author: PBESIDINC JUSTICE FBIEND

text:
    S. A. Opal, et al., Appellants, v. Material Service Corporation, Appellee.
    Gen. No. 46,751.
    First District, First Division.
    April 2, 1956.
    Rehearing denied April 23, 1956.
    Released for publication April 30, 1956.

      Loeff & Panter, of Chicago, for appellants; Max Chill, and Norman S. Esserman, both of Chicago, of counsel.
    Schradzke, Could & Bantner, and Lord, Bissel & Brook, of Chicago, for appellee; Benjamin Z. Could, Cerald Batner, Stephan A. Milwid, and Bichard E. Mueller, all of Chicago, of counsel.
   PBESIDINC JUSTICE FBIEND

delivered the opinion of the court.

This cause, No. 46751, hereinafter referred to as the Opal case, and cause No. 46750, referred to as the Dorsey case, present common questions and issues of law and were heard concurrently in the Circuit Court on similar motions to strike the second amended complaint. Pending the appeals, we here entered an order, on motion of defendant in the Opal case, consolidating the two causes for hearing and argument. The Circuit Court sustained defendants’ motions to dismiss the second amended complaints in both proceedings on the grounds of insufficiency, multifariousness, and misjoinder of parties, and plaintiffs in both cases appeal. This opinion decides only the issues presented in the Opal case, No. 46751.

Four plaintiffs here brought suit against the Material Service Corporation. Count I of the second amended complaint alleges that plaintiffs are residents and owners of homes in the Village of Brookfield; that defendant owns and operates a stone quarry located in Lyons, Illinois; that in the operation thereof defendant has used explosives for the purpose of blasting so that it might more readily effect the removal of rock and other materials in the quarry; that plaintiffs’ premises are located in residentially zoned sections of the Village of Brookfield, and that all the residences are close to the quarry of defendant; that these premises, buildings and other improvements were in good substantial condition, intact, rested upon undamaged foundations, safely joined and wholly undamaged in structure until the alleged wrongful acts of defendant, as charged in the complaint, occurred; that defendant, in the blasting of rock or other materials in the quarry, by use of explosives during the past five years, and especially the period during the year prior to the filing of suit, disturbed or shook the strata of stone, shale or earth for great distances, including the land, soil and materials on or under the real estate of plaintiffs, and as a natural consequence violent vibrations were produced in the premises of plaintiffs which, as a proximate result thereof, damaged the property of plaintiffs, and that defendant still continues so to blast in said quarry and to damage their premises; that during the past five years, and especially during the year immediately preceding the filing of suit, defendant frequently used and is presently using excessive charges of explosive material and equipment in its quarrying operations, causing thereby tremendous detonations, the effect of which is heard and felt for miles, to the annoyance of plaintiffs and others in the village; that the blasts are of such violent nature that they produce shock, act in effect as an earthquake, and cause buildings to shake and tremble, thereby having caused and still causing material damages to plaintiffs’ premises; that during the period prior to suit defendant set off numerous charges of dynamite or other violent explosives and blasted rock or excavated land or soil which caused and produced violent explosions, penetrating the lands of plaintiffs that were naturally and as a result of the explosions transmitted through the earth and other strata and through the air to the lands and properties of the plaintiffs, and resulted in shaking, trembling and displacement of the buildings and structures of the plaintiffs, and caused settling and cracking of the buildings, and other damage; that all the properties of the plaintiffs were within such proximity to the quarry of the defendant that, by reason of the rock strata underlying their homes, the explosions damaged -their properties.

The complaint further alleges that plaintiffs at all times exercised ordinary and reasonable care to avoid any loss or damage sustained as a result of defendant’s acts but states that defendant failed to use reasonable and ordinary care and was negligent in the operation of its quarry and in the setting off of said explosives, and did carelessly and negligently set off divers dangerous charges of explosives in unreasonable quantities thereof with undue force and violence, and did thereby unreasonably or unnecessarily shake, break, and damage the premises of the respective plaintiffs; that the explosives used in the quarry operations were intrinsically dangerous, and defendant failed to use reasonable means or methods to prevent violent and dangerous vibrations in the rock strata or subsoil extending from the place of explosion to plaintiffs’ premises, whereby the premises were so shaken as to damage the property of plaintiffs, and that the damage was a direct and proximate result of the explosions caused by the actions of defendant.

It is further alleged that defendant detonated explosive material in and about the operation of its quarry in violation of its duty to use, run, maintain and operate the said quarry so as to avoid damage to the property of plaintiffs; that the blasting constituted such an annoyance and harassment of all and sundry persons and property in and about the quarry and surrounding territory as to be a continuous nuisance causing continuous damage to the premises of plaintiffs and constituting a menace to their health; that the blasting creates explosions of magnitude, jarring plaintiffs and their property all hours of the day and night, and causing continuous great disturbing noises and vibrations ; that as a result thereof plaintiffs are prevented from enjoying their property, and their residences are rendered unhealthful and less fit for occupancy and are being depreciated in value; that plaintiffs have no adequate remedy at law, and unless defendant is restrained from further continuing its blasting operations so as to constitute a nuisance, the unlawful acts will continue. The prayer of the complaint is for a temporary and permanent injunction, but no temporary injunction was applied for or granted.

Count II of the complaint realleges all matters in Count I and in addition charges that the action of defendant was wilful, that the residences of all the plaintiffs were damaged, and sets forth in figures damages to the respective plaintiffs in amounts varying from $1,000 to $2,500. Count II seeks judgment and punitive damages in double the amount of actual damages.

Defendant moved to strike and dismiss Count I or, in the alternative, asked for an order requiring plaintiffs to make definite certain portions of Count I for the following reasons: plaintiffs fail to allege a cause of action against defendant; they are unable to state an equitable cause of action, and they have an adequate remedy at law; the complaint is vague and ambiguous and does not contain such information as to reasonably inform defendant of the nature of the claims of the several parties; Count I fails to show what act or acts of negligence on the part of defendant occasioned the alleged damage or injury, and, further, it fails to specify any particular date or time as to when the alleged damage or injury occurred as the result of any particular acts of defendant; Count I contains allegations as to purported responsibility of defendant which are mere conclusions of the pleaders and not ultimate facts upon which relief can be granted; such general allegations do not constitute a plain and concise statement of the pleaders’ purported cause of action as required under the Civil Practice Act and the Rules of the Supreme Court; and the allegations contained in paragraphs 5 through 11 of Count I are not averments of ultimate facts, but are, rather, mere conclusions of the pleaders.

Without waiving the right to have Count I of the second amended complaint dismissed without further leave to amend, should the court deny the motion to dismiss, defendant asks in the alternative that, pursuant to the provisions of sections 42 (1) and 45 of the Civil Practice Act [Ill. Rev. Stats. 1955, ch. 110, §§ 42, 45] an order be entered requiring plaintiffs to make more definite and certain Count I in the following particulars : (1) the exact date or dates, if any, when defendant is alleged to have performed any of the acts complained of in paragraphs 5 through 11 of Count I; (2) the date or dates, if any, when the first damage occurred; (3) a statement of the proximity to the quarry of defendant, in miles or fractions thereof, of the premises of each of the plaintiffs; and (4) the manner in which the use of explosives was excessive, specifying the nature of the charges. In their motion to dismiss Count I defendant asked that plaintiffs be given no further leave to amend.

The motion directed to Count II asked that it be dismissed or, in the alternative, that the court enter an order requiring plaintiffs to make definite certain portions of Count II or, in the further alternative, that the multiple causes of action be severed for the following reasons: (1) that Count II is wholly insufficient for failure to state a claim against defendant; (2) that there is a misjoinder of causes of action; it raises no common substantial question of law or fact which would entitle plaintiffs to join their various causes of action; from the face of the complaint it appears that the several plaintiffs claim separate and distinct causes of action for damages alleged to have occurred to the several improvements standing upon the real estate owned by them respectively; (3) that the relief sought by the several plaintiffs does not grow out of the same transaction or series of transactions; (4) that there is a misjoinder of parties plaintiff since the real estate is owned separately, and no common cause of action exists, and each plaintiff is asking for separate and distinct damages which are alleged to be due them severally and not jointly, or not jointly and severally; (5) that the complaint is vague and ambiguous and does not reasonably inform defendant of the nature of the several claims of the parties plaintiff; (6) that it seeks to recover punitive damages without alleging any basis in law or in fact therefor; that Count II makes general allegations as to the purported responsibility of defendant which are mere conclusions of the pleaders and not ultimate facts upon which relief can be granted; that such general allegations do not constitute a plain and concise statement of the pleaders’ cause of action, and are not. in conformity with the Civil Practice Act and the Rules of the Illinois Supreme Court; and (7) that Count II fails to set forth what act or acts of negligence on the part of defendant occasioned the alleged damage or injury to the several plaintiffs, and fails to specify the dates or times as to when these damages occurred.

The motion to dismiss Count II also seeks, in the alternative, that, pursuant to sections 42 (1) and 45 of the Civil Practice Act, an order be entered requiring plaintiffs to make more definite their said Count II in particulars similar to those set out in defendant’s motion with respect to Count I.

Accompanying the motion to dismiss Count II was a request by defendant that the several causes of action be severed since, as they state, the issues will be hopelessly confused in the minds of the jurors because of the numerous parties and causes of action joined together; no economy or convenience is effected by the consolidation of the several parties and the several causes of action; the several properties of plaintiffs and the alleged damages to their properties are wholly different in nature, in location and in extent; the acts complained of are wholly different and were occasioned at various distances from the location of the several properties of the plaintiffs at wholly different times; defendant believes no jury can allot each item of the testimony to its relevant issue, confining such testimony to that issue, and keeping the issues separate so as to render an intelligent verdict; a great number of parties and issues joined increases the possibility of error which would delay the final disposition of the action and increase the expense of litigation; almost every witness will testify to the claim of one plaintiff only, and would have no logical relevancy to the claims of the others, yet the cumulative effect of the irrelevant testimony would be highly prejudicial to defendant; and plaintiffs are not suing to enforce a common right since their respective interests are personal. Defendant sought the dismissal of Count II or, in the alternative, asked that an order be entered requiring plaintiffs to make the count more definite and certain, or, as a further alternative, that the multiple causes of action be severed.

Aside from charges of misjoinder of parties and multifariousness, which will be discussed later in this and the Dorsey opinion, defendant’s motion to dismiss both counts of the amended complaint is predicated on plaintiffs’ failure to state a cause of action, on the vagueness and indefiniteness of the complaint, on plaintiffs’ failure to show specific acts of negligence such as the exact time or dates when damage occurred, their failure to equate the damage with specific explosions, to state the precise place where and the periods when the blastings were set off, the amount of explosive material used, and the condition of the subsoil when the blasts took place. This data is, for the most part, contained within the records of defendant and is peculiarly within its knowledge; under fundamental rules of pleadings, plaintiffs are not required to allege facts which are, to a much greater degree of exactitude, within the knowledge of defendant rather than of plaintiffs.

All the essential allegations for injunctive relief are contained in Count I. It alleges that plaintiffs are residents and owners of buildings located close to defendant’s quarry; that defendant has set off explosive material in connection with the operation of the quarry; that the blasting creates explosions of magnitude jarring plaintiffs and their property at all hours of the day and night and causing great and continuous noises and vibrations of the subsoil; that excessive amounts of explosive material are used; that ordinary care was exercised on the part of plaintiffs, that defendant was guilty of general negligence; that the injuries complained of resulted from the blastings and constant explosions, constituting a nuisance; that plaintiffs are prevented from enjoying their property; that they have no adequate remedy at law; and that unless defendant is restrained the unlawful acts will continue.

In Count II the complaint alleges that the damages complained of resulted from a series of explosions. It is not necessary to equate the damage with any specific explosion; indeed, it would be impossible to assess the damage resulting from each particular blast or series of blastings, since the damage may not result until some time subsequent to the blast. Plaintiffs would not be likely to make a record of the incidence of blastings, nor would they be in a position to know the precise place where the blastings were set off, the amount of explosive material used, or the exact periods when the blastings occurred; neither would plaintiffs know the condition of the subsoil where the blastings took place. The allegations of the amended complaint afford sufficient basis for injunctive relief and damages and should be' answered.

Under the order consolidating this cause with the Dorsey case for hearing and oral argument and granting defendant leave to file a single brief for our consideration on both appeals, defendant treats the two proceedings as one. It is urged that the amended complaints were multifarious because the claims are asserted against various defendants who are in no way interrelated with respect to the claims against their co-defendants. Of course this contention has no application to the instant proceeding, since here Material Service Corporation is the sole defendant. Charges of multifariousness by reason of the misjoinder of four defendants in the Dorsey case will be considered separately and discussed in that opinion.

This leads to a consideration of the charge of misjoinder of plaintiffs. Sections 23, 24 and 44 of the Civil Practice Act (Ill. Rev. Stat. 1953, ch. 110) outline the rules governing joinder of parties and claims. Recent amendments of these sections do not affect the questions presented. An exhaustive discussion of the construction of these sections of the statute, with citation of cases, is found in 43 Ill. L. Rev. (1948-49) page 41 et seq. Section 44 permits unlimited joinder of claims, both legal and equitable, by plaintiffs, and of counterclaims, both legal and equitable, by defendants; and it vests in the trial court discretion to order separate trials for such issues as may not be disposed of equitably or conveniently in one trial. Although section 44 does not specifically so provide, construction of similar statutes by courts of other jurisdictions, and subsequent decisions in this state, indicate that when there are multiple parties plaintiff or defendant, joinder of claims must meet the limitations of sections 23 and 24. These three sections were taken, with modifications, from the New York Civil Practice Act and the English rules of practice. For a discussion of the British and New York cases, see McCaskill, Illinois Civil Practice Act Annotated (1933), 41, 47 and 107; there is also a helpful discussion of the British precedents in Payne v. British Time Recorder Co., 2 K. B. 1, 124 L. T. 719, 90 L. J. K. B. 445 (1921), which recognized that Order XVI, dealing with joinder of parties, also dealt with joinder of causes of action. That the three sections should be construed together appears to be the view of the Illinois courts: Trapp v. Gordon, 366 Ill. 102; Baker v. S. A. Healy Co., 302 Ill. App. 634; Weigend v. Hulsh, 315 Ill. App. 116.

Under section 23 only those plaintiffs may join whose claims (1) arise out of the same transaction or series of transactions, and (2) involve any common question of law or fact. Section 24, which deals with joinder of defendants, likewise includes the same transaction or series-of-transactions clause, but omits the common question of law or fact requirement. Courts of other jurisdictions, however, have construed similar provisions so as to make the common-question clause in the section concerning joinder of plaintiffs applicable to the joinder of defendants. Payne v. British Time Recorder Co., 2 K. B. 1, 124 L. T. 719, 90 L. J. K. B. 445; Great Northern Telegraph Co. v. Yokohama Specie Bank, 297 N. Y. 135, 76 N.E.2d 117 (which contains an extensive discussion of cases). While the question has apparently not been decided in Illinois, this appears to have been the construction given in Trapp v. Gordon, 366 Ill. 102, and People for Use of Jones v. Leviton, 327 Ill. App. 309.

Both sections 23 and 24 confer upon the trial court discretion to order separate trials and otherwise to protect the parties from injustice or unnecessary expense. Misjoinder does not carry with it the penalties attached to it by the common law, for section 26 provides: “No action shall be defeated by non-joinder or mis-joinder of parties,” and Illinois courts have generally followed the rule that dismissal of the complaint for misjoinder of parties or claims is improper. Hitchcock v. Reynolds, 278 Ill. App. 559; People v. Shetler, 318 Ill. App. 279; People for Use of Jones v. Leviton, 327 Ill. App. 309.

The author of “Comments” in 43 Ill. L. Rev. (p. 41 et seq.) makes the following pertinent observation with respect to the construction of the foregoing sections of the Practice Act: “As indicated by the history of earlier procedural reforms in other jurisdictions, the basic objectives of the above sections of the statute could have been defeated by a narrow and technical interpretation of such clauses as ‘transaction or series of transactions’ and ‘any common question of law or fact,’ ” and states that this danger has been largely, if not entirely, avoided, as evidenced by several cases discussed in the article.

In Gombi v. Taylor Washing Machine Co., 290 Ill. App. 53, which was decided on the pleadings, twenty-one plaintiffs joined in a complaint alleging the sale of washing machines of inferior quality to each plaintiff by the fraudulent misrepresentations of defendant’s salesmen. The complaint charged that at the time of sales, the salesmen had induced plaintiffs to sign conditional sales contracts which they had been led to believe were nothing more than receipts for the machines, that the machines had been sent on trial, but that defendant had refused to take them back. Plaintiffs asked that the contracts be set aside, that defendant be required to account for the money received, and that it be enjoined from proceeding further in actions at law which had been commenced against various of the plaintiffs. Beversing the trial court, the Appellate Court (Second District) held that section 23, concerning joinder of plaintiffs, was merely declaratory of the earlier rules in equity, and hence that the bill should be dismissed, not for misjoinder of the parties, but for multifariousness. The court found that “the representations to the several plaintiffs and the contracts were several and distinct, apparently made at separate times; [that] no plaintiff has any pecuniary interest in the contract of any other plaintiff; [and that] each contract is the separate and distinct agreement of the defendant with each individual plaintiff.”

The opinion in the Combi case referred to the leading New York case of Akely v. Kinnicutt, 238 N. Y. 466, 144 N. E. 682, without, however, distinguishing the fact situations. In the New York case 193 plaintiffs joined separate and independent causes of action in a complaint alleging that the defendants had fraudulently induced them to purchase stock in a new corporation at prices in excess of its value by means of an intentionally false prospectus upon which plaintiffs had relied. Affirming an order overruling a motion for severance, the New York Court of Appeals held that the complaint satisfied the common question of law or fact requirement of the New York statute since the basic issues were whether defendants had conspired to organize a corporation and float its stock at more than its real value, and whether the prospectus had been circularized in furtherance of this conspiracy. “The separate issues which must be tried in each instance will be in the main whether the plaintiff saw the prospectus or learned of its representations, was influenced thereby and at a certain date bought a certain amount of stock at a certain price in advance of its real value in reliance thereon. While these latter [questions] may equal in number the common ones it seems from the face of the complaint . . . that the trial of them will yield in contentious importance and difficulty to the questions which have been first suggested and that, therefore, this is a case which comes well within the meaning of the statute so far as relates to common questions.” As to the same transaction or series-of-transactions requirement, the court held that the transaction out of which each cause of action arose was the purchase of stock, and that successive purchases by the various plaintiffs constituted a series of transactions.

The Akely case can be distinguished from the Gombi case on the grounds that the fraudulent misrepresentations in the former were by means of a written prospectus which could readily be proved by evidence common to all the plaintiffs, whereas in the latter the sales were induced by oral misrepresentations of defendant’s salesmen which would present separate questions of law and of fact as to each plaintiff; that, moreover, the pleadings in the New York case, which were more skillfully drafted, specifically spelled out a theory of conspiracy, while the theory behind the Gombi case, that each sale was part of a common design to defraud, was not adequately alleged; and that, as pleaded, the joinder of claims in the Gombi case lacked such a unifying factor as was present in the Akley case. The Gombi case is one of the few decisions in this jurisdiction giving a narrow construction, and in view of its holding that the suit was laid in the wrong venue and should have been brought in Cook County, where defendant had commenced actions at law against various plaintiffs, its rulings on other issues were dicta.

In Weigend v. Hulsh, 315 Ill. App. 116, an action for damages, this division of the Appellate Court, relying heavily on the Akely case, permitted five plaintiffs to join separate counts against two defendants alleging the inducement of separate sales contracts by means of oral representations in pursuance of a fraudulent conspiracy. In response to a want ad in the newspapers, each plaintiff went individually to defendants’ office where, by means of misrepresentations about the quality of and demand for defendants’ products, plaintiffs were induced to invest heavily in the products, in return for exclusive sales territories. The agreements were executed independently over a period of about six months. The Weigend and Grombi cases are not easy to reconcile on their facts. Bach concerned fraudulent oral misrepresentations and purchases of products of inferior quality. It is true that the Weigend case involved a want ad which demonstrated more plainly that the respective sales to plaintiffs were part of a fraudulent plan of defendants common to each plaintiff; but the want ad was not emphasized by the court and would not appear to be a very significant distinction since it merely induced the plaintiffs to go to defendants’ office where the alleged fraud was consummated by separate discussions between defendants and each plaintiff. In passing on the sections of the statute here under consideration, Judge O’Connor, speaking for the court, quoted with approval from the Akely case: “ ‘The statute is a remedial one in promotion of the purpose in these times so insistent and widespread that the delays and expenses of litigation shall be lessened where possible and as such it is to be liberally construed. . . . The common issues are basic and would seem to be the ones around which must revolve the greatest struggle and to which must be directed the greatest amount of evidence.’ ” Under the facts presented in the Weigend case, the court felt that although the claims of the several plaintiffs were legally separate and distinct, inasmuch as they involved common questions and arose from identical or related transactions, their common trial could be had with fairness to the different parties.

Baker v. S. A. Healy Co., 302 Ill. App. 634, decided in the First District of the Appellate Court and heavily relied upon by plaintiffs here, is another type of joinder case. Sixty-two plaintiffs were there permitted to bring claims against a contractor, the Sanitary District, and the City of Chicago for personal injuries and property damage caused by a series of explosions in the course of constructing a sewer, and also claims for damage from soil subsidence caused by the sewer excavations. Overruling an order dismissing the complaint, the reviewing court pointed out that all claims arose from the construction of the same sewer which as to plaintiffs was a single transaction, and that the only substantially separate questions of fact were the amount of damage which the explosions caused to each plaintiff. It was held that if plaintiffs could prove causal connections and damages, their right to recover from defendants under Illinois law did not require a showing of negligence but turned on questions of law common to each plaintiff.

Analysis of the cases discloses the wide play for the court’s judgment permitted by the common-question and same-transaction clauses of the statute. Neither phrase has been or can be exactly defined, and whether a court holds that multiple claims involve common questions of law or of fact will depend upon the relative importance which the court attaches to the various issues in a case. The rationale of this question is well

stated in Payne v. British Time Recorder Co., 2 K. B. 1, 124 L. T. 719, 90 L. J. K. B. 445 (1921), as follows: “Broadly speaking, where claims by or against different parties involve, or may involve, a common question of law or fact bearing sufficient importance in proportion to the rest of the action to render it desirable that the whole of the matter should be disposed of at the same time, the Court will allow the joinder of plaintiffs or defendants, subject to its discretion as to how the action should be tried.” With some exceptions, Illinois courts have liberally construed permissive joinder. Hitchcock v. Reynolds, 278 Ill. App. 559; Crane v. Railway Express Agency, Inc., 293 Ill. App. 328; Antosz v. Goss Motors, Inc., 378 Ill. 608; and Shelton v. Barry, 328 Ill. App. 497.

Of course the joinder of multiple claims or multiple parties increases the procedural problems of the trial judge. Under the statute he has broad discretion to provide for separate trials and to control the course of litigation. He must consider the questions of trial convenience and of minimal hardship to the parties— always in subordination to the search for the most equitable solution but in connection therewith. A case such as Baker v. S. A. Healy Co., which involves numerous plaintiffs and difficult factual questions as to damages, presents the interesting question whether the court should or could permit one jury to pass on the liability of defendants and one or more different juries to assess the damages of the various plaintiffs. A procedure, assuming that it could be legally employed, of allowing separate trials for different issues, might in some instances afford a more orderly and logical introduction of evidence, with the submission of fewer and simpler questions to the jury, and might also encourage claimants to settle out of court, if liability is established. So far as we know it has not been decided in this state whether the trial judge may set damage questions down for separate trial, but dicta in Schultz v. Gilbert, 300 Ill. App. 417 (in the Fourth District), and Baker v. S. A. Healy Co., strongly suggest that appellate courts consider that orders for separate trials of separate issues are within the discretion of the trial court. The Supreme Court of Illinois has, without discussion, remanded a case for a partial retrial limited to the assessment of damages. Merrill v. City of Wheaton, 379 Ill. 504; in accord, Novitsky v. Boland, 322 Ill. App. 698, Springer v. Yellow Cab Co., 328 Ill. App. 354. If our interpretation of these cases is correct, and in view of the broad language of the Practice Act, it may well be that when the court has before it an appropriate case for trial of separate issues by separate juries, it will hold such a procedure within the act. Section 92 (1) (e) of the Practice Act [Ill. Rev. Stats. 1955, ch. 110, §92, subd. (1) (e)] authorizes a reviewing court to remand a case for partial new trial, but nowhere does the act expressly authorize a trial court to provide for separate trials of separate issues in the first instance. We think that authority for such procedure could be implied from the provisions in sections 23, 24, 44 and 51 and from Rule 11 which give the trial court broad discretion to sever causes of action and to control the course of litigation. It has been held in other jurisdictions that a severance of the issues does not violate the constitutional guarantee of trial by jury since the right to jury trial does not require that all issues be decided by the same jury. Gasoline Products Co. v. Champlin Refining Co., 283 U. S. 494; Smyth Sales v. Petroleum Heat & Power Co., 141 F.2d 41; Simmons v. Fish, 210 Mass. 563, 97 N. E. 102; Beaulieu v. Tremblay, 130 Me. 51, 153 Atl. 353.

In the light of these decisions we have no hesitancy in holding that it was proper, within the provisions of the Practice Act and the rules enacted pursuant thereto, to join multiple plaintiffs in the amended complaint. As in Baker v. S. A. Healy Co., all the claims in the instant suit arose from the blasting-operations which as to plaintiffs were a single transaction or series of transactions, and the only substantial separate questions of fact were the amounts of damage, if any, which the explosions caused to each plaintiff; also, whether these continued blastings by defendant in this, the Opal case, were of such magnitude as to constitute a nuisance justifying injunctive relief. It does not matter that the damages of each will in all likelihood be different in kind or amount; common questions of fact are presented because of these blasts and concussions, and they lend themselves to a single common trial. The nature of the blasts, their frequencies, the amount of explosives used, the method of blasting employed, the character of the subsoil — all these considerations are common to these plaintiffs— and if on trial it should become necessary to prove negligence on the part of defendant, such proof will likewise involve common questions of fact. The testimony of the witnesses would be common to all plaintiffs except as to the question of damages each plaintiff suffered.

In consonance with these views, the order dismissing the amended complaint in this case will have to be reversed and the cause remanded for trial. Upon trial, the question of liability for damages resulting to property, as well as injunctive relief arising from continued blastings in quarry operations, will undoubtedly have to be considered.

The rule in this state as to liability for damages resulting from the use of explosives, was enunciated in the early case of Fitz Simons & Connell Co. v. Braun & Fitts, 94 Ill. App. 533 (1900). Plaintiff there brought suit to recover for damages to a brick building caused, as alleged, by underground blasting done by the corporate defendant in the construction of the tunnel. The trial court refused an instruction to the effect that defendant was not liable if the vibrations or pulsations were not negligently caused, ignored the question of negligence and gave the following instruction: “The jury are instructed as a matter of law, that a person uses a dangerous explosive at his peril, and that if the use of such explosive causes injury to the property of any other person, the person so using such dangerous explosive is in law liable for the damages so caused.” In discussing the propriety of the instruction, the court observed that the authorities of different jurisdictions are not in harmony upon this question, citing New York cases, including the much cited case of Booth v. Borne, W. & O. T. R. Co., 140 N. Y. 267, 35 N. E. 592 (1893), distinguishing between direct injury, as where rocks or other debris are propelled upon the property of another causing injury, and consequential injury, such as is caused by concussion or vibration, which by the shaking of the earth injures property. In the former contingency, recovery was permitted on the theory of trespass; in the latter, liability for consequential injury was denied unless negligence was shown in the use of the explosive. “But,” in the words of the court, “it has been held differently elsewhere,” and it went on to point out that in California the doctrine is broadly stated that whenever one uses a violent and dangerous explosive to blast rock, even upon his own premises, if such premises are contiguous to other property which may probably and naturally be thereby injured, such use is sufficient to impose a liability for injury, direct or consequential, irrespective of the degree of skill or care exercised in using the explosive, and cited in connection with that holding the case of Colton v. Onderdonk, 69 Cal. 155, 10 Pac. 395. After reviewing the decisions in various jurisdictions the court said: “We are not put to the necessity of determining, as matter of first impression, between the weight of these conflicting authorities, because in our opinion our own Supreme Court have indicated which doctrine shall govern here,” citing City of Joliet v. Harwood, 86 Ill. 110, wherein the question of liability for injury caused by blasting was considered and determined. In commenting on the Harwood case, the court called attention to the fact that the injury was not consequential, since there was an actual invasion of the property of plaintiff, but said that “the principle upon which the recovery there is justified is announced broadly and without any distinction between injuries caused by substances thrown against the property, i. e., actual invasion, and injuries caused by the concussion or vibration of earth or air, which might be regarded as consequential only.” The Harwood decision, the court pointed out, was cited with approval in Village of Jefferson v. Chapman, 127 Ill. 438, Chicago Economic Fuel Gas Co. v. Myers, 168 Ill. 139, and followed by the Illinois Appellate Court in Capital Elec. Co. v. Hauswald, 78 Ill. App. 359. “The doctrine thus established and approved,” the court continued, “has apparently the support of logic and natural justice. It would seem absurd that any refinement of reasoning as to nuisance per se or as to injury, consequential or by physical invasion, should be permitted to obstruct the natural justice of a rule which would make one who chooses for his own convenience or profit to use agencies which in their probable and natural results will injure the property of others, answerable for the loss occasioned by such injuries. Nor are authorities wanting which, by analogy at least, support the doctrine.” The court quotes with approval from Wood on Nuisances (2d Ed.), Sec. 128, as follows: “ ‘The usual question is whether the injury resulted from some act done outside the property injured, and is the natural and probable consequence of the act or thing complained of. If so, it is a nuisance, however lawful in itself, and however high a degree of care or skill may have been exercised to prevent the injury.’ ” It discussed the case of Harding v. City of Boston, 163 Mass. 14, 39 N. E. 411, stating that the Supreme Court of Massachusetts held that under the facts of that case the city was not liable for a trespass upon the land of plaintiff, because the city had let the work to one who stood as an independent contractor and who was alone liable for the wrong. In distinguishing between that case and cases where the work is intrinsically dangerous, so that in the natural course of things injurious consequences must be expected to result, the Massachusetts court cited the decision of the Supreme Court of Illinois in the Harwood case. The Fitz Simons case also discussed Bradford Glycerine Co. v. St. Marys Woolen Mfg. Co., 60 Ohio St. 560, 54 N. E. 528, which had to do with an injury resulting from an explosion by concussion or vibration, i. e., consequential injury, and quoted with approval the Ohio court’s holding that “ ‘when the owner of a stone quarry, by blasting with gunpowder, destroys the buildings of an adjoining-landowner, it is no defense to show that ordinary care was exercised in the manner in which the quarry was worked.’ ” The Illinois Appellate Court also cited City of Tiffin v. McCormack, 34 Ohio St. 638; Cahill v. Eastman, 18 Minn. 324 (Gil. 292); and Mears v. Dole, 135 Mass. 508. After this extensive review of authorities, the Fitz Simons case stated that while the earlier decisions in New York and New Jersey distinguish between injury by trespass and that resulting from concussion or vibration only, and hold that no liability can be imputed in the latter class of cases except where specific negligence is shown in the method of use, the courts of Massachusetts, Ohio, California, Minnesota and Illinois disregard any such distinction and hold to a liability for injuries whether direct or consequential if they are the probable and natural result of the use of a dangerous agency.

When the Fitz Simons case reached the Supreme Court of Illinois on appeal (Fitz Simons & Connell Co. v. Braun, 199 Ill. 390), that court cited, discussed and approved some of the cases reviewed by the Appellate Court, including those in California, Ohio and Massachusetts and said that “though the law as to the liability arising in such instances does not seem to have been harmoniously declared in the courts of the different States to which we have referred, the rule in this jurisdiction was indicated by this court in the case of City of Joliet v. Harwood, 86 Ill. 110.” In passing on the propriety of the instruction in the Fitz Simons case as enunciating the rule of liability in this state, the Supreme Court said: “We need not set forth in full the instructions with relation to the liability of the appellant [defendant] company for any injury or damage resulting from the use of dynamite. They announced, in substance, the proposition that one who makes use of an explosive in the ground near the property of another, when the natural and probable, though not the inevitable, result of the explosion is injury to such property of the other, is liable for the resulting injury, however high a degree of care or skill may have been exercised in making use of the explosive.” It unequivocally placed Illinois in the majority group when it said: “If one who, for his own purposes and profit, undertakes to perform a work, by means of explosives, inherently dangerous to the property of another, should be held liable for an injury occasioned by any substance cast by the explosives on the property of such other, it is only by the merest subtility of reasoning he should be held not liable to respond for equal or greater damage caused by the concussion of the air or of the earth. There is no ground of substantial or practical distinction,” and with respect to the instruction to the jury so stating the law, the court concluded: “The doctrine of the charge to the jury we think correct.” The Fitz Simons case was followed in Baker v. S. A. Healy, 302 Ill. App. 634; the courts of this state have never departed from the doctrine enunciated in the Fitz Simons case, and it has been cited with approval in various jurisdictions. Hickey v. McCabe & Bihler, 30 R. I. 346, 75 Atl. 404. See also Baier v. Glen Alden Coal Co., 131 Pa. Super. 309, 200 Atl. 190, aff’d 332 Pa. 561, 3 A.2d 349 (concussion, damage discussed as trespass); Richard v. Kaufman, 47 F. Supp. 337 (damage from vibrations rather than from propulsion of debris does not make the trespass any the less direct).

A respectable minority of jurisdictions has adopted the New York rule, but it is rejected by most of the American courts which hold the entrepreneur to liability for the damage resulting from his blasting operations whether occurring through trespass or concussion. The authorities holding with the majority rule, with citations, including the Fitz Simons case, which is relied on in Baker v. S. A. Healy Co., 302 Ill. App. 634, will be found in 40 Illinois Law Beview 280 (1945-46) under footnote 9. The minority rule has been criticized by numerous writers for its illogical approach to the problem and the unscientific distinction it insists on making between direct and consequential injury. Prosser, Torts (1941) 79; Smith, Seasonable Use of One’s Own Property as Justification for Damage to a Neighbor (1917), 17 Columbia L. Bev. 383; Smith, Liability for Substantial Physical Damage to Land by Blasting (1920), 33 Harvard L. Bev. 542, 667.

Through the Booth case (1893), the New York courts established an exceedingly flexible and usable rule which has been utilized to favor builders in numerous instances. In Dixon v. New York Trap Rock Corp., 293 N. Y. 509, 58 N.E.2d 517 (1944), the court restates the rule of the Booth case as “a precise exception” to the principle that “the safety of property generally is superior in right to a particular use of a single piece of property by its owner.” The problem confronting the court was the re-evaluation of the public need for building against the preservation of individual property rights. By retaining the Booth case as an exception, the court indicates its unwillingness to abandon its builders entirely to what is considered the too rigid rule of other jurisdictions. The court in the Booth case foresaw clearly the practical results of the imposition of liability without negligence, and created a rule to meet the need. Its policy is too deeply imbedded in the jurisprudence of that state to be discarded, but by relegating it to the position of a mere exception, the court has increased the protection of the individual property owner of that jurisdiction. It would seem that the Dixon case but reflects the change in attitude which has taken place during the intervening fifty years. At the time of the decision in the Booth case, the country as a whole was willing, to some degree at least, to protect the enterpriser at the expense of his neighbor. By moderating the builder’s liability to the neighboring property owner, a stimulus was given to building during the years when such development was of paramount concern to all. This trend is reversing itself today as the social group manifests increasing concern for the welfare of its individual members.

It is apparent from the blasting cases that the courts recognize that any rule which is to govern adequately the rights of adjacent landowners in the use of their property must compromise their conflicting interests. The New York court has recognized this too, but did not fashion its rule in terms of the basic rights and duties of adjoining owners as determined by economic needs, justice between the parties, and prevention of future harms. Instead, it has achieved its ends by adhering to the arbitrary distinction between trespass and concussion. Now, although the court still retains its rule, it has reduced it to the narrow limits of an exception.

In 1931 the Circuit Court of Appeals for the Second Circuit decided an action in tort (Exner v. Sherman Power Const. Co., 54 F.2d 510) brought by plaintiff to recover damages to her person, property, and business which were caused by the explosion of dynamite kept by the defendant company in connection with work upon a hydroelectric development in which it was engaged. In sustaining plaintiff’s cause of action, the court said that the liability of defendant was not founded on illegal storage or on negligence, which was not proved, but upon the ground that the use of dynamite is so dangerous that it ought to be at the owner’s risk. After an extensive consideration of authorities (many of which have been alluded to in this opinion, and including Fitz Simons & Connell Co. v. Braun, 199 Ill. 390) and pointing out the distinction drawn by some jurisdictions between direct and consequential damages, and the requirement in the latter type of damages of proving negligence (in New York as in the frequently cited case of Booth v. Rome, W. & O. T. R. Co., 140 N. Y. 267, 35 N. E. 592 (1893), and also in New Jersey, Alabama, Kentucky and Kansas), Justice Augustus N. Hand, speaking for the court, made the following comment: “It is true that some courts have distinguished between liability for a common-law trespass, occasioned by blasting, which projects rocks or debris upon the property or the person of the plaintiff, and liability for so-called consequential damages arising from concussion, and have denied liability for the latter where the blasting itself was conducted at a lawful time and place and with due care.” The characterization of the Illinois Supreme Court in the Fitz Simons case that such a distinction can.be made only by the merest subtlety of reasoning echoes in Justice Hand’s continuing comment: “Yet in every practical sense there can be no difference between a blasting which projects rocks in such a way as to injure persons or property and a blasting which, by creating a sudden vacuum, shatters buildings or knocks down people. In each case, a force is applied by means of an element likely to do serious damage if it explodes. The distinction is based on historical differences between the actions of trespass and case and, in our opinion, is without logical basis.” The court then went on to cite jurisdictions in which such doctrine had been rejected— California, Illinois, Iowa, Montana, Ohio, Rhode Island, South Dakota, Washington. The court further said: “We can see no reason for imposing a different liability for the results of an explosion, whether the dynamite explodes when stored or when employed in blasting. To be sure there is a greater likelihood of damage from blasting than from storage, but in each case the explosion arises from an act connected with a business conducted for profit and fraught with substantial risk and possibility of the gravest consequences. As Justice Holmes has said in The Common Law, p. 154: ‘The possibility of a great danger has the same effect as the probability of a less one, and the law throws the risk of the venture on the person who introduces the peril into the community.’ ... If damage is inflicted, there ordinarily is liability, in the absence of excuse. When, as here, the defendant, though without fault, has engaged in the perilous activity of storing large quantities of a dangerous explosive for use in his business, we think there is no justification for relieving it of liability, and that the owner of the business, rather than a third person who has no relation to the explosion, other than that of injury, should bear the loss. The blasting cases seem to afford ample analogies and to justify this conclusion.”

In the case of Benton v. Kernan, 127 N. J. Eq. 434, 13 Atl.2d 825, the New Jersey court in 1940, which had earlier followed the New York decisions, had before it a situation where forty-eight complainants, residents in the Village of South Orange, owners of their homes, brought suit to restrain the defendants from operating a quarry and a plant manufacturing a road-surfacing product in such a manner as to constitute a nuisance. As here, plaintiffs.charged that their homes were shaken, jarred and damaged, and their lives made highly uncomfortable by vibrations caused by the blastings of rock at the quarry; that the blastings cast stones upon the lands of some of them, endangering the safety of the persons thereon; and that their peace and comfort were disturbed and their health affected by the noises occasioned by the blastings, etc. In view of the importance of the case, the size of the record, and the broad issues raised by the bill, as the court observed, the voluminous testimony adduced upon the hearing was set forth at great length. In reviewing the decisions, the court called attention to Blackford v. Heman Construction Co., 132 Mo. App. 157,112 S. W. 287, which was said to be a case directly in point. The Missouri court enjoined the operation of defendant’s quarry, which had resulted in the casting of stones on complainants’ property and the jarring and vibrating of buildings. In speaking of the relative rights of the complainants and the defendant quarry, the Missouri court said: “Although defendants have, beyond a doubt, the right to quarry stone on their property, the plaintiff enjoys the right to the undisturbed possession of his home. If these rights conflict, the right to operate the quarry must yield to the latter, which, in the eye of the law, is the more important of the two . . .” As a result of the appeal in the New Jersey court and in consonance with the injunctive relief granted in the Blackford case, as well as similar injunctive relief granted in other jurisdictions, an injunction was issued perpetually restraining defendants, their agents, servants and employees from discharging blasts of dynamite in such a way as to jar or vibrate complainants’ buildings, or to cause debris to be thrown upon them, or to cause such noise as would occasion a nuisance, disturbance or annoyance to such complainants. Defendants were allowed until a fixed date to make necessary changes or alterations to their quarry machinery, rock-loading methods and drilling methods to eliminate, if possible, the nóise and vibrations complained of, and were permitted to operate the quarry until a fixed date so as to give them an opportunity to find another location to which they could remove the plant, its machinery and equipment,'in the event the improvements could not be made.

Defendant here nowhere disputes the rule in Illinois, as enunciated in Fitz Simons & Connell Co. v. Braun and other cases in this state, supporting that doctrine which holds the entrepreneur to liability for damage resulting from blasting whether occurring through trespass or concussion, but it seeks to minimize the effect of these decisions by suggesting “the trend of the courts today [is] to hold that there is no basis for adopting the harsh rule of absolute liability, against an industry that in its strict adherence to modern scientific methods has made the handling and use of explosives less dangerous than almost any product of any nature whatsoever”; and it relies on a case decided in Virginia which has adopted the minority rule. We are satisfied, however, that the doctrine enunciated in the Fitz Simons case, followed in Baker v. S. A. Healy, and even earlier stated in the Harwood case, represents the logical approach to the problem and is in accord with the majority rule. The difficulty of reaching an equitable decision as between the rights of plaintiff homeowners and the defendant quarry is thoughtfully resolved in the Missouri case previously discussed: “Although defendants have, beyond a doubt, the right to quarry stone on their property, the plaintiff enjoys the right to the undisturbed possession of his home. If these rights conflict, the right to operate the quarry must yield to the latter, which, in the eye of the law, is the more important of the two . . .” In the light of what we have said, the Illinois doctrine should be applied to the instant proceeding upon trial of the case. See also Winhold v. Finch, 286 Ill. 614, and Millett v. Minnesota Crushed Stone Co., 145 Minn. 475, 177 N. W. 641,179 N. W. 682.

For the reasons indicated, we are of opinion that the trial court erred in dismissing the amended complaint. Accordingly, its order is reversed and the cause remanded for trial with directions that defendant answer, and for such further proceedings as may be consistent with the views herein expressed.

Order reversed and cause remanded for trial with directions.

NIEMEYER and BURKE, JJ., concur.


source: Caselaw Access Project

author: JUDGE BURKE

license: Public Domain

text:
    Earl C. McCarthy, Plaintiff-Appellant and Cross-Appellee, v. Edna B. McCarthy, Defendant-Appellee and Cross-Appellant, and La Salle National Bank, Trustee, La Salle National Bank, Administrator with Will Annexed of Estate of Agnes Schmerker, Deceased, and Evelyn Freeman, et al., Defendants-Appellees and Cross-Appellees.
    Gen. No. 46,726.
    First District, First Division.
    April 2, 1956.
    Rehearing denied April 16, 1956.
    Released for publication April 30, 1956.

      Loesck, Scofield & Burke, of Chicago, for plaintiff-appellant and cross-appellee.
    Luther M. Lewis, of Chicago, for defendant-appellee and cross-appellant.
    Curtis, Friedman & Marks, of Chicago, for defendants-appellees and cross-appellees; Louis David Friedman, of Chicago, of counsel.
   JUDGE BURKE

delivered the opinion of the court.

Agnes Schmerker, an elderly widow, died at Chicago on December 2, 1952. Her nearest kin were brothers, sisters, nephews and nieces, none of whom are residents of Illinois. She resided in improved real estate owned by her in fee simple at the northeast corner of Wellington Street and Broadway in Chicago. On September 1, 1949, she and a straw party executed deeds which vested title to the real estate in her and Earl C. McCarthy in joint tenancy with the right of survivorship. On May 4, 1950, she executed a last will, making a few bequests including the sum of $1,500 to Shirley Mae Kastman, the stepdaughter of Earl C. McCarthy. The residue of the estate was devised to Earl C. McCarthy, who is referred to in the will as “my good friend and counsellor.” He is a practicing lawyer. The will also states that the testatrix made this devise because she deemed that McCarthy had not been adequately compensated for his professional services. She also named him as executor.

On May 2, 1951, a petition was filed in the Probate Court alleging that Agnes Schmerker was wholly incapable of managing her estate and was incompetent because of old age and imperfection or deterioration of mentality, and praying that a conservator of her estate be appointed. On May 31,1951, the court adjudged her to be incompetent and issued letters of conservatorship to the La Salle National Bank. On June 22, 1951, pursuant to a petition, an order was entered in the Probate Court directing the conservator to file a complaint to set aside the deeds vesting title to the real estate in the incompetent and McCarthy as joint tenants and for other relief. Pursuant to that authority the conservator filed a complaint in the Circuit Court seeking to have the deeds canceled and declared void, to restrain the defendants therein from interfering with the possession of the real estate, directing them to reconvey the real estate to the incompetent and for an accounting.

On August 3, 1951, Earl C. McCarthy was examined under oath on a deposition taken on oral interrogatories in the complaint pending in the Circuit Court. Subsequent to the deposition hearings, the attorneys for the conservator and the next of kin of the incompetent engaged in conferences and negotiations with McCarthy with a view to settling all controversies between the estate of the incompetent and McCarthy. In the negotiations McCarthy stated there was due him the sum of $6,944.75 for monies advanced, legal and personal services rendered and for food and other items of a personal nature furnished by him on behalf of the incompetent during the period of approximately three years. The negotiations resulted in an agreement between McCarthy, the conservator and the family of the incompetent, acting through their attorneys. An order entered by the Probate Court on November 21, 1951, provided, among other things, that the conservator obtain from McCarthy a quit claim deed to the real estate, a renunciation of his interest in the estate of Agnes Schmerker, his resignation as executor and the execution and delivery of various documents. The order then provided that upon acceptance of the documents the conservator be authorized and directed to pay McCarthy the sum of $7,500.00. The final provision of the order was that the quit claim deed be recorded, a report of title obtained, and when title be found good in Agnes Schmerker, the conservator issue to McCarthy a stipulation to dismiss the cause pending in the Circuit Court and a stipulation to dismiss a citation proceeding against him pending in the Probate Court. McCarthy and his wife executed their quit claim deed dated November 20, 1951, to Agnes Schmerker and delivered it on November 21, 1951. McCarthy executed and delivered his renunciation on November 21, 1951, in which he renounced all interest which he may have in and to the estate of Agnes Schmerker upon her decease by reason of the provisions of her will dated May 4, 1950; declined to accept anything under the will; discharged the estate of any claim which might at any time afterwards accrue to him by reason of the will; and agreed to leave the residuary estate to descend pursuant to law to the parties entitled thereto free from any claim of his under any provision of the will for his benefit. McCarthy received a check from the conservator for $7,500.00 in consideration for the delivery of the deed, the renunciation and other documents. Agnes Schmerker died on December 2,1952.

On November 18,1953, almost a year after the death of Agnes Schmerker, McCarthy and his wife conveyed their interest in the real estate to a nominee, who in turn conveyed an undivided one-half interest to McCarthy and an undivided one-half interest to Mrs. McCarthy. On November 23, 1953, McCarthy filed a complaint in the Superior Court alleging that he and Ms wife were the owners as equal tenants in common of the real estate and prayed the entry of a decree for partition thereof. The complaint alleged that he acquired title thereto as residuary devisee under the will of Agnes Schmerker and conveyed a one-half interest therein to his wife; that in the lifetime of Agnes Schmerker and at a time when a conservator had been appointed for her, plaintiff, after a certain order had been entered in the Probate Court in the estate of the incompetent, at the request of the attorney for the conservator and unknown to the testatrix, executed and delivered to the attorney for the conservator a written document in the nature of a renunciation of his expectancy in the estate of Agnes Schmerker, claiming “at said time” that said renunciation was void and of no valid force or effect, for a consideration of $555.25 and that the value of the real estate was $45,000; that the renunciation was void, or in the alternative voidable; that he thereby renounced same, or in the alternative, that under a proper construction of the renunciation he did not thereby renounce the right to take the real estate under the will.

Edna B. McCarthy filed an answer admitting the allegations of fact in the complaint and filed a counterclaim in which she adopted the allegations of the complaint. She also alleged that she owned a one-half interest in the real estate and that on the date of the death of the testatrix Earl C. McCarthy was the owner of a legal, or in the alternative an equitable, estate in the real estate, and hence title to the real estate vested in him and under the law she has an inchoate right of dower in the real estate, and that even if the renunciation by her husband be effective as to him, he had no power to renounce her inchoate right of dower. The bank, as administrator with the will annexed of the estate of Agnes Schmerker, deceased, and as trustee, filed its seven point motion to dismiss the complaint. Points one to six of the motion were presented under Section 45 of the Civil Practice Act [Ill. Rev. Stats. 1953, ch. 110, § 169]. The seventh point is in the nature of a plea of res adjudicata, in support of which the bank attached an affidavit, which in turn had attached to it a copy of an order entered in the Probate Court on March 9, 1953. The affidavit states that the complaint for relief had been previously adjudicated by an order of the Probate Court entered on March 9, 1953, following a motion by plaintiff herein that he be notified of all activities in that estate; that the Probate Court considered the claim of plaintiff and denied him leave to participate as a person in interest in the estate and also found that the plaintiff did not have any interest in the estate of Agnes Schmerker. The order which was attached to the affidavit decreed that plaintiff herein be denied leave to file his appearance in the Probate Court proceedings and be denied his request to receive notice of any proceedings in the cause. In response to defendant’s affidavit the plaintiff filed a counteraffidavit. Certain other defendants also moved to dismiss the complaint, their motion being substantially similar to the motion filed by the bank. The motions to dismiss the complaint were allowed to stand as motions to dismiss the counterclaim. The court entered a decree that the motions to strike and dismiss the complaint and counterclaim be sustained. Plaintiff, appealing to the Supreme Court, asked that the decree be reversed and that he be granted “whatever relief is equitable on the record.” Mrs. McCarthy, in a cross-appeal, asks similar relief. The Supreme Court held that a freehold is not involved in the questions presented and transferred the cause. (6 Ill.2d 52.)

Plaintiff maintains that the Probate Court in the administration of the estate of the incompetent had no jurisdiction to enter the order of November 21, 1951, authorizing the conservator to expend or invest the assets of the estate of the incompetent in the purchaise from the devisee under the will of the incompetent of his renunciation of his expectancy under the will and particularly in so far as the order pertained to real estate. The Probate Court acted on a petition which recited the conveyance of the real estate, the suit then pending by the conservator to cancel the deeds of conveyance, the citation proceedings to recover the personal assets of the ward, the examination under oath of plaintiff, the negotiations and conferences and the proposal to settle all controversies between the parties by the delivery of a quit claim deed for the real estate from plaintiff and his wife and the renunciation and release of plaintiff’s rights under the will. The order directing the conservator to accept and conclude the compromise contained a finding that it is to the best interest of the estate that the conservator obtain from the plaintiff the various documents listed, including the quit claim deed to the real estate and the renunciation of all his rights under the will. We have read the cases cited by the parties in support of their positions and are satisfied that the Probate Court had jurisdiction to enter the order of November 21, 1951, authorizing the conservator to pay plaintiff $7,500 for the deed from plaintiff and his wife conveying their interest in the real estate to the incompetent, the renunciation of all plaintiff’s rights under the will and for other considerations including the agreement to execute a stipulation to dismiss the Circuit Court complaint and the citation proceedings pending against plaintiff. See Davis v. Mather, 309 Ill. 284; In re Estate of Reighard, 402 Ill. 364.

Plaintiff asserts that the purchase of his renunciation in the form and substance in which it was purchased by the conservator was not authorized or approved by the Probate Court and hence the renunciation is not valid or effective. We are of the opinion that the renunciation was in the form contemplated by the order. It is not necessary to obtain an order confirming the action after it has been taken. Even if the Probate Court had been without jurisdiction to enter the order of November 21, 1951, the renunciation by plaintiff of his rights under the will would be valid and binding upon him. The renunciation was executed and delivered pursuant to negotiations and conferences between the parties. The consideration which plaintiff bargained for was paid to him. It was fully executed and binding upon him regardless of any action of the Probate Court.

Plaintiff insists that the written renunciation of an expectancy under a will is void at law because there is no property or subject matter on which it may operate; that under some circumstances equity will, after the death of the testatrix, enforce it, but not where the testatrix had been adjudicated an incompetent after making the will, and the renunciation was made for an inadequate consideration while the testatrix was incompetent and the testatrix remained incompetent until her death; and that the testator did not know the renunciation was made and did not assent thereto or acquiesce therein because under such facts the renunciation is in contravention of the statute on wills, is a fraud on the testatrix, is contrary to public policy and inequitable. We cannot say that the consideration was inadequate. At the time he executed the documents he was a defendant in a suit in the Circuit Court to compel him to make a reconveyance of the real estate. He had been subpoenaed to appear on oral interrogatories in that case and was facing the need for defending himself against the demand for an accounting in connection with his management and control of the real estate. He was also facing proceedings in the Probate Court on a citation issued against him to discover assets belonging to the estate of Agnes Schmerker. In addition to the agreement to dismiss the Circuit Court complaint and the citation proceeding, plaintiff received $7,500. He states that most of it was paid to Mm for Ms claim against Agnes Schmerker for $6,944.75. The record does not support plaintiff’s statement that all he received for the renunciation was $555.25. He was fully acquainted with all the circumstances. It is not contended that there was any misrepresentation. Agnes Schmerker was mentally incompetent, had no knowledge of the renunciation and could not accede to it. We think that the conservator stood in the place of Agnes Schmerker in the transaction wherein the renunciation was executed and delivered. The Probate Court authorized the conservator to negotiate for and receive the renunciation. In Donough v. Garland, 269 Ill. 565, the court said (page 572) that a release by an heir presumptive of his expectancy operates as an extinguishment of the right of inheritance, cutting it off at its source. We are of the opinion that under the law of Illinois and the factual situation that the release by plaintiff of his expectancy under the will is valid. See Mires v. Laubenheimer, 271 Ill. 296; Alward v. Woodard, 315 Ill. 150; Williams v. Swango, 365 Ill. 549; Brown v. Cunningham, 303 Ill. App. 307. Plaintiff asserts further that defendants must resort to a court of equity to enforce the renunciation. In the cases cited partition was sought by the plaintiffs. Nevertheless, the courts recognized the right of defendants to rely upon the release without requiring the defendants to file a cross hill or to ask for affirmative relief. We find that the court has the power and duty to pass on the validity of the renunciation whether the action is commenced by the grantor or grantee of the document.

Plaintiff argues that his renunciation under the will does not include or cover the real estate. The agreement between the parties was that plaintiff would reconvey the real estate and renounce and release all interest in the estate. In our opinion he did this. In addition to the renunciation he delivered many other documents, papers and affidavits as to the title to the real estate and assigned his future claim to any tax refund. Our examination of the record convinces us that plaintiff intended to release all his interest in the property of Agnes Schmerker, including the real estate.

Plaintiff urges that the renunciation is void for the reason that at the time the renunciation was executed in his opinion it was invalid and that there was accordingly no meeting of the minds as to the transfer of the renunciation. We do not think there was a mistake. Plaintiff had a mistaken opinion of the legal effect of the document. In Holbrook v. Tomlinson, 304 Ill. 579, the court said that the erroneous advice of an attorney is not sufficient ground for relief in equity as to an alleged mistake in a written instrument. See also In re Estate of McIlrath, 276 Ill. App. 408.

Paragraph seven of the motion to dismiss the complaint on the ground that the cause had been previously adjudicated by the order entered in the Probate Court on March 9,1953, whereby it was determined that the plaintiff was not a party in interest in the estate of Agnes Schmerker, deceased, was supported by an affidavit. The order of the Probate Court decided that plaintiff should not have notice of the proceedings. We are of the opinion that this order is not res judicata of the issues presented by plaintiff’s complaint for partition in the instant case. The order was not based on the merits of the controversy involved herein. Furthermore, the statutes do not confer upon the Probate Court general equity jurisdiction and the power to determine titles to real estate.

For the reasons stated the decree of the Superior Court of Cook County is affirmed.

Decree affirmed.

FRIEND, P. J. and NIEMEYER, J., concur.


text:
    Art Institute of Chicago, Plaintiff, v. Latham Castle, Attorney General of State of Illinois, Defendant. National Sculpture Society, Petitioner to Intervene— Appellant, v. Art Institute of Chicago, Plaintiff and Appellee, and Latham Castle, Attorney General of State of Illinois, Defendant and Appellee.
    Gen. No. 46,771.
    First District, First Division.
    April 2, 1956.
    Released for publication April 30, 1956.

      David Oppenheim, of New York, and Hastings, Snyder and Rockwell, of Chicago, for petitioner to intervene; David Oppenheim, of New York, and Lanrens G. Hastings, George W. K. Snyder, and David P. List, all of Chicago, of counsel.
    Latham Castle, Attorney General of State of Illinois, for appellee; William C. Wines, and Raymond S. Sarnow, Assistant Attorneys General, both of Chicago, of counsel.
    Eckhart, Klein, McSwain & Campbell, of Chicago, for appellee Art Institute of Chicago; Percy B. Eckhart, William A. McSwain, and Howard F. Husum, all of Chicago, of counsel.
   JUDGE BURKE

delivered the opinion of the court.

On November 25, 1904, Benjamin F. Ferguson made his last will. The Northern Trust Company was named as trustee. He died on April 10, 1905. The will was admitted to probate in the Probate Court of Cook County and the estate was duly administered and distributed. Subparagraph (e) of the Fifth paragraph of the will reads:

“My said Trustee after paying the bequests herein-above mentioned and establishing or realizing and keeping intact a permanent trust fund of not less than $1,000,000.00 shall annually thereafter or oftener, if required, pay the entire net income arising therefrom (after deducting its compensation as Trustee herein mentioned) to The Art Institute of Chicago, to be known as the B. F. Ferguson Monument Fund and entirely and exclusively used and expended by it under the direction of its Board of Trustees in the erection and maintenance of enduring statutary and monuments, in the whole or in part of stone, granite, or bronze, in the parks, along the boulevards, or in other public places within the City of Chicago, Illinois, commemorating worthy men or women of America, or important events in American History. The plans or designs for such statutary or monuments and the location of the same shall be determined by the Board of Trustees of such Institute.”

On May 22, 1933, the Circuit Court entered a decree in the case entitled “The Art Institute of Chicago, a corporation, v. Otto Kerner, Attorney General of the State of Illinois,” construing the word “monument” to mean and include a memorial building. The decree authorizes the expenditure by the Art Institute of Chicago of moneys belonging to the fund for the erection of a memorial building east of the Illinois Central Railroad right of way in Grant Park to be the key building in a building program for the Institute which included several other buildings. The memorial building authorized by the decree has never been constructed.

In a complaint filed on January 7, 1955, by the Institute against the Attorney General of Illinois the plaintiff says that it now proposes to erect a B. F. Ferguson Memorial Building on a different site, that the present plans which have been completed by its architects and approved by its Board of Trustees provide for the erection of a five-story administration building in Grant Park immediately west of the right of way of the Illinois Central Railroad and immediately north of and adjacent to the present permanent Art Institute Building, rather than east of the railroad as contemplated at the time of the 1933 decree. Continuing, the complaint states that the building shall be used as an administration building for the Art Institute and shall contain offices, shops, studios and other rooms supplementing the existing facilities; that the building shall be of a type of architecture that will, in the opinion of the trustees of the Institute, be suitable and fitting as a memorial building; that the building will be erected upon land owned by the Chicago Park District and that by contract between the District and the Institute the latter will have the permanent use and occupancy of the building. The complaint further recites that in view of the fact that the 1933 decree authorizes the expenditure by plaintiff of moneys from the fund for the erection of a memorial building as specifically described in that decree, the plaintiff is in doubt as to whether the language of the will as construed in the decree means and includes any other memorial building, and prays that the court construe the will as construed in the 1933 decree and determine whether the language of the will as in that decree construed means and includes any other memorial building, and whether the use of the funds may be properly expended by it for the erection and maintenance of a memorial building as described in the complaint.

The Attorney General filed an answer admitting the factual allegations and submitting the matters concerning the interests of the people of the State of Illinois to the consideration and protection of the court, and praying that in the event a decree is entered pursuant to the complaint that the decree will contain provisions to protect the interests of the people. The National Sculpture Society filed an amended petition representing that it is a corporation not for profit created under the laws of New York, organized for artistic and educational purposes and for the purpose of fostering the development and appreciation of sculpture, spreading the knowledge of good sculpture, fostering the . taste for and encouraging the production of ideal sculpture for households and museums, and promoting the decoration of public and other buildings, squares and parks with sculpture of a high class; that it has promoted and fostered many exhibitions of outstanding sculpture throughout the United States; that its more than 300 members include most of the distinguished sculptors in the United States; that the trustee under the will has not been a party and was not a party to the 1933 case; that if the plaintiff is permitted to expend moneys from the fund to erect and maintain a building as described in the complaint, the intent of the testator may be defeated; that sculptors as a class will be deprived of participation in the erection of “enduring statutary and monuments” in accordance with the will to their professional and financial detriment; that if the moneys of the fund are used for the purpose of' erecting the building described in the complaint, a precedent will be established which will have the effect of encouraging the erection of similar buildings or other structures in lieu of statuary and like memorials provided for in the wills of testators to the detriment of sculptors as a class; that the diversion of the fund may have the effect of making testators unwilling or reluctant to make bequests or set up trusts for or to charitable and educational institutions for fear that such bequests and trusts will not be used in the manner intended by the testators; and that the petitioner, its members and sculptors as a class have a consequential interest in the subject matter of the proceeding and that in view of the wide public interest in the matter, petitioner’s participation in the proceeding will tend to aid the court in doing equity in the determination of the question raised by the complaint. Petitioner asks that it he given leave to intervene as a party defendant and that it be granted such relief in the premises as equity may require. In answers the plaintiff and the Attorney General outlined various grounds for denying the petition for leave to intervene. The chancellor entered an order that the amended petition for leave to intervene be denied. Petitioner, appealing, prays that the order be reversed and that the cause be remanded with directions to permit it to intervene and participate in the hearing.

The petitioner insists that the general rule that the Attorney General has exclusive jurisdiction to enforce and construe charitable trusts, does not apply under the circumstances of the instant case. It says that those opposing its application for leave to intervene confuse the right of an individual to institute an action to sustain a charitable trust and his right to intervene in an action already instituted by which diversion of a charitable trust is attempted. The authorities cited do not support the distinction asserted by the petitioner. The case of People ex rel. Courtney v. Wilson, 327 Ill. App. 231, recognizes the rule that no individual seeking purely personal gains has any right in a suit involving the enforcement of a charitable trust. The court said (page 243):

“The authorities are in accord that the right of the people of the State, speaking through their duly authorized officials, the state’s attorney or the attorney general, is exclusive, and that having this right and duty, their representative has the right to control the case. Hesing v. Attorney General, 104 Ill. 292; Stowell v. Prentiss, 323 Ill. 309. This doctrine is so firmly embedded in the law of this State that the Supreme Court has not only refused to permit anyone other than the authorized representatives of the people to appear in court to enforce a charitable or public trust, but has invariably gone behind the mere name or cloak of the people and dismissed a case where it has appeared that the real party in interest is some individual seeking to further a personal cause. People ex rel. Moloney v. General Elec. By. Co., 172 Ill. 129; Hunt v. LeGrand Roller Skating Rink Co., 143 Ill. 118.”

We conclude that the rule reiterated in that case is not limited to the institution of original suits. The vexation, delay and expense caused by attempts of individuals to intervene in pending suits to enforce or construe charitable trusts is as real and as great as that resulting from the filing of such suits by individuals whose only objectives are the promotion of private interests. We are convinced that the case of Hartzell v. Hungate, 223 Ill. App. 346, cited by the petitioner, is not applicable to the facts of the instant case. There the court found that a taxpayer in the City of La Harpe had at least a contingent interest in the fund.

The petitioner maintains that it has an interest in the cause and is uniquely equipped by the character of its membership and its half-century experience in the field of sculpture to render necessary assistance to the court to enable it to arrive at a just determination. The sole question is whether a memorial building different from the one authorized by the 1933 decree may be built at a slightly different location than originally authorized. In the determination of this question the National Sculpture Society has no interest and cannot be affected by the result. Neither the Society nor any of its members has any contractual relationship with or rights against the Art Institute as trustee of the fund. The mere hope of a commission is so remote as to be inconsequential. The beneficiaries of the charitable trust set up by the will are the people of the State of Illinois generally, not the sculptors who may be commissioned to erect statuary and not the architects and builders who may be employed to erect a memorial building. The Attorney General is vested with the right and duty to protect the people’s .interests in the enforcement of charitable trusts. The petitioner cannot contribute to the protection of the public interest in the question of whether one building or another be erected and whether the building should be located just east or just west of the Illinois Central right of way.

The 1933 decree in which the then Attorney General was the defendant, posed the question whether the word “monument” in the will means and includes a memorial building and the further question whether the building described in that complaint constituted a memorial building within the meaning of the will. The decree decided that the word “monument” includes a memorial building and that the trustees of the Art Institute, in the exercise of their discretion under the will as construed, may use the moneys of the fund in the erection and maintenance of statuary and memorial buildings or other forms of monuments. That building not having been erected and the trustees now desiring to erect a building of a slightly different design in a slightly different location, presented this changed program to the Circuit Court and asked that court to resolve the doubt as to whether the use of the funds for a memorial building to Mr. Ferguson was limited to the building described in the decree. We are satisfied that the chancellor was right in deciding that the petitioner should not be permitted to intervene for the purpose of setting aside the 1933 decree.

The petitioner asserts that the present action is in reality for the modification and extension of the 1933 decree and in the nature of a complaint for review. The action is not one in the nature of a complaint for review. Bills of review fall into three categories into none of which the present action can be placed : (a) bills to review errors appearing on the face of the decree; (b) bills based upon newly discovered evidence; and (c)-bills based upon allegations of fraud in the obtaining of the original decree. The instant case seeks the court’s approval on the decision of the trustees to erect a building of a slightly different design and in a slightly different location than the building authorized in the 1933 decree.

Finally, petitioner maintains that there is a serious question as to whether there is not a necessary party lacking, namely, the Northern Trust Company. The latter is the residuary trustee under the will, which directs that the trustee shall keep intact a permanent trust fund of not less than $1,000,000 and shall, after the payment of certain bequests, annually pay the entire net income arising therefrom to the Art Institute, to be held as the B. F. Ferguson Monument Fund. When the income payments have been made to the Art Institute, the obligations and duties of the trust company with respect thereto are at an end. The will provides that the income received by the Art Institute shall be held by it as the B. F. Ferguson Monument Fund and shall be entirely and exclusively used and expended by it under the directions of its Board of Trustees in the erection and maintenance of enduring statuary and monuments. The testamentary trustee is not a necessary party to a suit to enforce the proper use of the funds and it was not necessary that it be made a party.

For the reasons stated the order of the Circuit Court of Cook County is affirmed.

Order affirmed.

FRIEND, P. J. and NIEMETER, J., concur.


author: PRESIDING JUSTICE McCORMICK

text:
    Samuel B. Fountaine, Appellee, v. Bette Pannos Fountaine, Appellant.
    Gen. No. 46,694.
    First District, Second Division.
    April 3, 1956.
    Released for publication April 24, 1956.

      Euclid Louis Taylor, and Bichard K. Cooper, both of Chicago, for appellant.
    Theophilus M. Mann, of Chicago, for appellee.
   PRESIDING JUSTICE McCORMICK

delivered the opinion of the court.

An appeal was taken from an order entered on December 23, 1954 in the circuit court of Cook county denying the petition of the defendant (the mother) for the custody of the two minor children of the parties which had previously been awarded to the father, the plaintiff, by a decree of divorce entered April 23, 1953.

It appears from the record that the defendant, a woman of the Caucasian race, had married Samuel B. Fountaine, a member of the Negro race. To this marriage two children were born. A complaint for divorce was filed by the plaintiff against the defendant alleging desertion. The defendant was not represented by counsel, but signed a stipulation in the office of the attorney for the plaintiff wherein, among other things, she agreed that the father should have the care, control and custody of the two minor daughters, and on April 23, 1954, after hearing, a decree for divorce was entered in favor of the plaintiff giving the care, control and custody of the two children to the father. At the time of the decree the children were aged five and four years. The father took the children to live with him in the home of his mother, stepfather, sister and sister-in-law, who took care of the children during the time he was at work. The two children have resided continuously in Glencoe, Illinois, with the plaintiff’s family from August, 1952 until January, 1953, and from February 20,1953 to the present time subject to visitation rights granted to the defendant.

The defendant went to California seeking employment and was out of the state for approximately one year, after which time she returned to Chicago and was married to a member of the Caucasian race. He obtained a home for himself and defendant, with adequate living quarters for the minor children, on the south side of the City of Chicago in a neighborhood in which both white and colored people live, in which there are many mixed marriages and both colored and white children attend the same school.

Plaintiff answered defendant’s petition for custody of the children and there was a full hearing before the trial court. From the evidence adduced at that hearing it appears that at the time when the defendant signed the custody agreement the father was not supporting them, that she had no money and could not work because she had no one to take care of the children; that the plaintiff had served a term in the penitentiary at Joliet from February, 1952 to February, 1953 on a conviction for rape; that the present husband of the defendant is willing to make a home for the children if the custody is awarded to their mother, his wife. In the hearing the court had the opportunity to observe the plaintiff, the defendant, her present husband, the paternal grandparents, and the paternal aunt.

The plaintiff in his answer to the petition set up that the two children have “the outstanding basic racial characteristics of the Negro race . . . and that for racial and religious reasons these children will make a better adjustment to life if allowed to remain identified, reared and educated with the group and basic stock of the plaintiff, their father.”

At the hearing the trial court had the two children before him. The children apparently had more of the racial characteristics of the father than of the mother. The court stated that in his opinion the mother was a fit person to have the custody of the children and that there was no difference in the character or the condition of the home in which they were then residing than that to which the mother proposed to take them, that both homes were over par; and he said that if a difference in color was not involved in the case he would not hesitate for “a moment in awarding custody to the mother.”

The defendant’s theory is that the trial court abused its discretion in denying her custody of the children solely on the basis of the race and color of defendant mother and the minor children. The plaintiff contends that the trial court acted within its discretion inasmuch as his decision was based upon what he felt was for the welfare and best interests of the children.

Under the Illinois divorce statute the trial court is clothed with a wide discretion in determining to which parent the custody of a child shall be awarded. Such discretion is, however, a judicial one which may be reviewed. Nye v. Nye, 411 Ill. 408; Cohn v. Scott, 231 Ill. 556; Buehler v. Buehler, 305 Ill. App. 609. It has also been held in this state that other things being-equal the mother will ordinarily be awarded the custody of children of tender years. Nye v. Nye, supra ; Miner v. Miner, 11 Ill. 43; People ex rel. Gaddis v. Gaddis, 240 Ill. App. 508; Buehler v. Buehler, supra. The controlling factor which should always influence the decision of the court in awarding- custody is the best interest and welfare of the child. See cases cited.

In the case before us the competent and experienced trial judge carefully and conscientiously considered the problem before him, having in mind the best interests and welfare of the children, and he concluded that such interest and welfare would be best served by leaving the children to reside with the father’s family under the decree of the court previously entered. However, from the record before us it appears that the court came to this conclusion solely because of the racial physical characteristics of the children before him, and that he would have awarded the custody of the children to the mother except that they had the appearance of colored children. In passing upon the question of how the interests and welfare of the children will he best served, the court can and should take into consideration all relevant considerations which might properly .bear upon the problem. However, we do not believe that the question of race alone can overweigh all other considerations and be decisive of the question. In re Adoption of a Minor, 228 F.2d 446; Moon v. Children’s Home Society of Virginia, 112 Va. 737, 72 S. E. 707. If this was the sole and decisive consideration on which the trial court based his decision, and it so appears from the record before us, we feel that his discretion was not properly exercised under the circumstances in the case, even though he went to great lengths to ascertain how the welfare of the children might best be served.

The order of the circuit court of Cook county denying the defendant’s petition for custody of the minor children is reversed and the cause is remanded for further proceedings in accordance with this opinion.

Reversed and remanded.

ROBSON and SCHWARTZ, JJ., concur.