text:
    Steven J. Sterba and Deloris M. Sterba, Plaintiffs-Appellees, v. First Federal Savings and Loan Association of Elgin, an Association of the United States of America, Defendant-Appellant.
    Gen. No. 65-143.
    Second District.
    December 29, 1966.
    O’Brien, Burnell, Puckett and Barnett, of Aurora, for appellant.
    Carbary, Carbary & Chapski, of Elgin, for appellees.
   MR. PRESIDING JUSTICE MORAN

delivered the opinion of the court.

A jury found in favor of the plaintiffs and from a denial by the trial court of defendant’s motion for a directed verdict and/or for a judgment non obstante veredicto, the defendant appeals.

For the purpose of this appeal it will be necessary to refer to only one plaintiff, Deloris M. Sterba, and the sole question to be answered is whether the plaintiff was guilty of contributory negligence as a matter of law.

The factual situation is not controverted. The defendant, First Federal Savings and Loan Association of Elgin, owned and occupied the main floor and basement of its building. It leased the second floor to other tenants. Immediately west and adjacent to the building it operated a parking lot attended by one Milton McNabney, one of its employees. The lot was reserved for customers of both the defendant and its tenants. On the parking lot was a sentry type hut used by McNabney during inclement weather. The lot was composed of 15 parking spaces, one of which was located between the hut and the northwest corner of the building. This space, on its east end, was equipped with a cement collar or bumper which was attached to the ground. The bumper was two feet from the building; and ran parallel to it. From 9:00 o’clock a. m. to 5:00 o’clock p. m., the defendant had McNabney park his own automobile in this particular space.

A wooden awning, used to shield the sun from shining through the sole window, was attached to the hut. This awning protruded outward about two feet from the hut. The defendant testified that the bottom of the awning was approximately five feet nine and one-half inches from the ground.

The plaintiff had on prior occasions used the lot about six times a year. The previous visits were for the purpose of delivering her mortgage payments to the defendant or to visit the defendant’s tenants. On these former visits she was always met in the middle of the lot by the attendant who would give her a ticket and upon her return with the stamped ticket she would again be met by the attendant who would collect the ticket. She testified that on former occasions there was always the attendant’s car parked in this one space and she never had occasion to walk near the building.

On April 25, 1963, the plaintiff, whose height was between five feet seven inches and five feet eight inches, parked her car in defendant’s lot for the purpose of visiting one of defendant’s tenants on business. She entered the building from the northwest corner at about 5:10 p. m. Shortly thereafter, she emerged from the same entrance, walked around the corner, “possibly stepped over it” (the cement bumper), proceeded through the parking space usually occupied by the attendant, and her head came in contact with the awning over her left eye and temple. She was rendered unconscious. From the time she rounded the corner of the building to the time she had struck her head, she had taken four or five steps. She testified that it was a clear day; that there was nothing to obstruct her view in front of her; that she was not carrying anything; that she was not in any particular hurry nor was she walking hurriedly; that she did not recall in which direction she was looking as she rounded the corner other than probably toward her car, which was beyond the hut and that she did not trip or fall over anything. Since the accident, the defendant has replaced the wooden awning with a canvass awning.

The defendant’s President, called under section 60 of the Civil Practice Act (c 110, § 60, Ill Rev Stats 1963), testified as follows:

“Q. Now, what other parking spaces were there aside from the twelve lined up facing south ?
“A. We have two parking spaces on the north part of the lot and one in front of the building, and this was done with sort of a protective . . .
“Q. Go ahead.
“A. . . . for a protection for just the type of thing that happened here now.”

And, later he gave the following testimony:

“Q. Thank you. Did your association have any warning signs near the shanty there to warn customers ? Were there any signs whatever there on this date?
“A. No.
“Q. Was the area of the shanty chained off with any device with either a chain or post?
“A. We have a car there, sir.
“Q. You did?
“A. During the time we have our attendant park his car there.
“Q. Why?
“A. Just to prevent accidents.
“Q. So people won’t walk into the awning, is that right ?
“A. No.
“Q. Isn’t that one of the purposes ?
“A. I couldn’t say. It would be one of the purposes.
“Q. It was one of the purposes for Mr. McNabney parking his car there, is that right?
“A. I wouldn’t say that. It is much handier for him.
“Q. Is it?
“A. Yes. He can get from his car to his shanty in the rain or snow or wind and cold.
“Q. Mr. Jurs, one of the purposes . . .
“A. It would be one.”

Steven J. Sterba, husband of the plaintiff and one of the plaintiffs herein, testified as to a conversation he had with McNabney about a week following the accident. McNabney told him that he parked his car alongside the front to keep the public away from his little shanty; that others have brushed against it and that this is one of the reasons why his automobile was parked in this space.

It is defendant’s position that if the plaintiff had looked, she would have seen the awning since nothing in the evidence discloses that her view was obstructed, and therefore, she was, as a matter of law, guilty of contributory negligence. In support of its position the defendant has assisted the court with various citations with which we have no quarrel as applied to the facts in their respective cases. Nevertheless, we are influenced by a more recent Supreme Court case entitled Swenson v. City of Rockford, 9 Ill2d 122, 136 NE2d 777 (1956), wherein the same proposition of law was urged. In that case, the plaintiff who had actual knowledge of the defect that caused her injury — a fact not present in the case at bar —was allowed recovery. The court stated at page 127:

“The use of a defective sidewalk by a person who has knowledge of the defect is not contributory negligence per se, and if, while walking upon that sidewalk, such person is in the exercise of ordinary care for his or her safety, there may be a recovery in case of an injury. (Wallace v. City of Farmington, 231 Ill 232; City of Mattoon v. Faller, 217 Ill 273.) Ordinary care has been defined to be that degree of care which is exercised by ordinarily prudent persons under the same or similar circumstances.” (Citations omitted.)

The court further stated on pages 127, 128, as to what would constitute contributory negligence as a matter of law when it said:

“To be guilty of contributory negligence as a matter of law it must appear that all reasonable minds would agree that assuming the facts as presented by the plaintiff and all reasonable inferences that may be drawn therefrom in her favor, plaintiff is nevertheless guilty of contributory negligence.” (Citations omitted.)

The question of contributory negligence is ordinarily a question of fact for the jury and becomes a question of law only when all reasonable minds would reach a conclusion that there was contributory negligence. Swenson v. City of Rockford, ibid.; Shepard v. City of Aurora, 5 Ill App2d 12, 19, 124 NE2d 584 (1955) ; Ziraldo v. W. J. Lynch Co., 365 Ill 197, 199, 6 NE2d 125 (1936).

In the case at bar the plaintiff, from the defendant’s version, would first have to look down in order to avoid the cement bumper, then look up immediately to avoid the awning. We are not of the opinion that such a duty of freedom from contributory negligence would be exacted from our mythical prudent person. Although she was not looking up at the precise moment of the incident, she was not necessarily required, as a matter of law, to be looking up at that exact moment. This was a fact to be considered by the jury, together with all other facts and circumstances, in arriving at their verdict. Swenson v. City of Rockford, supra; See also Trojan v. City of Blue Island, 10 Ill App2d 47, 51, 134 NE2d 29 (1956).

In this case, the contributory negligence of the plaintiff, if any, was put to the jury and we cannot say as a matter of law that the thirteen persons, the twelve jurors who heard the evidence and the judge who heard the evidence and the post-trial motion, were unreasonable in reaching the conclusion that the plaintiff was not guilty of contributory negligence.

Judgment affirmed.

DAVIS and ABRAHAMSON, JJ., concur.


source: Caselaw Access Project

author: MR. PRESIDING JUSTICE MORAN

license: Public Domain

text:
    Donald L. Miller and Kenosha Auto Transport Corporation, a Corporation, Plaintiffs-Appellants, v. Gordon Botts, Defendant, and St. Paul Mercury Insurance Co., a Corporation, Garnishee-Defendant-Appellee.
    Gen. No. 66-5.
    Second District.
    December 29, 1966.
    Eckert, Caldwell, Gleason & Berner, of Woodstock, for appellants.
    Gates W. Clancy, of Geneva, for appellee.
   MR. PRESIDING JUSTICE MORAN

delivered the opinion of the court.

In December of 1958, the plaintiff Miller delivered an auto carrier owned by him to the defendant Gordon Botts for repairs. The auto carrier was loaded with five new automobiles owned by the plaintiff Kenosha Auto Transport Corporation. While repairs were being made on December 13,1958, with welding equipment, a fire started causing damages to plaintiffs’ property.

Plaintiffs filed suit against Botts in the Circuit Court of McHenry County. Plaintiff Miller obtained judgment against Botts for Five Thousand One Hundred Thirty-five ($5,135) Dollars and costs and plaintiff Kenosha Auto obtained judgment against Botts for Four Thousand Nine Hundred Eighty-six and 72/100 ($4,986.72) Dollars.

Plaintiffs then filed a garnishment proceeding against the defendant St. Paul Mercury Insurance Co. to recover the judgments. St. Paul filed a general denial and a trial was held before the court without a jury. The trial court denied recovery against St. Paul finding that no contract of insurance existed. Plaintiffs appealed from this decision.

The evidence established that defendant Botts owned and operated Botts Welding and Truck Service in Woodstock, Illinois. In December of 1958 he had between 15 and 20 employees. He operated some nine trucks and he also operated a State of Illinois testing station for trucks and school buses.

Botts Welding Service carried 10 or 12 lines of insurance, including fire, garage keeper’s liability, comprehensive liability, public liability, insurance on the stock of merchandise, testing station bond, employees’ health and accident insurance and Workmen’s Compensation insurance.

In prior years Botts had purchased his insurance from an agent named Heniken. However, early in 1958 Heniken sold his insurance business to Rardin-Phillips, Inc., and he introduced Mr. Phillips, of that firm, to Mr. Botts. Thereafter, the Rardin-Phillips agency handled all of Botts’ insurance except Workmen’s Compensation and fire insurance on the building. In each case Phillips selected the insurance company and kept records of all expirations and renewals.

In February of 1958 defendant St. Paul entered into a written agency agreement with Rardin-Phillips, Inc., whereby that corporation was designated as agent of the St. Paul with “full power and authority to receive and accept proposals for insurance covering such classes of risks as the company may, from time to time, authorize to be insured.”

On or about December 10, three days before the fire, Phillips went to see Botts. It would appear that there was a conversation and certain arrangements were made between Botts and Phillips. Although the exact conversation and arrangements are not clear it appears that Phillips knew Botts’ Workmen’s Compensation insurance with another company was expiring and that Botts wanted coverage. Phillips had received from St. Paul certain application forms and an instruction sheet for the processing of an application for a “multiple risk policy.” Phillips testified that because he felt ill that day he went home and rather than filling in an application, he wrote a letter to St. Paul requesting that certain multiple coverage risks be bound for Botts. He testified that he then placed the letter in the mailbox in front of his home. It is not certain as to when this letter was picked up by the mailman although there was testimony that the postmark on the envelope was dated December 15, 1958. St. Paul never issued a “multiple risk policy” and has consistently denied coverage for the loss.

It is contended by the plaintiffs that there was a preliminary contract of insurance in force intended to protect defendant Botts pending investigation of the risk by St. Paul or until the policy could be properly issued and that the agent Phillips did have apparent, implied or actual authority to bind St. Paul to the coverage.

The trial court held that under the circumstances, the conversation between Botts and Phillips could not be construed as an offer by Botts and an acceptance by Phillips, as agent for the St. Paul, that Phillips did not have apparent, implied or actual authority to bind St. Paul; and that until the risk was rated, the premium computed and Botts agreed to the premium, there could be no contract.

We have reviewed the abstract, additional abstract and the record pertaining to the conversation between Botts and Phillips. Botts’ testimony is silent as to what was said in any conversation he had with Phillips on or about December 10. Phillips testified in an evidence deposition that he had stopped at the Botts Welding Shop and then went home since he was not feeling well; and that he had stopped by Botts’ business establishment because the agency had received a notice of cancellation of a Workmen’s Compensation policy. He testified that he told Botts he did not have enough fire insurance coverage and talked to Botts and his wife briefly about the multiple coverage policy. Phillips also testified that he took no money from Botts, that he had no idea what the insurance premium would be for multiple coverage policy, and that he did not mention any rate. He also testified that Botts did not commit himself to pay any premium.

It appears that the foregoing constitutes the only proof concerning the conversation between Botts and Phillips. There is no testimony that Botts asked that such coverage be bound or that Phillips offered to bind such coverage. There was apparently no testimony as to the amount of the premium or the nature or extent of limits of the coverage. This testimony falls far short of establishing an oral contract of preliminary insurance. See Pimentil v. Milo Brooke, Inc., 11 Ill App2d 201, 136 NE2d 608 (1956).

Further we feel that the finding by the trial court that Phillips did not have authority to issue an oral binder or a multiple coverage policy is not contrary to the manifest weight of the evidence. The agency was granted “full power and authority to receive and accept proposals for insurance covering such classes of risks as the company may, from time to time, authorize to be insured. . . .” However, the instruction sheet for the multiple coverage policy specifically states that “multiple coverage business may not be bound unless a quotation has been prepared in advance for the insured’s review.”

No quotation had been prepared in advance and under these circumstances the agency had no actual authority to bind the company to multiple coverage risk. The formal written appointment of Rardin-Phillips, Inc., as agent for St. Paul is limited by its own terms to such classes of risks as the company may from time to time authorize to be insured. The written instruction pertaining to the multiple coverage is consistent with the limited authority originally granted and does not further restrict the authority.

This was the second multiple coverage policy with which Phillips had experience and there was no proof that any attempt to issue a binder was made with regard to the first policy. There was no showing that Phillips ever discussed the St. Paul company with Botts, or exposed to or told him of the agency agreement issued by St. Paul. Further, there is no evidence that Botts ever obtained any type of insurance coverage issued by St. Paul through Phillips or any other agent prior to this.

Although under certain circumstances an agent may be clothed with apparent or implied authority to bind an insurer and the insurer may then be estopped from denying the agent’s authority, Indemnity Ins. Co. of North America v. Midwest Transfer Co., 184 F2d 633; Boston Store of Chicago v. Hartford Accident & Indemnity Co., 227 Ill App 192; there must be some showing of facts from which the apparent or implied authority to bind the insurance may be inferred.

In the absence of such showing in the case at bar, the trial court’s finding that such authority did not exist is upheld.

Judgment affirmed.

DAVIS and ABRAHAMSON, JJ., concur.


text:
    Marjorie Jung and Bernard J. Jung, as Administrator of the Estate of Janet Jung, Deceased, Plaintiffs-Appellees, v. Arthur Buelens, et al., Defendants, Diane Schafer, Defendant-Appellant.
    Gen. No. 66-17.
    Second District.
    December 29, 1966.

      Allen & Herrmann, of Woodstock, and Jerome H. Torshen, of Chicago, for appellant.
    Carroll, Leali & Gitlin, of Woodstock, for appellees.
   MR. PRESIDING JUSTICE MORAN

delivered the opinion of the court.

On April 14, 1963, defendant Diane Schafer, while driving her mother’s automobile, picked up her friends Marjorie Jung and Janet Jung at their home in McHenry for an automobile ride.

A second automobile was operated by Arthur Buelens with his friends, Ronald and Louis Wolff, as passengers.

The two automobiles drove through downtown McHenry and then proceeded south on Route 31. While driving on the highway, the Schafer automobile overtook the Buelens’ car and later the Buelens’ car again overtook the Schafer car containing the three girls. While proceeding south on Route 31, Buelens attempted to pass a station wagon ahead of him but he observed a Rambler automobile proceeding towards him in the northbound lane and he thereupon pulled back into his own lane.

Miss Schafer testified that when Buelens got in front of her she let up on the accelerator and when Buelens’ brake lights went on she swerved into the northbound lane of traffic to avoid his automobile.

On the other hand, Buelens testified that when he cut back in he felt a “jilt” in the rear end of his car and the Schafer car then passed him and cut in front of him sliding sideways. The car went partially off the road to the right and then crossed the southbound lane into the northbound lane and a collision between the Schafer automobile and the northbound Rambler occurred. Marjorie Jung was injured in the collision and her sister, Janet, was killed.

Suit was started by Majorie Jung and by the Administrator of the Estate of Janet Jung, deceased. A jury trial resulted in a verdict against defendant Diane Schafer and in favor of Marjorie Jung for $1,250 and in favor of the Administrator in the death case for $30,000.

After denial of the post-trial motion, defendant Diane Schafer appeals charging that the evidence fails to show freedom from contributory wilful and wanton misconduct; that the trial court erred in failing to instruct the jury that recovery under the Injuries Act (c 70, §§ 1 and 2, Ill Rev Stats, 1961) was limited to $30,000 and that the judgment in the death case was excessive and not based on the evidence.

The plaintiffs’ action against Diane Schafer alleged freedom from wilful and wanton misconduct on the part of the two Jung girls and wilful and wanton misconduct on the part of the defendant.

The jury was instructed that for the plaintiffs to recover they had the burden of proving, first, that at and immediately prior to the occurrence they were free from wilful and wanton misconduct and, second, that the defendant was guilty of wilful and wanton misconduct, and that such misconduct on the part of the defendant was the proximate cause of the injury and death. The jury was also instructed as to the provisions of the Illinois Guest Statute, c 95%, § 9-201, Ill Rev Stats, 1961.

The burden of proof is upon a plaintiff to allege and prove freedom from wilful and wanton misconduct contributing to the accident. Hatfield v. Noble, 41 Ill App2d 112, 119, 190 NE2d 391 (1963); Valentine v. England, 6 Ill App2d 275, 279-280, 127 NE2d 473 (1955); Lane v. Bobis, 340 Ill App 10, 12, 91 NE2d 106 (1950); Prater v. Buell, 336 Ill App 533, 536-537, 84 NE2d 676 (1949) and Willgeroth v. Maddox, 281 Ill App 480, 488 (1935). In the absence of proof the jury cannot be permitted to guess or conjecture on the question.

In this case, however, there is sufficient proof of plaintiffs’ freedom from wilful and wanton misconduct to warrant the case going to the jury. First, there was proof that the two Jung girls were merely sitting in the front seat of the automobile. They were doing nothing unusual. Second, it is obvious that the situation of danger was apparent for at the most a few seconds before the collision and there was very little opportunity for the guests to warn the driver of any approaching danger. Third, the dangerous situation was obviously apparent to the driver and it was she who was in control of the vehicle. Fourth, there was testimony from Marjorie Jung that someone in the car said that Diane should get back into the other lane but Diane responded that she couldn’t and somebody said to slow down. Although Marjorie testified she did not know who made the warning statements, the jury might well believe from her testimony that they were made by the decedent, Janet, immediately before the accident. We, therefore, conclude that there was sufficient evidence of plaintiffs’ freedom from contributory wilful and wanton misconduct to sustain the verdict and it is not necessary for us to consider the argument by the plaintiffs that defendant is estopped from raising the issue by any waiver of the defense.

The defendant also urges trial error in that the court did not instruct the jury on the statutory limits on recovery under the Injuries Act. The accident occurred in April of 1963 and the trial took place in November of 1965. On August 3, 1965, the Injuries Act, c 70, § 2, Ill Rev Stats, (1965) was amended to provide, inter alia:

“In every such action, the jury shall determine the amount of damages to be recovered without regard to and with no special instruction as to the dollar limits on recovery imposed by this Section. In no event shall the judgment entered upon such verdict exceed $20,000 where such death occurred prior to July 14, 1955, and not exceeding $25,000 where such death occurred on or after July 14, 1955 and prior to July 8,1957, and not exceeding $30,000 where such death occurs on or after July 8,1957.”

The provision of the statute as amended providing that the jury shall not be instructed as to the dollar limits on recovery is procedural in nature and under the Statute on Statutes, Ill Rev Stats, c 131, § 4, (1965), the 1965 Amendment is applicable to proceedings taking place after the effective date of the amendment.

In Nelson v. Miller, 11 Ill2d 378, 143 NE2d 673 (1957), the Supreme Court stated at pages 382 and 383:

“We consider first the defendant’s contention that the new provisions of the statute cannot be applied to him because the cause of action arose before the effective date of the provisions authorizing extraterritorial service on non-resident defendants. Insofar as this claim is based on the Federal constitution it is without merit. Sections 16 and 17 do ‘not extend either to destruction of an existing cause of action or to creation of a new liability for past events.’ Cohen v. Beneficial Industrial Loan Corp, 337 US 541, 554 (1949); see also Ex parte Collett, 337 US 55, 71 (1949); cf. Federal Rules of Civil Procedure, Rule 86.
“Insofar as the claim is grounded in Illinois law it is fully disposed of by our recent decision in Ogdon v. Gianakos, 415 Ill 591, 597 (1953), where we said: ‘The law applicable in the State of Illinois is that there is no vested right in any particular remedy or method of procedure, and that, while generally statutes will not be construed to give them a retroactive operation unless it clearly appears that such was the legislative intent, nevertheless, when a change of law merely affects the remedy or law of procedure, all rights of action will be enforceable under the new procedure without regard to whether they accrued before or after such change of law and without regard to whether the suit has been instituted or not, unless there is a saving clause as to existing litigation. (Chicago and Western Indiana Railroad Co. v. Guthrie, 192 Ill 579; Peoples Store of Roseland v. McKibbin, 379 Ill 148; Board of Education v. City of Chicago, 402 Ill 291.) This statute embodies no saving clause as to existing litigation. It merely establishes a new mode of obtaining jurisdiction of the person of the defendant in order to secure existing rights, which are unaffected by this amendment. As a change which affects merely the law of procedure, there can be no valid objection to enforcing the existing cause of action under this new procedure.’ See also Orlicki v. McCarthy, 4 Ill2d 342, 347-48 (1954).”

We also note that in the same paragraph of section 2 of the Injuries Act there is a reference to deaths occurring prior to July 14, 1955 and July 8, 1957. It is apparent that it was the intention of the legislature that the 1965 Amendment would apply to all trials taking place after the effective date of the amendment regardless of the date of death.

It is appellant’s final contention that the $30,000 verdict in the death case is excessive and is not supported by the evidence.

The decedent was eighteen years of age at the time of her death. She had completed high school as an average student and she had also completed a beautician’s course. She was residing at home and was employed making approximately $50 per week. She was kind and helpful toward her parents, her sisters and brother. There was testimony that she was disposed to be generous to her family.

In Maca v. Rock Island-Moline City Lines, Inc., 47 Ill App2d 31, 197 NE2d 463 (1964), the court affirmed a $30,000 award in a death case involving a seven-year-old boy. The award was made by the trial court sitting without a jury. The court stated at pages 37 and 38:

“Fixing the amount of damages is preeminently the function of the trier of the fact, and the amount so fixed will not be disturbed on appeal unless it is obviously the result of passion and prejudice (Alexander v. Lanterman, 39 Ill App2d 305, 312, 188 NE2d 351; Smith v. Ohio Oil Co., 10 Ill App 67, 78, 134 NE2d 526). The deceased child, Louis D. Maca, was a healthy child and so far as the record shows his entire life was ahead of him with all the opportunities which that would imply. There was no evidence which would minimize a determination of pecuniary loss equal to the sum of $30,000 allowed by the Trial Court, and the least we could do on review is to accord the Trial Judge the same courtesy which is given to juries, of approving a finding as to damages which is not obviously the result of passion or prejudice.”

There is a presumption of a pecuniary loss in favor of the lineal heirs of the deceased in a wrongful death action arising from the relationship alone. The decedent’s parents are, of course, lineal next of kin. See Ferraro v. Augustine, 45 Ill App2d 295, 196 NE2d 16 (1964). We cannot say that the damages awarded here are so excessive as to require our interference.

In addition we note that the surviving plaintiff, Marjorie, suffered a broken arm which was placed in a plaster cast for four or five weeks. She also sustained lacerations on the head requiring sutures. She was earning about $80 per week at the time of the accident and lost six weeks from her employment. Her medical expenses totaled $467.95. The verdict in her favor of $1,250 certainly did not reflect any prejudice on the part of the jury against the defendant.

It is, therefore, our conclusion that the judgments entered are proper and should be affirmed.

Judgment affirmed.

SEIDENFELD and ABRAHAMSON, JJ., concur.


text:
    John Mello and Lucille Mello, His Wife, Plaintiffs-Appellees, v. Jack Lepisto and Nancy C. Lepisto, His Wife, Defendants-Appellants.
    Gen. No. 66-57M.
    Second District.
    December 29, 1966.

      Morrison & Nemanich, of Waukegan, for appellants.
    No appearance made on behalf of appellees.
   MR. PRESIDING JUSTICE MORAN

delivered the opinion of the court.

Plaintiffs and defendants are the owners of adjoining residential lots in the City of Waukegan. Plaintiffs purchased their house and lot from one Pickett. Sometime later the defendants purchased the adjoining property and constructed their residence. The defendants installed a sump pump in the basement and connected the outlet to a trough which directed the drainage water onto the property of the plaintiffs. When plaintiffs protested this arrangement the trough was removed. Subsequently, plaintiffs built a retaining wall between the two properties for the purpose of holding back water coming from the defendants’ property. Plaintiffs then brought this suit seeking an injunction and money damages to reimburse them for the cost of the retaining wall. Plaintiffs’ amended complaint alleges that water from the defendants’ property is diverted onto plaintiffs’ property outside of the “normal patterns or channels of drainage.”

The plaintiffs apparently did not pursue injunctive relief and after hearing evidence the magistrate entered judgment in the plaintiffs’ favor for $475 which was the cost of the retaining wall.

The defendants appealed from such judgment and have filed a motion in this court to reverse upon the grounds that the plaintiffs failed to file any brief herein. The motion was taken with the case. Since the plaintiffs have failed to file a brief we have discretion to reverse the matter without considering the merits or to consider the case upon its merits. Ogradney v. Daley, 60 Ill App2d 82, 208 NE2d 323 (1965), 541 Briar Place Corp. v. Harman, 46 Ill App2d 1, 196 NE2d 498 (1964). The small amount involved undoubtedly accounts for plaintiffs’ failure to file a brief in this court; however, because of the important principles involved we have determined to consider the case on the merits. We are not to be understood as holding that in another case we would follow the same course of action.

There are three legal theories of drainage in the United States. The first is the so-called “common enemy doctrine” which permits an owner of land to repel drainage waters in any manner he chooses. This rule is not the law in Illinois. The second legal theory is the so-called “civil law rule,” which requires the owner of servient lands to accept all waters naturally flowing from dominant lands. This is the rule of drainage law in Illinois. The third theory is the so-called “reasonable use” theory which modified the civil law rule in the case of urban lands.

The civil law rule was first adopted in the State of Louisiana in the case of Orleans Navigation Co. v. Mayor of New Orleans, 1 La 73, 2 Mart (OS) 214. Pennsylvania was the first common law State to adopt the rule in the case of Martin v. Riddle, 26 Pa 415 (1848). The rule was adopted by Illinois in Laney v. Jasper, 39 Ill 46 (1865), and more adequately expressed in Gillham v. Madison County R. Co., 49 Ill 484 (1869). In Gormley v. Sanford, 52 Ill 158 (1869), a classic statement of the rule is made at page 162:

“. . . As water must flow, and some rule in regard to it must be established where land is held under the artificial titles created by human law, there can clearly be no other rule at once so equitable and so easy of application as that which enforces natural laws. There is no surprise or hardship in this, for each successive owner takes with whatever advantages or inconveniences nature has stamped upon his land.”

These early decisions have been followed by many later cases, among them, Adams v. Abel, 290 Ill 496, 125 NE 320 (1919) and Geis v. Rohrer, 12 Ill2d 133, 145 NE2d 596 (1957). In the case of Bundy v. City of Sullivan, 1 Ill App2d 212, 117 NE2d 302 (1954), the court reversed and dismissed a complaint in which the plaintiff alleged that the defendant had constructed “artificial ditches” draining onto the plaintiff’s property. The court dismissed on the theory that whether the ditches were artificial or not, the only question was whether or not they were in the course of natural drainage and the plaintiff had failed to allege natural drainage and, therefore, had failed to state a cause of action.

Defendants urge us to accept the proposition that Illinois has modified the civil law rule in the case of urban lands and in that instance applies the so-called “reasonable use” rule. As authority for this proposition defendant directs our attention to Miller v. Wilson, 104 Ill App 556 (1902). There involved were two adjoining residential properties in the City of Chicago. The defendant had installed roof drains and during the greatest single downpour in the history of the City of Chicago, water ran from the defendant’s roof drains onto the property of plaintiff. The Court held that no reasonable person could have anticipated such a natural catastrophe and that, therefore, the defendant was not liable. The case is unique and applies only to its facts which are not present in the case at bar.

We conclude that the civil law rule is the law in Illinois and that it applies to all lands without regard to their degree of development. There is no “reasonable use” exception under Illinois law.

This case, however, is not a classic case of the civil law rule. The plaintiff did not allege the course of natural drainage and there is no testimony indicating the course of natural drainage. The former owner of the plaintiffs’ property testified that she dumped from thirty to forty loads of fill on the property prior to building the house. Therefore, it appears from the record that both of the properties have been filled and there is no evidence as to the direction of the natural drainage. We conclude that plaintiffs’ amended complaint did not state a cause of action and that the evidence showed no cause of action against this defendant. Bundy v. City of Sullivan, supra.

The decision is, therefore, reversed.

Reversed.

DAVIS and ABRAHAMSON, JJ., concur.


text:
    Gary W. Patton and Ethel J. Patton, Plaintiffs-Appellants, v. Harry L. Titus, Robert N. Titus and Warren Smith, Individually and d/b/a Titus Brothers and Cecil B. Smith, Defendants-Appellees.
    Gen. No. 66-63.
    Second District.
    December 29, 1966.

      Harold P. Block, of Mundelein, for appellants.
    Hall, Meyer, Fisher, Van Deusen, Holmberg & Snook, of Waukegan, for appellees.
   MR. PRESIDING JUSTICE MORAN

delivered the opinion of the court.

On December 18, 1960, an automobile collision occurred at the intersection of Milwaukee and Park Avenues in Libertyville, Illinois, between an automobile driven by the plaintiff Gary W. Patton and owned by his wife, Ethel J. Patton, and a small panel delivery truck driven by Cecil B. Smith and owned by his employers, Harry L. Titus, Robert N. Titus and Warren Smith, d/b/a Titus Brothers.

The intersection was controlled by stop and go lights. Plaintiff Gary Patton and two disinterested witnesses testified that he was proceeding east on Park Avenue with the green light in his favor when the panel truck driven northerly on Milwaukee Avenue by Cecil B. Smith, passed the red traffic light, entered the Park Avenue-Milwaukee Avenue intersection, and collided with Patton’s vehicle. As a result of the accident, Gary Patton suffered personal injuries and the automobile belonging to Mrs. Patton was damaged.

The Pattons filed suit against Cecil B. Smith and the partners of Titus Brothers charging Cecil B. Smith with negligence and charging liability upon the partners on the basis of respondeat superior.

Cecil B. Smith filed a pro se answer and appearance and was not represented by counsel during the trial. Defendant partners filed an appearance and answer by counsel. Their answer denied that during the accident Cecil B. Smith was in the course of his employment and was acting as their agent. The answer further denied that Cecil B. Smith was using the truck with permission, knowledge or authorization of the partners.

The jury returned a verdict in favor of the plaintiffs and against all defendants in the sum of $5,000. Two special interrogatories were tendered by the defendant partners and were given over the objection of the plaintiffs. These interrogatories and the answers are as follows:

“At the time of the occurrence in question, was Cecil B. Smith driving the Titus Brothers truck with the permission of Harry L. Titus, Robert N. Titus, or Warren Smith, doing business as Titus Brothers ?
“Answer: Yes.
“At the time of the occurrence in question, was Cecil B. Smith acting within the course of his employment ?
“Answer: No.”

On post-trial motion the trial court found that in view of the jury’s answer that Cecil B. Smith was not acting within the course of his employment at the time of the accident, the general verdict against the defendant partners was contrary to the special interrogatory and therefore could not stand. The court also found that there was no evidence in the record sustaining the answer to the special interrogatory on the issue of permission and found that the permission special interrogatory involved an immaterial issue not vital to the case. The court ordered that the general verdict against the defendant partners be set aside and vacated; that the verdict against the defendant Cecil B. Smith stand as entered; and that the special interrogatory pertaining to the question of permission be set aside and held for naught. Pursuant to section 68.1 of the Civil Practice Act (Ill Rev Stats 1965, c 110, par 68.1), the trial court conditionally ordered that in event the foregoing unconditional orders were reversed, then the defendant partners were granted a new trial.

The plaintiffs appeal from the judgment in favor of the defendant partners and also filed in this court a motion for leave to amend the complaint to allege negligence on the part of the defendant partners for entrusting the possession of the truck to an unlicensed driver, Cecil B. Smith, and permitting him to drive the truck. The motion was taken with the case.

This court is now faced with the double anomaly of the defendant partners having interjected into the case, by means of their answer and the tendering of the special interrogatory, the issue of permission and now urging upon us the immateriality of the permission question, while the plaintiffs, after having objected to the special interrogatory on permission at the trial, now urge upon us the new motion to amend the complaint in this court whereby they allege the theory of negligent entrustment based upon the affirmative answer by the jury to that special interrogatory.

We feel that these issues may be resolved by an analysis of the propriety of the trial court’s finding that the- answer of the jury to the special interrogatory on permission was contrary to the manifest weight of the evidence. The trial court may and ought to set aside a special interrogatory on a single issue where the finding in the interrogatory is contrary to the manifest weight of the evidence. Peach v. Peach, 73 Ill App2d 72, 79-80, 218 NE2d 504 (1966); Freeman v. Chicago Transit Authority, 50 Ill App2d 125, 136, 200 NE2d 128 (1964) and Young v. Illinois Cent. R. Co., 319 Ill App 311, 322, 49 NE2d 268 (1943).

Defendant Cecil B. Smith testified that he did not own an automobile; that at the time of the accident he had lived in Illinois for about a year and resided in a building owned by Titus Brothers; that he did not have an Illinois driver’s license but did have a Virginia driver’s license issued by the State of Virginia and that he owned an automobile when he lived in Virginia. He testified that when Warren Smith found out that he did not have an Illinois driver’s license he asked Cecil not to drive the truck anymore.

Cecil further testified that on December 17, 1960, one of his employers, Warren Smith, asked if the truck could be parked in his driveway over the weekend. Warren said that Bill Smith (Warren’s brother and an employee of the firm) had to go to the hospital to see his wife. Cecil said that he agreed that the truck could be left in his driveway. At the end of the working day Bill Smith took the truck and drove Cecil home and left the truck in Cecil’s driveway. The key was left in the glove compartment. Another employee drove to Cecil’s house and picked up Bill Smith to take him to the hospital. Later Cecil’s son-in-law came home, backed the truck out into the street, put his car in the garage and pulled the truck back into the driveway. The son-in-law left the keys to the truck in the kitchen of the residence. At the time of the accident Cecil was going to a store to buy a carton of soda pop and was not doing anything in connection with Titus Brothers’ business.

Warren Smith testified that he had told Cecil never to drive the truck and on the day before the accident he had asked Cecil if the truck could be parked in his driveway because he was the only employee who lived in Liberty ville and, who at that time, was not already driving a truck and Cecil agreed.

Cecil B. Smith and Warren Smith were the only witnesses who testified with reference to the permission question. In light of the testimony offered the trial court could well conclude that there was insufficient evidence to sustain any finding of permission and that the jury’s answer to the special interrogatory was contrary to the manifest weight of the evidence. For this reason the trial court’s judgment order should be affirmed and the motion for leave to file an amended complaint alleging negligent entrustment should be denied.

The motion for leave to file an amended complaint is denied.

Judgment affirmed.

DAVIS and ABRAHAMSON, JJ., concur.


text:
    Peggy Ann Reeves, a Minor by Patricia Reeves, Her Mother and Next Friend, and Patricia Reeves, Individually, Plaintiffs-Appellants, v. Walter and Dorothy Eckles, Defendants-Appellees.
    Gen. No. 66-70.
    Second District.
    December 29, 1966.

      Willard J. Stepek, of Crystal Lake, for appellants.
    Snyder, Clarke, Dalziel, Holmquist & Johnson, of Waukegan, for appellees.
   MR. PRESIDING JUSTICE MORAN

delivered the opinion of the court.

Plaintiff’s amended complaint sought recovery for personal injuries as a result of an attack upon the minor plaintiff by the dog of the defendants. The amended complaint was filed in three counts and alleged the common-law action for recovery as the result of a dog bite. The trial court, in its memorandum of decision, found:

“There is no cause of action for any attack by a dog except under the dog bite statute. It created absolute liability and replaces the common law claims. None of the three counts make out this statutory cause of action.”

The court dismissed the amended complaint and entered a final order of dismissal, however, the plaintiff elected to stand on the amended complaint.

This appeal raises the narrow issue of whether or not the statute covering the subject of recovery for dog bites has repealed the common-law action. The statute provides :

“If a dog, without provocation, attacks or injures any person who is peaceably conducting himself in any place where he may lawfully be, the owner of the dog is liable in damages to the person so attacked or injured to the full amount of the injury sustained. The term ‘owner’ includes any person harboring or keeping a dog. The term ‘dog’ includes both male and female of the canine species.”

(Ill Rev Stats 1963, c 8, par 12d.) It will be seen from the foregoing language that the common-law action is not expressly repealed. Indeed the common-law action is not mentioned.

As a general rule, the repeal of the common law by implication is not favored. It is only where there is a fair repugnance between the common law and the statute, and both cannot be carried into effect, that the common law must be considered as repealed by implication. The legislature is presumed to have known of the common-law action and had they intended to repeal such action, it would have been a simple matter for them to have done so. We are not at liberty to extinguish a common-law remedy unless the statutory action is so conflicting to the common-law action that both may not exist. In this case, repugnance is not apparent. The common-law action required that the owner have prior knowledge of the dog’s propensities. The statutory action makes no such requirement. Either action is available depending upon the facts of the case and it cannot be fairly said that one remedy is contradictory to the other. We therefore conclude that the trial court erred in finding that the statute had repealed the common-law remedy and in dismissing the amended complaint.

Both sides urge us to accept as authority for their divergent views the case of Beckert v. Risberg, decided by the Appellate Court in 50 Ill App2d 100, 199 NE2d 811 (1964), but reversed by the Supreme Court in 33 Ill2d 44, 210 NE2d 207 (1965). The complaint in that case was in two counts. The first alleging a cause of action under the statute, and the second alleging a cause of action in common law. The trial court found no evidence to sustain the common-law action and dismissed that count. No appeal was taken from that order. The case went to the jury on the statutory count and a verdict was returned in favor of the plaintiff. The Appellate Court reversed on the ground that error was committed in the trial by giving instructions on the question of negligence since negligence is not an issue in the statutory cause of action. The Supreme Court reversed the Appellate Court and affirmed the trial court decision holding that while negligence was not an issue and that the instructions were therefore improper, the instructions worked no injury upon the defendant. The Supreme Court said at page 46:

“Under a statute in force at the time of the occurrence it was unnecessary to prove negligence in order to recover damages. To render the owner liable it was enough Tf a dog, without provocation, attacks or injures any person who is peaceably conducting himself in any place where he may lawfully be.’ (Ill Rev Stat, 1959, Chap 8, par 12d.) To recover under the rule at common law, on the other hand, it was necessary to allege and prove that the animal had a mischievous propensity to commit such injuries and that the owner had knowledge of the propensity.”

The Supreme Court gives no indication that the statute had repealed the common law. On the contrary the court considered both theories in its opinion.

In Messa v. Sullivan, 61 Ill App2d 386, 209 NE2d 872 (1965), the complaint was based upon two theories. The first was a common-law action and the second was a statutory action. The trial court sitting without a jury held for the defendant under the common-law action upon a finding that plaintiff was guilty of contributory negligence. No appeal was taken from that decision. The trial court found in favor of the plaintiff on the statutory action and awarded judgment. Only the finding on the statutory action was appealed. The court did not indicate that the statute had repealed the common law and that case is no authority for the proposition.

This court should not substitute its judgment for the judgment of the legislature. The legislature could easily have repealed the common-law action had it intended to do so. Absent a clear legislative expression we are not able to conclude that the statute repeals the common law. On the contrary we conclude that the statute merely supplies an alternative remedy and that both the statutory action and the common-law action exist.

The judgment is therefore reversed and remanded.

Judgment reversed and remanded.

DAVIS and ABRAHAMSON, JJ., concur.


author: MR. JUSTICE DAVIS

text:
    Jacob A. Wing, d/b/a Wing’s Tree Experts, Plaintiff-Appellee, v. Philip C. Lederer and Peter Sonza-Novera, Defendants, Philip C. Lederer, Defendant-Appellant.
    Gen. No. 66-100M.
    Second District.
    December 29, 1966.

      Lederer, Barnhill and Fox, of Chicago, for appellant.
    Robert Weber, of Highland Park, for appellee.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

Plaintiff, Jacob A. Wing, a licensed tree surgeon, d/b/a Wing’s Tree Experts, brought this suit against the defendants, Philip C. Lederer, (herein called Lederer), and Peter Sonza-Novera, (herein called Novera), to recover the sum of $500 for services rendered. The complaint alleged that Novera, who acted as a part-time caretaker and yardman for Lederer, either individually, or as Lederer’s agent, hired the plaintiff to do certain work at the Lederer residence.

The case was tried before the court without a jury and judgment was entered for the plaintiff and against Lederer, in the sum of $250; and for the defendant, Novera. Lederer appealed from the judgment against him and no cross appeal was filed.

Lederer contends that the plaintiff did not prove any contractual relationship with him; failed to offer evidence to sustain this action under a quasi-contract theory whereby Lederer would be liable for the work done by plaintiff; and also failed to prove the fair and reasonable value of the services rendered.

Mrs. Lederer testified that in the early spring of 1964 she asked Novera whether a certain maple tree on the Lederer property needed care. He answered that it did, that he knew a man in the business, and that he would send him to her. Novera then contacted the plaintiff, had him come to the property, and showed him this tree, which had some dead branches near its top. Novera testified that he told the plaintiff to talk to the lady of the house about the tree; and that the plaintiff pointed out other tree and shrubbery work which needed to be done.

Plaintiff’s version of this conversation is somewhat different. He testified that Novera showed him the maple tree and that he, the plaintiff, told Novera that it, as well as other trees, needed care; that Novera then told him to go ahead and do what was necessary; and that the cost of the work was not discussed.

At the end of June or the first of July, plaintiff sprayed the foliage. Later he came back and pruned the maple tree and root fed several trees. He returned again in the latter part of July and in early September to do more spraying and root feeding. It is undisputed that he neither saw nor talked to either Lederer, Mrs. Lederer or Novera while working on the premises. Sometime during the summer, Novera told Mrs. Lederer that the tree work apparently had been done since the dead branches in the maple tree had been removed. However, the plaintiff did not contact the Lederers and had no conversation with anyone concerning the work, other than that heretofore related between himself and Novera.

No statement was rendered for this work until November of 1964, at which time Lederer received a bill from the plaintiff for $500. Mrs. Lederer did not pay the bill but called the plaintiff on several occasions to discuss it with him. Plaintiff never returned her calls. No further word was received from the plaintiff until October of 1965, at which time another statement was received. At the trial no testimony was offered which specified the work done or the time and materials used on the job, and there was no evidence relative to the fair or reasonable value of the work done.

Lederer had unquestionably constituted Novera his agent to recommend someone to take care of the maple tree. There is no issue as to the existence of an agency between Lederer and Novera, but only as to the latter’s authority. The authority of the agent may come only from his principal. City of Evanston v. Piotrowicz, 20 Ill2d 512, 519, 170 NE2d 569 (1960). There is no dispute as to the actual authority conferred upon Novera. He was told to recommend someone to take care of the maple tree and to have that person talk to Mrs. Lederer. Both the principal and the agent understood this to be the extent of the agent’s authority. It clearly did not include the hiring of a tree man for any purpose, and under no circumstances could it be parlayed to include the hiring of such man to do whatever he thought was necessary.

Nor can it be said that Lederer clothed Novera with apparent authority to hire plaintiff to do the work which was done. Apparent authority in an agent is such authority as the principal knowingly permits the agent to assume or which he holds his agent out as possessing— it is such authority as a reasonably prudent man, exercising diligence and discretion, in view of the principal’s conduct, would naturally suppose the agent to possess. Faber-Musser Co. v. William E. Dee Clay Mfg. Co., 291 Ill 240, 244, 126 NE 186 (1920); 1 ILP Agency, § 112. The plaintiff had no contact with Lederer either before or during the time in which the work was done, and Lederer neither did nor failed to do anything which would justify the plaintiff in assuming that Novera had authority to hire him.

One dealing with an assumed agent is duty bound to ascertain the extent of the agent’s authority. Such circumstance alone, should put the person dealing with such agent on guard in that anyone dealing with such agent must, at his own peril, ascertain not only the fact of the agency, but also the extent of the agent’s authority. Paine v. Sheridan Trust & Savings Bank, 342 Ill 342, 349, 174 NE 368 (1931); Slape v. Fortner, 3 Ill App2d 339, 349, 122 NE2d 57 (1954).

Even assuming that the plaintiff’s version of his conversation with Novera was correct, he conceded that Novera pointed out to him only the work to be done on the maple tree. It was the plaintiff who mentioned other work which should be done on the trees and shrubbery. Apparently, from the size of the bill, the other work was substantial and, in view of such circumstance, the plaintiff had a duty to confirm that a part-time yardman had the authority to direct him to do whatever was necessary.

The plaintiff contends that, absent any original authority on the part of Novera, Lederer by accepting the work which the plaintiff did, and by retaining the benefit thereof, ratified the acts of his agent in hiring the plaintiff. The rule is that where an agent has acted outside of the scope of his authority, a principal may ratify the act and render it obligatory upon himself; and that subsequent assent and ratification is equivalent to an original authorization and confirms that which originally was an unauthorized act. Karetzkis v. Cosmopolitan Nat. Bank, 37 Ill App2d 484, 490, 186 NE2d 72 (1962); Fraternal Army of America v. Evans, 114 Ill App 578, 588 (1904), affd 215 Ill 629, 74 NE 689. The ratification may either be express or inferred from the surrounding circumstances, but it must come from the acts or conduct of the principal. 3 Am Jur2d, Agency, § 162. However, a principal may not be held to have ratified that which was done unless he acts with full knowledge of all the material facts. Coleman v. Connolly, 242 Ill 574, 583, 90 NE 278 (1909); 3 Am Jur2d, Agency, § 173.

Ratification rests on intention. The mere retention of the benefits of a transaction cannot be held to constitute ratification if the principal does not have the privilege of repudiating the unauthorized act. 3 Am Jur2d Agency, § 168. Absent such choice, the principal’s conduct in accepting such benefits does not indicate that he assents to what has been done or intends to confirm it. In all of the cases cited by plaintiff, the ratification by a principal was made when he had full knowledge of the facts and a choice of either accepting or rejecting the benefits of the transaction.

Lederer had no choice! His trees had been pruned and sprayed long before he had knowledge of what had been done. He could not undo that which had then been done and his acceptance of the work was not by choice but by necessity. The fact that he did not stop the plaintiff from doing the work is no evidence of ratification, since it is undisputed that Lederer did not have knowledge of the services during the time they were being rendered. Lederer cannot be held to have ratified the hiring of plaintiff even if it is assumed that Novera hired him to do whatever was necessary.

The trial court appeared to have rendered judgment in favor of the plaintiff on the theory that the work was done and he should get something for it. The court apparently entered the judgment of $250 on the theory that plaintiff, who offered no evidence which specified the details of the work or the method used in computing the amount charged, was nevertheless entitled to recover something.

The plaintiff contends that the court’s action was proper in that where compensation is not fixed by a contract, the law will imply an agreement to pay what the services are reasonably worth, and has cited Fehr Const. Co. v. Postl System of Health Bldg., 288 Ill 634, 641, 124 NE 315 (1919) and Robinson v. Riverside Plaza Corp., 248 Ill App 242, 254, 255 (1928), as authorities for such rule. The cited cases hold that where there is a contract, express or implied, under which one furnishes articles or services for another and there is no agreement as to compensation, the law implies an agreement to pay a reasonable value for such articles or services. However, in the case at bar, there was no contract, express or implied, between plaintiff and Lederer upon which an inference to pay can be based.

If plaintiff predicates his right to recover upon a quasi-contractual obligation on the part of Lederer, he must fail since he neither pleaded sufficient facts to warrant such recovery nor proved the reasonable value of the materials and services rendered. Bloom v. Nathan Vehon Co., 341 Ill 200, 207, 173 NE 270 (1930); Goldberg v. Hamburger, 342 Ill App 444, 96 NE2d 636 (1950). Proof of delivery of a bill in a given amount, standing alone, is not evidence of the reasonable value of services rendered or of materials furnished. Stewart v. Board of Sup’rs of Clark County, 335 Ill App 385, 82 NE2d 194 (1948).

For the reasons we have indicated, the judgment of the trial court is reversed and judgment is hereby entered in favor of the defendant, Lederer.

Judgment reversed and judgment entered herein for defendant-appellant.

MORAN, P. J. and ABRAHAMSON, J., concur.


text:
    Raymond Miollis, d/b/a Natural Cheese Company, Plaintiff-Appellee, v. Warren D. Schneider and James B. Hillman, Defendants-Appellants.
    Gen. No. 66-132.
    Second District.
    December 29, 1966.

      George H. Schirmer, Jr., of Freeport, and Rothbart, Stein and Moran, of Chicago, for appellants.
    Eckert, Schmelzle and Eckert, of Freeport, and Thomas Hart Fisher, of Chicago, for appellee.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

This appeal involves the propriety of orders for the issuance of temporary injunctions and the denial of the petition of the defendants to vacate such orders. The appeal attacks the injunction orders from both the procedural and substantive aspects.

On October 27, 1966, plaintiff filed his unverified complaint asking that temporary injunction issue against the defendant, Warren D. Schneider, herein called Schneider, without notice and without bond, restraining him from further violation of his employment contract with the plaintiff, dated March 1, 1946, and from any further connection with James Hillman Cheese Factory where Schneider was employed; and that such preliminary injunction be made permanent. On said date, the court ordered that temporary injunction issue “restraining . . . the defendant . . . from any further connection or employment . . . with James Hillman Cheese Factory . . . or with any other company manufacturing or curing products of Natural Cheese Company.” This injunction issued without notice and without bond.

On October 31, 1966, Schneider filed a motion to dissolve this injunction in that the complaint was not verified or supported by affidavit and for other reasons. This motion was set for hearing on November 1. The record indicates that the court dissolved this injunction on October 31 and granted plaintiff leave to file an amended complaint within ten days.

The plaintiff filed an amended complaint, which was verified, on November 2, seeking the same relief, and on said date, without notice to Schneider, the court again entered an injunction order similar to that entered on October 27 and plaintiff filed bond in the sum of $1,000.

On November 2, plaintiff filed a motion, without notice to Schneider, for leave to add James Hillman, d/b/a Hill-man Cheese Factory, herein called Hillman, as a party defendant, and for leave to file a second count to the amended complaint. This motion was granted on November 7 and verified Count II of the amended complaint was filed, and therein plaintiff asked, among other things, that a temporary injunction issue immediately and without notice, restraining Hillman from any further use of secret trade processes of the plaintiff. On said date, the court, without notice to Schneider or Hillman, issued such injunction and the plaintiff filed bond in the sum of $1,000.

On November 7, Schneider filed a motion to vacate the injunction order of November 2, and on November 9, Schneider and Hillman filed a motion to dissolve the respective temporary injunctions issued against them on November 2 and November 7. The main thrust of the motions was that the injunctions issued without notice in violation of section 3 of the Injunction Act (Ill Rev Stats 1965, c 69, par 3) which provides:

“No court or judge shall grant an injunction without previous notice of the time and place of the application having been given to the defendants to be effected thereby, or such of them as can conveniently be served, unless it appears, from the complaint or affidavit accompanying the same, that the rights of the plaintiff will be unduly prejudiced if the injunction is not issued immediately or without notice.”

The motions also charged that the complaint failed to state facts warranting the issuance of the injunctions; that the writ cannot properly issue upon allegations which are mere conclusions; and that the plaintiff failed to file a copy of any agreement between Hillman and himself and failed to set forth what processes, secrets, formulas, methods of keeping and maintaining cultures, etc., and other ideas used in connection with curing and making of cheese, or various types thereof, are his sole property. These motions, which stated that both Schneider and Hillman, as well as their attorney, resided in Stephenson County and were conveniently available for service, were set for hearing on November 14, and notice thereof was served on the plaintiff.

On November 9, the plaintiff served notice on the defendants that he would appear on November 14 and ask the court to enter an order reaffirming the injunctions already issued, which notice recited that it was served in compliance with section 3 of the Injunction Act. On November 14, the plaintiff filed an affidavit in support of his amended complaint.

We will first consider the propriety of the injunction orders from the procedural viewpoint, and in so doing will recur to some of the fundamental considerations which should be observed in connection with the issuance of injunctions, and particularly those designated as temporary or interlocutory.

An injunction is an equitable remedy, frequently described as the strong arm of equity — an extraordinary remedy to be used sparingly with' judicial restraint and due continence, and only in a clear and plain case. Vulcan Detinning Co. v. St. Clair, 315 Ill 40, 43, 44, 145 NE 657 (1924); 21 ILP, Injunctions, §§ 2 and 4; 28 Am Jur, Injunctions, § 12.

A temporary injunction is granted before the hearing of the case on its merits for the purpose of preventing a threatened wrong or further perpetration of an injury; its purpose is not to determine any controverted right or to decide the merits of the case. 21 ILP, supra; 28 Am Jur, supra.

In Town of Cicero v. Weilander, 35 Ill App2d 456, 183 NE2d 40 (1962), in considering this subject, the court stated at page 468:

“Ordinarily a temporary injunction is issued for the purpose of maintaining the status quo, and it may properly issue wherever questions of law or fact to be ultimately determined are grave and difficult and if the injury to the moving party will be immediate, certain and great if it is denied, while the loss or inconvenience to the opposing party will be comparatively small and insignificant if it is granted. Puterbaugh, Chancery Pleading and Practice, vol 2 sec 626 (7th ed); O’Brien v. Matual, 14 Ill App2d 173, 144 NE2d 446.”

The court further pointed out that since a temporary injunction is a drastic remedy, it should be granted only under extraordinary circumstances; and that a temporary injunction which enjoins a corporate defendant from continuing its business in the ordinary course thereof, certainly did not preserve the status quo.

The law does not favor granting injunctions without notice and, since injunction is an extraordinary remedy, an injunction without notice is most drastic and should only issue under extreme circumstances. Streamwood Home Builders, Inc. v. Brolin, 25 Ill App2d 39, 43, 165 NE2d 531 (1960); Kelrick v. Koplin, 19 Ill App2d 301, 153 NE2d 481 (1958). In Streamwood, supra, in considering, the situations in which temporary injunction may properly issue without notice, the court stated at pages 43 and 44:

“. . . The circumstances countenanced by the courts have been in very restricted areas, such as where the facts of the case, or the history of the parties, disclosed that the giving of notice would result in accelerating the very act sought to be enjoined, or where the act to be enjoined was either taking place or would be undertaken or completed in the time required for notice. A. Daigger & Co. v. Kraft, 281 Ill App 548; Mitchell v. Mitchell, 10 Ill App2d 437; Atkinson Trust & Sav. Bank v. DeRoo, 332 Ill App 251; 21 ILP, Injunctions, sec 123, et seq.
“Notice to an adversary is elemental in our system of justice. Our courts of review have insisted upon chancery courts scrupulously observing the fundamental right of a party to be informed of the injunction proposed against him so that he may be present, if he wishes, to defend himself. Skarpinski v. Veterans of Foreign Wars of United States, 343 Ill App 271; Goldberg v. Laughlin, 137 Ill App 283.”

The primary purpose of notice of application for temporary injunction is to afford a defendant an opportunity to show that an injunction should not issue. Hoagland v. Bibb, 12 Ill App2d 298, 300, 139 NE2d 417 (1957); Schmidt v. Modern Woodmen of America, 261 Ill App 276, 283 (1931). “To test the necessity for issuance of an interlocutory injunction without notice, the court must ask whether, in the time required to procure the defendant’s appearance, the defendant could and would do that which would seriously obstruct the power of the court to deal justly and effectively with the issue in dispute. An interlocutory injunction must stand or fall on the pleadings as they existed at the time the order was entered.” Schaefer v. Stephens-Adamson Mfg. Co., 36 Ill App2d 310, 314, 183 NE2d 575; also see: 21 ILP, Injunctions, § 124.

In the case at bar, the court issued orders granting three separate injunctions, all without notice, even though two of such injunctions were issued after Schneider had appeared in the case. The two injunction orders appealed from must stand or fall on the pleadings as they existed at the time the orders were entered.

The plaintiff’s effort to shore up his amended complaint by an affidavit in support thereof, filed subsequent to the orders granting the injunctions, availed him nothing. Likewise his motion, filed subsequent to the issuance of the injunction orders, asking that the court reaffirm the injunctions already issued against the defendants, notice of which motion was served on defendants in an effort to comply with section 3 of the Injunction Act, as well as the court’s order granting such motion, was null and void.

In addition, the allegations of the amended complaint failed to warrant the issuance of injunctions without notice. The amended complaint was based on an employment contract between Schneider and Natural Cheese Company, dated March 1,1946, whereby Schneider agreed not to disclose plaintiff’s trade secrets, etc., and not to seek or accept employment from any other person engaged in the manufacturing or processing of cheese under the trade name of “Baronet” and “Geneva Lion” or any similar type, at any place in the United States, for a period of five years after the termination of his employment with Natural Cheese Company; and whereby he agreed that upon receipt of a written statement that the agreement between C. E. Zuercher & Co., and Natural Cheese, dated October 26, 1936, had been terminated, he would terminate his employment with Zuercher or any other factory, except those manufacturing cheese other than the types above specified. However, the amended complaint failed to allege that Schneider had been notified in writing that the agreement between Zuercher and Natural Cheese Company had been terminated and failed to state the date when Schneider ceased to be employed by the plaintiff. It failed to set forth a clear legal right to injunctive relief. See: Northwestern Terra Cotta Corp. v. Wilson, 74 Ill App2d 38, 48, 49, 219 NE2d 860 (1966).

Even if we assume, while entertaining considerable doubt, that the restraint upon Schneider with reference to his trade — where the limitation as to territory is the entire United States and the time thereof is for five years — is valid (see: Bauer v. Sawyer, 8 Ill2d 351, 354, 355, 134 NE2d 329 (1956) and Vander Werf v. Zunica Realty Co., 59 Ill App2d 173, 177-179 incl., 208 NE2d 47 (1965)), the amended complaint on its face fails to reflect that Schneider has violated the contract. It does not set forth the date of the termination of his employment, which, from all that is alleged, may have been more than five years prior to the filing of this suit.

The amended complaint alleged that Schneider breached his contract — a conclusion — by being employed by Zuereher at Hillman’s and that Schneider was relating trade secrets to Hillman. However, Count II of the amended complaint stated that Hillman had been manufacturing cheese for Zuereher under an agency agreement with the plaintiff, which had been terminated; and that Hillman under such agreement had been informed of the trade secrets, processes, etc., of the plaintiff. Consequently, it would appear from plaintiff’s amended complaint and Count II thereof that there would be no necessity to restrain Schneider from working for Hillman with reference to imparting such trade secrets to Hillman.

The plaintiff failed to attach to Count II a copy of his agreement with Hillman, as required by law if his action was founded thereon (Capitol Records, Inc. v. Vee Jay Records, Inc., 47 Ill App2d 468, 478, 197 NE2d 503 (1964)), and his allegations relative thereto are likewise in the nature of conclusions rather than facts. See: Skolnick v. Nudelman, 71 Ill App2d 424, 428, 429, 218 NE2d 775 (1966).

In order to justify the issuance of injunction without notice, the sufficiency of the complaint is the test of the validity of the injunction order. The complaint must allege facts from which the chancellor can infer the need of protecting the plaintiff from undue prejudice arising from notice to the adverse party. The extraordinary character of the injunctive remedy requires that it be awarded only where the complaint shows on its face a clear right to relief. Tri Square Realty Corp. v. Bressler, 17 Ill App2d 336, 338, 339, 149 NE2d 798 (1958); Stenzel v. Yates, 342 Ill App 435, 440, 441, 96 NE2d 813 (1951). The amended complaint and Count II thereof failed to show on its face a right to temporary injunction without notice. From both the procedural and substantive aspects, we believe that the trial court erred in entering the injunction orders without notice. Daskal v. Daskal, 71 Ill App2d 471, 478, 479, 219 NE2d 4 (1966).

Accordingly, the injunctioin orders entered by the trial court against Schneider and Hillman on November 2nd and 7th are reversed and any writs issued thereunder are dissolved; and the order of the trial court denying said defendants’ petition to vacate such orders is likewise reversed.

Orders reversed.

SEIDENFELD and ATTEN, JJ., concur.


author: MR. JUSTICE RATHJE

text:
    Lawrence Larson, Plaintiff-Appellant, v. Marvin D. Harris, Jr., Defendant-Appellee.
    Gen. No. 66-11.
    Second District.
    December 30, 1966.

      Asher, Greenfield, Gubbins and Segall, of Chicago, for appellant.
    Maynard, Maynard & Brassfield, of Rockford, for appellee.
   MR. JUSTICE RATHJE

delivered the opinion of the court.

This is an action brought in the Circuit Court of the 17th Judicial Circuit, Winnebago County, by Lawrence Larson to recover for personal injuries sustained in an accident while riding in defendant’s automobile. The cause was tried by a jury. At the close of the plaintiff’s case, and on motion of the defendant, the court directed a verdict in favor of the defendant. Plaintiff contends on appeal that there was sufficient evidence in the record for the plaintiff to submit the case to the jury and seeks a reversal and a new trial. It appears from the record that no post-trial motion was filed by the plaintiff before appealing to this court.

The complaint as amended charged that on April 7, 1961, defendant, Marvin D. Harris, was operating an automobile in a westerly direction on U. S. 30; that the plaintiff was riding with him as a passenger; that the plaintiff was free from contributory wilful and wanton misconduct; and that the defendant was guilty of wilful and wanton misconduct by driving across a marked highway, traveling approximately 250 feet off the pavement, down an embankment and stopped across a creek.

Defendant’s answer as amended denied the charges of wilful and wanton misconduct, and denies that the plaintiff was free from wilful and wanton misconduct.

The evidence showed that the accident occurred on U. S. Route 30, about two miles from its intersection with Route 51. U. S. 30 is a two-lane blacktop road approximately 22 to 24 feet wide with a white and black median strip. The highway where the accident occurred has a gravel shoulder about 4 feet wide, with the remainder of the embankment grass.

On April 7, 1961, the defendant, a resident of Rockford, was driving an automobile owned by his father’s firm. Early in the evening he met the plaintiff and together they went to a hospital in Rockford to meet Janet Rewerts, a friend of the plaintiff. The three left Rockford, drove along Route 51 to Rochelle, Illinois, where they met Merietta King, a friend of the defendant. The four, with the defendant driving, then proceeded from Rochelle to De Kalb, Illinois, where they decided to attend a university dance. Instead of attending the dance, they went to a restaurant located at the east end of De Kalb.

After remaining at the restaurant for approximately one-half hour, they decided to return to Rochelle. As they started the defendant was driving, Merietta King was in the right front seat, the plaintiff in the back seat behind the defendant, and Janet Rewerts sitting on his right. They traveled some back roads until they came to Route 23 where they proceeded south to U. S. Route 30.

The defendant stated that his car was in good working condition, his lights were on, his brakes were in good working order, and he estimated his speed at between 50 to 60 m.p.h. before he reached U. S. Route 30. He stopped at the stop sign at the juncture of Route 23 and U. S. Route 30 and then made a right turn onto U. S. Route 30. He stated that the pavement on the U. S. Route 30 was dry, the weather was nice and the visibility good. He states he has no recollection of the events surrounding the accident nor his speed on U. S. Route 30, but did state that he did not fall asleep, that the passengers were behaving themselves.

A state trooper stopped shortly after the accident while cruising along U. S. Route 30. When he arrived he saw a 1955 Chevrolet tudor hardtop off the road down the embankment and across a small creek. The car was on the south side of the roadway, or the opposite side of the road from where the defendant was traveling. He stated that the car left the road 249 feet from where the car stopped and based this fact on the tire marks which left the roadway and led directly to the car.

One of the issues arising out of this case is the effect of the plaintiff’s failure to file a post-trial motion after an order had been entered directing a verdict for the defendant at the close of the plaintiff’s case. The purpose of a post-trial motion is to give the trial court an opportunity to correct any errors in the trial before the jury. It is the opinion of this court that an appeal may be taken where a court directs a verdict, although no post-trial motions were made. When a judge directs a verdict at any stage of the trial, in effect, he has removed the case from the realm of the rules relating to jury cases and the rules applicable to bench trials should apply. It seems illogical to require a party to address the same arguments to the same judge on the identical questions before proceeding to review by an appellate tribunal. Insofar as the opinion herein expressed is contradicted by the opinion contained in Malcomson v. Bennett, 69 Ill App2d 281, 216 NE2d 249 (1966), that opinion is overruled.

The primary question on appeal is whether the trial court erred in directing a verdict for the defendant at the close of the plaintiff’s case. When a motion for a directed verdict is made by the defendant at the end of the plaintiff’s case, the trial court must consider all the evidence in its aspect most favorable to the plaintiff, together with all reasonable inferences to be drawn therefrom, and, if when so considered, there is any evidence standing alone and considered to be true, together with the inferences which may legitimately be drawn therefrom which fairly tend to support the plaintiff’s case, the court should not direct a verdict in favor of the defendant. LaSalle Nat. Bank v. Wieboldt Stores, Inc., 60 Ill App2d 188, 205, 206, 208 NE2d 845 (1965). A motion for a directed verdict for the defendant presents the single question whether there is in the record any evidence which, standing alone and taken with all its intendments most favorable to the plaintiff, tends to prove the material elements of the plaintiff’s case. Lindroth v. Walgreen Co., 407 Ill 121, 130, 94 NE2d 847 (1950). Questions of any purported impeachments, weight or quality of testimony, or credibility of witnesses are not involved on a motion for a directed verdict. Moldenhauer v. Krynski, 62 Ill App2d 382, 386, 210 NE2d 809 (1965).

Many decisions by courts of this state favor the position that the question of the existence of wilful and wanton misconduct on the part of either the plaintiff or the defendant is preeminently a question for the jury and should be only rarely ruled upon as a matter of law. In Lessen v. Allison, 25 Ill App2d 395, 166 NE2d 806 (1960), the court stated at pages 401, 402:

“The more recent cases of the Supreme Court of this state indicate that it is the exceptional case wherein it can be said that the question of wilful and wanton misconduct on the part of the driver or contributory wilful and wanton misconduct on the part of the guest is not a question of fact for the jury.”

In Rosbottom v. Hensley, 61 Ill App2d 198, 209 NE2d 655 (1965), in a suit by a guest passenger, the defendant driver, while traveling at 20 to 25 miles per hour on a wide level street, turned her head to glance at a back seat passenger and struck a tree. In rejecting the defendant’s contention that, as a matter of law, one cannot be guilty of wilful and wanton misconduct unless they have actual knowledge of the pending danger, the court stated at page 211:

“The Illinois courts have held that if there is any evidence in the record tending to show such a gross want of care as indicates a wilful disregard of consequences, it is a question of fact for the jury. Walldren Express & Van Company v. Krug, 291 Ill 472, at 476, 126 NE 97. While this opinion did not relate to the situation of a guest under the statute, that language has been employed in guest cases. Johnson v. Chicago & N. W. Ry. Co., 9 Ill App2d 340 at 355, 132 NE2d 578.”

In Augustine v. Stotts, 40 Ill App2d 428, 189 NE2d 757 (1963), a guest statute case, the defendant driver made a left turn and was struck by an oncoming automobile. In appealing a jury verdict for the plaintiff, one of the defendant’s contentions was that the trial court should have directed a verdict for the defendant. In rejecting this argument, the court stated at pages 430, 431:

“The facts were such as to raise a question of fact for the jury as to whether defendant was guilty of wilful and wanton misconduct either in seeing the oncoming automobile and wilfully, wantonly, or recklessly attempting to race across the highway ahead of such automobile, or being guilty of wilful and wanton misconduct in failing to look and discover the oncoming automobile on the state highway.”

In the instant case, the evidence established that the U. S. Route 30 was smooth, the pavement dry and the visibility good. The defendant testified that he was the driver of the car; that his car and brakes were in good operating condition; that he was not asleep; that he was traveling between 50 and 60 miles per hour on U. S. Route 30; and that the passengers were behaving themselves. He had no recollection of the events ■ immediately surrounding the accident. The plaintiff had no recollection of the events after leaving the dance hall. The state trooper who came upon the scene shortly after the accident testified that the defendant’s car had crossed the median strip; that the car traveled 249 feet on the south or opposite shoulder from where it left the highway; and that the car stopped at the bottom of an embankment across a small creek facing west and headed into the west bank. It is our opinion that there was sufficient evidence to submit the case to the jury on the question of the defendant’s wilful and wanton misconduct. For this reason the directed verdict of the trial court is reversed.

Reversed and remanded.

ABRAHAMSON and MORAN, JJ., concur.


text:
    G. Chicoine Contractors, Inc., an Illinois Corporation, Plaintiff-Appellant, v. John Marshall Building Corporation, a Corporation; Home Savings and Loan Association, a Savings and Loan Institution; George Smith, as Trustee; and Unknown Owners, Defendants-Appellees.
    Gen. No. 66-12.
    Second District.
    December 30, 1966.

      Selwyn Coleman, of Roselle, for appellant.
    Beverly, Oddsen, West & Scheflow, of Elgin, for appellees.
   MR. JUSTICE RATHJE

delivered the opinion of the court.

Plaintiff-appellant, G. Chicoine Contractors, Inc., an Illinois corporation, appeals from an order entered by the Circuit Court of the 19th Judicial Circuit, McHenry County. Said order dismissed plaintiff’s complaint for foreclosure of a mechanic’s lien against the subject property owned by the defendant John Marshall Building Corporation, and authorized the Home Savings and Loan Association of Elgin, as mortgagee, to present a decree of foreclosure on said subject property.

On May 23, 1963, the plaintiff filed suit for foreclosure of its mechanic’s lien against the defendants, John Marshall Building Corporation, Home Savings and Loan Association of Elgin, George Smith and unknown owners. It alleged that, on May 25, 1962, the plaintiff entered into a written contract with the defendant John Marshall Building Corporation (hereinafter referred to as John Marshall Corp.) to furnish labor and materials to complete sanitary sewers, storm sewers and water mains on the subject property for a total amount of $44,599.25; that the plaintiff complied with the terms of the contract and furnished, at the request and special instance of John Marshall Corp., extras in the amount of $5,061.71; that the materials became a permanent and valuable improvement to the subject property; that John Marshall Corp. paid plaintiff $37,988.40, leaving a balance due the plaintiff $11,738.66; and that on January 2, 1963, it filed its original claim for lien in the amount of $11,161.16; and that sum is still due and owing the plaintiff.

Home Savings and Loan Association of Elgin (hereinafter referred to as Home Savings) pursuant to section 48 of the Civil Practice Act, filed a motion to dismiss on the ground that the plaintiff had executed its full waiver of lien, attaching an affidavit of the executive vice-president of Home Savings stating that, on September 10,1962, the president of the plaintiff company executed and delivered to Home Savings its full and complete waiver of lien and that said waiver was not obtained through any fraud, mistake or duress. Also attached to the motion was the payout authorization and the waiver of lien, both on a single form supplied by Home Savings, showing that the amount of the contract was $36,690.15 and that the plaintiff authorized the payment of that amount to John Marshall Corp. for sewer, water, and storm lines; that the waiver executed by the plaintiff was for and in consideration of $36,690.15, receipt of which was thereby acknowledged, and the plaintiff waived and released any and all lien or claim or right of lien under the Statutes of the State of Illinois relating to mechanics’ liens.

On January 28, 1965, Home Savings filed a mortgage foreclosure suit against the subject property. On June 10, 1965, on motion of the attorney for the plaintiff, an order was entered consolidating the mortgage foreclosure suit and the mechanic’s lien suit of the plaintiff and referring them both to a master in chancery for the purposes of taking proofs and making findings of fact. After due notice to the attorneys, on July 20, 1965, a pretrial conference was held which the attorney for the plaintiff failed to attend. A notice and a tentative master’s report was sent to the attorneys of record on August 17, 1965, giving them approximately one week to file objections to his report. No objections were filed on behalf of the plaintiff. On August 26,1965, the master made his recommendation that, in the absence of counteraffidavits filed by the plaintiff, the affidavit filed by Home Savings must be taken as true and concluding that an order should be entered dismissing the mechanic’s lien foreclosure suit. Pursuant to that recommendation, on October 14, 1965, an order was entered dismissing the mechanic’s lien foreclosure suit filed by the plaintiff and allowing Home Savings to present a decree of foreclosure on the subject property.

Plaintiff’s first contention on appeal is that the motion to dismiss filed under section 48 of the Civil Practice Act was not adequate to defeat its claim. Section 48 of the Civil Practice Act (Ill Rev Stats 1965, c 110, § 48) provides a method whereby a defendant may file a motion to dismiss the action on the ground that the claim is barred by an affirmative matter avoiding the legal effect of or defeating the claim or demand which is supported by affidavit. When a motion under section 48 of the Civil Practice Act is supported by an affidavit and no counter-affidavit has been filed, the facts stated in the affidavit must be taken as true. Winston v. Zoning Board of Appeals of Peoria County, 407 Ill 588, 595, 95 NE2d 864 (1951); Leitch v. Hine, 393 Ill 211, 219, 66 NE2d 90 (1946). In Daviditis v. National Bank of Mattoon, 6 Ill App2d 286, 127 NE2d 462 (1955), the defendant filed a motion to dismiss plaintiff’s cause of action under section 48 of the Civil Practice Act. The defendant attached an affidavit alleging plaintiff’s complaint was barred by prior judgment. No counteraffidavits were filed by the plaintiff. In affirming the trial court’s order dismissing the complaint, the court stated at page 288:

“Since plaintiffs did not file counter-affidavits the facts alleged in defendant’s affidavits were properly taken as true. The trial court therefore correctly sustained defendant’s motion and disposed of the case on the defense of a former judgment.”

It has been stated that, since mechanics’ liens are statutory in nature, they must be strictly construed with reference to the requirements upon which the lien rights depend. One right the lien claimant has is to execute his full and general waiver releasing his rights to a mechanic’s lien against the property. The Supreme Court stated in Decatur Lumber & Manufacturing Co. v. Crail, 350 Ill 319, 324, 183 NE 228 (1932) :

“While a waiver of lien for a clearly expressed special purpose will be confined by the courts to the purpose intended, yet where a general waiver is executed and there is nothing in the context to show a contrary intention there is nothing left for the court to do but enforce the contract as the parties have made it.”

In Timber Structures, Inc. v. Chateau Royale Corp., 49 Ill App2d 343, 199 NE2d 623 (1964), the plaintiff subcontractor accepted a check and gave a full waiver of lien to the general contractor who in turn delivered it to the financing institution. The check was returned to the plaintiff who instituted a mechanic’s lien foreclosure suit. The financing institution filed a motion for summary judgment setting out the waiver of lien signed by the plaintiff as a complete defense. The court affirmed the trial court’s order granting the motion for summary judgment.

In Hyde Park Inv. Co. v. Hyde Park State Bank, 257 Ill App 539 (1930), the plaintiff filed its bill to foreclose four trust deeds on certain premises. One of the defendants was a plumbing contractor who filed an answer in the nature of an intervening petition, claiming a mechanic’s lien on the mortgage premises for labor and material furnished on the buildings erected upon the mortgaged premises. The plumbing contractor had executed and delivered a waiver of lien under seal for a valuable consideration. In affirming the trial court’s order dismissing the plumbing contractor’s claim for want of equity, the Appellate Court stated that the waiver was full and complete, covering all work and labor done or thereafter to be done on the mortgaged premises. The court concluded at page 548:

“The waiver operated to release any lien which Jones might have had but for such waiver. Wolff Co. v. Gwynne, 246 Ill App 86. The bona fides of the waiver is not questioned. It is a complete defense and amply sufficient to support the decretal order of the chancellor dismissing- Jones’ claim for want of equity.”

Plaintiff further contends, on appeal, that its contract antedated the Home Savings’ mortgage and therefore is prior to Home Savings’ lien. From the record in this case, the plaintiff gave a complete waiver of lien and therefore no question arises as to whether its mechanic’s lien antedated the mortgage sought to be foreclosed by Home Savings on the subject property. The plaintiff had notice and ample opportunity to file counteraffidavits, to introduce evidence before the master, to file objections to the master’s report, and to object to the entry of the order dismissing its suit.

The judgment of the circuit court of McHenry County is affirmed.

Judgment affirmed.

MORAN and DAVIS, JJ., concur.


author: MR. JUSTICE ABRAHAMSON

text:
    Joseph Adolph Moreno, Plaintiff-Appellant, v. George E. Beckwith, Defendant-Appellee, Frank C. Krohn, Jr., Defendant.
    Gen. No. 66-39.
    Second District.
    January 13, 1967.

      Simon Stickgold, of Woodstock, for appellant.
    Allen and Herrmann, of Woodstock, and Jerome H. Torshen, of Chicago, for appellee.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

This is an appeal from the Circuit Court of McHenry County. The suit was for personal injuries sustained by plaintiff, Joseph Adolph Moreno, when an automobile he was driving struck a Black Angus bull on Route 14 about six miles southeast of Harvard, Illinois. The jury returned a verdict against both defendants and assessed plaintiff’s damages at $10,000. Post-trial motions to set aside the verdict were filed by both defendants. Krohn’s motion was denied. The Trial Court, however, granted defendant Beckwith’s motion. Orders were entered setting aside the verdict against Beckwith and entering judgment for Beckwith notwithstanding the verdict.

Frank Austin, owner of the Black Angus bull herein involved, gave possession of it to defendant, Frank C. Krohn, Jr., a dealer in cattle, in late July of 1961. Krohn rented the bull to defendant, George E. Beckwith for $35. Beckwith was to use the bull for two months to breed his cattle. Beckwith owned and operated a 150-acre farm in McHenry County, through which Route 14 ran. Beck-with’s wife operated a nursing home on the farm.

On the morning of September 6, 1961, the date of the accident, Krohn asked Beckwith if he could use the bull for a few hours to breed a cow belonging to Edgar Pierce, who operated a farm a few miles from the Beckwith farm. Beckwith agreed. Krohn did not take the bull at that time, but left the Beckwith farm and returned at 5:00 p. m. that afternoon. Beckwith then helped Krohn load the bull on a truck. Krohn, as he left, told Beckwith he would be back with the bull in a couple of hours. Krohn took the bull to the Pierce farm. Beckwith did not share in the fee paid by Pierce to Krohn.

At about 7:30 p. m., Krohn returned to the Beckwith farm with the bull. Neither Beckwith nor his wife were at home at the time. While Krohn, unaided, was attempting to unload the bull from his truck, the bull escaped and started off down Route 14. Krohn spent about 30 minutes trying to capture the bull but lost it in the darkness. Krohn testified he heard the bull and some cows “bellering” and believed the bull had gone to a nearby farm owned by a George Smith. He returned to the Beckwith farm and told a nurse employed by Mrs. Beckwith that the bull was loose and had gone over to the Smith farm. He asked the nurse to tell Beckwith “that the bull is out there, over at George Smith’s, that he would be out the next morning to pick him up at George Smith’s and bring him home.”

Beckwith testified that he returned home about 9:15 p. m. Upon being told what happened, he said he took a lantern and went to try to find the bull. Beckwith testified he looked for the bull for about 45 minutes before going into his house to retire for the night.

Plaintiff, Joseph Moreno, testified he did not see the bull on the highway until he was about 10 feet from it. He struck the bull at about 10:30 p. m. on September 6. The point of impact was on the highway alongside the Beckwith farm.

Plaintiff urges that the trial court misunderstood the law of the case, refused to instruct the jury concerning the existence of the so-called “Animal Statute” (Ill Rev Stats, 1965, c 8, § 1) and threw upon the plaintiff the burden of affirmatively establishing defendant’s negligence. Plaintiff admits the alleged errors did not impair the jury’s comprehension of the case in that it found both defendants guilty as charged in the complaint. In consequence, we are of the opinion it is not necessary for us to pass upon this point when viewed in the light of the finding of the jury.

The principal contention of the plaintiff is that the record contains sufficient evidence to support the jury’s verdict against both defendants and that the court erred in setting aside the verdict against Beckwith. The motion for a judgment notwithstanding the verdict should be denied if there is any evidence in the record which, standing alone and taken with all its intendments most favorable to plaintiff, tends to prove the material elements of plaintiff’s case. Only when there is a complete absence of probative facts to support the conclusion drawn by the jury is it proper to grant a motion for judgment notwithstanding the verdict. Miller v. DeWitt, 59 Ill App2d 38, 115, 208 NE2d 249; Rodgers v. Meyers & Smith, Inc., 57 Ill App2d 200, 202, 206 NE2d 845; Stilfield v. Iowa-Illinois Gas & Elec. Co., 25 Ill App2d 478, 482, 167 NE2d 295.

Accordingly, we turn our consideration to an analysis of the evidence and all of its aspects most favorable to the plaintiff. Krohrrhad leased the bull to Beckwith. On the day in question, however, Krohn had retaken possession of the bull and had taken it to the Pierce farm to breed with one of the Pierce cows. Beckwith was not a part to this transaction. When Krohn attempted to return the bull to the Beckwith farm, it escaped. Unable to capture the bull, Krohn left a message for Beckwith that the bull had gone over to the Smith farm and that in the morning he, Krohn, would return it to Beckwith. From the time on the evening of September 6 when Krohn picked up the bull, Beckwith had neither possession nor control of the bull. The animal was never returned to his custody or control. It escaped from the custody and control of Krohn, an experienced dealer in cattle. Krohn’s message for Beckwith was that the bull was at the Smith farm and that he would return it to Beckwith in the morning.

At the time the bull escaped and was at large, it was the object of a bailment. Beckwith was the bailor and Krohn was the bailee. The bailee is liable for injuries resulting to a third party from animals which are the subject of the bailment. Farrell v. Crawford, 222 Ill App 499, 503; Ward v. Brown, 64 Ill 307, 309. A bailor cannot be held responsible to a third party for injuries resulting from his bailee’s negligent use of bailed property. City of Rockford v. Nolan, 316 Ill 60, 66, 146 NE 564; Dean v. Ketter, 328 Ill App 206, 213, 65 NE2d 572; Singer v. Cross, 257 Ill App 41, 43, 44.

After carefully reviewing the record, we are of the opinion that the trial court did not commit error in setting aside the verdict against Beckwith.

Judgment affirmed.

MORAN, P. J. and SEIDENFELD, J., concur.