commenced by the original plaintiffs Boses, seeking, in effect, a specific performance of their May 10, 1948 contract, alleging the oral extension agreement of July 1949 with the Schillers, praying an injunction against the Dolejs prosecuting a forcible entry and detainer case against the Boses, asking reformation of the May 10, 1948 contract pursuant to the oral extension agreement, asking a complete determination of the rights of the parties in the premises, and that the Dolejs be compelled to convey to the Boses upon deposit with the clerk of the balance due under the May 10,1948 contract. Both the Schillers and Dolejs were, as we’ve said, original parties defendant to this suit. By the decree therein the Dolejs were permanently enjoined from prosecuting their forcible entry and detainer case; the Dolejs’ purported forfeiture of the Rose contract was declared void; the Rose contract was reformed; and the Dolejs were ordered to convey to the Roses upon deposit of a certain sum with the clerk which the Roses were ordered to make. The Dolejs appealed and the decree was affirmed.

After the Supreme Court’s affirmance, the Dolejs filed their present counterclaim against the Schillers, alleging, in substance: that the Dolejs had no knowledge of the Schiller-Rose oral agreement for extension; that Schillers falsely, fraudulently, and deceitfully concealed such oral agreement from them; and misrepresented to them that the Roses were in default; and in reliance on those misrepresentations the Dolejs took over the Schiller-Koncil contract of August 2, 1950, and paid it off; and that the warranties of title in Schillers’ warranty deed to Koncil of August 15, 1950 were thereby breached.

The crux of the counterplaintiffs Dolejs’ theory on the present counterclaim is their allegation, in substance, that they had no knowledge of the oral agreement between the Schillers and the Roses for an extension of a payment as to the original Schiller-Rose contract of May 10, 1948. They may not have had actual knowledge, but they are charged with knowledge, thereof and the Supreme Court has already previously so determined on the prior appeal herein: Rose v. Dolejs (1953), 1 Ill.2d 280. The Court there said, p. 285, 290-291:

“The defendants Dolejs assert that they purchased the interest of the original contract vendors without any knowledge of the alleged oral extension. . . .

“Counsel for defendants Dolejs continually refers to Ms clients as “innocent purchasers,” not bound by the oral agreements and conduct of the defendants Schiller. Defendants Dolejs purchased all right and interest of the Schillers under their contract of sale to the plaintiffs. It has been held innumerable times that the assignee of a non-negotiable chose in action, such as this contract of sale, takes the interest assigned therein subject to all legal and equitable defenses existing at the time of or before notice of such agreement. (Chicago Title and Trust Co. v. Smith, 158 Ill. 417.) The original contract for warranty deed, executed by the Schillers and the Roses, was assigned by the Schillers on August 15, 1950, to Anton Koncil who in turn, on August 17, assigned the same to the defendants Dolejs. This contract is not a negotiable chose in action within the requirements of section 1 of the Negotiable Instrument Law. (Ill. Rev. Stat. 1951, Chap. 98, par. 21.) Not being negotiable, this contract is subject to any defenses the Roses may have had against the Schillers.

“Moreover, defendants Dolejs are charged with knowledge of the extension agreement. When the Dolejs purchased the interest of the ScMllers they knew that the plaintiffs were in possession of the property under claim of right and were in the process of constructing a house thereon. Defendants are therefore chargeable with notice of all facts that an inquiry directed to the plaintiffs would have disclosed. (Thomas v. Burnett, 128 Ill. 37; Rock Island and Peoria Railway Co. v. Dimick, 144 Ill. 628.) Such an inquiry would have disclosed the oral extension agreement, and defendants are therefore charged with knowledge of it.”

If the Dolejs, the present counterplaintiffs, were charged with knowledge of that oral agreement, as has already been determined, and by which determination the Dolejs are bound, then clearly it cannot be said, as to the Dolejs, that the Schillers falsely, fraudulently, and deceitfully concealed said oral agreement. As to the existence of the Schiller-Rose contract, the Dolejs were expressly put on notice at the outset by the specific terms of the Schiller-Koneil contract of August 2, 1950 and by the Roses possession of the premises, and as to the extension of time of payment and status of the Schiller-Rose contract, they were charged with knowledge. Under the circumstances, if the counter-plaintiffs Dolejs were not “innocent buyers,” and they have heretofore been determined not to have been, they are in no position to assert the present counterclaim,— they have no cause of action thereunder for “fraud and deceit” or for “breach of implied warranties of title.”

The counterplaintiffs argue that the opinion and determination of the Supreme Court on the prior appeal is not res judicata here because there is no identity of subject matter, parties, or issues. Assuming those to be the essential requirements here, we do not agree with counterplaintiffs. The same parties in this cause on the present counterclaim, the Schillers and the Dolejs, were defendants in the original cause, and are bound by the decree and its affirmance. That “a different relationship or quality” existed, as the Dolejs urge, between the Schillers and the Roses, and the Schillers and the Dolejs, if true, has nothing to do with the identity of the subject matter, parties, or issues. Dolejs took the appeal to the Supreme Court and the fact the Schillers were not appellants seems wholly immaterial so far as estoppel by verdict or judgment and res judicata as against the Dolejs are concerned. The same subject matter, the real estate, was involved. And one of the issues necessarily before the Trial Court and the Supreme Court and decided was whether the counterplaintiffs Dolejs were charged with knowledge of the oral extension agreement. The Trial Court and Supreme Court decided that issue adversely to the Dolejs, they are bound thereby, and they cannot now relitigate that question, which they seek to do in their present counterclaim. That the cause of action involved in the present counterclaim is not the same as the cause of action involved in the original suit brought by the Boses, is immaterial so far as application of the doctrine of estoppel by verdict or judgment is concerned.

When some specific fact or question has been actually and directly in issue and has been adjudicated and determined by a court of competent jurisdiction in a former suit, and the same fact or question is again put in issue in a subsequent suit between parties or their privities who were parties in the former suit, its determination in the former suit, if properly presented and relied upon, is conclusive upon the parties and persons in privity with them in the latter suit, without regard to whether or not the cause of action is the same in both suits, and it cannot be again litigated in the subsequent suit upon the same or a different cause of action whatever may have been the nature of the first action or of the second action in which the estoppel is set up: Hoffman v. Hoffman (1927), 246 Ill. App. 60. It is of first importance both in the observance of private rights and of the public good that a question once adjudicated by a court of competent jurisdiction shall be considered as finally settled and conclusive on the parties: Winkelman v. Winkelman (1924), 310 Ill. 568. Where the cause of action in the first suit is not the same as the cause of action in the second suit the court’s determination in the first suit on all questions actually decided is final and estops the parties and their privities from relitigating those questions in the second suit, — such is normally denominated as estoppel by verdict or judgment, is but another branch of the doctrine of res judicata, and rests on the same principles as res judicata: City of Elmhurst v. Kegerreis (1945), 392 Ill. 195.

We, therefore, are of the opinion that Rose v. Dolejs (1953), 1 Ill.2d 280, is conclusive, on principles of estoppel by verdict or judgment and res judicata, of the issues set forth in the present counterclaim, and that the order below sustaining the motion to strike the same, striking it, and entering a final judgment for the counterdefendants, is correct.

The judgment, accordingly, is affirmed.

Affirmed.

DOVE and EOVALDI,- JJ., concur.


text:
    Dartha Cloudman, a Minor, by Dorothy S. Warriner, Her Mother and Next Friend, and Dorothy Warriner, Plaintiffs-Appellants, v. Charles Beffa, and Rockford Industries Incorporated, Defendants-Appellees.
    Gen. No. 10,861.
    Second District.
    October 11, 1955.
    Released for publication October 31, 1955.

      Winston, Strawn, Black & Towner, and Williams, McCarthy & Kinley, all of Rockford, for appellants.
    Early & Early, and Maynard & Maynard, all of Rockford, for appellees; James F. Maynard, and John Early, both of Rockford, of counsel.
   MR. JUSTICE CROW

delivered the opinion of the court.

This is an appeal by the plaintiffs, Dartha Cloudman, a minor, and Dorothy S. Warriner, her mother, against one defendant only, Charles Beffa, from a verdict of a jury and a judgment entered in favor of that defendant. The defendant, Rockford Industries Incorporated, is not involved in this appeal. So far as material, the complaint charged that the plaintiff, Dartha, a minor, 16 years old, was seriously injured when struck from the rear by defendant Beffa’s automobile when she was riding her bicycle on a public highway; that her injuries were due to the negligence of the defendant Beffa; and that she was in the exercise of due care at the time. The plaintiffs’ motion for a new trial was overruled.

A review of the evidence shows that the plaintiff Dartha Cloudman, a freshman in Rockford College, and a classmate, Mary Hamm, were returning to Rockford from Rockton, on Route 2, a two-lane, north-south, 18-foot highway, straight at this point, on bicycles, after dark and about 7:30 o’clock p. m., on October 14, 1953; the weather was clear and the pavement dry; they were riding on the concrete slab, single file, about 75 feet apart, and were riding to the right of the center line of said highway, going south; the road is a busy road, with considerable traffic; each of the bicycles was equipped with a flashlight clamped to the handle bars and pointed slightly down to light the pavement in front; although Mary Hamm was pretty sure Dartha’s flashlight was lit at the time she could not at first tell definitely from where she was riding at Dartha’s rear, but at another point in her testimony she said she could see Dartha’s flashlight was lit from a quarter of a block to Dartha’s rear; Dartha says her flashlight was lit at the time of the accident, and it was found lit, detached from the bicycle, after the accident; neither had a light or lamp on the rear; each bicycle had a red plastic reflector about one inch in diameter on the rear mudguard.

The defendant Beffa was driving south on Route 2 in a Pontiac Sedan with one Walter Seaberg, a companion, going in the same general direction as the two girls, and when about 8 miles north of Rockford, as he came over a slight rise in the road, he first came upon Mary Hamm who was riding behind Dartha. There were no cars between the Beffa car and the two bicycle riders in the southbound lane, but a car was approaching from the south, going north, in the northbound lane a short distance away. There is some evidence the defendant’s forward vision was impaired some by the lights of the approaching northbound car.

The defendant’s automobile passed Mary Hamm, the defendant meanwhile applying the brakes, and swerving about two feet to the left of the center line, then it swerved back into its own lane, and then, again, to avoid Dartha, the defendant started to swerve to the left across the center line, and then collided with Dartha’s bicycle, knocking her off her bicycle and about 10 feet west of the pavement. She was riding about 3 feet east from the west edge of the highway, according to the defendant’s witnesses, or about half a foot therefrom, according to the plaintiff’s witnesses. Shortly after the incident some pieces of mud and a reflector were found on the highway about 3 feet east of the west edge, and the bicycle was on the cement about 4 feet from the west edge of the road.

The defendant was travelling about 40 to 45 miles per hour, with headlights on low beam, illuminating the pavement about 75 feet in front. The defendant did not see Dartha until about the time of the impact and at about that time the car approaching from the south was almost directly opposite the defendant’s car and part way off the pavement to the east. The defendant’s car was then somewhat east of the center line, crowding that approaching car. The defendant did not see the reflector on the rear guard of Dartha’s bicycle or the light on the front. The defendant’s car stopped about 50 to 75 feet from the collision, it appearing that the right front fender of the car struck Dartha’s bicycle.

The defendant did not sound his horn, and claimed he did not have time to do so. Neither of the two girls heard or saw the defendant’s car approaching them just before the accident. Mary Hamm was wearing blue jeans and a dark blue jacket, and Dartha was wearing khaki pants and a dark blue jacket. The plaintiff Dartha Cloudman suffered serious injuries as a result of the collision and the plaintiff Dorothy S. Warriner, her mother, incurred numerous expenses for the treatment of the injuries.

The complaint charged the defendant with excessive speed, failure to keep a proper lookout, and failure to keep his car under control. To sustain these charges there is, in addition to what we’ve set forth above, evidence as to the speed of the defendant’s car being about 45 to 50 miles per hour, that he did not see the first bicycle (Mary Hamm’s) until 15 or 20 feet (or it may have been 60 or 70 feet) away from the same, and did not see Dartha’s bicycle until a short time before the actual impact.

The specific errors claimed are the refusal of the Trial Court to give two instructions tendered by the plaintiffs as follows:

“1. You are instructed that automobiles have no greater right on the highway than bicycles. At the time and place in question in this case, the plaintiff, Dartha Cloudman, had the right to ride her bicycle, upon the right half of the roadway provided that in using it, she used reasonable care for the safety of others.

“2. The jury is instructed that there is no statute in the State of Illinois which requires that a bicycle driven on the public highway at night be equipped with an electric light on the rear of the vehicle.”

We believe instruction No. 1, as a statement of an abstract principle, is possibly not open to serious objection, although it omits the element of the plaintiff Dartha’s exercise of due care and caution for not only the safety of others but also her own safety. Passing that omission, however, such an instruction is here merely a statement of an abstract principle, and, if given, could easily mislead the jury, where the instruction does not relate to an issue in the case. There was no issue or dispute as to whether the plaintiff Dartha Cloudman had the abstract right to ride her bicycle upon the right one-half of the roadway. The pleadings made no such issue. The defendant did not tender and the Court did not give any instruction to the contrary of that abstract principle, assuming it to be a correct abstract statement. And there was no issue or dispute as to the fact that she was in fact on the right one-half of the roadway. That circumstance, together with all other material circumstances in evidence, was proper for the jury to consider in determining the questions of negligence and contributory negligence. But an instruction which merely states some abstract principle, sharply and unduly emphasizing some general right, which is not directly in issue, is erroneous: Garvey v. Chicago Rys. Co. (1930), 339 Ill. 276; Baltimore & O. S. W. R. Co. v. Fox (1903), 113 Ill. App. 180; Burke v. Zwick (1939), 299 Ill. App. 558.

Counsel for the appellants cite Molway v. City of Chicago, 239 Ill. 486, their principal case, as an authority for submitting instruction No. 1, and to the effect that a failure to give the same is prejudicial error. We do not so construe that case. There the defendant City of Chicago asked the Court to instruct the jury that “ordinary travel does not include the use of a street by one riding a bicycle thereon ... A person when riding a bicycle on a street is not using said street for the purpose of ordinary travel.” The Supreme Court held that instruction was properly refused. The instruction there involved is obviously not the same as the one here involved, and the negative determination there that the instruction there involved was properly refused is not a precedent for giving the affirmative and abstract and different type of instruction No. 1 requested by the plaintiffs. We have considered the other Illinois cases submitted by the appellants, Kerchner v. Davis (1913), 183 Ill. App. 600, and Christy v. Elliott (1905), 216 Ill. 31, but we believe they also are not in point here.

The same comments apply to instruction No. 2 and, in addition, we observe that the Court refused to give defendant’s instruction No. 5, which would have specifically attempted to apply a provision of the statutes of Illinois to the plaintiff Dartha with respect to having a lamp or lantern on the rear of the bicycle exhibiting a red light visible 500 feet to the rear. The pleadings made no issue and the instructions given made no issue to the effect that the statutes did so require such a lamp or lantern. However, again, there was no issue or dispute as to the fact that she had no lamp or lantern on the rear of the bicycle and that circumstance, together with all other material circumstances in evidence, was proper for the jury to consider, regardless of any statute. Instruction No. 2 also was but a statement of an abstract principle (assuming it is correct) — and a negative statement at best, — and would have sharply and unduly emphasized the absence of a statutory duty resting on the plaintiff Dartha, to the exclusion of a possible common-law duty resting on her under all the circumstances. We, therefore, are of the opinion there was no error in refusing both instructions.

We have reviewed the evidence on the issue as to whether the verdict is contrary to the manifest weight of the evidence. Counsel for the appellants concede that there is not too much conflict in the material evidence, though there is some. We believe that certain factual matters brought out in the evidence as to the physical facts concerning the highway, the traffic thereon, the presence of the northbound car, together with its speed, indicated at about 60 miles per hour, the headlights on the same approaching the defendant at the time of the impact, the defendant’s acts at the time in an effort to avoid the impact, the facts as to Dartha’s position on the highway at the time, that the incident occurred after dark, that her bicycle was equipped only with a one-inch plastic reflector on the rear, the girls’ wearing apparel at the time, which may not have been conducive to their visibility at night, and the other material facts, most of them undisputed, and related above, could reasonably lead to a difference of opinion as to the inferences which might, under all the circumstances, legitimately be drawn therefrom by a jury as to the defendant’s alleged negligence and the plaintiff Dartha’s alleged contributory negligence. Under this state of facts, together with the necessity for the fact-finding body to resolve such conflicts as there were in the evidence, — as to Dartha’s exact position on the highway at the time of impact, for example, —this clearly leaves the questions of negligence and contributory negligence to the jury to be determined by it from and in the light of all the evidence.

It is the province of the jury, primarily, to determine the weight of the evidence and the credibility of the witnesses, — if it were not so there would be little use for the jury system,- — judges must exercise great caution to uphold the sanctity of trial by jury: People v. Hanisch (1935), 361 Ill. 465. The general rule is that negligence and contributory negligence are questions of fact for the jury, and as long as a question remains whether either party has performed his legal duty or has observed that degree of care and caution imposed upon him by law, and the determination of the question involves the weighing and consideration of evidence, the question must be submitted as one of fact: Petro v. Hines (1921), 299 Ill. 236. The question of contributory negligence is ordinarily one which is pre-eminently a question of fact for the consideration of a jury, upon which both parties are entitled to have the finding of a jury: Blumb v. Getz (1937), 366 Ill. 273; Lasko v. Meier (1946), 394 Ill. 71; Murphy v. Illinois State Trust Co. (1941), 375 Ill. 310; McManaman v. Johns-Manville Products Corp. (1948), 400 Ill. 423. Even where the facts are admitted or undisputed but where a difference of opinion as to the inference that may legitimately be drawn from them exists, the questions of negligence and contributory negligence ought to be submitted to the jury, — it is primarily for the jury to draw the inference: Denny v. Goldblatt Bros., Inc. (1939), 298 Ill. App. 325. And a verdict may not be set aside merely because the jury could have drawn different inferences or because judges may feel, if they did, that other conclusions than the one drawn by the jury would be more reasonable: Lindroth v. Walgreen Co. (1950), 407 Ill. 121.

In Buffa v. Blank (1937), 288 Ill. App. 628 (abst.), an action for damages for the death of a minor caused by defendant’s driving an auto against deceased while the deceased was riding a bicycle on a public highway, the Trial Court directed a verdict for the defendant and entered judgment thereon, and this Court affirmed. In Erickson v. Central Illinois Electric & Gas Co. (1937), 288 Ill. App. 628 (abst.), an action to recover expenses and damages for injuries sustained by a minor in a collision between the bicycle he was riding on a public street and defendant’s bus, a judgment for the plaintiffs was reversed and remanded by this Court. And in Linehan v. Morton (1921), 221 Ill. App. 70, and Greenberg v. Conrad (1921), 220 Ill. App. 508, and Johnson v. Railway Exp. Agency, Inc. (1942), C. C. A. 7th, 131 F.2d 1009, all involving collisions between a bicycle rider and an automobile, and in which the juries returned verdicts for the plaintiffs, upon which judgments were entered, the Appellate Court in the first two cases and the Circuit Court of Appeals in the last, affirmed and held that the questions of the defendant’s negligence and the plaintiff’s contributory negligence were questions of fact for the jury; that the verdicts were not contrary to the manifest weight of the evidence; and the verdicts could not be disturbed.

We believe the present case comes within those rules, and we would not, under the circumstances, be justified in holding that the verdict is against the manifest weight of the evidence.

The judgment should be, and is, affirmed.

Affirmed.

DOVE and EOVALDI, JJ., concur.


author: MR. JUSTICE EOVALDI

text:
    Howard Kinney et al., Plaintiffs-Appellants, v. County Board of School Trustees of La Salle County, Illinois et al., Defendants-Appellees.
    Gen. No. 10,841.
    Second District.
    October 11, 1955.
    Released for publication October 31, 1955.

      Walter D. Boyle, of Hennepin, for appellants.
    McNeilly, Ryan & Olivero, of Peru, for appellees.
   MR. JUSTICE EOVALDI

delivered the opinion of the court.

This is an action under the Administrative Review Act for review of the decision of the County Board of School Trustees of La Salle County, Illinois, wherein 6% sections of territory were detached from MagnoliaSwaney Consolidated High School District No. 533 of Putnam, Marshall and La Salle Counties, Illinois, and annexed to Lostant Community High School District No. 400 of La Salle and Marshall Counties. Plaintiffs appeal from the judgment of the circuit court of La Salle County affirming the decision of the County Bdard of School Trustees.

The complaint was filed by three plaintiffs as taxpayers in High School District No. 533, one plaintiff being the owner of real property in the territory detached. The defendants were the County Board; the individuals who filed their petition to detach from said High School District No. 533 and to annex to High School District No. 400; Charles Kaiser, individually and as Principal of Magnolia-Swaney High School; William H. Glover, individually and as County Superintendent of Schools of Putnam County, and J. Frank Short, individually and as Assistant to Superintendent o”f Public Instruction.

Pursuant to the provisions of Article 4B of the School Code (Ill. Rev. Stat. 1953, chap. 122, par. 4B—1 et seq. [Jones Ill. Stats. Ann. 123.754B(1) et seq.]), a petition' was filed with the County Board of School Trustees of La Salle County requesting a detachment of 6¼ sections of land from the Magnolia-Swaney High School District No. 533 and annexation of same to Lostant High School District No. 400 signed by more than two-thirds of the voters of the territory. After timely notice, a hearing was conducted, at which evidence was heard, which resulted in a decision granting the petition to detach and annex.

The County Board of School Trustees for answer to plaintiffs’ complaint filed the record of the proceedings before it, including a transcript of the evidence heard by it. The case was heard by the circuit court on this record.

Appellants contend that the decision of the County Board of School Trustees is against the manifest weight of the evidence, and that the decision is in violation of the statute involved.

Article 4B-5 of the School Code (Ill. Rev. Stat. 1953, chap. 122, par. 4B—5 [Jones Ill. Stats. Ann. 123.754B (5)]) provides for review of decisions of the County Boards of School Trustees in accordance with the provisions of the “Administrative Review Act,” and provides further that “The decision of the County Board of School Trustees shall be deemed an ‘administrative decision’ as defined in section 1 of the ‘Administrative Review Act’ ” (Ill. Rev. Stat. 1953, chap. 110, par. 264 et seq. [Jones Ill. Stats. Ann. 104.094(1) et seq.]), the latter act providing (par. 274 [Jones Ill. Stats. Ann. 104.094(11)], sec. 11, Scope of Review) as follows:

“The findings and conclusions of the administrative agency on questions of fact shall be held to be prima facie true and correct.”

The changing of boundaries of a school district is a legislative act, and in performing this function the County Board of School Trustees is acting as an agent of the legislature. Sec. 1, Article VIII, Constitution of Illinois, 1870; chap. 122, par. 4B—1 et seq., Ill. Rev. Stat. 1953; People v. Deatherage, 401 Ill. 25, Husser v. Fouth, 386 Ill. 188. The findings of an administrative agency are deemed to be prima facie correct and the court is not authorized or privileged to substitute its judgment for that of the agency unless the findings of the agency are not supported by substantial evidence. Produce Terminal Corp. v. Illinois Commerce Commission ex rel. Peoples Gas Light & Coke Co., 414 Ill. 582; Department of Public Works & Bldgs. v. Lewis, 411 Ill. 242; Mohler v. Department of Labor, 409 Ill. 79; People ex rel. Loughry v. Board of Education of Chicago, 342 Ill. App. 610. This is particularly true where the administrative body is vested with discretion in making a determination. Smith v. Board of Education of Oswego Community High School Dist., 405 Ill. 143; People ex rel. Loughry v. Board of Education of Chicago, supra.

Appellants contend that there is no evidence that the change by the County Board of School Trustees will be for the best interests of the schools of the area and for the educational welfare of the pupils. No requirements are set forth in the statute that the County Board of School Trustees should make certain specific findings of fact in arriving at its conclusions. In the case of People ex rel. Harty v. Gulley, 2 Ill.App.2d 321, the Appellate Court for the Fourth District construed section 8-6 of the School Code of 1949 which was then in force, which authorized the county judge to determine whether or not a petition for the change of boundaries for a school district should be granted. The court there held that inasmuch as the statute did not require the county judge to make any specific findings upon which his determination was based, none could be read into the statute by judicial construction.

It is admitted that these standards are general rather than specific in nature and the standards set forth grant to the County Board of School Trustees a certain amount of discretion. As stated by our Supreme Court in School District No. 79 v. County Board of School Trustees of Lake County, 4 Ill.2d 533, pp. 537 and 538, in upholding the constitutionality of the sections of the statute in question, “It would be both impossible and undesirable for the legislature to draft rigid nondiscretionary standards which would embrace each and every school district boundary change, for conditions surrounding the changes are seldom the same.”

The petition which was filed with the County Board of School Trustees of La Salle County was signed by all of the voters residing in the disputed territory except two. One was in Detroit for a visit and the other could not be found at home. However, the wife of the latter signed. Forty-nine residents of the territory signed the petition.

All of the territory described in the petition is in the Lostant Grade School District and the MagnoliaSwaney High School District (hereinafter referred to as Swaney). There are three students of high school age residing in the disputed territory and several children of grade and pregrade school age. Most of the territory is considerably closer to Lostant than it is to the Swaney school. The people living in the territory do most of their trading and banking, and attend church, in Lostant, La Salle or Streator. In going to La Salle or Streator they travel through or towards Lostant and in the opposite direction from Swaney. All of the high school students in this territory now attend and for years past have attended Lostant High School even though the territory is in the Swaney High School District. No student from this territory has attended the Magnolia-Swaney High School in the past ten years, and only one in the past twenty years. She went to Magnolia High School before it was consolidated with Swaney. The same school buses are used by both the Lostant Grade School and the Lostant High School carrying both grade and high school students. These buses from Lostant now cover the territory in dispute and give very good service. The children going to Lostant schools do not have to change buses. The children in the Swaney High School District who attend the Swaney High School ride the bus to the Village of McNabb where they change buses to go to the high school. In bad weather, no shelter is provided for them to wait in unless they go in to the bank building in McNabb. The roads running through this territory east to Lostant are good gravel roads that are always open. There are times in the winter and spring when the roads running west from the territory to the Swaney High School are impassable. At times the Swaney buses did not operate when the roads were posted by the Road Commissioner, but the Lostant buses never missed a day. There are no restaurants or business establishments close to the Swaney High School, the closest business being a tavern about a mile from the school. Neither school has a hot-lunch program, but there are two restaurants about two blocks from the Lostant High School where quite a few children eat.

All of the residents of the disputed territory who testified were in favor of granting the petition. They all had children and they wanted their children to go to high school where they went to grade school, namely in Lostant. No resident of the disputed territory objected to the granting of the prayer of the petition.

On the above state of facts, we cannot say that the decision of the County Board of School Trustees of La Salle County is against the manifest weight of the evidence. The finding and decision of that body in detaching the disputed territory from the Swaney High School District and annexing same to the Lostant High School District is amply supported by the evidence and is within the authority of said board. It cannot, therefore, be disturbed by this court.

It is next contended by appellants that the Swaney School will operate with a net annual deficit in its educational fund of' $3,572.22, when the maximum tax rate is extended, if the territory in question is detached, and that the school will be unable to meet the standards of recognition of the Superintendent of Public Instruction. A school district has no vested right to retain territory within its boundaries, as a method has been provided whereby legal voters or landowners who desire to do so may detach their property from one school district and annex it to another. People ex rel. McLain v. Gardner, 408 Ill. 228; Pritchett v. County Board of School Trustees of White County, 5 Ill.2d 356. School districts are entirely subject to the will of the legislature. They may be divided, expanded, united or abolished at the will of the legislature. Pritchett v. County Board of School Trustees of White County, supra; People v. Deatherage, 401 Ill. 25, at p. 32; People ex rel. Dixon v. Community Unit School Dist. No. 3, 2 Ill.2d 454, at p. 466. In the latter case, where the people living in the detached territory — District No. 4 — contended that they would be left without a schoolhouse and the assessed value would be reduced to such an extent by the disannexation as to render it financially unable to construct a new building and to maintain and operate a school, the court, at page 467 stated, that, as it had indicated, “it is not necessary that District No. 4 build, maintain or operate a school, or even continue as a school district.” In the case of People ex rel. Warren v. Drummet, 415 Ill. 411, at p. 421, our Supreme Court had this to say:

“Plaintiff also directs attention to the fact that the Rutland districts were left with assessed valuations too low to enable them either to maintain a school or to pay tuition based upon the per capita cost of education elsewhere. On that basis it is contended that the children residing within such districts are deprived of the right to receive the free education guaranteed by section 1 of Article VIII of our constitution. This contention lacks merit. Adequate provisions are included in the School Code whereby the objection can readily be obviated.”

It is further contended by appellants that the decision of the circuit court is in violation of section 4B-3 of the School Code, chap. 122, Ill. Rev. Stat. 1953 [Jones Ill. Stats. Ann. 123.754B(3)], and is therefore void, in that Lostant High School District is not shown to have a population of 2,000 after granting of the petition. We do not read that section of the statute to apply to a case of annexation to an existing school district, but we read it to apply to the creation of a new district. Article 4B is entitled: “Creation of New Districts And Change of Boundaries of Existing Districts.” An examination of the applicable sections of Article 4B clearly evidences the intention of the legislature to authorize the County Board of School Trustees to act in two different types of situations, (1) the creation of new school districts, and (2) the changing of boundaries of existing school districts. Section 4B-3, relied on by appellants, provides that “No petition shall be granted under Sections 4B-1 or 4B-2 of this Act: . . . (b) unless after granting the petition any community unit district or high school district created shall have a population of at least 2,000. . . .” The procedure for creating any school district of less than 2,000 is clearly set forth in subsection (d) thereof.

It is admitted that Lostant High School District had been in existence many years before the filing of the petition to detach from Magnolia-Swaney High School District and to annex to Lostant High School District. Words should be given their commonly accepted meaning unless otherwise defined by the legislature. The language of the statute is clear and unambiguous. Where the language used in a statute is plain and certain it must be given effect by the courts. Smith v. Board of Education of Oswego Community High School Dist., 405 Ill. 143, at p. 148. Construction of a statute is necessary only where the statute is ambiguous, Bergeson v. Mullinix, 399 Ill. 470, at p. 479, and the courts will give the words of the statute their plain meaning, Lindley v. Murphy, 387 Ill. 506, at p. 515. In this case we think the statute is clear, and needs no further construction than to read the provisions thereof. People v. Lund, 382 Ill. 213, at pp. 215-216.

The judgment of the circuit court in affirming the decision of the County Board of School Trustees is affirmed.

Judgment affirmed.

DOVE, J., concurs.


author: JUSTICE ROBSON.

text:
    Robert Dickson, a Minor, by Leslie R. Dickson, His Father and Next Friend, Appellee, v. John P. Mendenhall, Appellant.
    Gen. No. 46,633. (Abstract of Decision.)
    First District, Second Division.
    September 20, 1955.
    Released for publication October 25, 1955.
    Clausen, Hirsh & Miller, for appellant;
    J. V. Evans, and Francis J. Paulson, for appellee.
   Opinion by

JUSTICE ROBSON.

Not to be published in full.


text:
    Madge O’Gallagher, Appellant, v. Alex Finkel, Appellee.
    Gen. No. 46,420. (Abstract of Decision.)
    First District, Second Division.
    October 4, 1955.
    Released for publication November 3, 1955.
    Shavin & Hamilton, and Leo S. Karlin, for appellant;
    Leo S. Karlin, of counsel;
    Kirkland, Fleming, Green, Martin & Ellis, for appellee;
    Max E. Wildman, John M. O’Connor, Jr., and John J. Edman, of counsel.
   Opinion by

JUSTICE ROBSON.

Not to be published in full.


author: MB. JUSTICE CULBERTSON

text:
    H. G. Burden et al., Plaintiffs-Appellants, v. Herman C. Hoover et al., Defendants-Appellees.
    Term No. 55-M-1.
    Fourth District.
    October 3, 1955.
    Released for publication November 8, 1955.

      Cox, Smith & Bassett, of Wood River, for plaintiffs-appellants.

      A. M. Fitzgerald, of Springfield, for defendantsappellees; Walter T. Day, of Springfield, of counsel.
   MB. JUSTICE CULBERTSON

delivered the opinion of the court.

The complaint in the case before us was filed by plaintiffs, who are a group of chiropractors practicing their profession in Madison County, Illinois. Defendants are also chiropractors carrying on their business in Madison County. Each of the five plaintiffs stated his cause of action in a separate count in which it is asserted that defendants do not hold a license to practice their profession from the State Department of Registration and Education, and that plaintiffs do hold such license to practice. Each plaintiff asserts that his practice and clientele is limited, lessened or reduced because of the competition afforded by defendants, and in such complaint plaintiffs do not charge that defendants lack either education or skill in the practice of the profession or that the practice of chiropractic without a license is a nuisance, either public or private; or improper conduct or misrepresentation on part of defendants. An injunction is prayed to restrain defendants from practicing the profession of chiropractic without a license. Essentially, it is an action filed individually, by licensed chiropractors to enjoin unlicensed chiropractors from practicing their profession.

A motion to dismiss the complaint was made by defendants on the grounds that plaintiffs have an adequate remedy at law, that a Court of Equity has no jurisdiction, and that plaintiffs have not sought to use or exhaust their legal remedy, and that the plaintiffs admit in the complaint that they have a remedy at law but that such remedy has been found to be unsuccessful. On a hearing on the motion the Trial Court found the complaint was defective and accordingly dismissed the complaint for want of equity.

On appeal in this Court plaintiffs assert that on many occasions they have attempted to secure criminal prosecution of the defendants for practicing chiropractic without a license but that such efforts were unsuccessful and that, therefore, said plaintiffs have no adequate remedy at law.

While the State may properly require licenses to be obtained for many professions, the license does not create or confer any vested right, monopoly, exclusive privilege, property right, or freedom from competition (Butchers’ Union Slaughterhouse & Live Stock Landing Co. v. Crescent City Live-Stock Landing & Slaughter House Co., 111 U. S. 746; Lasdon v. Hallihan, 377 Ill. 187, 195). The license is only a means of regulating privileges and occupations, and while it is regarded as a valuable right not to be taken away without due process of law, in a strict sense it is not property or a property right, nor does it create a vested right (City of Carbondale v. Wade, 106 Ill. App. 654, 659; Martens v. People ex rel. Searle, 186 Ill. 314, 318).

Similarly, it has been established in this State that Courts of Chancery have no jurisdiction to interfere at the suit of a private person merely for prevention of crimes or of statutory offenses, and that the scope of equity jurisdiction is to enforce or protect civil rights and property interests (People v. Huls, 355 Ill. 412; Christie Street Commission Co. v. Board of Trade, 92 Ill. App. 604). It has likewise been established that the practice of chiropractic is recognized as a useful, lawful and necessary profession (People v. Universal Chiropractors’ Ass’n, 302 Ill. 228; People v. Love, 298 Ill. 304, 309). The practice of the chiropractic profession is not a public nuisance per se, nor is it declared a nuisance by statute.

Injury to property rights, being the basis of jurisdiction in the case before us, the fact that a misdemeanor or crime may be involved would not deprive the Court of jurisdiction to protect the property right, but where the property right is only incidentally involved and the real purpose of the complaint (as is true in the case before us) is to restrain the commission of a crime, the Court of Equity does not havé jurisdiction.

Plaintiffs on appeal in this Court refer to the case of Smith v. Illinois Adjustment Finance Co., 326 Ill. App. 654, in support of the action of plaintiffs. That case involved an action by an attorney to restrain the practice of law by a finance company and its officers who had not been admitted to practice law by the Supreme Court of this State. The Appellate Court held that the injunction prayed in that case should issue, and distinguished the case of People v. Universal Chiropractors’ Ass’n, supra, upon the ground that the practice of chiropractic was and is a lawful, helpful, and useful profession, and distinguishable from the practice of law in that under no circumstances could the defendant corporation lawfully practice law. Lawyers occupy a unique position in that they are not licensed by the legislature — the right to practice law being conferred by the Supreme Court of the State in the course of its administration of justice, upon such terms as the Court alone deems proper and under circumstances which make a lawyer an arm and branch of the Court itself. The attorneys and the Courts therefore occupy a special position with respect to the practice of law and the enforcement of illegal or improper practices not violative of specific statutory enactments.

In absence of a private injury to the individuals involved, any public nuisance resulting therefrom may be enjoined, prosecuted, or abated only by public officials (People v. Love, supra; Lasdon v. Hallihan, supra; People v. Huls, supra).

We must, therefore, conclude that the order of the Circuit Court of Madison County dismissing the complaint of plaintiffs was proper and should be affirmed.

Affirmed.

BARDENS, P. J. and SCHEINEMAN, J., concur.


author: MR. JUSTICE CULBERTSON

text:
    W. Evert Campbell, Plaintiff-Appellee, v. Russel J. Ragel, Defendant-Appellant.
    Term No. 55-M-17.
    Fourth District.
    October 3, 1955.
    Released for publication November 8, 1955.

      Albert & McLaughlin, and Will P. Welker, both of Vandalia, for defendant-appellant.
    W. F. Sonnemann, and Robert Gr. Burnside, both of Vandalia, for plaintiff-appellee.
   MR. JUSTICE CULBERTSON

delivered the opinion of the court.

This is an appeal from the judgment of the Circuit Court of Fayette County entered in favor of plaintiff on a verdict of a jury in the sum of $19,635.

The plaintiff, W. Evert Campbell, brought an action to recover for personal injuries and damage to his automobile, against defendant Russel J. Ragel, by reason of damage and injuries sustained in a collision at a right-angle intersection of two rural gravel highways. There were no stop signs or warning signs posted on either of said roads.. The collision occurred about 8:00 o’clock in the morning, on November 29, 1952. Each of the drivers was alone in the vehicle in which he was riding. There were no eyewitnesses in the immediate vicinty of the intersection, except plaintiff and defendant. As a result of the accident plaintiff was rendered unconscious and suffered a dislocation of his second cervical vertebra, and recalls neither the collision nor the facts immediately prior thereto. A physician substantiated that such retrograde amnesia is not unusual in view of the nature of plaintiff’s injuries.

A witness who was at a distance of about a quarter of mile from the scene of the accident stated that he saw the two cars approaching each other along the intersecting roads but had no judgment as to the speed of either vehicle. He testified that plaintiff’s car reached the intersection first. It was a nonpreferential intersection in the sense that there were no stop signs, etc., arid plaintiff entered from the right of defendant’s car. Defendant’s testimony verified the fact that when he first saw plaintiff’s car it was in the intersection ahead of him. On appeal in this Court it is principally' contended that the record fails to show by direct or circumstantial evidence that plaintiff was in the exercise of due care and caution and that, accordingly, the Court should have granted the motions of defendant for directed verdict or for judgment notwithstanding the verdict.

Contributory negligence is ordinarily a question of fact for a jury to decide under proper instruction, and becomes a question of law only when the evidence is so insufficient to establish due care that all reasonable minds must reach the conclusion that the facts do not establish due care and caution on part of the individual of whom such due care is required (McManaman v. Johns-Manville Products Corp., 400 Ill. 423, 430; Ziraldo v. W. J. Lynch Co., 365 Ill. 197, 199). We should note that in the case before us the plaintiff’s vehicle approaching from the right had the right-of-way over defendant’s vehicle approaching the same intersection from the left (1953 Illinois Revised Statutes, Chapter 95½, Paragraph 165 [Jones Ill. Stats. Ann. 85.197]).

The basic question for consideration is whether the due care of plaintiff may be established by circumstantial evidence, in view of the circumstance that plaintiff suffered the amnesia involved by reason of the accident. In death cases the presumption is that a man will obey the natural human instincts prompting the preservation of life and avoidance of danger (Illinois Cent. R. Co. v. Nowicki, 148 Ill. 29, 34-35). The Courts in considering this principle have reiterated that since it was not possible to obtain direct and positive testimony as to what the deceased was doing at the instant he received the injury causing his death, the law requires only the highest proof of which the particular case is susceptible, and that a jury could take into consideration, with other facts, the instincts and presumptions which naturally lead men to avoid injury and preserve their own lives. In the case before us the plaintiff is still alive but is completely unable to assist the Court and jury in determining what was done immediately prior to the accident. The highest proof of which the case is susceptible has been presented through the testimony of the defendant and the other distant witness. Direct and positive testimony on the question of due care under the circumstances was as unavailable as it is in death cases (Ruspantini v. Steffek, 414 Ill. 70). A showing of all the facts and circumstances, including the testimony of the only eyewitness able to recall what had occurred, was sufficient to justify the inference that plaintiff was in the exercise of due care. It would be a strange miscarriage of justice to adopt an interpretation which would prevent plaintiff from recovering by reason of amnesia resulting from the accident simply because he did not die but survived the accident and is now unable to recall any of the facts preceding the collision by reason of such injuries.

There was ample evidence upon which the jury could conclude that defendant was negligent in failing to allow the right-of-way to plaintiff who had first entered the intersection (Thomas v. Buchanan, 357 Ill. 270, 277; Citizens Nat. Bank of Decatur v. Doran, 3 Ill.App.2d 383, 389). In the case of Citizens Nat. Bank of Decatur v. Doran, supra, plaintiff was unable to testify in his own behalf because of a mental disability. The Appellate Court in that case stated that while the plaintiff was not relieved from the exercise of due care and caution, he had a right to assume that a defendant approaching on another street would give the car having the right-of-way preference over that of defendant’s automobile. Under the facts before us we believe the Court properly submitted the questions of contributory negligence of plaintiff and negligence of defendant to the jury for the determination of the jury.

Defendant also complains that the Court below committed reversible error in giving an instruction in behalf of plaintiff, directing the jury that plaintiff could recover for future loss of service and future pain and suffering, which elements defendant states were not embraced in the complaint. The only charge in the complaint to which such elements could be referable would be the allegation that plaintiff received permanent injuries, causing pain, and that plaintiff in the future would be required to expend additional sums for medical care and treatment. We do not believe under the facts before us that the jury could have been misled by the instruction as the evidence of plaintiff’s injuries justified the damages awarded him, without referring to any future loss of earnings or inability to work, or future suffering (Best Brewing Co. v. Dunlevy, 157 Ill. 141). Other errors in instructions are also referred to in the brief of defendant on appeal in this cause. We do not believe it is necessary or desirable to treat such points at length but simply to refer again to a doctrine enunciated in our Courts that, unless it appears that the rights of the complaining party have in some way been prejudiced by the giving or failure to give instructions, the case will not be reversed on such ground alone (Kavanaugh v. Washburn, 320 Ill. App. 250, 255; Bateman v. Bateman, 337 Ill. App. 7, 17).

On a review of the entire record we must, therefore, conclude that the judgment of the Circuit Court of Fayette County was proper and should be affirmed.

Affirmed.

BARDENS, P. J. and SCHEINEMAN, J., concur.