author: MR. JUSTICE BURKE

text:
    Estate of Joseph Diak, Deceased. Michael Diak, et al., Appellants, v. Gustav Hammler, et al., Appellees.
    Gen. No. M-50,688.
    First District, Second Division.
    February 15, 1966.

      Leon M. Despres & Albert Schwartz, of Chicago, for appellants.
    Mulcahy, Murphy & Devery, of Chicago, for appellees.
   MR. JUSTICE BURKE

This appeal is taken from an order, entered in a proceeding to establish heirship, declaring the heirship of Joseph Diak, deceased.

Joseph Diak died on February 12, 1963, and letters of administration to collect were issued in June of that year. Appellants Walter Diak, Michael Diak and Mary Diak Bojko filed a petition on May 5, 1965, for leave to appear as heirs of Joseph Diak, claiming that they were the children of George Diak whom they alleged to be a half brother of Joseph Diak.

On May 11th the executor named in the Last Will and Testament of Joseph Diak filed a petition for admission of the Will to Probate. The petition alleged the sole legatee-devisee under the Will to be Mary Hammier, sister of Joseph Diak. Also named in the petition as the heirs of Joseph Diak were the appellants herein, and the appellees herein, Gustav Hammier, Richard Hammier and Eleanor Downey, the children of Mary Hammier. Both Mary Hammier and George Diak predeceased Joseph Diak.

On the same day the petition for admission of the Will was filed, appellees filed a petition alleging that they were the sole heirs of Joseph Diak and that appellants’ father, George Diak, was not a half brother of Joseph Diak. The status of the appellees as heirs of Joseph Diak is conceded by the appellants.

At the proceeding to establish heirship on May 25, 1965, appellee Gustav Hammier was permitted to testify over appellants’ objection under section 2 of the Evidence Act. Ill Rev Stats 1965, chap 51, par 2. Appellants made no attempt to testify at the proceeding. The magistrate ruled that Gustav Hammier was a competent witness and ordered that the appellants were not the heirs of Joseph Diak, from which order this appeal is taken.

The sole issue is whether a witness, conceded to be an heir, may testify in a proceeding to establish heirship in which he challenges the claim of other parties attempting to establish their heirship from the same decedent.

Appellants maintain that section 2 of the Evidence Act rendered Gustav Hammier incompetent to testify for the reasons that appellants fall within the class of “an adverse party suing or defending ... as an heir” under the terms of section 2 of the Evidence Act and that Gustav Hammier had an interest in the outcome of the proceeding. We agree.

No cases have been cited or found directly on the question before us. The case of Mires v. Laubenheimer, 271 Ill 296, 111 NE 106, and Weiss v. Beck, 1 Ill2d 420, 115 NE2d 768, are perhaps most directly in point. The Mires case involved a partition suit brought by the son of a decedent who had allegedly contracted away his right of heirship. The suit was brought against his sister who was concededly an heir of the decedent. The sister challenged the brother’s status as an heir, relying upon the brother’s contract allegedly waiving his rights as an heir. The court held that the brother was incompetent to testify because his action was brought against the sister who was concededly an heir. It was also held that the sister was incompetent to testify because she challenged the claim of heirship made by the brother. Apparently the court felt that the brother’s claim of heirship, although challenged, was sufficient to bring the sister, concededly an heir, within the terms of section 2 of the Evidence Act.

In the Weiss case, plaintiff brought an action against the defendants, who were conceded to be heirs of the decedent, for the purpose of establishing and enforcing a contract to adopt, allegedly entered between the decedent and the plaintiff. Plaintiff was held incompetent to testify for the reason that his suit was not brought as an heir, but that his right to share in the decedent’s estate depended entirely upon his action to establish the alleged contract to adopt and for specific performance thereof. Defendants were allowed to testify. The court stated that plaintiff sued in “no capacity which would prohibit the testimony by defendants.” The court indicates that, had plaintiff sued as an heir, defendants would have been incompetent to testify. As was stated at page 430, “It is not the heir who is disqualified from testifying under the Evidence Act, but it is the party adverse to the one suing as an heir that is disqualified.”

The case of Laurence v. Laurence, 164 Ill 367, 45 NE 1071, involved the question of whether one attempting to establish heirship as the decedent’s widow was competent to testify. The court stated that unless she was conceded to be an heir or had otherwise proven herself as an heir, she was incompetent to testify. The Laurence case involved no question of whether anyone who had an interest in the outcome of the proceeding, as an heir or otherwise, would be able to testify against the party claiming to be an heir. The court stated by way of dicta that if her heirship was either proven or conceded she would be able to testify, on the principle that the proceeding would then constitute a dispute between established heirs as to their relative rights in the estate and not to the right of a party to share in the estate. In re Estate of Enoch, 52 Ill App2d 39, 201 NE2d 682, is to the same effect.

In the case of Welch v. Worsley, 330 Ill 172, 161 NE 493, the party seeking to establish heirship from the decedent was allowed to testify in a proceeding to establish heirship. The Welch case involved no question arising under section 2 of the Evidence Act.

The appellees first maintain that a proceeding to establish heirship is not such a proceeding as is covered by section 2 of the Evidence Act, relying on Sebree v. Sebree, 293 Ill 228, 127 NE 392. The Sebree case involved a construction of wording contained in section 8 of the Appellate Court Act (Ill Rev Stats 1923, c 37, par 32) relative to the question of whether an order by the Probate Court declaring heirship was appealable to the Circuit Court or to the Appellate Court. The Sebree case held that a proceeding to establish heirship was not “a suit or proceeding at law or in chancery” within the terms of section 8 of the Appellate Court Act, and was therefore appealable to the Circuit Court. No question arose as to whether a proceeding to establish heirship fell within the language of section 2 of the Evidence Act. Section 2 of the Evidence Act applies to “any civil action, suit or proceeding.” Ill Rev Stats 1965, chap 51, par 2. In the case of In re Estate of Panico, 268 Ill App 585, the court states that a proceeding to establish heirship is a civil action. Undoubtedly, a proceeding to establish heir-ship is a “civil proceeding” within the broad language of Section 2 of the Evidence Act.

Subject to certain exceptions not here important, section 2 of the Evidence Act provides.: “No party to any civil action, suit or proceeding, or person directly interested in the event thereof, shall be allowed to testify therein of his own motion, or in his own behalf . . . when any adverse party sues or defends as . . . the heir . . . of any deceased person. . . .” Ill Rev Stats 1965, chap 51, par 2. The purpose of section 2 is to protect estates of deceased persons against fraudulent claims. Fredrich v. Wolf, 383 Ill 638, 642, 50 NE2d 755. Concededly, an heir is competent to testify in a proceeding to establish the heirship of his ancestor where there is involved only a routine matter of establishing such heirship and where no contest arises as to who is or is not an heir. Although the heir has an interest in the outcome of the proceeding, there is no “adverse party suing or defending” in any capacity defined by section 2 of the Evidence Act, and consequently involves circumstances not covered by the Act. Where, however, a dispute arises concerning the heirship of the decedent, the parties directly involved in the dispute become “adverse,” sue or defend as heirs, and have an interest in the outcome of the proceeding, bringing them within the terms of section 2 of the Evidence Act. To allow an heir to testify in direct contradiction to another person’s claim of heirship is to afford him the opportunity of acquiring a greater portion of the estate than that to which he may otherwise be entitled.

The proceeding below involved more than a routine matter of establishing heirship. Appellants’ claim to be the heirs of Joseph Diak was affirmatively and directly challenged by the appellees, rendering the proceeding a contested matter. Furthermore, by affirmative testimony appellee Gustav Hammier denied that appellants were the heirs of Joseph Diak. While the magistrate was of the opinion that Mr. Hammier testified “only to pedigree of the deceased,” Mr. Hammler’s testimony went much further in expressly denying the heirship of the appellants.

Rule 14.4(b) of the Circuit Court of Cook County, governing probate proceedings, provides that testimony in a proceeding to establish heirship shall, as the first alternative, be given “by a person related to decedent by consánguinity, adoption or affinity. . . .” Where a party unrelated to the decedent seeks to establish heirship, Rule 14.4(b) further provides that he may testify upon the filing of an affidavit stating the reason why he should be permitted to testify and stating the source of his information. Testimony by an heir is not required in all instances. Appellees’ argument, that a court in proceedings to establish heirship, is entitled to as much latitude as a court in citation proceedings brought under section 18S of .the Probate Act, relative to hearing testimony by and determining the competency of witnesses, is unfounded. The power of the court to hear interested witnesses in citation proceedings in probate matters is governed by section 185 of the Probate Act; section 57, relating to proceedings to establish heirship, has no comparable provision. Ill Rev Stats 1965, chap 3, pars 57, 183,185.

Appellants’ request that this court declare them to be heirs of Joseph Diak on the weight of the evidence below is denied for the reason that appellants offered evidence below and appellees offered evidence other than the testimony of Gustav Hammier. A trial on the issue of the heirship of Joseph Diak, deceased, is allowed, with the right of the parties to introduce any competent evidence.

The order insofar as it affects the rights of appellants is reversed and the cause is remanded with directions to proceed in a manner not inconsistent with these views.

Order reversed and cause remanded with directions.

BRYANT, P. J. and LYONS, J., concur.

On Rehearing

Having further reviewed the briefs and having considered the petition for rehearing, the answers and the reply and the cases cited, we have decided to adhere to the opinion reversing the order and remanding the cause with directions.

Order reversed and cause remanded with directions.

BRYANT, P. J. and LYONS, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Bertash Market Co., a Corporation, Plaintiff-Appellant, v. Jerry Brown, et al., and Diamond Jim’s, a Corporation, Defendants-Appellees.
    Gen. No. 50,566.
    First District, Second Division.
    April 19, 1966.
    Rehearing denied May 10,1966.

      Marshall Ravich and Melvin B. Lewis, both of Chicago, for appellant.
    Erwin Grombacher, of Chicago, for appellees, Jerry-Brown, Larry Wolken, Norman Michels, Irving Hollobow and Diamond Jim’s, Inc.; Max & Herman Chill, of Chicago (Max Chill and Robert M. Leone, of counsel), for appellee, S. Harvey Klein.
   MR. JUSTICE BURKE

delivered the opinion of the court.

This appeal is taken from an order sustaining defendants’ motions filed under section 48 of the Civil Practice Act (Ill Rev Stats 1968, c 110, par 48) for the dismissal of the complaint, seeking to recover damages for the defendants’ alleged fraudulent conveyance of assets of a corporation indebted to plaintiff.

Plaintiff is an Illinois corporation engaged in the meat business in Chicago. Defendants Wolken and Brown were the principal officers of Wolbrown, Inc., which owned and operated a restaurant business in the Chicago Loop under the name and style of “Diamond Jim’s.”

On August 16, 1962, plaintiff filed suit against “Wolbrown, Inc., trading as Diamond Jim’s,” for a balance of $13,000 alleged to be due plaintiff from Wolbrown for meat sold to Wolbrown between February and June of 1962. Attached to the complaint was a billing statement for the said balance, which was directed to “Jerry Brown and Larry Wolken; Diamond Jim’s Restaurant; 165 North Dearborn Street; Chicago, Illinois.”

In May of 1963, during the pendency of the 1962 lawsuit, Wolbrown, Inc., trading as Diamond Jim’s, executed a common-law assignment for the benefit of creditors to defendant S. Harvey Klein. The assignment covered “all property of every kind and character owned by the corporation or in which the corporation has any interest.” Notices were thereafter sent to 166 parties informing them of the assignment and that the assets were to be sold on June 11, 1963. The sale commenced on June llth, but was adjourned until June 13th to afford plaintiff an opportunity to secure a better bid than that which was offered. Plaintiff apparently was unable to secure a better bid and the assets of Wolbrown were sold to defendant Norman Michels on June 13th for the sum of $35,000.

On June 19th plaintiff and two other Wolbrown creditors filed a petition for the involuntary bankruptcy of Wolbrown, Inc., in the United States District Court for the Northern District of Illinois, Eastern Division. Two days later they filed another petition in the Federal Court requesting the appointment of a Trustee in Bankruptcy, the petition alleging, inter alia, that the assets sold to Michels had a value of $125,000 and that the sale to him was false and fraudulent and held for the purpose of defrauding creditors. Charles Maley was appointed Trustee and Wolbrown was adjudged bankrupt a short time thereafter. On July 20th the creditors who petitioned for Wolbrown’s bankruptcy filed another petition to allow the creditors’ petition to stand as proof of their respective claims as unsecured creditors of the estate of Wolbrown, Inc., which petition was allowed.

Wolbrown, Inc. was discharged of its debts on May 1, 1964, and claims made provable against its estate except those exempted by statute. Subsequently an order was entered in bankruptcy for the distribution of a portion of Wolbrown’s assets for the costs and fees of bankruptcy and the balance thereof in part payment of delinquent Federal and State taxes, approving the final account of the Trustee and discharging the Trustee. None of Wolbrown’s creditors realized anything. The only objection which plaintiff or anyone else made in connection with the bankrupt’s discharge was directed at the allowance of fees and costs to the Trustee and the assignee and their respective attorneys.

On December 14, 1964, plaintiff filed this action against these defendants, alleging that they had engaged in a conspiracy to defraud the creditors of Wolbrown, Inc. The complaint alleged, inter alia, that plaintiff had “furnished meat and meat products to Diamond Jim’s restaurant”; that the restaurant business was owned and operated by Wolken and Brown; that Wolbrown, Inc. had no lawful right to transact business under the name and style “Diamond Jim’s”; and that by the use of the name and style “Diamond Jim’s” defendants Wolken and Brown gave creditors the impression that the restaurant business was owned and operated by a partnership whereas in fact the owner was a corporation, allowing Brown and Wolken to thereby avoid personal liability for debts. Plaintiff claimed that, after Wolken and Brown diverted substantial sums of money from the restaurant business to their own use and benefit, they caused Wolbrown, Inc. to assign its remaining assets to defendant S. Harvey Klein for the purpose of later diverting such assets to themselves and defeating the rights of plaintiff and other creditors similarly situated. The complaint alleged that, after discouraging bidders from bidding for the Wolbrown assets by “inferring that no lease would be made available to any prospective bidder” and “giving notice of the said sale to persons who would either be unwilling or unable to enter a restaurant business,” and after rejecting a bid in the amount of $175,000, S. Harvey Klein transferred assets worth $175,000 to Brown and Wolken’s nominee, Norman Michels, for the sum of $35,000, the bid having been submitted by defendant Irving Hollobow and said funds having been advanced solely by defendants Brown and Wolken. Without the lease, plaintiff alleged, the restaurant business was valueless. The complaint requested judgment in the amount of $13,000 against each defendant and also that the sale of the assets be found fraudulent and void as against the plaintiff.

Motions were filed by the defendants for dismissal of the complaint. Defendant Klein’s motion alleged that plaintiff’s claim against him was barred by a prior judgment, was barred by plaintiff’s participation in the sale of the Wolbrown assets, and was discharged in bankruptcy. The remaining defendants joined in a single motion, which alleged six grounds for dismissal: (1) that plaintiff did not have legal capacity to sue; (2) that the cause of action was barred by a prior judgment; (3) that the court did not have jurisdiction over the subject matter; (4) that plaintiff’s claim was discharged in bankruptcy; (5) that the claim was barred by affirmative matters avoiding the legal effect thereof; and (6) that plaintiff’s claim was barred by its own admissions. Attached to both of the motions were affidavits and exhibits relating to the assignment and the sale of the Wolbrown assets, the bankruptcy proceeding and the 1962 lawsuit filed by plaintiff against Wolbrown, Inc. Plaintiff filed motions to strike defendants’ motions; neither affidavits nor exhibits were filed by plaintiff in support of its motions to strike. On March 22, 1965, after a hearing on the motions, the trial court ordered that plaintiff’s motions to strike be denied, that the motions of the defendants be allowed, and that the plaintiff’s complaint be dismissed with prejudice, from which order plaintiff appeals.

Plaintiff maintains that the trial court was in error in dismissing the complaint for the reason that a cause of action was pleaded against these defendants, which was in no way affected by any matters occurring prior to the filing of this complaint.

While it is true, as plaintiff maintains, that the discharge in bankruptcy of a corporation does not discharge debts of the corporation’s officers who are co-debtors with the corporation on the debt, 11 USCA § 34, plaintiff’s position assumes that it has properly alleged these defendants to be codebtors with Wolbrown, Inc. on its debt for the sales of the meat. Although the complaint does not specifically set out to whom plaintiff sold its meat and meat products, the record clearly indicates that plaintiff’s cause of action is grounded upon a debt owing from Wolbrown to plaintiff. The complaint alleges that “meat and meat products were sold, furnished and delivered to a restaurant located at 163 North Dearborn Street, Chicago, Illinois, which restaurant was at all times known, advertised and held out under the trade name and style of Diamond Jim’s.” The complaint then alleges that the “indebtedness to plaintiff as hereinabove set forth had been contracted over a long period of time by a business organization owned and operated by the defendants Jerry Brown and Larry Wolken, under the trade name and style of Diamond Jim’s.” The complaint fails to allege any contract between plaintiff and these defendants, or defendants Wolken and Brown specifically, nor does it allege any misrepresentation of fact made by any of the defendants at the time of the sales of the meat.

Plaintiff contends that it was induced into extending credit to Brown and Wolken by their holding the business out to be owned and operated by a partnership. The complaint contains no allegation that defendants Wolken and Brown ever made such representation. Furthermore, plaintiff’s position in this regard is directly contradicted by its own actions and admissions which show that it looked solely to “Wolbrown, Inc., trading as Diamond Jim’s” as its debtor on the sales of the meat. Suit was filed in 1962 against “Wolbrown, Inc., d/b/a Diamond Jim’s,” the 1962 complaint alleging that the sales of meat were made to the said defendant, that the said defendant had promised to pay for the meat, that billing statements were sent to the said defendant, and that the said defendant had refused to pay same; the complaint requested judgment against “Wolbrown, Inc., trading as Diamond Jim’s.” That plaintiff did not consider Brown and Wolken to be personally liable for the debt is further evidenced by the fact that at the hearing on the sale of the Wolbrown assets in June of 1963, a representative of plaintiff demanded personal notes from Brown and Wolken for the reason that “I am left out. Now, they could at their own discretion sign personal notes and leave out the person unprotected.” Plaintiff and its attorneys appear to have been one of the moving factors in causing the bankruptcy of Wolbrown, Inc. In the petition for Wolbrown’s bankruptcy, plaintiff alleged itself to be a creditor of Wolbrown in the amount of $13,000, and later petitioned the bankruptcy court to allow the bankruptcy petition to stand as its claim against Wolbrown. Damages are requested in the instant complaint in the amount of $13,000, the amount requested in the 1962 complaint against Wolbrown, Inc. Under all the circumstances, plaintiff’s claim that it believed that it was selling meat, and in fact did sell meat, to defendants Brown and Wolken neither properly appears in its complaint nor is substantiated by the record.

With respect to the alleged fraudulent sale of the Wolbrown assets the complaint pleads only conclusions. Plaintiff took an active part in the sale of the assets, and in fact the sale was adjourned to allow plaintiff to secure a bidder for the property. Plaintiff’s representative stated that he was unable to secure a better bid than that which had been offered. The sale is characterized as fraudulent primarily for the reason that the defendants “inferred that no lease would be made available to the successful bidder” and that without such lease the restaurant business was valueless. (Emphasis by the Court.) Not only is this statement a conclusion, but is clearly refuted by S. Harvey Klein’s letter to creditors which was attached to his motion for involuntary dismissal. The letter informed all creditors of Wolbrown of their right to participate in the sale of the assets and stated “I have been informed by the lessor’s representative that the premises are available to any person that might qualify financially and is the successful bidder at the sale. ... I shall first offer for sale this business free and clear of any encumbrances, bearing in mind that the successful bidder will be in a position to negotiate for the lease, as mentioned above.” Nowhere does it appear that defendants “inferred no lease would be made available to the successful bidder.”

The claim is made in plaintiff’s brief that the lease to the premises was not covered in the assignment for the benefit of creditors. On the contrary, the lease was necessarily included in the assignment under the provision assigning “all property of every kind and character owned by the corporation or in which the corporation has any interest.”

The complaint alleges that the sale of the assets was offered to persons who “were either unwilling or unable to enter the restaurant business.” Notices of the sale were sent to at least 166 parties, including 185 general creditors, 18 note holders, 5 prospective buyers and 8 auctioneers. In addition thereto, the letter to creditors informing them of the assignment to S. Harvey Klein stated that if they knew of anyone who might be interested in bidding at the sale they should have such person either contact S. Harvey Klein or be present at the sale. Plaintiff’s allegation in this regard is merely a conclusion.

It is well settled the mere allegation of a conspiracy does not of itself constitute the allegation of a wrong upon which liability for damages may be predicated. It is the act performed in pursuance of the agreement that may result in liability. Montgomery Ward & Co., Inc. v. United Retail, Wholesale & Department Store Employees, 400 Ill 38, 79 NE2d 46. See also 16 Am Jur2d, Conspiracy §§ 43-55. Plaintiff here has failed to properly allege the act of fraud upon which liability of these defendants for a conspiracy to perform such act could be predicated.

We are of the opinion that the trial court did not err in sustaining defendants’ motions to dismiss and in denying plaintiff’s motions to strike.

Therefore the order of March 22, 1965, is affirmed.

Order affirmed.

BRYANT, P. J. and LYONS, J., concur.


author: MR. JUSTICE LYONS

text:
    Argyrios Haralampopoulos, a/k/a Arthur Harris, Plaintiff-Appellant, v. Capital News Agency, Inc., a Corporation, Knight Publishing Corp., a Corporation and Go-Guys, Inc., a Corporation, Defendants-Appellees.
    Gen. No. 50,888.
    First District, Second Division.
    April 19, 1966.
    Rehearing denied May 10, 1966.
    Edward M. Platt, of Chicago, for appellant.
    Sidney Schiller, of Chicago, for appellee, Capital News Agency, Inc.
   MR. JUSTICE LYONS

delivered the opinion of the court.

This is an appeal from a judgment entered in favor of defendant, Capital News Agency, Inc., dismissing plaintiff’s amended complaint. The remaining defendants were never served with summons and are not involved in this appeal.

Plaintiff’s complaint alleges in substance the following:

1. That the plaintiff herein, Argyrios Haralampopoulos, also known as Arthur Harris, ... is owner of the retail business, located at 5558 North Kedzie Avenue in the County of Cook and State of Illinois; that the said business is a liquor store, restaurant, tobacco shop, and also deals in selling magazines and newspapers.
2. That the said plaintiff operated and conducted the said business at said address for many years and during said period of time made large profits from the conduct of said business; that in connection with the operation of said retail liquor business it was necessary to secure a liquor license from and issued by the City of Chicago, a municipal corporation duly authorized by the statutes of the State of Illinois, . . . and that for many years the said business was conducted by virtue of a liquor license issued by the said City of Chicago, at the aforesaid address, up to and including November 29,1963.
3. That Capital News Agency, Inc., a corporation, one of the defendants herein during all of the times herein mentioned was and is now engaged in the business of distributing magazines to retail merchants.
4. That Knight Publishing Corp., a corporation, one of the defendants herein during all of the times herein mentioned, was engaged in the business of printing and publishing magazines for profit.
5. That Go-Guys Company, Inc., a corporation, one of the defendants herein, during all the times herein mentioned, was engaged in the business of printing and publishing magazines for profit.
6. That during the year 1963, there was in full force and effect a certain ordinance duly enacted by the City of Chicago, the aforesaid municipality commonly referred to as Chapter 192, Section 9 of the Municipal Code of Chicago, in words and figures as follows:
“It shall be unlawful for any person knowingly to exhibit, sell, print, offer to sell, give away, circulate, [sic] or attempt to distribute any obscene books, [sic] magazine, pamphlet, paper, writing [sic] card, advertisement, circular, print, picture, photograph, motion picture film, play, image, instrument, statue, drawing, or other article which is obscene. Any person violating any provisions of this section shall be fined not less than $20.00 nor more than $200.00 for each offense.
“Obscene for the purpose of this section is defined as follows: Whether to the average person, applying contemporary community standards, the dominant theme of the material as a whole appeals to purient [sic] interests.”
and that the plaintiff and the aforesaid retail business was subject to the provisions thereof.
7. That during the year 1963, then and more particularly during the months of April, May, and .June of said years, the defendants, Knight Publishing Corp., a corporation and Go-Guys Company, Inc., a corporation, respectively, sold and caused to be delivered certain magazines to Capital News Agency, Inc., a corporation, another defendant herein; and that said magazines were entitled Adam and Go Guys, respectively; that said defendants knew or by the exercise of reasonable care should have known, that Capital News Agency, Inc., would deliver said magazines to retail merchants, in the City of Chicago, Illinois, for sale to the public.
8. That sometime during the months of June and July, 1963, the defendant, Capital News Agency, Inc., a corporation, by and through its duly authorized servants and agents, sold and caused to be delivered to the plaintiff quantities of said magazines for the purpose of resale by the plaintiff to the public, with the knowledge and authority of the remaining defendants.
9. That all of the said magazines, so delivered to the plaintiff, as aforesaid, within the perview [sic] of the aforesaid ordinance were obscene and that said defendants knew or by the exercise of reasonable care should have known that said magazines were thus obscene.
10. That the plaintiff had no knowledge of the fact that said magazines were obscene or that said magazines were classified as being obscene or that said magazines were within the perview [sic] of the aforesaid ordinance of the City of Chicago, Illinois.
11. That sometime during the period of to-wit: June 15, 1963, to July 1, 1963, the plaintiff sold certain of the aforesaid magazines to a person or persons who came upon the aforesaid premises and represented himself or themselves to be patrons of said retail store.
12. That during all of the times herein mentioned, the plaintiff was in the exercise of reasonable care for the protection of his business and for the protection of the aforesaid liquor license..
13. That the Local Liquor Commissioner for the City of Chicago, was . . . empowered by law to revoke any liquor license issued by the City of Chicago, if it was determined that the licensee had violated any Statute of the State of Illinois, or any valid ordinance passed by the City of Chicago, or any regulation established by the local commission which is not inconsistent with law.
14. That Richard J. Daley . . . was the Mayor of said City during the year 1963; that as such Mayor, the said Richard J. Daley is the Liquor Commissioner for the City of Chicago, Illinois, with authority to revoke and suspend licenses issued by the City of Chicago, Illinois . . . that the aforesaid sale of said obscene magazines was brought to the attention of said Liquor Commissioner . . . that hearings were conducted ... to determine whether or not the liquor license aforesaid, for said premises should be revoked; that at the conclusion of said hearings . . . the aforesaid liquor license was revoked because the licensee sold obscene literature on the said premises, to-wit: a magazine entitled Go Guy and a magazine entitled Adam in violation of the statutes of the State of Illinois and ordinances of the City of Chicago, Illinois.
15. That on or about December 5, 1963, the said order of revocation was appealed by licensee to the License Board Commission of the City of Chicago; and that on January 3,1964, said order of revocation was duly affirmed by the said License Board Commission of the City of Chicago.
16. That the aforesaid sale or sales of the aforesaid magazines and the delivery thereof, as aforesaid, all of which were made in the City of Chicago, Illinois, by the defendants, with knowledge that said magazines would be resold to the public, by the plaintiff, was the proximated [sic] cause of the revocation. . . .
17. That since November 29, 1963, and up to the time of the filing of the complaint herein, said business has been conducted without being permitted to sell beer and liquor, due to the fact that the said liquor license was revoked as aforesaid, with a large loss of income and profits; that under the ordinances of the City of Chicago, Illinois, the sale of whiskey, beer and other liquors is prohibited unless the person conducting said business has a license, issued by the said City of Chicago; and that up to the present time the said liquor license remains revoked and, although plaintiff has often requested the issuance of a liquor license for said premises, the said City of Chicago, by its duly constituted official refused to issue same to plaintiff and still continues in its refusal.
18. Plaintiff further represents that Capital News Agency, Inc., at the time of contracting to sell the said magazines knew the particular purpose for which the magazines were purchased by plaintiff, namely, for resale to the public and that plaintiff relied on the skill or judgment of defendants to select or furnish suitable magazines and thereby warranted that the said magazines were fit for said purpose in accordance with the Section 2-315 of the Commercial Code of Illinois.
19. Further plaintiff represents that there was implied in the aforesaid sale of said magazines by said Capital News Agency, Inc., a warranty that said magazines were merchantable in accordance with Section 2-314 of the Commercial Code. Notwithstanding this, said magazines so sold to plaintiff as aforesaid were not fit for the purpose of resale to the public nor were said magazines merchantable.
20. As a further and direct and proximate cause of the acts of the defendants aforesaid, and as a result of the revocation of said license, plaintiff has lost substantial profits, income and earnings from the said business; has lost large and substantial profits, income and earnings from contracts, leases and other dealings with respect to the conduct and operation and sale of the said business; and plaintiff has been greatly injured in his good name, credit and reputation, and has been, and is, otherwise greatly injured, to plaintiff’s damage in the sum of $100,000.

Plaintiff’s theory of the case is that the amended complaint sets forth a cause of action in tort, or in the alternative in contract, based upon a breach of an implied warranty, and that general and special damages were sustained by reason of the purchase and resale of the magazines in question, to-wit: the loss of his liquor license.

Defendant’s theory of the case is that the amended complaint does not state a cause of action in tort or contract based on the breach of implied warranty. We agree with defendant.

The Liquor Control Commissioner revoked the liquor license of the plaintiff because he was guilty of selling magazines containing obscene material. The proximate cause of plaintiff’s loss of license was the sale of the magazines by him to his customers. The sale by Capital News Agency, Inc., was not the proximate cause of the revocation of plaintiff’s retail liquor license. Plaintiff is not entitled to recover damages against Capital because of the revocation of his license for something he did.

Furthermore, the complaint admits that the defendants sold to plaintiff certain magazines which were obscene within the purview of the pertinent ordinance of the City. He says that he sold the magazines to the public without knowledge that they were obscene. Plaintiff’s liquor license, however, was revoked for a period of one year by the Liquor Control Commissioner and on appeal the order of revocation was affirmed by the License Board Commission. In these decisions the Commissioner and the Board necessarily determined that plaintiff knew or should have known that the magazines which he sold contained obscene material. Plaintiff has not attempted to challenge these decisions in the courts. Under these circumstances it would be contrary to public policy to permit plaintiff to profit by his own wrong by recovering damages from the vendor.

The judgment is affirmed.

Judgment affirmed.

BRYANT, P. J. and BURKE, J., concur.


text:
    Gilbert Graser, Father and Next Friend of Jeffery Graser, a Minor, Plaintiff-Appellee, v. Mutual of Omaha Insurance Company, a Corporation, Defendant-Appellant.
    Gen. No. 50,859.
    First District, Second Division.
    April 19, 1966.

      Edward V. Scoby and Ross, Kralovec, Sweeney & Marquard, of Chicago, for appellant.
    John A. Doyle, of Chicago, for appellee.
   MR. JUSTICE LYONS

delivered the opinion of the court.

This is an appeal from a summary judgment entered in favor of plaintiff and against defendant in an action brought to recover benefits under a school accident expense insurance policy.

On October 16, 1962, eleven-year-old Jeffery Graser, a 6th grade student at Orchard Place School in Des Plaines, fell out of a tree located in an area a short distance west of the school and fractured his arm. His father filed a claim for benefits under an accident expense policy defendant had issued to Des Plaines School District #62 (which encompasses the Orchard Place School) and which insured him against medical expenses resulting from accidental bodily injuries sustained while:

“Traveling directly to or from the Insured’s home premises and the school for regular school sessions, within one hour before school begins and one hour after the Insured is dismissed. . . .”

The claim was denied and suit was brought in the Circuit Court of Cook County.

The parties ultimately entered into the following stipulation of fact:

1. On October 16, 1962, Defendant had issued its Accident Expense Policy to Des Plaines School District #62, a true and correct copy of which policy is attached hereto as Exhibit “A” and made a part hereof.
2. On said date, Plaintiff’s son, Jeffery Graser, age 11, was a 6th grade student at Orchard Place School at 2727 Maple Avenue, Des Plaines, and was one of the persons insured under said policy.
S. On said date, Plaintiff’s son fell from a tree and sustained accidental bodily injuries.
4. On said date, the home of Plaintiff and his son was located at 2891 East Craig Drive, Des Plaines.
5. The attached map truly and correctly portrays the location of the said Orchard Place School (#1), the place of the said accident (#2) and Plaintiff’s residence (#3).
6. On said date, Plaintiff’s son was dismissed from school at approximately 3:30 p. m., visited with a friend named Steven Householder who was stationed as a crossing guard at the intersection of Pratt and Scott Streets, then in the company of another friend named Larry Verrang, walked to the said tree and fell as he was attempting to climb it. The accident occurred at approximately 4:25 p. m. If called as a witness here, Jeffery Graser would testify that he customarily walked home from school via the following route: Maple to Pratt to Railroad Avenue to Central to Nimitz Drive to Craig Drive.
7. The policy attached as Exhibit “A” provides, in part, that said Jeffery Graser is insured while:
“(3) Traveling directly to or from the Insured’s home premises and the school for regular school sessions, within one hour before school begins and one hour after the insured is dismissed or the required time when traveling in school furnished transportation.”
8. Defendant makes no contention that the accident did not happen within one hour after Jeffery Graser was dismissed from school.
9. The sole issue is whether or not Jeffery Graser was traveling directly from the school to his home, within the meaning of policy provision (3) as set forth above, at the time of the said accident.
10. If said Jeffery Graser was traveling directly home from school at the time of his said accident, Plaintiff is entitled to judgment in the sum of $778.-50, plus his costs of suit. If not, Defendant is entitled to judgment for its costs of suit.

Plaintiff and defendant presented cross-motions for summary judgment and submitted briefs. The motion of plaintiff for summary judgment was sustained; defendant’s motion for summary judgment was denied; and judgment was entered in favor of plaintiff in the sum of $778.50.

The sole issue presented in this appeal is whether Jeffery Graser was, at the time of his accident, traveling directly home from school within the meaning of the policy. Defendant’s position is that the accident occurred under circumstances clearly outside the coverage of the policy and contends (1) that Jeffery was not traveling, and (2) that even if Jeffery was traveling, he was not traveling directly to his home at the time of his fall in that his home was east and the scene of the accident west, of the school. We will consider defendant’s second contention first.

This is a case of first impression in Illinois. The case of Metzler v. London Guaranty & Accident Co., 20 NJ Super 497, 90 A2d 81 (1952) appears to be the authority most clearly applicable to the facts of this case. In Metzler, the eight-year-old plaintiff was insured under a student medical accident policy issued by the defendant which insured him against medical expense caused by accidental bodily injuries sustained:

“while going directly from home to school and directly from school to home.”

The plaintiff left his school, which was located on the north side of Kossuth Street in Haledon, New Jersey, turned west and went approximately 150 feet, then turned left (south) and proceeded across Kossuth Street, the curb, sidewalk and another 25 feet to a residential dwelling under construction. While playing in the rafters of the house under construction, he fell and was injured. The Trial Court entered judgment for the plaintiff but the New Jersey Appellate Court reversed. The Appellate Court defined the issue as meaning of the word “directly,” and consulting Webster’s New International Dictionary, Black’s Law Dictionary, Words and Phrases, and Corpus Juris Secundum, all of which, in effect, define the word “directly” to mean “in a direct manner; in a straight line; without deviation,” etc., the court concluded at page 84:

We find that the language of the insurance contract is clear and unambiguous and that there was no need for invoking the canons of construction; that the same could well have been enforced in accordance with its written word. In so holding, we find that Walter Metzler was not en route directly from school to home when the accident complained of occurred and a fortiori, not within the protection of the policy. Such interpretation is in harmony with the clear words of the contract and the apparent intent of the parties.

In Garrett v. Pilot Life Ins. Co., 241 SC 299, 128 SE2d 171 (1962), the policy insured against bodily injury caused by the accident occurring while:

traveling directly between home and school for the purpose of attending or returning from regularly scheduled classes, but only if such travel occurs within one hour before the commencement of the days’ school session or within one hour after dismissal from school. . . .

Plaintiff, age 11, was dismissed from school at 11:45 a. m. He lived three blocks from the school. His father worked, so a Mrs. Evans, who lived three houses closer to the school than did the plaintiff, watched the plaintiff and his brother and sister until the father was able to pick them up. On the day of the accident, Garrett went to the Evans house and had a glass of lemonade, then started to play with a B-B gun and while so doing, injured himself. The accident happened within 45 minutes of the time he was dismissed from school. The Trial Court entered judgment for the defendant, and the Supreme Court of South Carolina affirmed, holding that the Trial Court’s determination that the plaintiff had not been traveling directly home at the time of the accident was correct.

The argument of plaintiff is that the phrase “traveling directly home from school” is ambiguous and therefore must be interpreted by this court. We find that there is no ambiguity in the phrase. Plaintiff attempts to render the term “directly” by using it as an adverb of time, as in the expression “he will be coming along directly.” Even under the guise of liberal construction, plaintiff should not be allowed to concoct an ambiguity. Furthermore, conceding again only for the sake of argument, the validity of plaintiff’s reasoning, it is addressed to only one aspect of the case; namely, how it happened to take some fifty minutes for Jeffery Graser to travel about two blocks. The construction argued for by plaintiff does not even purport to explain or overcome the fact that Jeffery’s accident happened west of the school, while his home is east of the school. As was stated in Lundquist v. Illinois Life & Acc. Ins. Co., 24 Ill App2d 316, 164 NE2d 293 (1960) at page 297:

The usual rule of liberal construction of ambiguous provisions of insurance policies in favor of the insured must yield to rules of reasonable construction, and such does not permit the straining of plain, unambiguous language to create a supposed ambiguity where none in fact exists; where the provisions are plain and certain there is no room for construction, and the language should be taken in its plain, ordinary, popular sense (citing cases).

In this case, we find Jeffery Graser was not proceeding directly home from school at the time of his accident as those words would be understood in their plain, ordinary, popular sense. We do not have to consider plaintiff’s other contention that Jeffery was not traveling when he fell out of the tree.

The judgment is reversed and the cause remanded with directions to enter judgment for defendant and against plaintiff.

Judgment reversed and cause remanded, with directions to enter judgment for defendant and against plaintiff.

BRYANT, P. J. and BURKE, J., concur.


author: MORAN, J.

text:
    Stephen J. Reget and Mary E. Reget, Plaintiffs-Appellees, v. Dempsey-Tegler & Co., Inc., a Corporation, Defendant-Appellant.
    Gen. No. 65-49.
    Fifth District.
    April 20, 1966.

      Lueders & Robertson, of Granite City, for defendant-appellant.
    Kenneth F. Kelly, of Granite City, for plaintiffs-appellees.
   MORAN, J.

Plaintiffs sought judgment against the defendant for rentals accrued under a written lease after defendant had vacated the premises before the expiration of the agreed term; defendant sought setoff for wrongful failure of plaintiffs to permit mitigation of damages by refusing to accept a subtenant offered by defendant. The trial court allowed plaintiff’s claim in full and denied defendant’s claim to a setoff, and from such denial the defendant appeals to this court.

Plaintiffs-appellees, Stephen J. Reget and Mary E. Re-get, owned a two-story building in Granite City, Illinois, a part of which they leased to Dempsey-Tegler & Company, Inc., for a period of five years at a monthly rental of $300. The upper floor of the building was used as a twenty-three room rooming house; a portion of the ground floor was used as a restaurant and the remaining ground floor area, formerly a tavern, was rented to the defendant.

The lease provided (1) that the use of the premises was for no other purpose of business than to be occupied by defendant as an investment brokerage and associated business office; (2) forbade assignment, subletting or use for any other purpose or business without the written consent of the landlord; (3) granted an option to plaintiffs, on default of defendant, to forfeit lease, retake possession, and relet the premises to any rental readily available, with defendant to remain liable for all unsatisfied rentals during the remainder of the term.

Defendant notified plaintiff by letter dated April 16, 1963, that it was vacating the premises and requested a cancellation of the lease, which plaintiffs refused. The defendant vacated the premises on or about July 1, 1963, and employed a real estate broker to find a subtenant for the premises. Defendant’s real estate broker secured a tenant to sublease the premises from the defendant at $200 per month for the remainder of defendant’s term for use as a beauty parlor. Defendant’s request for permission from plaintiffs to sublease to this tenant was refused.

Plaintiff, Stephen J. Reget, testified that he received a letter and later a telephone call from the defendant requesting plaintiffs to agree to a sublease of the premises for a beauty shop. He testified that he investigated the proposed subtenant and his investigation disclosed that the proposed subtenant intended to rent out eight booths to eight different beauty operators; that the investigation also disclosed that the proposed subtenant’s credit rating was not acceptable; that he did not consider the proposed subtenant a suitable tenant and therefore refused him as a subtenant.

An agent for the Morriss Realty Company testified on behalf of the defendant that his company had been employed to find a suitable subtenant for the premises in question; that he had found a subtenant who wished to place a beauty parlor in the premises and who gave him a $400 deposit on the rent. The plaintiff objected to this testimony on the ground that the lease could be assigned or sublet only with the written consent of the lessor, therefore the lessor had the absolute right to disapprove any prospective lessee or assignee of the lease and therefore had no duty to mitigate damages. This objection was overruled by the court.

The assistant secretary of the defendant testified that defendant vacated the premises in July of 1963; that after the defendant vacated the premises it employed Morriss Realty Company to secure a suitable subtenant for the premises; that he talked with Stephen Reget about the proposed subtenant and that Reget was opposed to a beauty parlor and did not like the credit rating of the proposed subtenant; that he told Reget the defendant would still be liable for any default in the payment of $300 even though the subtenant may default.

Defendant contends that under the law of Illinois a landlord has a duty to mitigate damages by accepting a suitable subtenant notwithstanding the lease which prohibited the tenant from subletting without the written consent of the landlord; that plaintiff refused a suitable subtenant offered by defendant even though defendant obligated itself to remain liable for the rent for the remainder of the lease period.

Plaintiffs answer that they have always been willing to accept a suitable subtenant so that defendant’s first contention is not an issue in this case; that they refused to accept this particular subtenant because their investigation disclosed his credit was bad and also because the proposed subtenancy would change the nature of the business conducted on the premises in violation of the express provisions of the lease.

The rulings and conduct of the trial indicated that the trial court decided this case on the sole question of whether or not the plaintiffs were arbitrary or unreasonable when they refused to allow defendant to sublease to the proffered subtenant. This was indicated by the trial court’s overruling plaintiffs’ objection to the testimony of the rental agent that he obtained a subtenant who wished to operate a beauty shop on the premises and also by the following:

The court: “I understood Mr. Reget to testify that the Norrises intended to sublet eight different booths for customers, is that right? Mr. Kelly, am I right on that?”

The defendant produced a proposed subtenant with a deposit of $400 who desired to operate a beauty shop consisting of eight booths to be sublet to individual operators. Defendant also obligated itself to remain liable for the balance of the rent due under the lease. Does this evidence standing alone prove that the proffered tenant was suitable ?

In Scheinfeld v. Muntz TV, Inc., 67 Ill App2d 8, 214 NE2d 506, the court held that a proposed subtenant would be suitable where the tenant offered a statement as to the business history of the proposed subtenant, of the provisions of the proposed sublease indicating that sublessee would be a suitable sublessee and would use the premises for the same restricted purpose as that provided for in the lease, and the lessee’s continuing obligation to pay the difference in rental provided for in the lease.

The Appellate Court also held that a prohibition against subletting without the written consent of the lessor does not entitle the lessor to arbitrarily reject a suitable subtenant and continue to hold tenant liable for the whole rental when the lease contains no provision expressing the intent of the parties concerning the mitigation of damages. We do not pass on this particular question because it is not before us. However, in so holding, the court pointed out that it did not mean that the landlord had to rent his property for a purpose which might damage it.

The burden of proving the Norrises were acceptable subtenants rested with defendant. Hinde v. Madansky, 161 Ill App 216. If a party asserts a claim for damages, the claim is his to prove. So, too, if a party counterclaims, the counterclaim is his to prove. To show that the Regets unreasonably rejected a subtenant the defendant must show the proposed subtenant met reasonable commercial standards. Defendant offered no evidence of the Norrises’ suitability as subtenants save a $400 deposit on the proposed sublease and the assurance that it would remain liable for the rest.

We believe the sublessee’s credit is a meaningful factor in the lessor’s determination of the proffered subtenants’ acceptability. Regardless of the type business conducted by the proposed subtenant, the enterprise has a tenor which can detract from the value of the entire premises. Thus a given business can be acceptable in name, but unacceptable in the way it is conducted. The capital and credit of an entrepreneur controls to some extent the manner of his business. So, too, does the financial responsibility bear on the day-to-day upkeep, and day-to-day appearance of the premises. Another more remote consideration based to some degree on financial strength involves labor difficulties. So, too, would a series of rapid turnovers caused by the weakness of subtenants’ businesses detract from the value of the overall premises.

Plaintiff also argues that the change in use of the premises was undesirable, and the refusal was all the more reasonable because of this proposed variance in use from a brokerage house to a beauty parlor. A standard of reasonable commercial judgment has been applied in cases where the plaintiff-lessor has reentered the premises; this standard is a worthwhile measure of the reasonableness of the lessor’s actions. By this standard a landlord should not be required to relet the premises for a different purpose if he reasonably believes that such use will damage the premises. Consumers Market House Co. v. Powers, 192 Ill App 89.

The burden was the defendant’s and no evidence of suitability was introduced. There was evidence of the Norrises’ unsatisfactory credit and the dissimilar and possibly speculative use they proposed to make of the premises. In view of the foregoing we cannot say that there was no evidentiary basis for the trial court’s holding.

Judgment affirmed.

GOLDENHERSH and EBERSPACHER, JJ., concur.


text:
    Sam Gillespie, Plaintiff-Appellee, v. Margaret Gillespie, Defendant-Appellant.
    Gen. No. 65-59.
    Fifth District.
    April 20, 1966.

      Burnside & Dees, of Vandalia, for appellant.
    Sonnemann & Corbell, of Vandalia, for appellee.
   MORAN, J.

This is an appeal by the defendant from a decree of the Circuit Court of Fayette County granting plaintiff a divorce in a contested, non jury trial.

Plaintiff sued defendant for divorce on the ground of desertion. The defendant counterclaimed for certain monthly support payments due under a settlement agreement. The court decreed the divorce sought by plaintiff and allowed the counterclaim sought by the defendant. No cross appeal has been taken on the judgment entered on the counterclaim. No questions are raised on the pleadings.

Plaintiff’s theory is that defendant wilfully deserted plaintiff without reasonable cause for the space of more than one year prior to the filing of the complaint and that the trial court’s finding of fact is reasonably supported by the evidence and therefore the decree for divorce granted to plaintiff should be affirmed.

Defendant’s theory is that the parties separated by mutual agreement and that the trial court’s finding that the separation resulted from a desertion of the plaintiff by the defendant, is contrary to the manifest weight of the evidence in the case.

Plaintiff and defendant were married in June of 1931. With the exception of a brief separation in 1961, they lived together until February of 1963. Three children were born of the marriage, two of whom were adults and living separate and apart from their parents at the time of the filing of the complaint for divorce in this case. A minor son married after the filing of the complaint and was living with his wife in Brownstown, Illinois, at the time of the trial.

In February, 1963, the defendant moved out of the bedroom which she had jointly occupied with plaintiff, into a separate room in the house. Plaintiff testified that he came home one evening and asked his wife to accompany him to the Holiday Inn in Effingham for dinner. When she refused his invitation, he changed clothes and went to the Holiday Inn for dinner, returning home at 9:30 in the evening. The next day he came home for lunch, but finding his wife gone, went back uptown, ate and worked around the garage until the middle of the afternoon. He then returned home and asked his wife where she had been. She replied, “Well, I have been to see my attorney.”

Plaintiff testified that since then his wife has refused to have any marital relations with him; that she refused to prepare meals for him; that she refused to take care of his clothes or laundry and that this refusal continued even though he had asked her to be a wife to him; that she refused to do anything for him; refused to feed him although she provided for their son, John; that she kept the rest of the house clean but not the plaintiff’s quarters; that when their daughter was in the hospital in Chicago he went to see her, and spent the night in the daughter’s home with his son-in-law. At that time he called his wife who was then in Chicago to ask her to go to dinner with him and their son-in-law, but she refused.

He further testified that in February of 1963 he and his wife were partners in a garage business and that after this difficulty she consulted a lawyer regarding a property settlement. She refused to talk with him except in the presence of an attorney. The talks they had in the presence of his attorney and her attorney concerning a property settlement culminated in the signing of an agreement on October 1, 1963, styled “Property Settlement Agreement.” Under the terms of this instrument plaintiff obtained certain real and personal property and the defendant certain real and personal property including the marital home. The agreement further provided that the plaintiff pay to the defendant the sum of $75 per month for the support of their minor child for so long as the minor child resided with defendant and for the further sum of $200 per month for the separate support and maintenance of the defendant. It further provided:

In the event a decree for divorce shall hereafter be decreed by any court of competent jurisdiction, that part of this agreement relating to the division of the property and which may not have been fully executed by said date, shall be made a part of said decree; but the provisions herein for support of the wife and child shall not be a part of said decree nor be binding upon either party hereto in the determination of such matters.

After this agreement was entered into the plaintiff moved into an apartment over his garage which he had previously furnished because he said he no longer had a home.

Defendant denied plaintiff had requested her to have dinner with him at the Holiday Inn in February of 1963 and denied that she had told him she had been to see her lawyer on the day following this supposed incident. When asked if she had moved into a separate bedroom in the month of February, 1963, defendant answered, “There is several bedrooms in the house and I choose my own bed.” She admitted that she had not had marital relations with her husband from February until the time of the trial in April of 1965 and further stated that she never did tell her husband why she had changed bedrooms. She explained her actions by saying, “I would just say I had visited my lawyer and I had talked to him about business relations, not personal matters, and I felt it was better, that I could be more comfortable somewhere else.” She denied doing this on legal advice, saying, “No, I had simply visited a lawyer about the business end, in which we were partners, and I just felt that with that discussion going on I would just rather be in another part of the house.” When pressed further on this point, she said, “It’s my house, I could sleep where I wanted to.” She did not remember whether it was before or after she saw her attorney that she moved out of the marital bedroom.

She testified that although she and her husband occupied separate bedrooms that she and her son and her husband lived in the same home; that she cooked the meals and that she did part of the laundry and a maid did part of it; that the husband sometimes joined them in the evening meal and that aside from sleeping with him, their marital arrangement was the same as it had been before. She further testified that the business problems existing between herself and her husband in the spring of 1963 were settled when the “Property Settlement Agreement” was signed on October 1,1963.

The plaintiff has desired a resumption of the marital relationship at all times since the separation. On the other hand, the defendant has desired just the opposite, saying, “I refused to cohabit with my husband after February of 1963, because I just didn’t want to, and still don’t. I have not wanted to live with him since that date. I have made no effort to resume marital relations since February of 1963. As I sit here today, I have no desire to resume marital relations.”

The defendant claims that the record conclusively shows that this separation was by mutual consent and therefore there could be no desertion by either party. She argues that this is conclusively shown by their entering into the support and property settlement agreement. She states that they separated under a property settlement agreement and that this precludes desertion by either party and shows that the separation was by mutual consent. Plaintiff says that as soon as the settlement was entered into he no longer had a home and that he felt he had to move out.

The course of action leading up to the settlement was initiated by the defendant who first contacted an attorney in February of 1963. After extensive negotiations between the parties and their lawyers the negotiations culminated in the aforesaid agreement.

If the separation between these parties was by mutual consent or agreement there could be no desertion by either party. It is well settled that mutual separation of husband and wife does not constitute wilful desertion. Lemon v. Lemon, 14 Ill2d 15, 150 NE2d 608. However, mutual consent to a separation means that the separation was by agreement and at the request of both parties. If the separation was against the will of one of the parties, there could be no separation by mutual consent.

After all the evidence was in, the trial judge stated that it was shortly after she refused to sleep with the plaintiff that she went to see an attorney; that she was the moving factor in the separation and in the securing of the settlement agreement. The court further pointed out that he understood that the parties could not just agree to separate and then obtain a divorce, but that this was not the case as the defendant was the moving force behind the whole separation; that she refused to have marital relations with the plaintiff; that she refused to participate in any social activities with the plaintiff; that she insisted on a support and property settlement agreement, so therefore there was sufficient evidence to show desertion on her part.

The evidence in this case amply supports the findings of the trial judge that the property settlement and separation were not by mutual consent; that the proceedings were instituted and pushed by the wife who not only wanted the property divided but also insisted on discontinuing the marital relationship. The trial court felt that plaintiff had no alternative except to leave and this did not show in any way his agreement to the marriage separation. The reasoning of the trial court is practically the same as the reasoning in Parker v. Parker, 28 Ill App 22, wherein the court said at pages 24, 25:

... A division of the property was what she wanted. He, no doubt felt that there was no hope of ever returning and we think the preponderance of the evidence justified him in so thinking. There is no evidence going to show that he desired a separation but simply yielded to the necessities of the case, and to save himself greater loss, as he thought, made the required division of property. It seems to us he has tried throughout to do what was right and just by the appellee. She has never made any complaints, so far as the evidence shows, of his treatment of her. We think there was no collusion on his part for her to live separate and apart from him. It was a matter of necessity on his part. As he says he has always held himself in readiness to live with her but she still lives apart from him.

The defendant also claims that since plaintiff left his home and his wife, he is compelled to rely upon the rule of constructive desertion to sustain his cause of action for divorce and that the reasonable cause which would have justified his desertion and abandonment of his wife under that rule must have been such as would have entitled him to a divorce. Fritz v. Fritz, 138 Ill 436, 28 NE 1058; Holmstedt v. Holmstedt, 383 Ill 290, 49 NE2d 25. This argument would prevail in this cause had he indeed left his “home.” After defendant refused to cohabit with him after 33 years of marriage, refused to cook his meals, refused to talk to him and insisted on a support and property settlement, he can no longer be said to have a “home.” Therefore, when he left what had been the marital home, he did only what he felt compelled to do; for his spouse had taken it upon herself not only to extinguish the marriage relationship but also to effect a physical separation of the parties to the marriage.

When the defendant pursued the course of conduct she did, it had to end in a physical separation of the parties. It would be unreasonable to believe that defendant would expect plaintiff to stay in the former marital home after she had refused him any of the amenities that a married woman owes her husband. In Mathews v. Mathews, 227 Ill App 465, the court said at page 469:

... If one spouse leaves the home because the other refuses to live with him or her and because of orders to go and not return, the one who leaves is not a deserter and has nothing to justify but must prove his or her reasons for going. The other party is the deserter, and to justify his or her course in sending the other away must prove a cause for divorce. If he or she does not relent and offer to take back the one who has left under such circumstances for two years, he or she has given the other a cause for divorce.

In the present case the defendant did not physically drive the plaintiff from her home but she made it impossible for him to continue to abide with her under the same roof.

In Karman v. Karman, 24 Ill App2d 123, 164 NE2d 521, the wife sued for divorce on the ground of desertion and the husband counterclaimed on the same ground. The husband, aged 77, and the wife, 62, lived across the street from each other before their marriage. They married and the husband moved in with the wife. The husband moved back to his home 28 days later. The facts were in conflict. The wife testified that she did not demand that the husband leave, but admitted no sexual relations after the first 13 days; that she made no preparation of lunch on the day of separation; that she called her lawyer; that she insisted the husband take items he had forgotten on departure; that she spoke with her attorney before and after the separation; that she made no effort to reconcile or resume cohabitation, and in fact repulsed an offer of her husband to shovel her snow.

The husband testified that his wife called a lawyer and told him her lawyer said he couldn’t stay; that she wasn’t going to do any more work for him and that he couldn’t get anything to eat.

In this case the review court, on the above facts, reversed the trial court who had granted a divorce to the wife, and remanded with directions to dismiss the wife’s complaint and grant a divorce to the husband, saying at page 129:

When she refused to cohabit with her husband in a reasonable manner and ordered him to leave, appellee became the deserter, and in order to correct this desertion it became incumbent upon her to make efforts to resume the marital relationship. She made no attempt to do so. Appellant did not consent to the separation and may not be prevented from prosecuting this action on that basis. The fixed intention of appellee to live apart negates her husband’s obligation to establish a new home as the marital domicile. His failure to do so may not be interpreted as such consent to the continuance of the separation as would bar his right of action. There is no inconsistency between the finding in the first portion of this opinion that appellee had consented to the separation and this finding that appellant had not so consented. Having found that the corroborative elements which are present substantiate appellant’s testimony, it is harmonious to hold that appellee had a fixed intent to extinguish her marriage by forcing him to live apart from her.

So, too, when defendant in the present case refused to cohabit with her husband and embarked upon a course of conduct which compelled her husband to take up a new residence she became the deserter when the husband left on October 1, 1963; and in order to correct this desertion it became incumbent upon her to make efforts to resume the marital relationship. Her intention to abandon the marriage relationship remained fixed and firm even up until the time of trial. The rule of constructive desertion does not apply in this case for this separation was without the consent of the plaintiff and therefore he was not the deserter but the deserted.

The trial court heard the evidence and saw the witnesses; it was its duty to make the necessary determination of facts; and its findings are presumed to be correct. In re Estate of Wolfner, 58 Ill App2d 423, 207 NE2d 724. The evidence was ample to support the findings of the trial court; and it is not for us to substitute our findings for those of the court below unless such findings are clearly and manifestly against the weight of the evidence. Stevens v. Fanning, 59 Ill App2d 285, 294, 295, 207 NE2d 136. Such is not the circumstance in the case at bar.

For the foregoing reasons the decree of the trial court is affirmed.

Decree affirmed.

GOLDENHERSH and EBERSPACHER, JJ., concur.


author: GOLDENHERSH, P. J.

text:
    Email T. Emerton, Plaintiff-Appellee, v. Canal Barge Company, Inc., a Corporation, Defendant-Appellant.
    Gen. No. 65-39.
    Fifth District.
    April 27, 1966.

      Robert D. Barnes, McBride, Baker, Wienke & Schlosser, of Chicago, and G. Gordon Burroughs, Burroughs, Simpson & Burroughs, of Edwardsville, for appellant.
    Sandor Korein and Joseph Cohn, Cohn, Cohn & Korein, of East St. Louis, for appellee.
   GOLDENHERSH, P. J.

Defendant appeals from the judgment of the Circuit Court of Madison County entered upon a jury verdict in the amount of $100,000.

Plaintiff’s complaint, as amended, is in two counts, Count I pleads a cause of action based on the Jones Act (Title 46, USCA, § 688 et seq.) ; Count II charges that the vessel upon which plaintiff was working was unseaworthy.

The evidence shows that on February 23, 1963, plaintiff was 31 years old, had a seventh grade education, had worked as a farmhand, in a shipyard, in an automobile assembly plant, as a seaman, both on deep sea vessels and in the coastwise trade. Since 1955 he had worked on various motor vessels on the Mississippi and other rivers. He had passed an examination given by the United States Coast Guard and was licensed as a tanker-man, and although he usually worked as a deckhand, at the time pertinent to this case, he was employed as a deckhand-tankerman.

The defendant is a Louisiana corporation with its principal place of business in New Orleans. The Motor Vessel Caroline, on which plaintiff was working at the time of his injury, is 104 feet in length, 30 feet in width, and at the time of the occurrence out of which this action arose, carried a crew of 11.

On February 23,1963, at about 4:00 p. m., the Caroline was stopped at the Shell Oil Dock at Argo, in Cook County, Illinois. Plaintiff was on the bow deck and Bill Atkinson, another deckhand-tankerman was on an empty barge to which the Caroline was “faced up.” Plaintiff and Atkinson were putting the wires on between the bow of the Caroline and the stern of the barge. Plaintiff had turned the winch to run slack out, and was pulling on the wire when his feet went out from under him. The temperature at the time was below zero, and the deck area where plaintiff was standing was covered with ice, snow and oil, and was slippery. Plaintiff did not know how long the condition of ice, snow and oil had existed, but he had observed it about 30 minutes before he fell.

After his fall plaintiff remained on the deck for a minute or so; he felt a sharp pain in his back as he lay there, and after he got up. The sharp pain continued for about 2 days, then diminished, but he was not at any time thereafter without some pain. Plaintiff stayed on the vessel for 2 weeks during which time he performed his regular duties. He left the Caroline on March 11, 1963, and returned to his home at Baxter, Tennessee.

Defendant contends, as a ground for reversal, that the circuit court erred in denying its motion to dismiss, founded upon the doctrine of forum non conveniens. The motion, and the affidavit filed in support thereof, recite that it is a Louisiana corporation with its principal place of business in New Orleans, that plaintiff resides at Baxter, Tennessee, that the claim asserted by plaintiff arose while the Caroline was being operated in navigable waters of the United States and the state of Illinois, that the occurrence out of which plaintiff’s claim arises took place in Cook County, Illinois, that at various times since the occurrence, plaintiff received medical treatment at Memphis, Tennessee, and was treated at clinics and by other physicians in other places in Tennessee, that dismissal of the Madison County suit and plaintiff’s filing suit in either the United States District Court at Memphis or the Circuit Court of Shelby County, Tennessee will result in substantial savings in pretrial discovery expenses and the expense of trial for both plaintiff and defendant, that the officers and members of the crew of the Caroline who have knowledge of the occurrence reside in Louisiana, Arkansas and Missouri and can be made available for deposition or trial at Memphis at substantially less expense than elsewhere, that in the event defendant’s motion to dismiss is allowed, defendant will voluntarily file a general appearance and will not contest the jurisdiction of either the United States District Court for the Western District of Tennessee or of the Circuit Court of Shelby County, Tennessee, that it will, in that event, cause the officers and crew members to appear at Memphis for deposition at plaintiff’s convenience.

The Jones Act created a right of action for injuries suffered by a seaman, based on the provisions of the Federal Employers Liability Act. Title 46, USCA, § 688; Kerman v. American Dredging Co., 355 US 426, 78 S Ct 394. The propriety of the circuit court’s denial of defendant’s motion to dismiss is, therefore, to be considered in the light of the decisions of the Supreme Court of Illinois in actions based upon FELA. In Cotton v. Louisville & N. R. Co., 14 Ill2d 144, 152 NE2d 385, at page 159, the Supreme Court, through Mr. Justice Bristow said “We hold, therefore, that there is available in Illinois the doctrine of forum non conveniens as a ground for refusal by a court to exercise jurisdiction over a cause of action arising beyond the State’s boundaries.” (Emphasis ours.) We interpret this statement to mean that the doctrine of forum non conveniens is not applicable to actions arising within the state of Illinois, and the circuit court properly denied defendant’s motion to dismiss.

Defendant contends that the circuit court erred in admitting, over defendant’s objection, certain testimony of Dr. Henry Lattinville, a neurologist, who examined plaintiff on June 1, 1964, and September 12, 1964. Since defendant also contends that the verdict and judgment are excessive, it is necessary to review the medical evidence.

Dr. W. S. Taylor, a physician who lives and practices medicine at Cookeville, Tennessee, testified by deposition that he had treated plaintiff and his family since 1956. Dr. Taylor saw plaintiff on March 13, 1963, in the emergency room at the Cookeville Hospital. At that time plaintiff told him he had been injured while working about 3 weeks earlier. Plaintiff complained of pain in the low back, there was tenderness on palpation and some surrounding muscle spasm. The doctor prescribed rest, heat locally and analgesics. Between March 13 and April 9, 1963, Dr. Taylor saw plaintiff five times; on April 9, 1963, his back was worse and pain was radiating down his left leg. On May 20, 1963, Dr. Taylor referred plaintiff to a physician at Nashville. He had not treated plaintiff for any back trouble prior to March 13, 1963, and was of the opinion that the condition from which plaintiff was suffering was caused by the trauma which plaintiff described as having occurred while he was working. He also testified that he had not followed plaintiff’s case sufficiently since referring him to another physician to have an opinion as to whether plaintiff suffered any permanent disability.

Dr. Robert J. Trautman, Chief of Surgery at the United States Public Health Service Hospital at Memphis testified by deposition that plaintiff was a patient at the Public Health Service Hospital from April 15 to May 16, 1963, that the hospital record showed a diagnosis of lumbo sacral strain and redundant prepuce. The latter condition was corrected by circumcision and no other surgery was performed on plaintiff. He identified records and X rays and described generally the treatment given plaintiff consisting of prescribing aspirin and demerol for pain, physiotherapy, traction and diathermy.

Dr. Eugene M. Regen testified by deposition that he is an orthopedic surgeon and enumerated his qualifications. He described the examination made of plaintiff and stated that his diagnosis was that plaintiff “had an injury to his back or something in his back that was causing compression of a nerve root that comes out from the spinal cord in the lower portion.” Plaintiff was put on a series of exercises designed to relieve the nerve pressure. These were not successful and he decided to operate, notwithstanding a negative myelogram report, because he felt the clinical findings were sufficient to indicate pressure on a nerve root in the lower back. Before surgery, he found a wasting or atrophy in the muscles of the left leg.

Dr. Regen operated on plaintiff on July 15, 1963, at Vanderbilt Medical Center Hospital. He performed a laminectomy and a facetectomy, removing the facets on the left side, and the lamina, at the fourth lumbar joint.

Dr. Regen further testified that plaintiff was admitted to the hospital on June 22, 1963, and discharged on July 25, 1963, that he examined plaintiff on August 22, October 1, December 12, 1963, February 13 and April 16, 1964, and on the date on which the deposition was taken May 6, 1964, plaintiff was still under his care. He stated that since the operation plaintiff had been given progressive exercises to strengthen his muscles and maintain mobility of his back, that he was pleased with plaintiff’s progress, his posture and gait are improved, that he complains of less pain and he felt plaintiff’s condition would further improve.

On April 16, 1964, Dr. Regen did not think plaintiff was able to return to employment as a deckhand because he still suffered pain, and a back injured in the manner in which plaintiff’s was injured, is left with some degree of weakness. As to whether plaintiff could ever return to heavy work, the doctor hoped so, but could not state that he would. He thought plaintiff would continue to improve, but his back could not ever be quite as strong as before. In comparing X rays made in the spring of 1964 with X rays made prior to surgery, the doctor recognized a slight, angular deformity of the joint which was operated on. This indicated some lack of stability.

The doctor further stated that although he could not say that the condition as of that time was permanent, some degree of trouble is permanent and only time can tell where the degree will end, that people suffering from this type of injury have periods of exacerbation and remission which vary with activities and weather changes.

In addition to the above described testimony, plaintiff offered the deposition of Dr. Regen, taken by defendant on August 20, 1964. The doctor testified that he had examined plaintiff on June 18, 1964, at which time plaintiff’s condition was improved, although he still complained of pain in his left leg and back. He prescribed a continuation of muscle strengthening exercises, and was of the opinion that plaintiff was capable of performing very light work. He felt plaintiff could not do any work which required heavy lifting or excessive use of his legs, back, shoulders or arms in handling a load, and to do such work would risk the recurrence of trouble with his back.

Dr. Henry Lattinville, a neurological surgeon, testified that he performed a neurological examination of plaintiff and examined a series of X rays which had been admitted in evidence, without objection. In comparing X rays taken in October 1963 and April 1964, he described an increased narrowing of the space between L-5 and S-l on the left side, and stated that it indicated that the big nerve root in that region is constantly being irritated, that the back is unstable, the condition is not static, but progressive and it was his opinion, based on reasonable medical certainty that it would become worse as plaintiff becomes older, and could become so severe as to require fusion. The doctor defined subjective and objective symptoms, and in response to questions specifically limiting his opinions to his objective findings, he testified that in his opinion, plaintiff had nerve root irritation at the L-5 S-l interspace on the left side, and was industrially unemployable.

Defendant contends that because Dr. Lattinville had taken a history from plaintiff, and because the accuracy of some of the tests made during his examinations of plaintiff are dependent on the patient’s veracity, the court erred in permitting the witness to express an opinion. The rule that the opinion of an examining physician may not be based on subjective symptoms has been clearly established and repeatedly stated. Jensen v. Elgin, J. & E. Ry. Co., 24 Ill2d 383, 182 NE2d 211. This rule, however, does not preclude an examining physician from testifying to an opinion based solely on objective symptoms, even though he may be aware of subjective symptoms. It is clear from this record that in the questions propounded to Dr. Lattinville, he was specifically asked whether, based on his examination, and limiting his answers solely to his objective findings, he had an opinion as to the condition from which plaintiff suffered, and its permanency. Since it is clear from the testimony that his opinions were based on his own examinations and his objective findings, and not on any subjective symptoms or statements made by plaintiff, the circuit court did not err in admitting the testimony. Deckert v. Chicago & E. I. R. Co., 4 Ill App2d 483, 124 NE2d 372.

Defendant contends that the verdict and judgment are excessive, and the circuit court erred in its refusal either to order a substantial remittitur or grant a new trial. Actuarial evidence and testimony in the record show that at the time of his injury plaintiff had a life expectancy of 456 months and a work expectancy of 371 months. At the time of the injury plaintiff was earning $430 per month and at the time of trial had lost wages of approximately $6400. He had suffered pain, had undergone surgery and had not, up to the time of trial, done any work of any kind. From the testimony of Drs. Regen and Lattinville it is clear that plaintiff was not in condition to do any but the lightest type of work. The testimony shows that as a deckhand-tankerman plaintiff was required to help make up and break up tows, handle and carry lines, hoses, and other equipment weighing up to 110 pounds. With a seventh grade education the jury may well have concluded that light work would not be too readily available to him.

Plaintiff contends that this court cannot order a new trial in a case based on the Federal Employers Liability Act or Jones Act on the ground that the judgment is excessive, but we need not reach that issue in this case. The assessment of damages is preeminently a jury function, Braswell v. New York, C. & St. L. R. Co., 60 Ill App2d 120, 208 NE2d 358, and we are not prepared to say, on the basis of the record before us, that the judgment is excessive.

For the reasons set forth, the judgment of the Circuit Court of Madison County is affirmed.

Judgment affirmed.

MORAN and EBERSPACHER, JJ., concur.


text:
    Mildred Calvetti, Plaintiff-Appellant, v. Mary Seipp, Defendant-Appellee.
    Gen. No. 65-60.
    Fifth District.
    April 27, 1966.

      Oehmke, Dunham, Boman & Leskera, of East St. Louis, for appellant.

      O’Connell & Waller, of East St. Louis (John F. O’Connell, of counsel), for appellee.
   MORAN, J.

This is an appeal from the Circuit Court of St. Clair County, Illinois from a jury verdict and judgment for the defendant in an action brought to recover damages for the alleged negligence of the defendant in driving her automobile.

The plaintiff-appellant’s theory is that the evidence in this case established as a matter of law that the plaintiff is entitled to recover. Consequently, the trial judge should have directed a verdict in favor of the plaintiff or awarded the plaintiff judgment notwithstanding the verdict, or alternatively the manifest weight of the evidence is such that the plaintiff should have a new trial.

The accident happened on February 28, 1968, when the appellant was seated in the left rear of an automobile being driven in a northerly direction by her son-in-law on Route 159 near Collinsville. It had rained and sleeted earlier in the evening. The highway was covered with snow and was slick at the time of the accident. The appellant’s vehicle was traveling about 25 miles per hour in a northerly direction in its right-hand lane. The appellee was traveling in a southerly direction and estimated her speed at 25 to 30 miles per hour. As the two vehicles approached each other the appellee’s vehicle went into a skid and after the appellee attempted to break the skid by turning her wheel to the right, it skidded across the center line and struck the appellant’s vehicle, allegedly causing certain injuries to the appellant. The appellee’s vehicle continued and struck another car in the northbound lane.

The appellant alleged that her left side and shoulder were injured and that a previous asthmatic condition was aggravated, so that as a result, she had incurred certain medical expenses, missed time from work and suffered pain. There was conflicting evidence concerning the extent and nature of the damages.

The appellant made a motion for a directed verdict at the close of all the evidence, which was denied. After a verdict was returned for the appellee, the appellant made a motion for a judgment notwithstanding the verdict and for a new trial on the issue of damages alone, or in the alternative, for a setting aside of the verdict and for a new trial on all the issues. This motion was also denied.

A motion for directed verdict or for judgment notwithstanding the verdict presents the single question whether there is any evidence in the record which, standing alone and taken with all its intendments most favorable to the party resisting the motion, tends to prove the material elements of his case. Lindroth v. Walgreen Co., 407 Ill 121, 94 NE2d 847. Appellee does not contend that appellant was contributorily negligent so we must determine whether appellee was negligent as a matter of law.

The defendant testified that she was driving her car in a southerly direction on Route 159 at a speed of 25 to 30 miles per hour. There was ice under snow making the road very slick. Driving conditions were bad and the road was hazardous. She saw two cars coming toward her and she had full control of her automobile. As the two cars approached, her car went into a skid. When this happened she turned her car to the right and the back end of her car came into contact with the car in which appellant was riding, then proceeded on and struck a following car.

Defendant’s husband testified that his wife was driving at a rather slow pace because of the ice and falling snow when all of a sudden the car skidded and she turned to the right. The back end of her car then veered over into the opposite traffic lane and struck the Calvetti car, continued on and struck another car behind the Calvetti car with its front end.

In Murphy v. Kumler, 344 Ill App 287, 100 NE2d 660, the deceased’s vehicle approached a curve and skidded into the plaintiff’s vehicle as it approached in its proper lane from the opposite direction. The defendant-executor presented no evidence about the cause of the skid. There was evidence, however, that the highway was icy and slick. The jury returned a verdict for the defendant. On appeal, the court found that the defendant was negligent as a matter of law and that the verdict was against the manifest weight of the evidence. It reversed and remanded for a new trial, saying at page 294 :

. . . The collision occurred on the plaintiff’s side of the road. This is the evidence produced by the plaintiff and it is exactly where the defendant permitted the proof to remain. It was incumbent upon the defendant to show that the skid and the resultant position of decedent’s car on the wrong side of the highway at the time of the collision was accomplished without negligence on decedent’s part. His failure to do this leads us to conclude that reasonable minds would agree that the defendant was negligent.

In Tomlinson v. Chapman, 24 Ill App2d 192, 164 NE2d 240, the defendant’s car skidded across the highway and struck plaintiff’s car which was coming from the opposite direction in its proper lane. The appellate court said at page 197:

. . . The failure of the defendant here to give any explanation for his skidding into the plaintiff, and there is no such explanation anywhere in the record, was sufficient, in this case, to justify the court’s directed verdict.

In the recent case of Sughero v. Jewel Tea Co., 66 Ill App2d 353, 214 NE2d 512, defendant’s tractor trailer spun into the path of plaintiff’s car when he applied his brakes. In affirming the trial court’s action, the appellate court at 518 of its opinion quoted the following language from Ceeder v. Kowach, 17 Ill App2d 202, 149 NE2d 766:

. . The fact that his car skidded into plaintiff’s car even though the pavement was wet, leaves room for no other inference, . . . except that under the circumstances defendant ‘was driving too closely.’ ”

Both Tomlinson and Sughero quoted and approved the following language from Murphy v. Kumler, 344 Ill App 287, 100 NE2d 660:

. . . Certainly it is not incumbent upon the plaintiff to show conclusively why the defendant was on the wrong side of the road or the exact cause of the skid. Only on rare instances would that knowledge be possessed by the plaintiff. ... In a collision such as this, where one of the cars is on the wrong side of the highway and out of control, certainly it is the duty of the defendant to show that he was in that situation because of some particular reason other than his own negligence.

Applying the theory of these cases to the present case where there was no evidence concerning the cause of the accident except that the highway was icy and slick, “reasonable minds would agree that the defendant was negligent.” In the transcript, there was a noticeable absence of testimony concerning the cause of the accident. The appellee testified that “I had full control. ... I was in my lane until it went into the skid.” Similarly, her husband, also present in the automobile, testified that “all at once the car just slipped.” There is no additional evidence concerning the cause of the skid except for the testimony that the roads were slick. The same absence permeates the appellee’s testimony that she was not sure how many times her auto struck the appellant’s vehicle or how many vehicles her auto struck.

Where a collision occurs in one of two traffic lanes, the presumption is that the driver of the vehicle determined to be in the wrong lane was negligent and the burden is on him to show the collision was not caused by his negligence or that there were justifiable circumstances which would excuse his conduct. In Blockinger v. Schweitzer, 419 Pa 342, 214 A2d 244, the Supreme Court of Pennsylvania said:

. . . There was a time when the word “skidding” was a magic word and its mere pronouncement exonerated the driver of the skidding car from responsibility for the accident of which he was the author. That strange doctrine is now happily sepulchered for good. The motorist who says that skidding caused his car to be operated in a wrong direction on that part of the highway where he has no right to be at all must show that he was as innocent of fault as a child riding a tricycle on the sidewalk outside the Sunday School from which he has just emerged.”

We agree.

The evidence in the case at bar discloses that the verdict in favor of the defendant was not only against the manifest weight of the evidence but the defendant was negligent as a matter of law. The trial court should have directed a verdict for the plaintiff.

The appellee further argues that the appellant proved no actual damages and that “there is nothing in this record other than subjective complaints which would justify a verdict for the plaintiff.” This statement is not supported by the record. The appellee’s husband testified that, when he talked to the appellant at the time of the accident, she told him she had hurt her ribs. Dr. Rothenberg testified that “I believe there’s a cause and effect relationship between the complaints of pain involving the left shoulder area, left chest area, and portions of her back as related to the accident.” Later, he also testified that “I believe that circumstances surrounding the accident resulted not only in the injury but also caused her to be exposed to inclement weather causing her to develop an upper respiratory infection which precipitated an attack of asthma and required intensive care to give her relief.” Though there may be some question about the extent of the injuries, it cannot seriously be contended that there were no actual damages.

The judgment is reversed and this case is remanded to the trial court for trial on the sole issue of damages.

Reversed and remanded with directions.

EBERSPACHER and GOLDENHERSH, JJ., concur.


author: PRESIDING JUSTICE GOLDENHERSH.

text:
    Neil Bradley and Clifford B. Bradley, a Minor, by Max Bradley, His Next Friend, Plaintiffs-Appellees, v. Norman DuWayne Beisner, Jr., Defendant-Appellant.
    Gen. No. 65-88.
    Fifth District.
    April 28, 1966.
    Schuwerk & Sehuwerk, of Chester, for appellant;
    Nehrt & Clotfelter, of Chester, for appellees.
   Opinion by

PRESIDING JUSTICE GOLDENHERSH.

Not to be published in full.