author: JUSTICE EOYALDI

text:
    Manuel Goodman, Individually; Manuel Goodman & Company, Inc., and Deepfreeze International Corporation, Plaintiffs-Appellants, v. Motor Products Corporation, a New York Corporation, Defendant-Appellee.
    Gen. No. 10,832.
    Second District.
    February 6, 1956.
    Rehearing denied March 8, 1956.
    Released for publication March 12,1956.

      Balter, McKenzie, Hightower & Brainerd, of Chicago, for plaintiffs-appellants; John C. McKenzie, and Lois J. Ely, both of Chicago, of counsel.

      Johnston, Thompson, Raymond & Mayer, of Chicago, for defendant-appellee; Floyd E. Thompson, of Chicago, of counsel.
   JUSTICE EOYALDI

delivered the opinion of the court.

Manuel Goodman, individually; Manuel Goodman & Company, Inc., and Deepfreeze International Corporation filed a Complaint in the Circuit Court of Lake County against Motor Products Corporation, a New York corporation, L. J. Sorensen and B. G. Sanderson, charging that in October, 1940, the plaintiff, Manuel Goodman, entered into a contract with the defendant corporation, acting through Willard L. Morrison, its agent, giving the said Manuel Goodman an exclusive sales and distribution contract to sell food freezers manufactured by the defendant corporation under the trade name of “Deepfreeze” in the territory “outside the continental United States.” The terms of the agreement, according to the plaintiffs’ complaint, required Goodman to give up his other business ventures, competitive or otherwise, and devote his full time and attention to the sale and distribution of Deepfreeze appliances in territories outside the continental United States, to finance his own promotional activities and to render assistance in the formulation of domestic policy without further compensation other than the fruits of the contract. In return therefor, Goodman was granted the exclusive foreign distributorship and the right to set up corporations containing the word “Deepfreeze” in their name so long as they did not handle a competing product. The distributorship was to continue so long as Goodman devoted his full time and attention to the sale and distribution of Deepfreeze appliances, did not handle a competing line, gave adequate representation and so long as Motor Products Corporation was in the appliance business. The complaint further alleged that the plaintiff, Manuel Goodman, did organize and was the sole owner of the plaintiff corporation, Manuel Goodman & Company, Inc., which was organized for the purpose of buying appliances from the defendant corporation, and of the plaintiff corporation, Deepfreeze International Corporation, which was organized for the purpose of acting as a foreign sales agent for the food freezers manufactured hy the defendant corporation; and that the defendant corporation and its sales manager, L. J. Sorensen, and the general manager of Deepfreeze Division of Motor Products Corporation, Ben G. Sander-son, invaded the plaintiff’s territory through direct sales to a distributor appointed hy it in Mexico and thereafter sent the plaintiff a notice purporting to terminate the agreement as of November 28, 1953, in derogation of its contract and to the damage of all three plaintiffs. The original complaint was in four counts: Counts I, II and III being claims for damages, and Count IV being in equity by Manuel Goodman, individually, and by the Deepfreeze International Corporation, praying that the defendant Motor Products Corporation be restrained and enjoined from using the names “Deepfreeze International Corporation,” “Deep-freeze International” and/or “Deepfreeze” in connection with the advertising, distribution or sale of products manufactured and/or sold hy the Deepfreeze Division of the defendant Motor Products Corporation, in any country of the world other than the United States of America; and from using any advertising material or conducting any activity whatsoever which tended to deceive the public and to trade upon and damage the reputation and good will of the plaintiff, Deepfreeze International Corporation. The defendants filed their answers, which included several Special Defenses to Counts I, II, and III and a counterclaim to Count IV, the prayer of which asked the court to enjoin and restrain the plaintiff Manuel Goodman from using the word “Deepfreeze” in the corporate name of any corporation controlled by him, or employing the term in any business activity, and directing him to dissolve the Deepfreeze International Corporation. The only claim submitted to the jury was the one contained in Count I of the complaint, and when the case was submitted the only plaintiff was Manuel Goodman, individually, and the only defendant was Motor Products Corporation. The demands for judgment by Manuel Goodman & Company, Inc., and by Deepfreeze International Corporation were dismissed and the dedismissed from the case. The jury returned a verdict fendants L. J. Sorensen and Ben G. Sanderson were awarding damages in the sum of $130,000 to Manuel Goodman, individually. Count IY, which purported to state a claim for accounting and injunction in equity, was submitted to the court on the record made on the trial of the issues of Count I. Thereafter the court sustained the defendant’s motion for judgment notwithstanding the verdict, or, in the alternative, granted a new trial. Judgment was thereupon rendered in favor of the defendant. A decree was also entered dismissing Count IY of the complaint, and enjoining the plaintiff and others from continuing the use of the word “Deepfreeze” in their corporate name, or employing the term in any business activity, and directing Manuel Goodman to dissolve the Deepfreeze International Corporation. The plaintiffs have appealed from the decree and judgment of the Trial Court.

The ultimate facts requiring consideration are substantially as follows: Plaintiff, Manuel Goodman, is an exporter who for most of his life has been engaged in the business of foreign trade. The defendant Motor Products Corporation is a New York corporation licensed to do business in Illinois. It carries on divers lines of manufacturing through numerous divisions and in particular operates a branch in North Chicago, Illinois, known as Deepfreeze Appliances Division devoted to the manufacture and sale of Deepfreeze appliances. In 1940, defendant Motor Products Corporation entered the freezer and refrigerator market and Willard L. Morrison, who had invented the low temperature machine known as the Deepfreeze and had developed the same in the plant located in North Chicago, Illinois, which is now the Deepfreeze Appliances Division of the defendant corporation, was placed in charge of this department of the corporation. There is considerable dispute as to Morrison’s relationship with the defendant, the defendant referring to him as a development and experimental engineer, and the plaintiff referring to him as the general manager of the Deepfreeze Appliances Division of the defendant Motor Products Corporation. From the evidence it is clear that Morrison was in charge of the manufacturing activities of the plant and that he appointed distributors of the products being manufactured, both orally and in writing. The plaintiff, Goodman, introduced himself to Morrison after reading an article which depicted Morrison as the inventor of a new successful food freezer and the head of the organization manufacturing them. In October of 1940 Goodman called on Morrison to inquire about selling the machines in the foreign market. Morrison at first told Goodman that the company was not interested in spending any money or in undertaking advertising to promote Deepfreezes outside of the country. Goodman insisted that if he were given exclusive export rights he would finance his own enterprise, service his own goods, handle all his promotional activities and would at the same time pay the manufacturer the same price for the machines that domestic distributors were paying. After several days of discussion an agreement was reached which, when interpreted in a light most favorable to plaintiff, was substantially as follows: Goodman was to have the exclusive rights to sell Deep-freeze products in all countries in the world outside of the continental United States so long as he devoted his full time and attention thereto and gave adequate representation. Goodman was to refrain from the distribution and sale of any competing products so tong-as the agreement was in effect. Goodman was to devote his time and best efforts exclusively to the distribution and sale of Deepfreeze products in countries of the world outside the continental United States to the exclusion of any other business interest which he might theretofore have had. In the event Goodman failed to devote his time and best efforts exclusively to the distribution and sale of products manufactured and/or sold by the Deepfreeze Division of Motor Products Corporation the agreement would terminate and Goodman would get out of the appliance business. Goodman was to have the right of the use of the word “Deepfreeze” in his corporate name for so long as he did not sell a competing product. In the event Motor Products Corporation discontinued the manufacture and sale of products through its Deepfreeze Division, although continuing manufacture of other products, the agreement would thereupon terminate.

Goodman commenced selling and distributing appliances immediately after he and Morrison had settled the terms governing the conduct of the parties, and was given a desk in the North Chicago factory. He continued to distribute the products of the defendant corporation when they were available from 1940 to 1953. Goodman’s allocation of the appliances during the war years, 1940 to 1945, was minute, and his orders far exceeded his supply. During the years 1945 to 1950 Goodman continued to distribute the appliances and was the only distributor of the company’s products in the foreign market. About the middle of November 1951, Ben G. Sanderson, sales manager of the defendant corporation, phoned Goodman to say that he wanted to withdraw Canada from the plaintiff’s territory. Goodman finally consented to this withdrawal of Canada from his territory on the basis of being promised by Sanderson he would be given the right to distribute air conditioners, which were to be manufactured by Motor Products Corporation in tropical and subtropical regions.

It appears from the testimony on the part of the plaintiff, that in September or October of 1952, a domestic distributor of the defendant corporation, known as Radio City Distributing Company, of Dallas, Texas, sold a one-half car load of Deepfreeze freezers and refrigerators to José R. Santos, an appliance dealer in Monterrey, Mexico. At the direction of said Radio City Distributing Company, the defendant corporation, Motor Products Corporation, caused the shipment of these appliances to Laredo, Texas, for transportation across the border. In the early part of 1953, one Joe Davis, district manager of the defendant company in Texas, made arrangements with the same José R. Santos, the former customer of Radio City Distributing Company, to act as distributor for the defendant company in Mexico.

The defendant corporation by registered mail on July 29, 1953, notified the plaintiff, in writing, that his distributorship was terminated as of November 28, 1953, and refused subsequent to that time to sell the plaintiff any of its products.

It is plaintiff Manuel Goodman’s theory that in October 1940, he entered into a contract with Willard L. Morrison acting as General Agent for defendant; that by the terms of the agreement, Goodman was required to give up all other business ventures, competitive or otherwise, and devote his full time and attention to the sale and distribution of Deepfreeze appliances in the territory outside the continental United States, to finance his own promotional activity, and to render assistance in the formulation of domestic policy without further compensation other than the fruits of said contract; in return therefor, he was granted the exclusive foreign distributorship and the right to set up corporations containing the word “Deepfreeze” in their name, so long as they did not handle a competing product; the distributorship was to continue so long as Goodman devoted his full time and attention to the sale and distribution of Deepfreeze appliances, did not handle a competing line, gave adequate representation, and so long as defendant was in the appliance business; a further qualification was added, that in the event Goodman did not live up to his portion of the bargain and the contract was terminated through his fault, he would get out of the appliance business and not compete with defendant’s Deepfreeze Division; that Goodman at all times carried out his part of the agreement; that after fourteen years of performance, the defendant invaded the plaintiff’s territory through direct sales to a distributor appointed by it in Mexico and thereafter sent the plaintiff a notice purporting to terminate the agreement as of November 28, 1953, in derogation of its contract.

Defendant denies specifically that Goodman was granted any special rights to the use of the trade name and trade-mark “Deepfreeze” and that Goodman’s agreement was to remain in force unless and until Goodman ceased to personally devote his time and efforts to effect the sale and distribution of Deepfreeze products. It contends that the Goodman distributorship was terminated as of November 28, 1953, by due and proper notice of termination, and it denies that Goodman has any claim for damages.

Under its second defense, it avers that the authority of said Willard L. Morrison, manager of its Deep-freeze plant, to make distributor’s sales agreements was limited to making the usual and ordinary agreements in writing on the authorized and approved form, that he had no authority to make such an unusual and extraordinary agreement of the terms and conditions alleged by plaintiff, in so far as they differ from those in the standard form, and that if an agreement of the terms and conditions alleged was attempted to be made with Goodman in 1940, it was of no force and effect as the agreement of defendant, except in so far as it is of the same terms and conditions as those stated in the approved and authorized printed form.

Under its third defense, it avers that an agreement of the terms and conditions alleged by plaintiff was never brought to the attention of the officers of defendant, or any of them, or its Board of Directors, and that neither an officer nor the Board had any knowledge of the existence of an agreement of the alleged unusual and extraordinary terms and conditions, and that it never ratified or acquiesced in an agreement with such unusual terms and conditions.

Under its fourth defense, it avers that the alleged agreement lacks mutuality in that it may be terminated by its alleged terms only by Goodman and that it may be terminated by him at will, and that the relief sought is in effect a specific performance of the alleged agreement and that a contract will not be specifically enforced unless it is mutual and can be enforced by either party against the other.

As to the equitable issues, defendant denies specifically that there Avas any agreement granting to Goodman any rights to the use of the word “Deepfreeze,” which is defendant’s registered trade-mark, except the right to use the word during and in the course of his marketing of Deepfreeze products, and that all rights to use said trade name and trade-mark terminated upon the termination of the distributor’s sales agreement between it and Goodman. Its position is more specifically stated in its counterclaim in which it asks that Goodman Deepfreeze International Corporation be enjoined from using the word “Deepfreeze” singly or in combination, with any other word or words, as a part of a trade or corporate name or in connection with the advertising, distribution, or sale of products, on the grounds that a further continued use of defendant’s trade-mark would be an invasion of defendant’s property rights and a fraud upon the public.

Assuming that the oral agreement which Goodman alleged, and to which he testified, was made, it is one which was to run without a prescribed limit and which could be terminated only by Goodman in his uncontrolled discretion and was binding on defendant until Goodman of his own volition ceased to devote his time and efforts to selling and distributing Deepfreeze products. There is no evidence that Goodman agreed to devote his time and efforts to the selling for any period of time. It is admitted that Goodman had due notice of the termination. Under the doctrine of mutuality, such a contract in so far as it was executory, could be terminated by defendant by due notice at any time as to all or any part of Goodman’s assigned territory. Joliet Bottling Co. v. Joliet Citizens’ Brewing Co., 254 Ill. 215, involved an agreement under which the brewing company agreed to furnish beer for bottling and the bottling company agreed to bottle and market the beer as the brewing company’s product so long as it furnished beer satisfactory in quality and in such quantities as the trade demanded. The brewing company terminated the contract and the bottling company brought suit for damages, alleging that it had expended a large sum of money in setting up its bottling works and in developing a market for the beer. Demurrer to the complaint was sustained and the bottling company appealed. Affirming the judgment, the Supreme Court said (pp. 218-9):

“The question presented for decision is whether the contract between appellant and appellee was valid and binding and capable of being enforced. Appellee’s contention is that it is void for want of mutuality; that the period of its duration is not fixed hut is indefinite, and it was therefore terminable at the will of either of the parties. An examination of the contract satisfies us that these positions are well taken. By the contract appellee agreed to deliver beer to appellant in sufficient quantities to supply appellant’s demand, and not to bottle or cause to be bottled, or to furnish to any other person, firm or corporation, beer for bottling so long as appellant was bottling appellee’s beer. . . . The only thing the contract bound appellant to do was to pay the price agreed upon and bottle the beer of appellee and to market the same as the product of appellee so long as it furnished beer satisfactory in quality and in such quantities as the trade demanded. No mention is made of any period of time the agreement should continue in force. No maximum or minimum quantity is stipulated in the agreement, but the quantity to be delivered is such as shall be sufficient to supply appellant’s demand. Under this provision appellant might demand a quantity so small as to make it impracticable for appellee to manufacture it, or it might demand such large quantities as to be wholly beyond the capacity of appellee. The quality of the beer was to be satisfactory to appellant. Under tin's provision of the agreement appellant had the option of refusing to accept beer from appellee, at its pleasure, upon the ground that it was not satisfactory. (Citations) It cannot be doubted, we think, that the contract was unilateral and void for want of mutuality under repeated decisions of this and other courts. (Citations) Furthermore, no time being fixed during which the agreement should continue in force, it was terminable at the will of either party. (Citations)”

To the same effect is Gage v. Village of Wilmette, 315 Ill. 328, wherein our Supreme Court held that where no definite time is fixed during which an executory contract shall continue it is terminable at the will of either party.

A decision of this court applying the doctrine of mutuality in holding a contract terminable at will and unenforceable in so far as it was executory is First Mission Covenant Church of Rockford, Ill. v. Rockford Broadcasters, Inc., 324 Ill. App. 8. In that case, there was no question about the terms of the agreement between the parties. The question was the legal effect of the agreement which fixed no definite time during which the contract was to continue in force. This court concluded its opinion, saying (p. 15): “There can be no doubt that the contract was executory as to everything agreed to be done thereunder. The law is well settled that where no definite time is fixed during which an executory contract shall continue in force, it is terminable at the will of either party.”

An early case, often cited with respect to the doctrine of unenforceability of contracts for want of mutuality, and which is strikingly in point, involved a contract whereby a cigar manufacturer offered to sell to a cigar dealer as many of a particular brand as he might desire and to continue to do so during the life of the brand or as long as the dealer cared to sell them. Holding that the Trial Court should have directed a verdict for the defendant in an action by the dealer against the manufacturer, the court said in A. Santaella & Co. v. Otto F. Lange Co. (C.C.A. 8), 155 Fed. 719, at pp. 721-3:

“The controlling question for determination is: Did the defendants have an enforceable contract with the plaintiff? It must be conceded that, if the defendants had such a contract, it was essential to its validity that it should have been mutually obligatory upon both parties. If the defendants could compel the plaintiff to ship cigars, the plaintiff ought to be in a position to compel the defendants to take. Were the defendants under any obligation to send in orders within any particular time, or for any specified quantity or quality of cigars? The allegations of the counterclaim and the version given of the agreement in the testimony of Otto F. Lange answer these questions. It was entirely at the option of the defendants, dependent upon the conditions of their business and trade, as to whether they would send in any orders at all. From any cause, such as depression in business, or other more desirable arrangements, or a desire to get out of that line of trade, the defendants were at liberty to cease at any time to send orders to the plaintiff, without liability for breach of contract. . . .

“The contract described by the defendants is not enforceable against the plaintiff, as it is wanting in the essential of mutuality. The request by plaintiff for an instructed verdict should have been given.”

Goodman could discontinue the distributorship any day he chose to cease to devote his full time and attention to the business without subjecting himself to any liability to defendant. Among other cases holding that such a contract is one terminable at will and is unenforceable in so far as it is executory, are Vogel v. Pekoc, 157 Ill. 339, 342-3; and Kling Bros. Engineering Works v. Whiting Corp., 320 Ill. App. 630, 635.

Plaintiff testified that the contract was to continue in full force and effect so long as he devoted his time and “attention” to distribution of Deepfreeze products in the export market. Even if we take the allegation of his complaint that the agreement was to remain in effect until he ceased to personally devote his time and best efforts to effect the sale and distribution of Deep-freeze products, there is no standard for determining when he has performed. What does “devote his time” mean? What does give his “best efforts” mean? Who is to determine these questions, plaintiff or defendant or a court or a jury? These terms are too vague to be fairly intelligible. The phrases have no such distinct sense as to furnish a common and intelligent criterion for the party or any third party who must determine the sense in which they were employed. It is impossible to say that the minds of the parties met on the meaning of these phrases and that each party meant exactly what the other did, or even to say what either party meant. Goodman and his witness, Morrison, do not agree on what was said in their October 1940 conversations. These men failed to express themselves in terms capable of being reduced to certainty by judicial interpretation.

Davie v. Lumberman’s Mining Co., 93 Mich. 491, at pp. 495-496, 53 N. W. 625, 626, is a case very closely in point. There plaintiffs made a verbal agreement with defendant to work its mine and to receive $1.50 a ton for all the ore they produced “as long as they could make it pay.” Defendant terminated the contract and plaintiff sued for damages. The court, holding that the contract was not enforceable as an executory contract because of its uncertainty and want of mutuality, said:

“We do not think the contract is of such a character as to be enforceable as an executory contract. The agreement was simply that the plaintiffs would work at mining the ore in ‘Cave Pit’ for $1.50 per ton as long as they could make it pay. No limitations were put upon their methods, or how or in what manner they should conduct the work in order to make it pay, nor does it give the defendant any voice in deciding upon whether or not the plaintiffs could make it pay, nor does it place the subject of the contract upon any certain basis upon which a jury can lawfully and justly arrive at a fair rule of damages in case of its violation. Under this contract, the plaintiffs must be presumed to be the sole judges of whether or not it would pay them to do the work, and of how long they should continue it. . . . When a party agrees to sell articles of merchandise, or deliver the productions of his labor, to another at a certain price as long as he can make it pay, every one must clearly understand that the term is dependent on conditions over which the promisee has no control, and, in so far as any one has the power to make the term effective, it is lodged solely in the promisor, who by judicious purchases or skillful manipulations of labor may be able to make a transaction pay when a more careless, negligent, or improvident person would be unable to do so. This serious element of uncertainty destroys all mutuality in the contract, and gives the promisor full power to say when a further execution of the contract will not be advantageous, because he cannot make it pay. Contracts cannot arise where there is no mutuality, nor can they arise from the action of one party alone where the other has no power to prevent his action.”

Davis v. Fidelity Fire Ins. Co., 208 Ill. 375, is authority for the proposition that a contract which is indefinite in its provisions cannot be enforced. There the court denied the claim of the agents for damages by reason of the closing of their insurance agency by the company. The court reviews the authorities on the subject and states its holding as follows (pp. 384-6): “We have no doubt the parties fully expected that the western agency of the insurance company and the business relation established between them would continue for some time — perhaps for a period of years. Still, the time the western agency and the business relation between the parties were to continue was left indefinite by the agreement, and the insurance company was not bound to continue its western agency, and neither party, by the terms of the agreement, could require the other to continue the relation thereby established between them longer than such relation was agreeable to both.”

Orr v. Ward, 73 Ill. 318, involved an employment contract which was indefinite with respect to the period of employment. The contract provided that plaintiff was to devote his whole time and attention solely to the interests of the employer and that he would he paid $2100 for the year 1873 and $2400 for the year 1874. Before the end of the first year plaintiff was discharged and he sued for damages. In reversing judgment for the plaintiff, the court said (p. 319):

“A complete answer to the breach assigned is, the contract contains no undertaking on the part of Cleveland, Johnson & Company to retain or continue appellee in the service of the firm for any definite period. . . . Their undertaking is to pay him at a certain rate of compensation, if he shall discharge the duties assumed by him to be performed. No doubt it is true each party contracted on the supposition the business would continue through the space of two years, but appellant’s firm did not obligate themselves to continue it for that length of time.”

Kling Bros. Engineering Works v. Whiting Corp., supra, involved a contract concerning the manufacture and sale of shears and hammers. The court found that the contract did not bind the manufacturer to sell any specific quantity of its products during any agreed period, and that it did not require the purchaser to take any quantity at any time and held, as a matter of law, that the contract was unenforceable,' saying (p. 635) :

“We think the contract was unenforceable. It did not bind the Quickwork company or its successor, Whiting, to give any orders to plaintiff at all. And it did not bind the Klings to do any work unless they saw fit to do so. Either party could refuse to carry out any of the terms of the contract or could stop at any time he saw fit.”

Terre Haute Brewing Co. v. Dugan (C.C.A. 8), 102 F.2d 425, is a case very close on the facts to the instant case. It involved a contract granting an exclusive agency for the sale of a particular brand of beer in a prescribed territory so long as the agent wished to put his personal time and financial backing into it and remain in the beer business. In holding the contract unenforceable, the court said (p. 426):

“From the foregoing it is apparent that, so far as the defendant is concerned, no obligation rests upon him to continue this agency any longer than he may wish to put his personal time and financial backing into it, and, incidentally, to remain in the beer business. The contract, therefore, is indefinite as to duration and lacks mutuality. If he can refuse, at will, to continue as a distributor for this particular brand of beer, the same right of self-determination must be accorded to the plaintiff.”

Language more pertinent to the situation in this case could hardly be found. The plaintiff testified that his contract was to continue until he should cease to devote his time and attention to effect the distribution and sale of Deepfreeze products. He did not testify that he agreed to devote his time and attention to the business for any period. It is obvious that plaintiff could continue or terminate his distributorship at his pleasure and defendant could do nothing about it. There is no standard by which the court or a jury can determine when the plaintiff has performed. According to plaintiff’s theory, he is the sole judge of whether he is discharging his duties under the agreement and he has complete control of whether the distributorship shall continue or terminate. Obviously, if plaintiff can refuse at will to continue as a distributor of Deep-freeze products, the same right of self-determination must be accorded to the defendant.

Plaintiff undertakes to take his contract out of the general rule that it is one terminable at the will of either party by arguing that he purchased the contract by giving up an established business. He had no business in October 1940, and there is no evidence that he had any business connection after December 1934. He testified that in this 6-year period he travelled over this country and in Europe for three years and that following his return to this country he interested himself as a food broker for export. He does not say that he became a food broker at any time, that he ever handled a single transaction involving exporting food, or that he had any negotiations pending for exporting food. There is no evidence that he had an office or a staff or that he was otherwise prepared to carry on the business of food broker for export or any other business.

There is no evidence that Morrison was told by Goodman that he had a business or that he was discontinuing an existing business to accept a distributorship for Deepfreeze appliances, nor did Morrison ask Goodman to give up anything to take the distributorship. Defendant did not initiate the discussions with Goodman. It was Goodman who called at the Deep-freeze Division Offices for the express purpose of negotiating for an export distributorship. Whatever change in his business activities was made by Goodman upon taking the franchise was his own doing.

Defendant had no existing liability to Goodman nor was it otherwise under any obligation to him in October 1940. Goodman surrendered nothing to Motor Products when he made the agreement to become its export distributor. In fact, he did not even promise to continue the distributorship after he got it. He did not obligate himself to make the arrangement permanent. In so far as this record shows, Goodman walked in off the street looking for a job and he wound up with a job of “export manager” for Deepfreeze Division of Motor Products Corporation. There is no evidence that Goodman invested any money in the business. He was given a desk in the offices at the plant and paid no rent. Whenever inquiries from abroad came to the company, they were turned over to him and he took the order for home freezers if he could get an order. He purchased the appliances to fill the order after the customer paid for them, and the goods were shipped in the name of Motor Products. This arrangement continued until September 1945. Thereafter, Goodman neither bought nor sold Deepfreeze appliances. Manuel Goodman and Company, Inc., an Illinois corporation, made all the purchases, and Deep-freeze International Corporation, an Illinois corporation, made all the sales. Goodman was a salaried employee of these corporations and all of his transactions with Deepfreeze Division after September 1945, were as manager of these two corporations. According to Goodman, he could do as little or as much as he liked and Motor Products could do nothing about it. The authorities are unanimous that the special consideration necessary for purchasing a permanent business relation is wanting in this case. Great reliance is placed by plaintiff on Molitor v. Chicago Title & Trust Co., 32 Ill. App. 124. It is characterized by plaintiff as a leading case, and as one almost identical as to facts, and identical as to defenses. That case is clearly distinguishable on the facts. In that case Mr. Molitor had formerly worked for the title company as a title examiner, the company sought his services and bargained with him to return; the company, by promising permanent employment to him in a position for which he was experienced and specially qualified, persuaded him to give up an established and growing law practice in New York; he not only gave up his private law practice, but his wife also gave up established and profitable music classes in New York; he sold his home in New York and moved his family to Chicago; the title company knew that the Molitors were making these sacrifices in consideration of its promise that Molitor was to have permanent employment as a title examiner. In contrast, Goodman had no former connection with Motor Products, he sought the new connection, he was not asked to change his position to his detriment, and he gave up no established business in taking the distributorship of Deepfreeze products. The court below heard the evidence under Count IV of the complaint and under the counterclaim of defendant and determined that the equities were with the defendant and against the plaintiff and entered its decree accordingly. This decree will not be disturbed on issues of fact unless it appears that it is contrary to the manifest weight of the evidence.

The testimony of Goodman and Morrison shows that Goodman was given the right to use the word “Deep-freeze” in connection with his selling and distributing of Deepfreeze products, but neither Goodman nor Morrison testified that it was agreed that the right to use the word “Deepfreeze” extended beyond the period of the distributorship, or that there was any right in Goodman to use the word “Deepfreeze” in any respect or situation other than as a distributor of products manufactured and sold by Deepfreeze Division of Motor Products Corporation. It was admitted on the trial that the word “Deepfreeze” had been registered by Motor Products Corporation as a trade-mark in the United States of America and in other countries of the world, that Goodman made no claim to the trade-mark, and that Goodman and Deepfreeze International Corporation now limit their claim to a right to continue the use of the word “Deepfreeze” in a corporate name “Deepfreeze International Corporation.”

It is certain that Morrison had no express authority to give away the corporation’s property, and there is no implied authority in a department head, or even.a general manager, to contract to give another an interest in his principal’s business or property. Sacks v. Helene Curtis Industries, Inc., 340 Ill. App. 76, 87; Warszawa v. White Eagle Brewing Co., 299 Ill. App. 509, 517; Howard v. Winton Co., 199 Cal. 374, 249 Pac. 511, 512; Deffenbaugh v. Jackson Paper Mfg. Co., 120 Mich. 242, 79 N. W. 197, 198.

Trade-marks and trade names are not assignable apart from the right to make or sell the property to which they apply or to continue the business with which they are connected. Disassociated from the thing to which a trade-mark or trade name properly appertains, it becomes a false and deceptive designation. The Fair v. Jose Morales & Co., 82 Ill. App. 499; American Steel Foundries v. Robertson, 269 U. S. 372, 70 L. Ed. 317; Morand Bros., Inc. v. Chippewa Springs Corp. (C.C.A. 7), 2 F.2d 237, 238; Carroll v. Duluth Superior Milling Co. (C.C.A. 8), 232 Fed. 675, 680; Cardinal v. Taylor, 302 Mass. 220, 19 N.E.2d 58, 59; United Razor Blade Corp. v. Akron Drug & Sundries Co., 52 Ohio App. 379, 3 N.E.2d 902, 907; Nlms on Unfair Competition and Trade-marks, 4th Ed. Sec. 17.

From an examination of the briefs submitted in this cause, there appears to be little division of opinion as to the soundness of the above proposition. The use of a trade-mark disassociated from the thing to which it properly appertains could serve no honest purpose and result only in misleading the public. The language used in the above cases is peculiarly applicable to the position of Deepfreeze International Corporation. The name of this corporation was originally designed to tell the public that it was engaged in selling and distributing appliances bearing the trade-mark and the trade name “Deepfreeze” and the corporation has never engaged in any business disassociated with the distribution of products bearing this trade-mark and trade name. The very name of this trading corporation, if continued, becomes an instrument of fraud. Deepfreeze International Corporation does not leave any room for doubt that it claims the right to continue to use “Deepfreeze” in its corporate name and that it intends to use the name in marketing products competitive with Deepfreeze Appliances Division of Motor Products Corporation. Its letter to former distributors dated March 19, 1954, shows that it intends to sell products of other manufacturers of household appliances as Deepfreeze products.

When Groodman’s distributorship was terminated, the right to use the trade name and trade-mark “Deepfreeze” came to an end. United States Ozone Co. v. United States Ozone Co. of America (C.C.A. 7), 62 F.2d 881, 886-7; Lawrence-Williams Co. v. Societe Enfants Gombault et Cie (C.C.A. 6), 22 F.2d 512; Hicks v. Anchor Packing Co. (C.C.A. 3), 16 F.2d 723, 726; Morand Bros., Inc. v. Chippewa Springs Corp., supra; Adam v. Folger (C.C.A. 7), 120 Fed. 260, 264; A. I. M. Percolating Corp. v. Ferrodine Chemical Corp., 139 Va. 366, 124 S. E. 442, 446; Stratton & Terstegge Co. v. Stiglitz Furnace Co., 258 Ky. 678, 81 SW.2d 1, 4; Ninas on Unfair Competition and Trade-marks, 4th Ed. Sec. 22. The cited cases all reason that to permit the continuing use of a trade name or trade-mark after the termination of a distributorship for the goods to which a trade name or trade-mark would apply would constitute a fraud upon the public and would become an instrument of unlawful interference with the business of the manufacturer.

The purport of these decisions is the same, specific reference being made to Stratton & Terstegge Co. v. Stiglitz Furnace Co., supra, as illustrative of all. There the manufacturer of furnaces sought an injunction against the distributor to restrain it from continuing to use the word “Monarch” as a trade-mark on furnaces sold in Kentucky. The manufacturer agreed to sell its furnaces to the distributor and the distributor was given certain exclusive territory including Kentucky. The prices varied from time to time, but the transactions were straight-out sales and purchases. The distributor established its own selling prices independent of any control of the manufacturer. The furnaces not only bore the trade-mark “Monarch” but also bore the name of the distributor, and the distributor advertised the furnaces extensively during the period of 25 years or more. The distributor’s sales were extensive and the public came to understand that the “Monarch” was the distributor’s furnace. The manufacturer sold furnaces in other parts of the country and the trade generally knew that it was the manufacturer of the furnaces marked “Monarch.” The distributor decided that the manufacturer was not keeping its furnace modernized and it terminated the distributorship and made a contract with another manufacturer to make a furnace for it similar in general construction but different in particular respects, and it gave this new furnace the name “Monarch.” After discussing the facts and the applicable law, the court reached the conclusion that the right to use the word “Monarch” in advertising and selling furnaces came to an end when the distributorship was terminated, saying (81 S.W.2d 4):

“When a trade-mark accompanies an article sold or authorized to be sold by another, there can be no separation without deception of the public. The right to its use as licensee expires when the contract covering its use terminates. The consent is withdrawn, and the proprietor is entitled to have his trade-mark back unimpaired. . . . The claims of appellant to the ownership of and right to use the trade-mark are not convincing. Such claims as it had originated in the sales agency contracts wherein it was given exclusive sales rights, and, solely for the purpose of the contract, was permitted to use the trade-mark in advertising arid selling the products manufactured by its owner. Nothing appears in the contract or elsewhere which indicates any intention of the parties, respectively, to give up or to take over the trade-mark “Monarch” except for the limited purposes of their contract. When that contract came to an end, appellant’s rights to any use of the mark likewise came to an end.”

Count IV of the complaint shows that Goodman and Deepfreeze International Corporation started out with the assumption that they could exclude Motor Products Corporation from the use of its registered trade-mark and advertise the trade name “Deepfreeze” in any part of the world outside the United States of America. Now Goodman asserts his claim to a right to continue to use the word “Deepfreeze” in the corporate name “Deepfreeze International Corporation.” The very fact that Goodman claims such right is the strongest evidence of the purpose which prompts the claim. The law is well settled that a corporate name cannot be used in a manner which will result in fraud and deception. Allegretti v. Allegretti Chocolate Cream Co., 177 Ill. 129,132-3; Bender v. Bender Store & Office Fixture Co., 178 Ill. App. 203, 207; Children’s Bootery v. Sutker, 91 Fla. 60, 107 So. 345, 349; Higgins Co. v. Higgins Soap Co., 144 N. Y. 462, 39 N. E. 490, 491; Cardinal v. Taylor, supra; American Steel Foundries v. Robertson, supra; Rice & Hutchins v. Vera Shoe Co. (C.C.A. 2), 290 Fed. 124, 126; J & P Coats v. John Coates Thread Co., 135 Fed. 177, 179; Celluloid Mfg. Co. v. Cellonite Mfg. Co., 32 Fed. 94, 97.

Bender v. Bender Store & Office Fixture Co., supra, (following Allegretti v. Allegretti Chocolate Cream Co., supra) states with respect to the right to continue to use a deceptive corporate name (p. 207):

“It is true, persons seeking to form a corporation may ordinarily choose any name their fancy dictates, subject, however, to the rule that they may not choose the name of a corporation already existing, or one that is to be used to deceive the public, or to be passed off for that of some other person or firm in business. (Citations) When a corporation violates that rule, it does so at its peril. Neither does the fact that the state issues a charter to a corporation by a certain name give to such corporation a right to use it, if it was deliberately chosen, or is used for the purpose of deceiving the public and thereby appropriating the business of another. (Citations) When such unfair name is selected by a corporation for the purpose of deceiving the public into the belief that its goods are the goods of another, the use of that name for that means will be enjoined. (Citations) We think the rule goes even further and is that when the use of a name results in the palming off of one’s goods on the public as the goods of another, the use of such name will be enjoined. (Citations)”

In the instant case, plaintiff was accorded the privilege of using defendant’s registered and established trade name in marketing defendant’s products and plaintiff never had any property rights in the name apart from his permissive use of the name as a distributor of defendant’s products. The name “Deep-freeze” was identified with defendant’s products before Goodman had any rights as a distributor. There was no assignment to him of any property rights in the name.

On the equitable relief sought by plaintiff in Count IV of his complaint and on the equitable relief sought by defendant in its counterclaim, it was the duty of the Trial Court to weigh the evidence. He saw and heard the witnesses. Unless his findings are against the manifest weight of the evidence we would not be warranted in disturbing the judgment. Haddad v. Marble, 328 Ill. App. 315, 65 N.E.2d 575; Mayflower Sales Co. v. Frazier, 325 Ill. App. 314; Roberts v. City of Rockford, 296 Ill. App. 469; Keefer Coal Co. v. United Elec. Coal Companies, 291 Ill. App. 477. When testimony is contradictory, it is well established that, in a hearing before the court without a jury, whether at law or in equity, the determination of the credibility of witnesses and the weight to be afforded their testimony are matters for the Trial Court, and its findings will not be disturbed unless they are manifestly against the weight of the evidence. Eleopoulos v. City of Chicago, 3 Ill.2d 247 at p. 253; Wynekoop v. Wynekoop, 407 Ill. 219; Schnepper v. Ashlock, 404 Ill. 417; Sohio Corp. v. Gudder, 375 Ill. 622; Flynn v. Troesch, 373 Ill. 275; Dalbey v. Hayes, 267 Ill. 521; Zimmerman v. Zimmerman, 242 Ill. 552; Beall v. Dingman, 227 Ill. 294; Manley v. Geng, 7 Ill.App.2d 6; Glasser v. Essaness Theatres Corp., 346 Ill. App. 72. We are of the opinion that the Trial Court’s findings as to Count IV of the complaint and as to the counterclaim, wherein equitable relief was sought by the parties, are amply supported by the evidence in this case. We find no error in the Trial Court’s ruling dismissing Count IV of plaintiff’s complaint for want of equity, and in granting the relief prayed for by defendant in its counterclaim.

We are of the opinion that the Trial Court erred in granting the motion for judgment notwithstanding the verdict, as said motion 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 party resisting the motion, tends to prove the material elements of his case. Wiik v. Hagen, 410 Ill. 158 at p. 161; Seeds v. Chicago Transit Authority, 409 Ill. 566; Lindroth v. Walgreen Co., 407 Ill. 121 at p. 130; Gorczynski v. Nugent, 402 Ill. 147 at p. 156; Weinstein v. Metropolitan Life Ins. Co., 389 Ill. 571 at p. 576. We are not concerned with the weight or credibility of the evidence, but only with the narrow question whether there is any evidence, together with all reasonable inferences to be drawn therefrom, which would justify submission of the case to the jury. Lindroth v. Walgreen Co., supra, at p. 130. In passing on a motion for a judgment notwithstanding the verdict, the court must consider all the evidence with all reasonable inferences therefrom in the aspect most favorable to the party against whom the motion is directed, and all contradictory or explanatory circmnstances must be rejected. Baker v. City of Granite City, 311 Ill. App. 586.

From the evidence in this case it appears that plaintiff Goodman for many years had been devoting part of his time and attention to the interests of himself and of the defendant; that as a result of his said efforts, many of defendant’s articles of merchandise were sold; that up to the time of the notice of the termination of the alleged contract existing between the parties, plaintiff had earned monies for the services he performed under said alleged contract. Assuming that the contract was terminable upon giving reasonable notice, the evidence, when taken in its light most favorable to the plaintiff discloses that the contract was recognized by defendant in its letter of July 29, 1953; and the evidence further shows that the contract was breached by defendant prior to notice of termination, and prior to the date of termination as fixed by defendant in its said notice. It appears that direct sales into Mexico were made by defendant, and this constituted an invasion of plaintiff’s exclusive territory. Marshall v. Canadian Cordage & Manufacturing Co., 160 Ill. App. 114,119; Koehring Mach. Co. v. Chicago Builders Specialties Co., 117 Ill. App. 100, 102; Illsley v. Peerless Motor Car Co., 195 Ill. App. 572 (1916), modifying 177 Ill. App. 459 (1913). The record here presents sufficient evidence to go to the jury, and we are of the opinion that the motion for judgment notwithstanding the verdict was improperly granted and that the court erred in entering judgment against plaintiff and in ordering that plaintiff take nothing by his suit against the defendant.

The plaintiff, Manuel Goodman, argues that the jury’s verdict is a conservative determination of the damage sustained by plaintiff under instructions favorable to the defendant and that the Trial Court erred in granting the alternative motion for new trial and that the verdict of the jury should he reinstated. In reviewing an order of the Trial Court granting a new trial where the question of the weight of the evidence is involved, the reviewing court will not disturb the order in the absence of an affirmative showing of a clear abuse of discretion. Warren v. Patton, 2 Ill.App. 2d 173, 179; Eckhardt v. Hickman, 349 Ill. App. 474, 483; Matkins v. Fenorsky, 348 Ill. App. 125, 129; Chapman v. Baltimore & O. R. Co., 340 Ill. App. 475, 499, 500. The matter of granting a new trial is in the sound discretion of the trial judge. Parke v. Lopez, 306 Ill. App. 486; Ledferd v. Reardon, 303 Ill. App. 300; Josate v. Mack, 302 Ill. App. 246. As was said in Josate v. Mack, supra, at p. 248: “Necessarily, the trial court should have the discretion to decide with finality whether a new trial is necessary in the interests of justice, as it is in his power to observe the multiplicity of situations as they arise during the progress of the trial and is in a better position to weigh the effect upon the jury and to judge whether or not substantial justice had been done.” On the question of the evidence, the trial judge must be accorded considerable discretion, and his judgment is accorded greater latitude than on questions of law. Loucks v. Pierce, 341 Ill. App. 253. The presiding judge in passing upon the motion for new trial has the benefit of his previous observation of the appearance of the witnesses, their manner in testifying, and of the circumstances aiding in the determination of credibility. The trial judge is in a better position than a court of review to weigh the evidence. The allowance or refusal of the motion is largely within the discretion of the Trial Court. His decision is subject to review, but it is commonly said that it will not he reversed except for a clear abuse of discretion. Gavin v. Keter, 278 Ill. App. 308; In re Estate of Velie, 318 Ill. App. 550; Chapman v. Baltimore & O. R. Co., supra; Matkins v. Fenorsky, supra. Considering that the record in this case is voluminous, consisting of more than 1,000 pages, not including two score and more of exhibits, and that testimony was heard extending over several days, we would hesitate to say that the Trial Court’s action in granting the alternative motion for new trial was a clear abuse of discretion. We are of the opinion that the Trial Court properly allowed the motion for new trial in this cause and said order is affirmed.

For the error of the Trial Court in granting the motion for judgment notwithstanding the verdict, said judgment is reversed and the cause remanded for a new trial.

Affirmed in part, reversed in part and remanded.

DOVE, P. J. and CROW, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE HIBBS

license: Public Domain

text:
    Allied Mills, Inc., Plaintiff-Appellant, v. Harry Miller, Defendant-Appellee.
    Gen. No. 10,037.
    Third District.
    February 14, 1956.
    Rehearing denied March 14, 1956.
    Released for publication March 14, 1956.

      McMillen, G-arman & Owen, of Decatur, for plaintiff-appellant.
    Herskey and Bliss, and Holland F. Tipsword, all of Taylorville, for defendant-appellee.
   PRESIDING JUSTICE HIBBS

delivered the opinion of the court.

Allied Mills, Inc., the appellant, brought suit in the Circuit Court of Christian County against the appellee, Harry Miller. A trial was had by jury and a verdict returned of not guilty. Judgment was entered thereon, and the appellant has appealed to this court. In order to properly consider the questions raised a statement of the salient facts should be made.

Francis Hanauer, an employee of the plaintiff, Allied Mills, Inc. was struck and injured by a truck driven by Julius Collebrusco, an employee of Harry Miller on September 3, 1946. Collebrusco was engaged in trucking soy beans from two of appellant’s plants in Taylor-ville, Illinois, on the morning in question. On one trip he brought Hanauer a wrench at the latter’s request. Hanauer took the wrench and walking in the direction that Collebrusco’s truck was headed proceeded a short distance ahead of the truck and then disappeared to the right around the circular end of a cement building-used for the storage of grain. Collebrusco started his truck and followed a route substantially the same as that taken by Hanauer. As he rounded the circular end of the building- it was necessary for him to make a sharp, right turn and to drive his truck with a box eight feet wide across a platform only eleven feet six inches in width, which was immediately adjacent to the storage bin. As Collebrusco started his right turn, he saw Hanauer in front of him but looked away in order to negotiate the narrow passage. As he drove across the platform his truck struck Hanauer crushing him against the building and injuring him severely. Hanauer brought proceedings under the Workmen’s Compensation Act against Allied Mills, the appellant here, and received a substantial award. That company in this suit begun in the Circuit Court of Christian County seeks to recover from defendant, Harry Miller, Collebrusco’s employer, the amount of this award and further damages on behalf of Hanauer totalling $50,000. As noted above the cause was tried by a jury which returned a verdict for defendant and judgment was accordingly entered thereon.

Appellant complains of certain instructions given by the court at the appellee’s request were improper. The first objection is to Instruction No. 20, which stated: “You are instructed that if you find from a preponderance or greater weight of the evidence that at or immediately prior to the time of the accident in question, Francis Hanauer failed to exercise the same degree of care for his own safety which a reasonably prudent person would have exercised under like or similar circumstances and that Francis Hanauer was guilty of contributory negligence, as defined in these instructions, then you should find the issues in favor of the defendant, Harry Miller.” Appellant contends that this is a peremptory instruction and as such must contain all the necessary elements in and of itself upon the principle upon which it purports to instruct. (Illinois Iron & Metal Co. v. Weber, 196 Ill.526; Hanson v. Trust Company of Chicago, 380 Ill. 194; Duffy v. Cortesi, 2 Ill.2d 511.) It further contends that this instruction failed to inform the jury that even if Hanauer was guilty of contributory negligence, such negligence must have been the approximate cause of Hanauer’s injury before it could find the issues in favor of the defendant. (Consolidated Coal Co. v. Bokamp, 181 Ill. 9; Schmidt v. Anderson, 301 Ill. App. 28.) Appellee agrees that Instruction No. 20 is a peremptory instruction. He urges, however, that the rule advanced by the appellant demands only that all elements of fact be included in such instructions; that the element claimed by plaintiff to be omitted is one of law and is properly set forth in Instruction No. 13. Instruction No. 13 states: “Contributory negligence in this case is the failure by Francis Hanauer to use reasonable care for his own safety just before and at the time of the occurrence in question, which failure proximately contributes to cause the injuries which he sustained.” We believe that appellee’s interpretation of the cases cited by appellant is correct. In each of the instructions challenged therein an element of fact was either erroneously omitted or included. In the Weber case, supra, the Supreme Court said at page 531: “It has always been held that where the court directs a particular verdict if the jury should find certain facts, the instruction must embrace all the facts and conditions essential to such a verdict. It is not required that one instruction shall state all the law, and instructions may supplement each other and supply defects, but where an instruction directs a verdict upon certain conditions it must state the conditions correctly. Even where instructions may supplement each other, each one must state the law correctly as far as it goes, and they should be in harmony, so that the jury may not be misled.” Where an instruction contains a factual hypothesis, all elements of fact must be included. Principles of law may be supplied by other instructions. Since the element claimed to be missing in Instruction No. 20 is clearly one of law and is supplied by Instruction No. 13, we do not believe that any error was committed by the trial court in this connection.

Appellant also complains of Instruction No. 17, which told the jury that if it found that Hanauer was injured as a result of an accident which occurred without the fault of the defendant, plaintiff could not recover. It argues that there is no evidence in the record justifying the submission of this instruction to the jury. With this contention we agree. An accident has been defined as “the result of an unknown cause or is the result of an unusual and unexpected event happening in such an unusual manner from a known cause that it could not be reasonably expected or foreseen and that it was not the result of any negligence.” (Cornwell v. Bloomington Business Men’s Ass’n, 163 Ill. App. 461.) Webster’s New International Dictionary Second Edition defines the term accident as “an event that takes place without one’s foresight or expectation; an undesigned, sudden and unexpected event.” Again as applied to law the term is applied in equity practice, “an unexpected happening not due to any negligence or malfeasance of the party concerned.” Here Hanauer’s injuries were caused either by the negligence of Collebrusco, or by the negligence of Hanauer, or by the negligence of both. Under no possible interpretation of the evidence could the occurrence be described as an accident. It was therefore error to instruct the jury on the theory of an accident. (Peters v. Madigan, 262 Ill. App. 417; Mississippi Lime & Material Co. v. Smith, 282 Ill. App. 361; Streeter v. Humrichouse, 357 Ill. 234.) In the latter case it is said at page 244: “Turning to the instructions, the fifteenth instruction told the jury that if the death of the decedent was caused through ‘accident purely’ they should find the defendant not guilty. There was no evidence that McG-ann was injured through accident, alone, not coupled with negligence, and it was error to give this instruction.”

Appellant also complains of appellee’s Instructions No. 18 and No. 19. An instruction similar to the former was approved in Scott v. Vurdulas, 264 Ill. App. 495, and one similar to the latter was approved in Liska v. Chicago Rys. Co., 318 Ill. 570.

Finally, appellant argues that the verdict is against the manifest weight of the evidence. Since the cause must be tried again, we feel bound to refrain from commenting on the evidence. It is sufficient to say that while the evidence is close, we believe the verdict in this case can be supported. It may well be, however, that a different result would likewise be approved.

The judgment of the Circuit Court of Christian County is reversed and the cause remanded to that court for a new trial.

Reversed and remanded.


text:
    Raymond Thompson, Plaintiff-Appellant, v. J. Albert Roberts et al., as Members of Board of Fire and Police Commissioners of City of Paris, County of Edgar, State of Illinois; Horace Lawler et al., as Mayor and City Commissioners of City of Paris, County of Edgar, State of Illinois, DefendantsAppellees.
    Gen. No. 10,027.
    Third District.
    February 14, 1956.
    Rehearing denied March 14, 1956.
    Released for publication March 14, 1956.

      J. L. Sullivan, of Paris, for appellant.
    Hartman Schwartz, and Robert I. Trogdon, both of Paris, for appellees.
   PRESIDING JUSTICE HIBBS

delivered the opinion of the court.

Plaintiff, Raymond A. Thompson, was appointed a member of the fire department of the City of Paris, Hlinois on December 1, 1950. On August 10, 1953 the size of the department was reduced and plaintiff was laid off and placed on the reinstatement list. Plaintiff is aggrieved because another member of the force who was employed by the department on the same date as he was not laid off. It appears that the latter fireman had previously served on the force from August 29, 1947 to May 1, 1950. Plaintiff, claiming that the rules of Board of Eire and Police Commissioners of the City of Paris had been violated, filed his petition for a writ of mandamus in the Circuit Court of Edgar County on September 8, 1953 against the Fire and Police Commissioners, the Mayor and the City Commissioners of the City of Paris. This petition was stricken on defendants’ motion on November 21, 1953. On December 28, 1953 plaintiff filed an amended complaint which realleged as Count I the original petition for mandamus and added Count II which prayed for judicial review of the decision of the Board of Fire and Police Commissioners, under the Administrative Review Act. Defendants thereafter filed a motion to strike the amended complaint and in addition an answer thereto. On January 21, 1955 the Circuit Court denied plaintiff’s petition for mandamus and for review under the Administrative Review Act. Plaintiff has appealed to this court.

The Circuit Court in a memorandum opinion found that the original petition for mandamus in this matter should be dismissed because plaintiff’s remedy was under the Administrative Review Act. Par. 14 — 11 of the Cities and Villages Act, Ill. Rev. Stat. 1953, Chap. 24 [Jones Ill. Stats. Ann. 21.1377], provides that the Administrative Review Act and the rules adopted pursuant thereto “shall apply to and govern all proceedings for the judicial review of final administrative decisions of the board of fire and police commissioners” providing for the removal or discharge of a member of either department. Section 2 of the Administrative Review Act, Ill. Rev. Stat. 1953, Chap. 110, Par. 265 [Jones Ill. Stats. Ann. 104.094(2)] provides that with respect to cases coming within the scope of the act “any other statutory, equitable or common law mode of review of decisions of administrative agencies heretofore available shall not be employed . . .”

To the extent that mandamus is an available remedy, it could be described as a “mode of review” within the terms of Section 2 of the Administrative Review Act which “shall not be employed” in those cases coming within the terms of that Act. The Supreme Court has held that the power of the court in a proceeding under this Act is confined to affirming or reversing the decision of the administrative agency or remanding the cause for the taking of additional evidence. “There is no provision for the joinder of a mandamus action for the restoration to the position and an action for back wages.” (Drezner v. Civil Service Commission, 398 Ill. 219 at p. 232.)

More important, however, is the fact that here the decision of the Board in question was based upon an exercise of administrative discretion. In such cases mandamus has never been available to control the exercise of that discretion unless it has been abused. (People ex rel. Jones v. Webb, 256 Ill. 364; People ex rel. Elmore v. Allman, 382 Ill. 156.) We believe the Circuit Court properly dismissed plaintiff’s original petition and Count I of his amended petition, both of which sought a writ of mandamus.

One question remains — whether the Circuit Court should have affirmed the action of the Board of Fire and Police Commissioners. The Circuit Court found that that Board was vested with a choice of laying off one of two firemen of equal rank who were hired on the same day. It chose to retain the one who had prior service in the department. We believe this was a sufficient reason to justify the Board’s choice. Certainly there is no proof that the Board acted arbitrarily or from corrupt motives or that the finding of the Board was contrary to the manifest weight of the evidence. We therefore believe that the Circuit Court of Edgar County properly affirmed the action of the Board.

Judgment affirmed.


author: JUDGE BEYNOLDS

text:
    Mildred Hudson, Sharon Kay Hudson, by Mildred Hudson, Her Mother and Next Friend, David Lee Hudson, by Mildred Hudson, His Mother and Next Friend, and Michael Edward Hudson, by Mildred Hudson, His Mother and Next Friend, PlaintiffsAppellees, v. Don Leverenz, d/b/a Don’s Tavern, Stanley R. Smith, d/b/a Smitty’s Tavern, Frank Davison, d/b/a Davison’s Tavern, Rita Finder, Mary Connor, and Harold Connor, d/b/a Top Hat, Defendants-Appellants.
    Gen. No. 10,026.
    Third District.
    February 14, 1956.
    Rehearing denied March 12, 1956.
    Released for publication March 12,1956.

      Jones, Sebat & Swanson, and Mann, Stiller & Snyder, all of Danville, and Bay F. Dobbins, and Dobbins & Fraker, all of Champaign, for defendants-appellants.
    Byan and Austin, of Mattoon, for plaintiff sappellees; Willis P. Byan, and Harlan Heller, both of Mattoon, of counsel.
   JUDGE BEYNOLDS

delivered the opinion of the court.

This is an appeal growing out of what is commonly known as a “Dram Shop Case.” Suit was brought by Mildred Hudson and her three minor children, Sharon Kay Hudson, David Lee Hudson and Michael Edward Hudson, against Don Leverenz, Mary A. Connor, Stanley B. Smith and Frank Davison, tavern operators, under the Dram Shop statute, for damages growing out of the death of Clinton Lee Hudson, husband of Mildred Hudson and father of the minor children. Clinton Lee Hudson was killed in an automobile accident when the automobile in which he was riding, collided with one driven by one Jackie Nebergall, who was alleged to have been intoxicated. Nebergall was alleged to have bought intoxicating liquors from the tavern operators, the defendants herein.

Trial was had before the Circuit Court of Vermilion County, without a jury, and after hearing the evidence the court entered judgment for the plaintiff Mildred Hudson, in the amount of $15,000; for the plaintiff Sharon Kay Hudson, in the amount of $6,750; for the plaintiff David Lee Hudson, $8,250; for the plaintiff Michael Edward Hudson, $8,750, the judgments being joint and several against the defendants Don Leverenz, Mary A. Connor, Stanley B. Smith and Frank Davison. From these judgments the defendants appeal to this court.

For grounds of the appeal the defendants contend that the plaintiffs failed to prove their case by a preponderance of the evidence; that the plaintiffs failed to prove their case by circumstantial evidence; that the trial court erred in denying defendants’ motion for leave to file a jury demand; that the trial court erred in excluding evidence of social security payments to the plaintiffs; that the damages should be limited to an aggregate of $15,000 and that the Dram Shop Act as presently written is unconstitutional.

Since the first two grounds assigned as error deal with questions of fact, these grounds will be discussed together. This court has held repeatedly that unless the verdict of a jury or court is palpably and clearly erroneous, it will not be disturbed by a reviewing court. This doctrine is so well established that it is not necessary to cite authorities. It makes little difference whether the trial was before a court or a jury. The trial court or the jury has the opportunity to hear the witnesses, observe their demeanor while testifying, their candor or lack of candor, their means of knowing that about which they testify, and in general to weigh the evidence as well as the actions of the witnesses. The reviewing court does not have this opportunity, and for that reason hesitates to disturb a finding of fact unless it is clearly and palpably erroneous. Here the evidence is conflicting. There are a number of witnesses who testified that the said Nebergall had drunk intoxicating liquors, bought or obtained from the defendants a short time before the fatal accident. Nebergall and his companion testified to these facts. It is true that there was some impeachment of their testimony, by way of prior statements made about Nebergall’s drinking. It was for the trial court to decide, whether or not at the time of the trial, Nebergall and Ms compamon Ronald Thomas told the truth, or whether or not the prior statements were true. There was testimony that Nebergall was not intoxicated. The three men of the highway maintenance crew were witnesses for the defendants. Two of them were close to Nebergall and they testified that they did not smell alcohol on his breath and that he, Nebergall, appeared dazed. The two nurses at the hospital testified that they administered to him and they did not notice any odor of intoxicating liquor and in their opinion he was not intoxicated. All this testimony presents questions of fact which is the province of the trial court or jury to pass upon and this court is unable to find such error as would justify this court in reversing the finding of the trial court on such questions of fact.

The third point presented by the defendants’ appeal is that the trial court erred in denying their motion for leave to file a jury demand. The plaintiffs did not file a jury demand and none of the defendants filed a jury demand at the time of filing their answers. The third amended complaint was filed September 2, 1954. On October 4, 1954, the case was set for trial before the court for December 13,1954. On December 1, 1954, the defendants filed their demand for a jury trial. On December 6, 1954, the defendants filed motions for leave to file a jury demand, supported by affidavits of counsel. These affidavits set up that as a result of mistake, inadvertence or misapprehension of the facts, said attorneys failed to file a jury demand. To these motions, the plaintiffs filed their motion to strike. On December 6, 1954, a hearing on said motions was had and the court denied the defendants’ motion for leave to file jury demands. Five days later, on December 11, 1954, one of the attorneys for the plaintiffs filed a counter affidavit, in which this attorney set up that the case was set for trial before the court, on October 4, 1954 and that Ralph Swanson, one of the attorneys for Leverenz, one of the defendants, was present; that depositions were subsequently taken; that all attorneys of record had notice 30 days prior to the filing of the defendants’ motions for leave to file jury demands; that the case was set on a nonjury calendar and that certain attorneys for some of the defendants knew this from the time of the filing of the complaint; that it would be disadvantageous to the plaintiffs to grant defendants a trial by jury. Whether or not there was any agreement about the filing of the counter affidavit for the plaintiffs, does not appear of record, but apparently the trial court did not consider it in his ruling.

Section 64 Civil Practice Act (Section 188, Chapter 110, Illinois Revised Statutes 1953 [Jones Ill. Stats. Ann. 104.064]) provides that a plaintiff shall file his demand for jury in writing at the time suit is commenced and that a defendant desirous of a jury trial shall make such demand and file the same at the time of filing his appearance; otherwise, such party shall be deemed to have waived a jury.

Section 59, Civil Practice Act (Section 183, Chapter 110, Illinois Revised Statutes 1953 [Jones Ill. Stats. Ann. 104.059]) provides that additional time may be granted on good cause shown, in the discretion of the court and on such terms as may be just, for the doing of any act or the taking of any step or proceeding prior to judgment in any civil action.

Supreme Court Rule 8, Paragraph 5 (Section 259.8, Chapter 110, Illinois Revised Statutes, 1953 [Jones Ill. Stats. Ann. 105.08, subd. (5)]) provides that the judge, for good cause shown on special motion after notice to the opposite party, may extend the time for putting-in any pleading- or the doing of any act which is required by the rules to be done, within a limited time, either before or after the expiration of time.

The right of the legislature to regulate trial by jury has been settled for a long time. In the case of Morrison Hotel & Restaurant Co. v. Kirsner, 245 Ill. 431, the power of the legislature to regulate trials by jury was upheld. That case further held that a litigant must do some affirmative act toward the end, in order to be entitled to a jury trial. In that case, in defining the right of a litigant to have a jury trial the court said: “In view, however, of the provision of the constitution that the cherished right of trial by jury shall remain inviolate, the statute should be liberally construed in favor of the right and the inclination of the court should be to protect and enforce that right.” The case of Stephens v. Hasten, 383 Ill. 127, affirms the doctrine of the Morrison Hotel case, supra, and says: “Courts jealously guard the right of a person to a trial by jury. Section 59 of the Civil Practice Act attempts to protect the rights of individuals for good cause shown in allowing additional time in the discretion of the court for the doing of any act or taking of any step or proceeding prior to judgment in any civil action.

“Paragraph 5 of Supreme Court Rule 8 furthers this protection by providing that the court may, on motion, extend the time for putting in any pleading or the doing of any act which is required by the rules to be done, within a limited time, either before or after the expiration of the time. It is true that this section and the rule of court thereunder cannot authorize an extension of limitation periods fixed by a statute nor extensions of time to do acts beyond the period over which a court has jurisdiction. However, in order to read purpose into the statute, and the rule of court thereunder, such provisions must be construed to apply to situations in which, for good cause shown and in fairness and justice, time should be extended in which to allow a party to exercise the right of trial by jury as guaranteed to him by the constitution.”

The Stephens v. Hasten case, supra, had a similar situation to the present case in that there was a change of attorneys. The court, in ruling that a jury trial should have been allowed, said: “With the presentation of these facts to the trial court, the court, in the exercise of discretion and in the protection of the jealously guarded right of trial by jury, should have allowed to the appellants below the right to file a demand for jury, especially since it appears from the record that the filing of such jury demand at the later date did not tend to inconvenience the court or parties litigant, or prejudice any rights in any manner whatsoever. To arbitrarily refuse to accord to parties litigant the right to file a jury demand after time therefor has expired, upon good cause shown, is an abuse of the discretion of the court.”

This court in the case of Roszell v. Gniadek, 348 Ill. App. 341 said: “Considering Stephens v. Hasten, supra, as raising the identical point involved here we follow the Supreme Court . . . .”

In the present case, the same set of facts as to change of attorneys occurs. The same reason is given by the attorneys for the defendants, inadvertence and mistake.

Our courts have jealously guarded the right of the litigant to trial by jury. In the case of Lyman v. Haul, 275 Ill. 11, counsel had waived trial by jury, and the court permitted the litigant to ask for and have the waiver set aside. In the case of Osgood v. Skinner, 186 Ill. 491, the court held that a waiver of trial by jury, unless withdrawn, extends to the review of the judgment in the Appellate Court, so as to enable that court to decide the issues of fact and enter final judgment; but if final judgment is not entered and the cause is remanded the waiver is exhausted, and that the Appellate Court could not deprive a party of his right to have issues of fact tried by a jury, upon reinstatement, by directing the entry of a particular judgment; that the waiver of jury only bound the litigant for one trial. And that court also said: “Even at the term when a waiver is made it is within the discretion of the court to permit a withdrawal of it, and such permission is ordinarily given when the opposite party will not suffer.” In the case of Mason v. Continental Distributing Co., Inc., 333 Ill. App. 128, it was held that denial of a jury trial was abuse of discretion where it was shown that the defendant, without checking the record, assumed in good faith that the plaintiff had paid a jury fee as required, and did not discover until the time for filing the answer that such fee had not been paid, at which time the defendant filed a jury demand, paid the fee and moved to transfer the case to a jury.

The plaintiffs cite the case of Reese v. Laymon, 2 Ill.2d 614, which attacked the legality of Section 64 of the Civil Practice Act. That case refers to the right of trial by jury as it existed at common law but it does not hold that a jury trial shall be had in each and every case, nor does it preclude any and all restrictions on the exercise of the right, and that the legislature has power to regulate trials by jury. The Reese v. Laymon case, supra, cites the cases of Stephens v. Kasten and Roszell v. Gniadek, supra, in support of its position. It does not overrule the Stephens v. Kasten case or the Roszell v. Gniadek case, hut makes a distinction. After quoting with approval of the law as laid down in those cases, as to the constitutionality of the provisions of Section 64 of the Illinois Practice Act, the court recognizes the law as declared in those cases as good law, under the circumstances shown. In the Reese v. Laymon case, supra, there was a trial before the Circuit Court of Champaign County and neither party demanded a jury. After hearing, the court entered judgment for the defendant. On appeal the Appellate Court reversed and remanded the cause. After the cause was reassigned for trial, defendant moved for a jury trial and this was denied on the ground that it was barred by Section 64 of the Civil Practice Act. There is no claim of mistake, good cause, error, inadvertence or otherwise in that case, as there is in the Stephens v. Kasten case, the Roszell v. Gniadek case, and the instant case.

The case of Schwartz v. Lake View Tool & Manufacturing Co., 4 Ill.App.2d 565, like the Eeese v. Laymon case, distinguishes the law laid down in that case from the law in the cases of Stephens v. Kasten and Roszell v. Gniadek.

It would appear from a reading of the cases cited by both parties, that if good cause is shown, or there is a showing of inadvertence, or mistake, on the part of the litigant or his attorneys, the trial court should grant the jury trial, provided the rights of the opposite party are not endangered or injured. In view of the cases cited, this court must hold that the trial court in this case erred in denying the motion of the defendants to file jury demands.

The next point urged by the defendants is that the trial court erred in excluding evidence of social security payments to the plaintiffs. None of the authorities cited by the defendants shed much light on the question. The first case cited, Confrey v. Stark, 73 Ill. 187, was decided in 1874. It was a suit by a wife for damages sustained by her by reason of the sale of intoxicating liquors to her husband by a defendant. The suit resulted in a judgment for the wife for $1,000 which was reversed by the Supreme Court, mainly because of erroneous instructions. However, the court in that case said: “The law was not intended as a means of speculation, but as a protection against injury to the wife and children of the drunkard, to preserve the property used by the family from destruction or injury, and to protect the family against immediate or probable want of adequate support; not to enable the affluent, or those well provided for, to sue and recover simply because the husband and father may become intoxicated, and, whilst in that condition, loses time, neglects his business, or becomes injured, or earns less money, or even loses it by neglect of business, and hence is not possessed of as large means as he otherwise would have been.” It would seem that the law has changed since that decision, in the light of the other cases cited by the defendants, namely Lester v. Bugni, 316 Ill. App. 19 and Klopp v. Benevolent Protective Order of Elks, 309 Ill. App. 145, where this law as to dram shop cases is laid down: “While statutes, penal in character, are ordinarily to be strictly construed, it has been frequently held that the Dram Shop Act under provisions of which plaintiff’s right of action was prosecuted, is remedial in character and should be so construed as to suppress the mischief involved and advance the remedy therein provided.” Following this line of reasoning, neither of the other two cases cited by defendants are applicable.

The case of Deel v. Heiligenstein, 244 Ill. 239, was a case in which the deceased had been drinking intoxicating liquors and while intoxicated walked along the railroad track and was killed. One of the questions involved was that the widow had received money upon an insurance policy on her husband’s life. The court in passing on this question said: “The fact that a wife may have means of her own or an income from a source other than her husband will not affect her right to recover damages under the Dram-shop act for an injury to her means of support on account of the death of her husband. She still has the right to recover for the loss of the support she was entitled to receive from her husband.”

In the case of Whiteside v. O’Connors, 162 Ill. App. 108, the trial court permitted counsel to examine the plaintiff to show that she had received $1,000 under a policy upon the life of her husband. The reviewing court in passing on that matter said: “There was nothing in the direct examination of plaintiff in error to justify any inquiry by defendants in error relative to any life insurance, and such evidence was wholly incompetent and immaterial, and its admission was manifestly prejudicial to plaintiff in error.”

In the case of Devine v. City of Chicago, 172 Ill. App. 246, a matter of a pension to the widow was involved. That court said: “It is also urged as error that the court excluded the testimony of Mrs. Josephine Cloonan, widow of the deceased, on the question of how much, if any, pension she had received since the time of her husband’s death. In our opinion this testimony was properly excluded. Coots v. Detroit, 75 Mich. 628; Kansas City v. McDonald, 60 Kansas, 481; Illinois Central v. Prickett, 210 Ill. 140.”

In the case of McConnell v. Bogaert, 208 Ill. App. 582, the plaintiff was in better financial circumstances after her father’s death, than before. In the trial of the cause, the defendants sought to show this, and the court said: “It is strongly urged by the appellants that this evidence was competent and should have been admitted. We regard what was said in Deel v. Heiligenstein, 244 Ill. 239, as decisive on this point, namely, subsequent, advantageous change in the plaintiff’s circumstances cannot be given in evidence by defendant in mitigation of damages, and that the same does not diminish the damages.”

In the case of Geary v. Metropolitan Street R. Co., 73 App. Div. 441, 77 N. Y. Supp. 54, the court there said: “The duty of the jury, under the statute, was to ascertain the pecuniary loss which the widow and children sustained by the death of the husband and father, and any benefits which they received by way of insurance or pension are not to be offset or deducted.”

While social security payments are comparatively new and there does not seem to be any cases squarely on that point, actually, social security is in the form of a pension or insurance and the cases cited would seem to be in point. Following the line of reasoning in those cases, this court must hold that the evidence as to social security payments to the plaintiffs was properly excluded.

The next point raised is that the damages should be limited to an aggregate of $15,000. This matter was decided in Childers v. Modglin, 2 Ill.App.2d 292, in this language: “Any plaintiff who is injured within the terms of the statute has the right to recover up to, but not exceeding, $15,000, regardless of the existence of other claims, established or establishable, and regardless of the number of defendants sued or suable.” We follow this case.

The last point urged by the defendants is that the dram shop law as presently written is unconstitutional. This is a matter for the Supreme Court to decide and we do not express any opinion as to what that court might decide. However, if appellant was serious on this point, this appeal should have been to that court.

This cause is reversed on the grounds that the trial court denied defendants the right to file a jury demand, for good cause shown and remanded with instructions to permit filing of jury demand and for a new trial.

Reversed and remanded.


author: JUDGE CARROLL

text:
    Ralph Sagle, and Anna M. Sagle, Plaintiffs-Appellants, v. Loren L. McClellan et al., Defendants-Appellees.
    Gen. No. 10,019.
    Third District.
    February 14, 1956.
    Rehearing denied March 15, 1956.
    Released for publication March 15, 1956.

      Gf. W. Horsley, and L. H. Lenz, both of Springfield, for plaintiffs-appellants.
    Griffin, Winning, Lindner & Newkirk, of Springfield, for defendants-appellees; Alfred F. Newkirk, and Walter W. Siebert, both of Springfield, of connsel.
   JUDGE CARROLL

delivered the opinion of the court.

Plaintiffs appeal from a judgment of not guilty entered upon a jury verdict in favor of defendants William H. Lott, Louis Matejoski, Harry Weiner and Anna Weiner.

The action was originally brought against the defendant, Loren L. McClellan for personal injuries and property damage sustained by plaintiffs as a result of the alleged negligence of defendant in the operation of his automobile.

The complaint was subsequently amended by the addition of counts thereto in which plaintiffs seek recovery under the Dram Shop Act from defendants William H. Lott and Louis Matejoski as operators of the "Valley Tavern and Harry Weiner and Anna Weiner as owners of the premises in which said tavern was operated. The cause proceeded to trial only as to the Dram Shop Action.

The principal contention raised by plaintiffs is that the verdict was against the preponderance of the evidence and the Trial Court, should therefore, have allowed their motion for a new trial. The defendants insist that the plaintiffs failed to prove the allegations of their complaint and that the verdict has ample support in the evidence.

The allegations of the complaint which plaintiffs were required to prove by the greater weight of the evidence in substance are that on October 26, 1951 between the hours of 4:30 P. M. and 6 P. M. the defendants sold or gave intoxicating liquor to Loren L. McClellan which he drank and from which he became intoxicated; that he drove his car without lights on the front thereof east on Old Rochester Road at a rapid and dangerous rate of speed, to-wit 60 miles per hour; that he did not stop at the intersection of said road with Bypass 66 where there was a stop sign requiring him to stop, but proceeded into the intersection and then struck the vehicle in which plaintiff Ralph Sagle, who was in the exercise of due care, was riding; and that as the direct and proximate result of the intoxication of Loren L. McClellan, the plaintiffs sustained injuries and damages.

Consideration will first be given to the evidence bearing upon the question whether the intoxication of McClellan resulted from consumption of intoxicating liquors sold or given to him by the defendants. The defendant Louis Matejoski called by plaintiffs as a witness under Section 60 of the Practice Act [Ill. Rev. Stats. 1953, ck. 110, § 184; Jones Ill. Stats. Ann. 104.060], testified that he was the only person working in the Valley Tavern from 12 o’clock noon until 6 o’clock on the day in question; that during such time McClellan was in the Tavern but once and that was sometime between 3 P. M. and 5 P. M.; that when McClellan came into the Tavern he was, in the language of the witness, “stewed”; that witness did not sell McClellan any intoxicating liquor on October 26, 1951; that McClellan bought two drinks of 7-Up for himself and two gin bucks for a lady who came into the Tavern; that the lady drank the gin bucks and McClellan drank the 7-Up; that McClellan said that “he had enuif and just wanted a bottle of 7-Up”; and that McClellan did not drink any intoxicating liquor in the Tavern during the hours of 12 o’clock noon until about 5 P. M. when he left the place.

Loren L. McClellan, defendant in the personal injury phase of the action, called by plaintiffs, testified that he was in defendants’ Tavern twice on the day of the accident; that the first time was a little after dinner, around 1 o’clock at which time he had one highball; that he was in the Tavern at that time a few minutes and then went to a hospital to see a friend; that he returned from the hospital to the Tavern at about 3:30 P. M. where he remained until 5 P. M.; that on the second visit he had about four bottles of beer; that he did not drink any 7-Up and had no drinks in any other tavern.

The foregoing is in substance the evidence offered to prove the allegations of plaintiff’s complaint that the intoxication of McClellan was caused by intoxicating liquor sold or given to him by the operators of the Valley Tavern on October 26, 1951 between the hours of 4:30 P. M. and 6 P. M.

Since the evidence on the issue as to whether McClellan purchased liquor from the defendants and consumed the same as alleged in the complaint are in conflict, it became a question of fact to be determined by the jury. Their decision in that regard as evidenced by the verdict will not be set aside unless clearly and palpably against the manifest weight of the evidence. Fisher v. Illinois Terminal R Co., 350 Ill. App. 555; Bartels v. McGarvey, 331 Ill. App. 275.

Plaintiffs argue that there is no conflict in the evidence on the question whether defendants contributed to causing the intoxication of McClellan. Without going into the evidence in detail on this point, it seems abundantly clear therefrom, that the jury had before it the testimony of McClellan that he purchased and consumed drinks in the Tavern which was contraverted by the testimony of Matejoski denying that McClellan consumed any intoxicating drinks in the Tavern on the day in question.

As to the accident which allegedly resulted from the intoxication of McClellan, plaintiffs’ proof consisted principally of the testimony of Ralph Sagle, one of the plaintiffs. Although examined adversely by the plaintiffs on the question of his intoxication, McClellan was not questioned concerning the accident which plaintiffs alleged resulted from such intoxication.

Sagle testified as he approached the intersection where the accident happened, he saw no traffic approaching from any direction; that he looked to his right and saw a stop sign, that he did not see McClellan’s car before the collision; that he did not know where the car came from; that he was knocked unconscious; and that the next thing he remembered was getting up from the ground on the East side of the road. Police officers who arrived after the collision, testified as to the position of the cars and the location of debris on the pavement but it is not shown whether the cars had been moved prior to the arrival of these officers and their testimony is to some extent in disagreement as to where they found the cars. Several photographs showing the damage to the right side of the Sagle car were introduced in evidence.

Upon submission of this evidence to the jury, it was for them to decide whether the allegations of plaintiffs’ complaint as to the cause of the accident were thereby sustained. As has been previously observed, it is only where the determination of the jury is palpably erroneous will the same be disturbed by a reviewing court.

The plaintiffs correctly contend that the jury and the trial court had no right to disregard unimpeached and uncontradicted testimony. However, such rule avails the plaintiffs nothing in this case where there was conflicting evidence as to the material allegations of the complaint. The plaintiffs were required to prove the essential elements of their cause of action by a preponderance of the evidence.

In this case we perceive no basis for holding’ the verdict to be contrary to the manifest weight of the evidence.

Plaintiffs further contend that the Trial Court erred in permitting the defendants’ counsel to make improper and prejudicial arguments to the jury. The incident complained of occurred during the course of the argument of counsel for the defendants when he commented upon the failure of McClellan, a witness for plaintiffs, to testify to the occurrence of the accident in which his car was involved. The argument to the jury made by defendants’ counsel does not appear in the record. That which is referred to as such argument appears to be only a discourse between the court and counsel for both sides concerning an objection made by plaintiffs’ counsel to the alleged prejudicial argument. The record does show that after the statement of defendants’ counsel as to what he had said in his argument the court remarked: “The court will sustain an objection right now.” We must assume this ruling was upon plaintiffs’ objection made previously to the examination of McClellan made by defendants’ counsel, since the record shows no other objection before the court at that time. The only other objection made by plaintiffs, insofar as reflected by the record, which in any way concerns the argument of defendants’ counsel, appears following and apparently referring to a statement by the court in its discussion with counsel. No ruling appears to have been made upon this objection.

It is plaintiffs’ contention that the argument of defendants’ counsel was so highly prejudicial to plaintiffs’ rights as to require the granting of a new trial. It is further contended that defendants by the argument complained of sought to convey the impression that plaintiffs were attempting to hide something from the jury and that in so doing misstated a ruling of the court.

With reference to these contentions, the first question arising and requiring consideration is whether the point urged has been preserved for review. As has been previously pointed out, the record does not include the argument of defendants’ counsel to the jury. That which plaintiffs referred to as the argument of counsel is merely the record of a colloquy between counsel and the court which occurred sometime during the argument of Attorney Newkirk on behalf of the defendants. Consequently, the record does not show an objection addressed to the court by plaintiffs as to the impropriety of defendants’ argument. This court can only review the action of the Trial Court in its rulings or decisions. Since the record fails to show that plaintiffs objected to the claimed improper argument and fails to show that they obtained a ruling by the Trial Court on such objection, or that they moved to withdraw a juror, there appears to be nothing before this court for review so far as this point is concerned. Wilson v. Hobrock, 344 Ill. App. 147; North Chicago Street R. Co. v. Leonard, 167 Ill. 618; Pike v. City of Chicago, 155 Ill. 656.

Plaintiffs complain of error in the giving of certain instructions to the jury. We have carefully examined the instructions criticized and conclude that the Trial Court in giving the same did not commit reversible error.

For the above reasons it is our opinion that the Circuit Court of Sangamon County did not err in denying plaintiffs’ motion for a new trial and the judgment should be and is affirmed.

Affirmed.