author: JUDGE KILEY JUDGE FEINBERG

text:
    Charles G. Lind, and Wallace Schwab, Plaintiffs, v. Harry Spannuth et al., Defendants. Harry Spannuth, and Alvine P. Spannuth, Counter-claimants, Appellees, v. Charles G. Lind, and Wallace Schwab, Counterdefendants, Appellants.
    Gen. No. 46,720.
    First District, Third Division.
    February 1, 1956.
    Rehearing denied February 23, 1956.
    Released for publication February 24, 1956.

      Gr. A. Buresh, of Chicago, for appellants.
    R. A. Bierdemann, of Chicago, for appellees.
   JUDGE KILEY

delivered the opinion of the court.

This is an action for rent based on defendants’ counterclaim. Judgment was in favor of counterclaimants, Harry and Alvine Spannuth, for $2,133.33 and plaintiffs, counterdefendants, Lind and Schwab, appealed to the Supreme Court which transferred the case here.

The original action was by Lind and Schwab, as lessees, to cancel a lease of property in the village of River Forest, Illinois. The Spannuths, lessors, answered and filed a counterclaim for rent. Lind and Schwab answered the counterclaim and moved for summary judgment. The Spannuths moved to strike that motion, and subsequently filed an affidavit of defense to the motion for summary judgment. The trial court considered the various pleadings, heard arguments, took judicial notice of a zoning ordinance of River Forest, found the lease was executed with intent by the parties to use the property in violation of the ordinance and ordered both the complaint and counterclaim dismissed for want of equity. The Spannuths appealed, Lind and Schwab did not. This court affirmed that part of the order dismissing the complaint, but that part of the order dismissing the counterclaim was “reversed and remanded for further proceedings not inconsistent herewith.” 3 Ill.App.2d 112, opinion filed May 19, 1954. The mandate was filed September 20th and the hearing on the counterclaim set for September 28, 1954 “to determine the amount of rent accrued under the lease.” On this latter date the court heard testimony, found the amount of the rent due and entered the judgment from which this appeal was taken.

The complaint and counterclaim were dismissed for want of equity on the ground that the lease was illegal. This was a decision on the merits of both the complaint and the counterclaim. The summary judgment fell with the complaint and need no longer be considered since there was no appeal by Lind and Schwab. The relevant question before this court in the prior appeal was the validity of the order dismissing the counterclaim. This court decided that the lease was not illegal since it did not violate the zoning law. The effect of this decision was to set aside the order of dismissal of the counterclaim. This court then considered the counterclaim and the answer thereto and found no issue of fact raised since the only defense was the violation of the zoning ordinance. But that defense had already been vitiated. This court therefore remanded “with directions to enter judgment for the amount of the rent. . . .” It is this judgment which Lind and Schwab attack as being beyond the jurisdiction of this court. The grounds urged in the Supreme Court were (a) want of constitutional due process and (b) want of appellate jurisdiction. The first ground was eliminated by the transfer of the case to this court.

Lind and Schwab filed no petition for rehearing with respect to our previous opinion nor did they seek leave to appeal to the Supreme Court. But they argue that since the point is jurisdictional it may be made any time in any court. They argue that the judgment exceeded appellate jurisdiction and was therefore void; that the mandate based on the judgment is consequently void; and that the reinstatement of the case in the Superior Court was ineffective.

We think the prior judgment of this court was within this court’s jurisdiction. The final judgment of the trial court on the merits was reviewed in an exercise of appellate jurisdiction. The judgment was reversed and the cause remanded to enter judgment for rent. This is different from overruling a demurrer and ordering a writ to issue as in People ex rel. Lydston v. Hoyne, 262 Ill. 82; from ruling on a motion for new trial where the trial court had not done so in the first instance as in Goodrich v. Sprague, 376 Ill. 80; and from entering judgment on a verdict after setting aside a judgment notwithstanding the verdict as in Scott v. Freeport Motor Casualty Co., 379 Ill. 155.

The Hoyne case is the leading case on the question. There the trial court sustained a demurrer and entered judgment for the defendant. This court reversed and remanded. Thereafter, on stipulation, this court vacated its judgment and entered an order overruling the demurrer, “whereupon appellee elects to stand by his said demurrer . . .” and “ought to be required to sign the said information in the nature of a quo warranto . . . and he is hereby commanded to forthwith sign . . . the information ... in the nature of a quo warranto.” Order and judgment October 13, 1913, 36 Order Record 495, App. Ct., First Dist. Ill. This was a clear exercise of original jurisdiction and distinguishes that case from the instant case.

The remanding order in the decision of this court on the prior appeal was justified since the record disclosed no question of fact for decision. Electrical Contractors’ Ass’n of the City of Chicago v. A. S. Schulman Elec. Co., 391 Ill. 333, 346. Compare also the judgment in Bradley v. Fox, 7 Ill.2d 106, 109. Lind and Schwab argue that on a general remandment they would have had an opportunity to offer amendments to their answer to the counterclaim. This court presumes that they offered at the trial what defenses they had available. Especially is this so when their complaint, as their defense to the counterclaim, rested substantially on the alleged violation of the zoning ordinance; their motion for summary judgment implied that there was no triable issue of fact; and they took no appeal from the judgment dismissing their suit.

They contend that in any event the judgment of the Superior Court is void for want of jurisdiction over the subject matter since the remanding order was void and over their persons because the Spannuths gave only three days’ notice of filing the mandate instead of ten as required by the Civil Practice Act, Section 88(2) (Ill. Rev. Stat. 1953, Chap. 110, Sec. 212 [Jones Ill. Stats. Ann. 104.088]).

On September 16,1954, a few months after the filing of the opinion in the prior appeal, the Spannuths mailed notice to Lind and Schwab that on September 20th they would appear in the Superior Court and move for leave to file the mandate and to set a date for the hearing on the counterclaim. On September 20th leave was given, the mandate was filed, the hearing on the counterclaim was set and the judgment for rent followed.

Section 88(2) provides “upon the filing of such mandate in the trial court, the cause or proceeding shall be reinstated therein, upon ten days’ notice being given to the adverse party or his attorney.” Literally, this requires that at the time of filing the mandate ten days’ notice be given of the reinstatement of the cause. No notice is required under this section when the remandment is not for “new trial or hearing.” Boggiano v. Chicago Macaroni Mfg. Co., 118 Ill. App. 225.

The question of the necessity of the ten days’ notice has been before the Supreme Court and this court several times. In an 1855 case, Murray v. Whittaker, 17 Ill. 230, before the legislature spoke on the subject, the Supreme Court thought that the parties were bound to know that the cause had been remanded and it refused to reverse for want of notice. The court said there was no statute requiring notice and that it had no power to make rules for the circuit court. It suggested a rule, the substance of which the legislature in 1872 enacted into the law respecting notice.

Subsequently in 1884 the Supreme Court in dictum said that the notice was required to reinvest the trial court with jurisdiction of the person. Austin v. Dufour, 110 Ill. 85. Then in 1896 this court said the notice was “indispensable” (Taylor v. Brougham, 63 Ill. App. 283) relying on Austin v. Dufour. Later in 1906 the Supreme Court in Gage v. People ex rel. Hanberg, 223 Ill. 410, 415 struck down objections to defective notice, though it complied with the ten-day requirement, and said “the sole purpose of the statute ... is to advise the opposite party that the cause is to be re-instated in the trial court.” No reference was made to the case of Austin v. Dufour. In 1910 the Supreme Court in Snell v. Weldon, 243 Ill. 496 at page 516 said “the court . . . could not properly proceed to the trial . . . until the ten-day notice required by the Practice act was given to the opposite party” citing Austin v. Dufour. It thought the situation similar to a pending case before service on the defendant and it approved filing mere formal amendment prior to the notice. Then in 1913 the Supreme Court in People ex rel. Zilm v. Conway, 261 Ill. 26, 29 without referring to Austin v. Dufour said “no step could be taken in the cause . . . until it should be re-instated in pursuance of a statutory notice. . . .” The reversal was not on this ground, however.

In 1914 this court in Carlin v. Grand Trunk Western Ry. Co., 189 Ill. App. 489, decided failure to give notice was reversible error. It said this notice was like a new summons and in its absence the court had no jurisdiction over the person. The last word on the subject was written by this court in 1940 in Tracy v. Yost, 306 Ill. App. 578. There it was held the statutory notice could be waived since in Gage v. People ex rel. Hanberg the purpose was said to be advisory.

This court in Cowdery v. Northern Trust Co., 321 Ill. App. 243, 269 said that when notice to appeal is filed, the trial court is “ousted” of jurisdiction. Nevertheless the case is the same case in a different court. Reiter v. Illinois Nat. Casualty Co., 397 Ill. 141, 146. The attaching of jurisdiction over the ease in this court carries the jurisdiction of the parties, though for some matters the trial court retains jurisdiction, as for example in temporary alimony and support matters. We think that this is the effect of the provision in Section 74 of the Civil Practice Act that an appeal “shall constitute a continuation of the proceeding. . . .” (Ill. Rev. Stat. 1953, Chap. 110, Section 198 [Jones Ill. Stats. Ann. 104.074].) The trial court does not lose jurisdiction of the case nor of the parties during the pendency of the appeal. Especially where the plaintiff began the suit he is present before the court for all purposes so long as the court retained any jurisdiction. Perry v. Perry, 349 Ill. App. 116, 119. So when the case is remanded the suspension of the trial court’s jurisdiction is removed when the mandate is filed and the case reinstated. The jurisdiction of this court over the subject matter and the parties is released and the notice is to advise the adverse party of that fact. Judge Feinberg’s concurring opinion will cover this aspect of the case more thoroughly.

We conclude that the judgment of this court in the prior appeal did not exceed the jurisdiction of this court; that the notice required by Section 88(2) of the Civil Practice Act is not jurisdictional; that the trial court had jurisdiction over the persons of Lind and Schwab; and that the judgment entered was valid. This conclusion disposes of all points raised.

Judgment affirmed.

FEINBERG, J., specially concurring.

LEWE, P. J., took no part.

JUDGE FEINBERG

specially concurring:

Cross-defendant contends that when an appeal is perfected the jurisdiction or control of the court below ceased, and there being no case pending in the court below during the appeal, the lower court has no authority to enter any order in the case until it is properly reinstated after remandment by the reviewing court; that in the absence of a proper reinstatement in compliance with the statute, the trial court has no jurisdiction of the subject matter or of the person, and all proceedings in the lower court are coram non judice or void.

Cross-defendant relies upon Austin v. Dufour, 110 Ill. 85, 87, 88, and Watkins v. Dunbar, 318 Ill. 174, 177. In the Austin case the court held that after reversal and remandment to the trial court “by the filing of the transcript in the trial court that court again obtains jurisdiction over the subject matter of the suit. But this is not sufficient, of itself, to authorize the court to proceed. Before any steps can be taken in the cause, the court must also obtain jurisdiction over the person of the adverse party, and this, in the absence of a voluntary appearance, can only be done by giving the notice required by the section of the statute above mentioned. It is hardly necessary to add, unless the court has jurisdiction both of the person and subject matter of the suit, its proceedings will be coram non judice, — or, in other words, void.” It was there also said:

“. . . and it is clear a mere inspection of the record in this case would have fully apprised appellant of the fact that the proceedings, after the filing of the remanding order, were but a continuation of the original suit.”

The "Watkins case is not applicable.

We are confronted with these questions:

To what extent does the lower court lose jurisdiction of the subject matter and of the person by a perfected appeal under the present Civil Practice Act?

Are proceedings in the lower court had after the appeal is perfected, and a bond filed, which acts as a supersedeas, void or voidable?

As early as Oakes v. Williams, 107 Ill. 154, 157, the court said:

“What was the effect of the appeal by McBean from the judgment of the Circuit to the Supreme Court, recovered by McGlanery & Co. ? Did it render the execution issued upon it, and all subsequent proceedings under it pending the appeal, void or voidable? That it operated as a stay of further proceedings during the pendency of the appeal has never been questioned. The appeal operates as a supersedeas granted on a writ of error, or the order of a circuit judge staying a judgment in the circuit court. That all proceedings under a judgment stayed by appeal, by supersedeas, or by such an order of a judge, are irregular, and may be set aside, on motion to quash, or other appropriate proceedings, there can be no question. But it is not every irregularity in issuing and executing process that will render the process void.” (Italics ours.)

This holding was followed with approval in Shirk v. Metropolis & New Columbia Gravel Road Co., 110 Ill. 661. It was there held that the only effect of the appeal is to stay further proceedings until the appeal is disposed of; “that the issue of an execution on a judgment pending an appeal is irregular, but that it is not void, and that a sale of land under such an execution is subject to be set aside, on motion made in proper time, by the defendant whose land has been sold.”

Such expressions as, “that after the notice of appeal was filed in the trial court, that court lost jurisdiction of the ease, and the jurisdiction of this court attached and continued until that appeal was disposed of,” are found in Simon v. Balasic, 316 Ill. App. 442 (Abst.). That case was cited with approval in Cowdery v. Northern Trust Co., 321 Ill. App. 243, with the further statement, “This ousts the jurisdiction of the lower court, even though no bond is filed on the appeal.” (Italics ours.)

In Nye v. Nye, 342 Ill. App. 11, 16, the statement is:

“The general rule is that when the notice of appeal is filed the jurisdiction of the trial court ceases and the jurisdiction of the Appellate Court attached.” (Citing Cowdery v. Northern Trust Co., supra.) (Italics ours.)

To the same effect is Sunbeam Corp. v. Central Housekeeping Mart, Inc., 2 Ill.App.2d 543, 559.

In First Nat. Bank of Jonesboro v. Road Dist. No. 8, 389 Ill. 156, where there first was an appeal to the Appellate Court from a decree which directed distribution of certain funds held by the Drainage District, no appeal bond was filed, so that the appeal did not act as a supersedeas. Pending the appeal the fund was distributed in accordance with the decree. A motion was made in the Appellate Court to dismiss the appeal because the questions there pending became moot, since the decree was satisfied by the distribution of the fund. The Appellate Court dismissed the appeal on that ground. The appeal to the Supreme Court followed. It was there held that the questions on appeal in the Appellate Court had not become moot merely because the proceedings in the lower court had not .been stayed by the filing of a bond, which would act as a supersedeas; that if benefits are received from the erroneous decree or judgment, the party must, after reversal, make restitution, and if he has sold property erroneously adjudged to belong to him, he must account to the true owner for the value. The reversal of such a decree leaves the cause as it stood prior to the entry of the decree. To the same effect is Willett Co. v. Carpentier, 4 Ill.2d 407, 412.

The court there did not hold that the notice of appeal, when filed in the trial court, “ousts that court of jurisdiction, even if no appeal bond is filed,” or that the jurisdiction of the lower court “ceases,” or that the trial court “lost jurisdiction of the case,” as stated in the Appellate Court cases above cited upon this question. We think these expressions in the Appellate Court cases are not an accurate statement of the rule and are likely to lead to confusion. After a careful study of the Appellate and Supreme Court cases upon the question of jurisdiction of the trial court, where an appeal is perfected, the following conclusions are justified:

That the filing of a notice of appeal in the trial court is all that is necessary to perfect the appeal, and the jurisdiction of the Appellate Court attaches ;
That the trial court never loses jurisdiction of the subject matter or of the person pending an appeal, and the appeal is a continuation of the original suit;
That the appeal restrains the trial court from entering any order which would change or modify the judgment or decree, or the scope thereof, and from entering any order which would have the effect of interfering with the review of the judgment or decree;
That the giving of a bond merely stays the efficacy of the decree or judgment (First Nat. Bank of Jonesboro v. Road Dist. No. 8, supra); and
That proceedings in violation of a supersedeas may be vacated or set aside, attempted violations may be restrained, and any action in defiance of the force and effect of the supersedeas is punishable as a contempt of court. (Gumberts v. East Oak Street Hotel Co., 404 Ill. 386, 389, 390.)

In the latter case cited, there is no intimation by the court that proceedings in the lower court in violation of a supersedeas are void.

If the doctrine of the Appellate Court cases cited is sound, then to be consistent it would necessarily follow that proceedings in the lower court, after the filing of the notice of appeal, or even where the bond is filed that acts as a supersedeas, would have to be deemed void, not voidable. This is not supported by the reasoning in the Supreme Court cases.

In Strauss v. Danielson, 396 Ill. 315, 321, it appears that after the appeal to the Appellate Court had been perfected, the death of the trustee, Herman Strauss, was suggested, and on application to the Superior Court an order was entered, appointing the Trust Company of Chicago successor trustee. Later the Appellate Court permitted the successor trustee to be substituted in that court. It was contended in the Supreme Court that the Superior Court lacked jurisdiction to make such an appointment, and that the Appellate Court erred in allowing the substitution. The Supreme Court overruled the contention and approved of the order entered in the Superior Court and in the Appellate Court.

Under the doctrine of the Appellate Court cases, such an order entered by the Superior Court, in the case last cited, would have to be held void, because the court had been ousted of jurisdiction by the perfected appeal.

A case in point, which coincides with our view, is Burr v. State Bank of St. Charles, 344 Ill. App. 332. That was an action for damages for wilful violation of a supersedeas resulting from a perfected appeal to the Appellate Court. It appears that there had been a bill to foreclose a mortgage and a decree of foreclosure entered. Pending the appeal to the Appellate Court and the giving of an appeal bond, which acted as a supersedeas, the plaintiff procured a sale under the decree, by the master, and the court entered a decree approving the sale of the master. It was there said:

“In cases where there has been a judgment and a sale under an execution pursuant to the judgment and where the enforcement of the judgment has been stayed by an appeal and supersedeas, any action in violation of the supersedeas is regarded as an irregularity and is not void.” (Citing Oakes v. Williams, and Shirk v. Metropolis & New Columbia Gravel Road Co., supra.)

In the light of the foregoing, upon the filing of the mandate of the Appellate Court in the instant case, the mere defective notice to reinstate the cause and to enter judgment upon the mandate does not make the proceedings in the trial court void, but only voidable, which could have been corrected by proper motion in the trial court. State Bank of St. Charles v. Burr, 372 Ill.114, 119.

I regard the foregoing as additional reasons for affirming the judgment.


source: Caselaw Access Project

author: PRESIDING JUSTICE BARDENS

license: Public Domain

text:
    Illinois State Trust Company, Executor of Last Will and Testament of Marvin E. Gray, Deceased, Plaintiff-Appellee, v. Employees Life Company, Defendant-Appellant.
    Term No. 55-0-7.
    Fourth District.
    February 1, 1956.
    Released for publication February 23, 1956.

      Oehmke, Dunham & B ornan, of Bast St. Louis, Dent, Hampton & Doten, of Chicago, and Earl S. Hodges, of Springfield, for defendant-appellant; Samuel C. Patton, of Springfield, of counsel.
    Goldenhersh & Goldenhersh, of East St. Louis, for plaintiff-appellee.
   PRESIDING JUSTICE BARDENS

delivered the opinion of the court.

Suit was brought by plaintiff to secure a death benefit under a policy issued by the defendant to plaintiff’s testate. The case was submitted upon a stipulation of facts and judgment was rendered for plaintiff for $2,000, plus interest and costs of suit.

The facts stipulated were substantially as follows: That the policy in question was issued to Marvin E. Gray (who is plaintiff’s testate), designating his wife Eugenia Gray as beneficiary, and was in full force on January 3, 1954, when the insured and his wife met death; that Gray and his wife were killed while he was operating and flying a Piper Pacer plane owned by him when said plane plunged into Lake Pontchartrain at New Orleans, Louisiana.

The policy about which the dispute arises is designated on the back “Employees Income Protection Policy” and states on the back and at the top of page 1: “This Policy Provides Benefits for Loss of Life and Time by Accidental Bodily Injuries and Loss of Time Caused by Illness to the Extent Herein Provided and is Benewable only at the Option of the Company.”

On page 1 of the policy the insuring clause reads as follows:

“Employees Life Company (Hereinafter called the Company)
Does Hereby Insure
The Insured named on page 4 of this policy (hereinafter called the Insured)
Against loss commencing while this policy is in force from:
(1) Accidental Bodily Injuries sustained or after the Effective Date of Issue of this policy (herein called injury); or
(2) Illness which has cause and beginning more than thirty (30) days after said Date (herein called illness).
For such injury or illness the Company agrees to pay indemnities to the Insured in the manner and to the extent herein provided.”

Also on page 1 the second clause following the insuring clause reads as follows:

“Am Travel Coverage
This policy covers such injury if caused by any of the hazards of aviation only while the Insured is riding as a fare paying passenger in a licensed passenger airplane provided by an incorporated common carrier of passengers and while operated by a licensed transport pilot upon a regular passenger route between definitely established airports.”

On page 2 of the policy under the heading “Conditions, Provisions and Benefits,” Part II entitled “Accidental Death Benefit” reads as follows:

“The Company will pay the Accidental Death Benefit provided on Page 4 hereof, if death of the Insured shall result solely from such injury within ninety (90) days after such injury is sustained.”

On page 4 the accidental death benefits are designated as the sum of $2,000.

Defendant and plaintiff disagree as to whether the air travel clause above referred to applies to “death” as distinguished from “injury.” Plaintiff relies upon the cases of Ziolkowski v. Continental Casualty Co., 365 Ill. 594, 7 N.E.2d 451, and Porter v. Continental Casualty Co., 277 Ill. App. 492. In both of these cases the court held that “injury” did not include “death.”

In interpreting and construing insurance policies courts rely upon principles governing other types of contracts. Policies should be construed according to the sense and meaning of the terms used and if the language is clear and unambiguous it must be taken in its plain, ordinary and popular sense. Zitnik v. Burik, 395 Ill. 182, 69 N.E.2d 888. However, a policy is to be construed strictly against the insurer; (Freeport Motor Casualty Co. v. Tharp, 338 Ill. App. 593, 88 N.E.2d 499); and in the case of inconsistent, conflicting or ambiguous provisions, the one which affords the insured the most protection will govern. Mosby v. Mutual Life Ins. Co. of New York, 405 Ill. 599, 92 N.E.2d 103.

We will first examine the cases of Ziolkowski v. Continental Casualty Co., 365 Ill. 594, 7 N.E.2d 451, and Porter v. Continental Casualty Co., 277 Ill. App. 492, relied upon by plaintiff. In the Ziolkowski case the opinion discloses that the insuring clause in that policy promised to pay indemnity for loss of life, limb, limbs, sight, or time resulting from personal bodily injury which is effected solely and independently of all other causes by the happening of external, violent and purely accidental event. In Part V of said policy, under a heading entitled “Not Covered,” the policy provides that it shall not cover any loss if the injury causing it results from the intentional act of the insured or of any other person excepting, however, assaults committed upon the insured for the sole purpose of burglary or robbery and assaults incurred by the insured while engaged in the proper performance of the duties of his occupation. The evidence showed that the death of the insured was caused by a stabbing that was intentional and was not committed for the sole purpose of burglary or robbery or incurred while insured was engaged in the performance of the duties of his occupation. In the Porter case, 277 Ill. App. 492, the insuring clause of the policy promised to pay indemnity as follows: “The insurance given by this policy is against loss of life, limb, limbs, sight or time resulting from personal bodily injury . . . .” In Part XI, entitled “Miscellaneous Provisions,” was a clause excluding injury which was substantially identical with the exception clause in the Ziolkowski case. Death in this case also was caused by an unprovoked stabbing, not committed for the purpose of burglary or robbery, and not incurred while the insured was engaged in the proper performance of the duties of his occupation. In both of these cases judgments were rendered against the insurance company. In these two cases the court held that loss of life as well as injury was covered by the insuring clauses and treated by the terms of the policy as separate items and that, therefore, the exceptions which applied by their language to injury only were not to be construed as applying also to death benefits and that “injury” did not itself include “death” and that since “death” was separately insured against, the “injury” insurance was meant to apply only to nonfatal injuries.

The two cases above analyzed are distinguishable from the one before us now. The policy in this case did not purport by its insuring clause to insure against “death” at all but only “injury” or sickness. In clear language on page 1 it was provided that any injury from air travel in a private plane was excluded. On page 2 under the heading “Conditions, Provisions and Benefits” the insured was given the death benefit, but only if it resulted from “such injury” could only refer to an injury set out under the provisions of page 1 of the policy which excluded air travel in a private plane.

The policy in this case contains no inconsistency or ambiguity as applied to the facts stipulated. It clearly excludes the death benefits under air travel coverage. The judgment of the lower court therefore is reversed.

Judgment reversed.

CULBERTSON and SCHEINEMAN, JJ., concur.


text:
    E. W. Werner, and George Creager, Plaintiffs-Appellees, v. T. A. Steele, and Jack E. Barnett, Administrator of Estate of George R. Barnett, Deceased, Defendants-Appellants.
    Term No. 55-0-15.
    Fourth District.
    February 1, 1956.
    Released for publication February 23, 1956.

      Dale Ferguson, of Rock Island, and Isliam, Lincoln & Beale, of Chicago, for defendant-appellant; Richard G. Ferguson, of Chicago, of counsel.
    Crain & Hall, of Centralia, for plain tiffs-appellees.
   PRESIDING JUSTICE BARDENS

delivered the opinion of the court.

Plaintiffs filed a complaint for an injunction in the Circuit Court of Jefferson County praying that defendant administrator be restrained from taking any further action against plaintiffs on a certain promissory note payable to defendant’s intestate. From the decree granting such relief defendant brings this appeal contending that the Chancellor erred in permitting plaintiffs to vary the terms of the note by parole evidence.

Plaintiffs and one Steele executed a promissory note on January 19, 1950, payable one year from date to defendant’s intestate. The note contained the following language:

“All signers of this note are principals, and no extension of the time of payment, by the receipt of interest or otherwise, shall release us,' or either of us, from the obligation of payment.”

On July 17, 1953, judgment by confession was entered against all three signers of the note in the Circuit Court of Saline County. A transcript of this judgment was then filed in the Circuit Court of Jefferson County and execution thereon issued against plaintiffs. Thereafter, the judgment secured by confession in Saline County was vacated and plaintiffs were given leave to plead to the merits. While this action was pending and undetermined, plaintiffs filed the instant suit for injunction naming the administrator of the deceased payee and T. A. Steele, their cosigner, as defendants. As grounds for enjoining enforcement of the transcripted judgment, plaintiffs’ complaint.alleged the following: that plaintiffs signed the note as sureties without consideration; and that at maturity payee agreed with Steele to a one year extension of said note without their consent or knowledge, which effected their discharge from liability. No venue question is raised.

In the hearing of the cause Steele was called to testify as an adverse witness under Section 60 of the Civil Practice Act [Ill. Rev. Stats. 1953, ch. 110, § 184; Jones Ill. Stats. Ann. 104.060]. By virtue of this procedure Steele testified, over objection, to conversations with the deceased payee which were directed to establishing the following: that Steele and the plaintiffs were cosigners of a previous note due and unpaid as of January 19, 1950, which was replaced by the note in question; that the payee wanted plaintiffs’ signatures on the new note so that it could be used as collateral; that the plaintiffs agreed to go on the note one more year as sureties and they instructed Steele to so advise the payee; that the payee told Steele such arrangement was agreeable; that subsequently, the payee orally extended for one year the time for payment of the new note and that after such extension the payee told Steele to tell plaintiffs that the note was paid. Steele was the only witness at the hearing and on the basis of his testimony the injunction was granted restraining further action against plaintiffs on the note. Defendant contends that it was error to admit Steele’s testimony varying the express provisions of the note designating plaintiffs as principals and stating that they were not to be released from liability by extension of time of payment.

The rule of evidence that prohibits parole testimony to contradict or vary the terms of a written instrument is too well known to need citations. The appellant in relying upon this rule cites the case of Chandler v. Chandler, 326 Ill. App. 670, 63 N.E.2d 272, where the note contained the phrase “Each maker of this note is a principal.” Evidence introduced by the plaintiff in that case tended to show that he was a surety on the obligation. The defendant made the same contention as is made here, namely, that to permit the plaintiff to show by extrinsic evidence that he was a surety would violate the rule that the provisions of a written instrument cannot be contradicted, altered, added to or varied by parole or extrinsic evidence. The court agreed and in reversing the lower court’s decree enjoining enforcement of a judgment against plaintiff quoted with approval the following language from the early case of Jones v. Albee, 70 Ill. 34:

“The rule that parole evidence cannot be admitted to contradict or change a written contract is based on the soundest principles of public policy, and we regard a strict enforcement of this rule to bills of exchange and promissory notes as very important to the commercial interests of the country.”

The Supreme Court of Illinois denied leave to appeal in the Chandler ease. 331 Ill. App. xiii.

Plaintiffs call our attention to no cases and we have found none in which signers on a note providing expressly that all signers are principals have been permitted to contradict their status by parole evidence, except in actions between the makers themselves. Thus in McKee v. Gaulrapp, 367 Ill. 321, 11 N.E.2d 380, the court permitted one maker to prove by parole evidence as against the other makers that he was in fact a surety even though the note recited that “all signers of this note are principals.” However, the court pointed out that authorities as to the application of the parole evidence rule “might very well apply if an effort was made to vary the terms of the instrument in question as between the makers and the payee.” There are numerous older cases in Illinois which make the statement that a signer of a promissory note may show by parole evidence that he is a surety, but in these cases the reported opinions reveal that no provision in the note such as we have in the instant case was present. Typical of these cases is the case of Kennedy v. Evans, 31 Ill. 258.

The plaintiffs also contend that they were entitled to notice of the extension of time given to Steele. This contention is based on Paragraph 141 of the Negotiable Instruments Act, Chapter 98, Ill. Rev. Stat. [Jones Ill. Stats. Ann. 89.141]. There are two answers to this contention. In the first place, Section 141 refers to a person who is secondarily liable and by Paragraph 214 [Jones Ill. Stats. Ann. 89.214] of the same act a person primarily liable on an instrument is defined as a person who “by the terms of the instrument is expressly required to pay the same. All other parties are secondarily liable.” The plaintiffs, therefore, by the terms of the note are primarily and not secondarily liable and could only be held secondarily liable if evidence contradicting the terms of the note were admissible. In the second place, Paragraph 141, Sub-Paragraph 5, does not refer to notice but, on the contrary, refers to assent. By the note in question here it appears that the plaintiffs have agreed that no extension of time will release them from the obligation and thus they have assented in advance to any extensions.

We have examined the authorities cited by the litigants and conclude that the Chancellor erred in permitting plaintiffs to introduce parole evidence to vary their written agreement to be treated as principals.

Plaintiffs have also contended in their brief filed in this court that there was a conditional delivery of the note and that the condition and understanding was that they were not to be held liable at all. A search of the abstract reveals that this point was not raised by the pleadings nor decided by the trial court and therefore need not be considered here. Ginther v. Duginger, 6 Ill.2d 474, 480. For the reasons stated, the injunction decree entered by the court below is reversed.

Decree reversed.

CULBERTSON and SCHEINEMAN, JJ., concur.


text:
    N. N. Norman, a Sole Trader, Doing Business Under Style and Firm Name of A. M. Norman & Son, Plaintiff-Appellee, v. School District No. 1, Pope County, Illinois, a Municipal Corporation, Defendant-Appellant.
    Term No. 55-0-17.
    Fourth District.
    February 1, 1956.
    Released for publication February 23, 1956.

      J. D. Quarant, of Elizabethtown, for defendant-appellant.
    David A. Warford, and Arthur F. Melvin, both of Marion, for plaintiff-appellee.
   PRESIDING JUSTICE BARDENS

delivered the opinion of the court.

This case involves a judgment on the pleadings in plaintiff’s favor for the sum of $32,000 principal and $2,344.43 interest entered in the lower court on the 2nd day of May 1955.

In as much as judgment was entered on the pleadings, we will recite in some detail the material parts of the pleadings involved. The complaint filed September 14,1953, alleged in substance that the plaintiff and defendant had entered into a contract on the third day of May 1951, under the terms of which the plaintiff undertook the construction of a school building for the defendant for the sum of $264,274; that the contract provided that payments should be made monthly as the work was certified by the architect except that the defendant could retain ten per cent of the amount of such estimate until final completion and acceptance of all work; that shortly after May 3, 1951, plaintiff commenced the construction and from time to time received payments under the contract totaling $228,-402.92, leaving a balance due of $35,871.08; that the construction of said building had been finally completed ; that plaintiff had certified said construction as completed to the architect; that the architect had approved the certificate of final construction; and that said approved certificate had been presented by plaintiff to the defendant together with a demand for payment. Attached to the complaint were certain portions of the contract. Afterwards plaintiff, by leave of court, amended his complaint to show a payment on September 19, 1953, of $3,871.08, reducing the balance due to the sum of $32,000, and thereafter the plaintiff amended the complaint to demand interest on said sum of $32,000.

To this complaint the defendant filed a motion to dismiss. This motion was later withdrawn and an answer and counterclaim were filed. Subsequently the answer and counterclaim were, by leave of court, withdrawn and the motion to dismiss the complaint was again filed. Hearing was had upon this motion and it was overruled. Thereafter, on September 18, 1954, defendant filed its amended answer and counterclaim and on October 8, 1954, plaintiff filed his reply to the amended answer and answer to counterclaim. No further pleadings were filed.

The amended answer of the defendant in Count I made certain admissions and denials of the allegations of the complaint, the denials in substance setting out certain defects in the construction of the building and denying that the contract was finally completed. In Count II of the amended answer an affirmative defense was pleaded setting np that the contract provided the defendant could withhold ten per cent of the amount of each estimate until final completion and acceptance of all work, and alleging that the plaintiff had not finally completed the contract nor had the defendant accepted all of the work. Count III of the amended answer contained another affirmative defense setting up the terms of the contract relating to arbitration. This count, however, was later stricken and no point is made thereon. Count IY of the amended answer was a counterclaim for damages by reason of the alleged fact that the plaintiff did not complete the building within the time specified in the contract and thus the defendant was put to additional expense in finding quarters to conduct its school activities.

The reply of the plaintiff was also divided into counts and special replies. Plaintiff denied that the building was not fully completed. He set up facts by way of showing excuse for the delay in construction by alleging that the delay was caused by various acts of the counterplaintiff and its contractors. In the special reply and in his answer to the counterclaim he plead specially that during the month of August 1953, the Board of Education of the defendant acting under the provisions of paragraphs 19 — 10 and 19 — 11 of Chapter 122 of the Illinois Revised Statutes [Jones Ill. Stats. Ann. 123.1058, 123.1059] passed and adopted a resolution declaring, among other things, that the claim of plaintiff for $32,000 for the amount due him on his contract was allowed, and declaring the intention of the school district to issue bonds for the purpose of paying said claim among others, and that the action of said Board was, by virtue of the statute involved, a declaration of the validity of plaintiff’s claim and established the validity of said claim.

As before stated, this reply was filed on October 8, 1954. Some time thereafter the case was set for jury trial for May 2, 1955. No further pleading had been filed by the defendant and on April 28, 1955, plaintiff filed Ms motion for judgment. Hearing was had upon this motion on May 2, 1955, at which time defendant’s motion for leave to plead was denied, and thereafter defendant’s motion for leave to file motion to strike reply was denied and the motion for judgment on the pleadings was allowed. Jury was waived on the question of computing the amount of interest. Evidence was heard and judgment was entered as hereinbefore described.

Defendant first contends that a motion for judgment on the pleadings is not a matter recognized by statute and that the motion filed herein by the plaintiff did not comply with the various motions recognized by statute for summary judgment or for motions attacking the sufficiency of the pleadings or for motions under Section 48 of the Civil Practice Act of 1933 [Ill. Rev. Stats. 1953, ch. 110, § 172; Jones Ill. Stats. Ann. 104.048]. It is true that prior to the adoption of the Civil Practice Act effective January 1, 1956 (see paragraph 45, sub-section 5 [Ill. Rev. Stats. 1955, ch. 110, § 45, subd. (5); Jones Ill. Stats. Ann. 104.045, subd. (5) ]) judgment on the pleadings was not authorized by statute. However, the courts have recognized the procedure and sanctioned it in the following cases, among others: Milanko v. Jensen, 404 Ill. 261, 88 N.E. 2d 857; Manthei v. Heimerdinger, 332 Ill. App. 335, 75 N.E.2d 132; Lewis v. Hill, 322 Ill. App. 68, 53 N.E.2d 736 (affirmed 387 Ill. 542, 56 N.E.2d 619).

Defendant’s remaining contentions are as follows:

(1) That the complaint fails to state a cause of action because it did not plead fulfillment of all conditions precedent.

(2) The resolution of the Board should have been pleaded in the complaint and that pleading it in the reply was a change of the basis of recovery.

(3) That there was no estoppel by conduct or otherwise upon which plaintiff was entitled to recover.

(4) That the lower court abused its discretion in refusing leave to plead to the reply.

As to the first contention, it is true that in common law it was necessary in recovery upon a contract to plead the conditions precedent and that those conditions have been fulfilled or that there was a legal excuse for their nonfulfillment. However, under Supreme Court Rule 13, Chapter 110, Illinois Eevised Statutes of 1953, § 259.13 [Jones Ill. Stats. Ann. 105.13], it is provided that in pleading the performance of a condition precedent it is sufficient to allege generally that the party performed all conditions on his part and if the allegation be denied the facts must be alleged in connection with such denial showing wherein there was a failure to perform. The complaint in this case alleged a final completion of the contract and a certificate of such final completion approved by the architect. In our opinion, this complies with Supreme Court Eule 13.

Defendant’s second contention pertains to a method of pleading which in our view is more or less optional with the plaintiff. His complaint is a sufficient statement of a cause of action for failure to pay the balance due under an executed contract. To this complaint any number of defenses might have been available and pleaded by the defendant, including payment, the assignment of plaintiff’s interest, or the invalidity arising because of a lack of power of the defendant to execute such a contract as well as the sufficient performance by plaintiff under said contract. The plaintiff, if he had so chosen, could have anticipated some of these defenses and plead facts negativing the same. However, he was not bound to so do. When, therefore, the defendant plead defenses that went to plaintiff’s performance under the contract, it was then appropriate for plaintiff to plead the resolution adopted by the defendant’s Board which, under the statute, would answer these particular defenses.

As to defendant’s third contention concerning the effect of the resolution passed by the Board, it should be noted that the statute involved, being paragraph 19 — 11 of Chapter 122, provides in substance that before any district shall avail itself of the provisions of Section 19 — 10 providing for the issuance of bonds, the governing body shall examine and consider claims proposed to be paid and if it appears that they were authorized and allowed for proper school purposes it shall adopt a resolution so declaring and the adoption of the resolution shall establish the validity thereof. The reply alleges that the Board of Education of the defendant, acting under this section of the statute, allowed plaintiff’s claim for the $32,000; declared it was a valid claim; and declared the intention of the school district to issue bonds thereunder to secure funds to pay this claim among others. The reply also asserted that by this resolution the validity of plaintiff’s claim in the amount of $32,000 was established and defendant estopped from denying the validity thereof.

In Illinois the legislature has, by the school code, Chap. 122, Ill. Rev. Stat., entrusted to the school boards the management of the property and financial affairs of the respective districts. Whenever a Board which is charged with such power acts in pursuance thereto in allowing a claim against the municipal or quasi-municipal corporation courts will not interfere with such action unless fraud, collusion or corruption be shown or unless the claim was not of a character which could be paid by the corporation. County of Cook v. Ryan, 51 Ill. App. 190. Fitzgerald v. Harms, 92 Ill. 372. County of Coles v. Goehring, 209 Ill. 142, 70 N. E. 610. In our case no question of estoppel need be considered. Under the statute and the action of the Board the validity of plaintiff’s claim was fixed. Since defendant did not deny the allegations concerning the resolution, the lower court and this court must conclude the resolution was duly adopted.

The last contention of the defendant pertains to a claimed abuse of discretion by the lower court in refusing defendant leave to plead or file a motion to strike the reply. Six months and twenty days had elapsed since the filing of the reply and if the plaintiff had gone to trial on May 2nd without an additional pleading filed by the defendant, he would have waived that failure. Cienki v. Rusnak, 398 Ill. 77, 75 N.E.2d 372. His motion for judgment on the pleadings was therefore appropriate before the trial had commenced. The affidavit filed in support of defendant’s motion for leave to plead does not, in our opinion, show sufficient cause for excusing the delay nor does it attempt to present to the court what pleading the defendant intended to file. The denial of the leave to file a motion to strike the reply was accompanied by a motion to strike. The court however allowed the filing of the motion only for the purpose of a showing in the record of what was tendered. This motion is before us and asserts in substance that the resolution of the Board of Education did not constitute a waiver or an estoppel. We have heretofore pointed out that estoppel is not the real basis of establishing the validity of the claim, it having been established by the resolution and the provisions, of the statute referred to. We hold that there was no abuse of discretion by the trial court in denying the leave to further plead or leave to file the motion to strike.

The judgment of the lower court is proper and should be affirmed.

Judgment affirmed.

CULBERTSON and SCHEINEMAN, JJ., concur.


text:
    Charles R. Morton, Plaintiff-Appellee, v. Louisville & Nashville Railroad Company, Defendant-Appellant.
    Term No. 55-0-19.
    Fourth District.
    February 1, 1956.
    Released for publication February 23, 1956.

      Baltz & Guymon, of Belleville, for defendant-appellant.
    Dan McGlynn, and McGlynn & McGlynn, of East St. Lonis, for plaintiff-appellee; Edward J. Murphy, of East St. Louis, of counsel. . ,
   PRESIDING JUSTICE BARDENS

delivered the opinion of the court.

This suit was instituted for recovery of damages for injuries suffered by the plaintiff when he was knocked from a side ladder near the top of a railroad car during a switching operation. The action is under the Federal Employers’ Liability Act. Verdict of $50,000 and judgment thereon in plaintiff’s favor were entered on January 10, 1955, before Judge Edward F. Bareis, the trial judge. Thereafter a motion for judgment notwithstanding the verdict and alternative motion for a new trial were filed. Due to the death of Judge Bareis before arguments on the motions, Judge R. W. Griffith heard the arguments and denied the motions.

Plaintiff was employed as an engine foreman in charge of a switching crew in Evansville, Indiana. On November 15, 1952, in the movement of a cut of cars, plaintiff was riding a ladder at the top of one of the cars. There was a pole standing alongside of the track. This pole did not belong to the defendant, but belonged either to a telephone, telegraph or power company. The pole, however, had become bent over at about the level of the top of the railroad cars and was so close to the cars that it struck plaintiff, knocking him to the ground and causing injuries mainly to plaintiff’s back and neck.

Upon this appeal defendant does not contest liability. Its main contention was error in refusing to grant a new trial because the verdict is allegedly excessive. In this connection it argues that because the trial judge did not pass upon the post-verdict motions another judge was necessarily limited to the transcript. Therefore this court should consider the questions and gauge them under the standard of preponderance of evidence rather than manifest weight of evidence. With this latter contention we cannot agree. The judgment and orders passing upon the motions were those of the court and not a judge. Regardless of the statute, the courts have held that when a trial judge is unable to hear the post-verdict motions another judge may do so. People v. McConnell, 155 Ill. 192, 40 N. E. 608. See also People v. Ficke, 343 Ill. 367, 175 N. E. 543; Fessler v. Weiss, 348 Ill. App. 21, 107 N.E.2d 795. The only consideration which we would be required to give to the matter would come from the knowledge that the judge who passed upon the motions did not have the benefit of seeing or hearing the witnesses.

In connection with defendant’s claim that the verdict is excessive, defendant argues that there is a total failure to prove permanent injury to the plaintiff and that therefore the verdict is so excessive that in and of itself it shows passion and prejudice on behalf of the jury and justifies a new trial. The record shows no misconduct or unwarranted appeal to passion and prejudice and none is claimed.

We have held that the question of damages is ordinarily peculiarly one of fact for the jury to determine; Nickell v. Baltimore & O. R. Co., 347 Ill. App. 202, 106 N.E.2d 738; see also Smith v. Illinois Cent. R. Co., 343 Ill. App. 593, 99 N.E.2d 717; and this is especially true where there is conflicting medical evidence; Hannigan v. Elgin, J. & E. R. Co., 337 Ill. App. 538, 86 N.E.2d 388; and in the absence of a specific showing of passion, prejudice or misconduct; Mueth v. Jaska, 302 Ill. App. 289, 23 N.E.2d 805.

In the instant case the plaintiff was 52 years old at the time of the injury. He had only an eighth grade education and his employment for thirty years had been that of a railroad worker. His earnings for the year preceding the injury were $4,889.62. One of the plaintiff’s witnesses, Dr. Bihss, testified that plaintiff had a curvature in the upper vertebrae that might or could have resulted from trauma. He also testified to a depression or deformity of the body of the fourth dorsal vertebra and a narrowing of the space occupied by the cartilage, evidencing some injury to the cartilage. Another of the plaintiff’s witnesses, Dr. Fritsch, testified to a compression fracture of the third thoracic vertebra and the disc between the third and fourth thoracic vertebrae. He testified that this was a permanent condition; that the plaintiff still has pain in his shoulder and this is a permanent condition. He testified about the limitation of movement in the neck and the prescribing of the wearing of a Thomas Collar by plaintiff under certain conditions to prevent sudden or jerking movement in his neck. He gave as his opinion that the plaintiff could do switching work but that it would be hazardous not only to him but to others. One of defendant’s witnesses, Dr. Weber, testified concerning the compression fracture of the fourth dorsal vertebra and in reply to a question about the plaintiff’s return to work, stated in substance, “If I were to examine the man to return to work and found he had a compressed fracture of the fourth dorsal vertebra, I would employ him, but not if he had constant pain in his back,” and “If he told me that when he turns his neck and he gets weak and gets pain in his back and neck, I would turn him down. I would say it was not safe.” The plaintiff testified that his back pains bim continually, that it is a dull pain, and that when he has a sudden jerk he has pain for some length of time. He testified about the pain when turning his neck fast or beyond a certain point which, was demonstrated to the jury.

There was testimony before the jury about a congenital condition consisting of some cervical ribs and the possible effect of such condition with regard to pain in the neck region and fainting spells. There was also some testimony that the pain and fainting spells could possibly be caused by trauma. The facts concerning the cervical ribs and testimony to the effect that the fainting spells of the plaintiff might not be due to the accident were made clear to the jury by the testimony of Dr. Alderson, testifying for the defendant.

It can thus be seen that there was conflicting testimony and opinions concerning the plaintiff’s condition and while no doctor stated that plaintiff would be permanently and totally disabled nor that his condition would not improve, certain disabilities were stated to be permanent and the jury was advised of the progress in recovery made by the plaintiff in the two-year period of time from the accident to the time of the trial. Under the evidence we believe the jury could reasonably conclude that plaintiff had sustained a permanent condition that would result in serious impairment of earning capacity. Taking into account the plaintiff’s age, education, and working experience, the loss of wages to the time of trial and the possible loss of future wages, the pain and suffering, it would be difficult for this court to conclude from the size of the verdict alone that it was so excessive as to justify reversal. This is especially true in the absence of any showing of passion, prejudice or misconduct.

Defendant argues a point about error in rejection of evidence, but that point was not preserved by a motion for new trial and is not properly before us. The judgment of the Circuit Court is therefore affirmed.

Judgment affirmed.

CULBERTSON and SCHEINEMAN, JJ., concur.


author: JUSTICE CULBERTSON

text:
    Shannon D. Rice, Plaintiff-Appellee, v. Louisville & Nashville Railroad Company, Defendant-Appellant.
    Term No. 55-0-10.
    Fourth District.
    February 1, 1956.
    Released for publication February 23, 1956.
    Baltz & Guymon, of Belleville, for defendant-appellant.

      Dan McGlynn, and McGlynn & McGlynn, of East St. Lonis, for plaintiff-appellee; Edward J. Murphy, of East St. Louis, of counsel.
   JUSTICE CULBERTSON

delivered the opinion of the court.

This action arises by reason of a suit under the Federal Safety Appliance Act, Boiler Inspection Act, and Federal Employers’ Liability Act on behalf of plaintiff, Shannon D. Rice, as against Louisville & Nashville Railroad Company, a Corporation, for monetary damages, including loss of wages, pain and suffering, and for permanent disability sustained while the plaintiff was in the employ of the defendant in 1951.

Plaintiff had been employed as a fireman by defendant Railroad, but while temporarily operating an engine he stepped into or caught his left shoe in a defective floor board on the deck of the engine, which caused him to fall down, with the resulting injury to the ankle and foot. Defendant does not deny that the record shows a submissible case on liability and the facts of employment and interstate commerce. The trial of the case resulted in a verdict of $41,500, upon which verdict the Trial Court entered judgment.

On appeal in this Court defendant raises only two basic issues. First, it is the contention of the defendant that the City Court of East St. Louis in which the trial was held, does not have jurisdiction because the action arose outside the territorial limits of the City of East St. Louis. It is admitted that the Illinois Supreme Court has specifically found, in the cases of Turnbaugh v. Dunlop, 406 Ill. 573, and Starck, Adm’x v. Chicago & N. W. Ry. Co., 4 Ill.2d 611, that the City Court has jurisdiction of the cause of action even though the action arose outside the territorial limits of the City.

The only other fundamental question raised by defendant is that the verdict is excessive. It is contended on appeal in this Court that there is no proof of permanent disability, and that the verdict must have resulted from passion and prejudice and should be set aside for that reason. Normally, where there is conflicting medical evidence, it is a question of fact for the jury to decide the amount of damages to be assessed (Lanni v. Wyer, Trustee of Long Island R. Co., 219 F.2d 701; Hannigan v. Elgin, J. & E. Ry. Co., 337 Ill. App. 538). We also have, frequently expressed the conclusion that the question of damages is ordinarily peculiarly one of fact for the jury to determine (Ford v. Friel et al., 330 Ill. App. 136; Smith v. Illinois Cent. R. Co., 343 Ill. App. 593, 612). It has also been observed in our Courts that where a contention is made that the verdict results from passion and prejudice on part of the jury there should be a specific showing of passion or prejudice (Mueth v. Jaska, 302 Ill. App. 289).

In the case before us it appeared from the evidence that on two different occasions for long periods of time plaintiff’s foot was placed in a cast, and that in March 1952 plaintiff was fitted with a steel brace which extended from the foot to the knee and which was strapped onto the leg in order to keep the leg immobile. The steel brace was worn from that time until the time of the trial, except when the steel brace was removed so that a cast might be applied to the leg. The record also shows that the plaintiff suffered pain and continued to suffer pain by reason of such condition. There was further testimony to the effect that the condition of plaintiff’s leg, which was described as causalgia, had caused a reduction in sensory perception in the foot; and while causalgia is usually not a permanent disability, since plaintiff had suffered with it for three years prior to trial, it was viewed as probably being permanent. Plaintiff testified that he was unable to perform his duties as a fireman; that he is in continuous pain; is still wearing a steel brace; does not have the use of his foot when he gets np in the morning, and that it becomes more painful the more he walks on it; and also, that it is very difficult for him to go up and down steps.

As we have indicated, there was some conflicting medical evidence which would tend to minimize the injuries of plaintiff and to indicate that plaintiff’s injuries were not permanent. There is nothing in the record to show any appeal to sympathy, emotion, or prejudice. The jury was properly instructed, and the only question fundamentally before us is whether a verdict in the substantial sum of $41,500 is in and of itself so excessive as to require a reversal. In the light of the precedents outlined in the cases referred to in this opinion and the nature of the injury and loss of earnings (plaintiff had earned $2072 in the six months preceding his injury), and the fact that he would have been entitled to a greater rate of pay had he continued in his work, makes it difficult for this Court to conclude that the verdict in such amount, in and of itself, was so excessive as to justify reversal. The verdict was consistent with the medical evidence presented on behalf of plaintiff. This Court should not substitute its judgment as to the propriety of the am mint, for the determination of the jury in absence of evidence of passion and prejudice where the record sustains the conclusions of the jury. The judgment of the City Court of East St. Louis will, therefore, be affirmed.

Judgment affirmed.

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


text:
    Wayne White, Administrator of Estate of Edward Keith White, Deceased, Plaintiff-Appellant, v. City of Centralia, Illinois, a Municipal Corporation, Defendant-Appellee, and Robert C. Reynolds, Defendant.
    Term No. 55-0-14.
    Fourth District.
    February 1, 1956.
    Released for publication February 23, 1956.

      Listemaxi & Bandy, of East St. Louis, and House & House, of Nashville, for appellant.
    Wham & Wham, and Harold H. Pennock, Jr., all of Centralia, for defendant-appellee.
   JUSTICE CULBERTSON

delivered the opinion of the court.

The present action comes before us as the result of a motion to dismiss an amended complaint filed by plaintiff, Wayne White, Administrator of the Estate of Edward Keith White, deceased, as against the City of Centralia, Illinois, as defendant; and another defendant, Robert C. Reynolds, who does not appeal.

The amended complaint charged that the defendant City, a municipal corporation, owned a tract of land upon which was located a reservoir, known as Raccoon Lake, as part of its water supply system; and also had a public park adjacent thereto which was used as a public playground and recreation area. It also alleged that the defendant City, prior to the death of plaintiff’s intestate, leased a portion of the premises located on the banks of the lake to defendant, Robert C. Reynolds; and that the leased premises were operated by Reynolds as lessee; and that upon the leased premises he kept a number of his own rowboats for boating and fishing upon the lake. There was an allegation that under a City ordinance the defendant City reserved the right to control the lake and boating, pursuant to the provisions of the ordinance.

The amended complaint alleged that the plaintiff’s intestate, a boy of eleven years of age, together with other boys of his own age, went to the park and the leased premises and were lured by childish curiosity to the water and the boats of defendant Reynolds. There was a further allegation that plaintiff’s intestate took one of the boats, which was dilapidated and out of repair, and caused it to be moved onto the waters of the lake, where the boat filled and the boy was drowned. Action was instituted as against Reynolds and the defendant City under the Wrongful Death Act, for the sum of $20,000.

It is plaintiff’s theory of liability that the City knew or by the exercise of reasonable care should have known that many of defendant Reynolds’ boats were dilapidated, dangerous, and unfit; and that children of tender years played with and used the boats; and that defendant City negligently and carelessly permitted the boats to remain on the lake, untied and unfastened, so as to be, easily put into the lake by children; and negligently and carelessly .failed to take any reasonable steps to prevent the use of the boats by children or to protect the boats so that children could not use them.

In the motion to dismiss the amended complaint filed by the City, the legal sufficiency of the amended complaint to state a cause of action is raised. The Court below allowed the motion to dismiss the appeal as to the City, and plaintiff appeals from such order as a final appealable judgment (Moore v. Moyle, 405 Ill. 555).

The plaintiff’s theory on appeal in this Court is, (1) that the City was not acting in a governmental capacity, but in a business or proprietary capacity, and had the same duties and obligations as an individual or business corporation; (2) that the City, although leasing the premises in question, retained such control as to be liable for the negligence which caused the death; and (3) that the amended complaint stated a cause of action.

The City, in answer to such contentions, points out that the motion to dismiss was properly granted for the reason that, (1) the facts alleged in the amended complaint did not establish a civil duty owing to plaintiff from defendant City to do any of the specific things alleged in the amended complaint (prevent the boat from remaining on the bank of the lake untied or unfastened, or take steps to prevent the use of the boat by the boy, or protect the boat so that it could not be used by the boy); (2) that the enactment of the civil ordinance was an exercise of the City’s police powers, and any alleged failure to enforce the provisions or the exercise of any powers thereunder comes within the governmental immunity of the City from which no civil duty to plaintiff’s intestate can arise and no civil liability could result under the law of Illinois; (3) that the ordinance referred to contained no enforeible provisions reserving to the City the control of boats with respect to the physical condition, mooring, fastening, docking, or storage of boats and that, therefore, the City could not be liable for acts of negligence referred to in the amended complaint; (4) that the boy was drowned while engaged in recreation upon the city lake, and the defendant City is not subject to liability therefor, inasmuch as it was engaged in its governmental capacity in allowing the property and lake to be used for recreational purposes as contrasted with the business operation of selling-water through the water and distribution system; and (5) that the defendant City did not maintain an attractive nuisance upon its property, or a dangerous condition upon which recovery could be had.

It is apparent that a defendant City when owning and operating a water system and selling water to individuals is engaged in the business or proprietary capacity and not in a governmental capacity, but it is also clear that the City may act in a dual capacity, one proprietary and the other governmental, and when acting in its governmental capacity cannot be held liable for negligence (Eastern Illinois State Normal School v. City of Charleston, 271 Ill. 602, 605). The establishment and maintenance of recreational grounds, swimming pools, etc., by a municipality constitutes the performance of a governmental function (Gebhardt v. Village of LaGrange Park, 354 Ill. 234, 238-239; Prickett, Adm’r v. City of Hillsboro, 323 Ill. App. 235, 248-249). It is thus apparent under the allegations in the amended complaint that the City of Centralia was not engaged in its proprietary capacity in allowing its lessee, defendant Reynolds, and others, to keep and use boats on the lake for recreational purposes (Blackaby v. City of Lewistown, 265 Ill. App. 63).

The amended complaint under the record was required to set forth sufficient facts to establish a duty on part of the defendant City owing to the plaintiff. The amended complaint in the instant case refers to the existence of an ordinance in which the City “purportedly reserved the right to control the lake and boating.” The ordinance referred to sets forth numerous restrictions and prescribes regulations and makes prohibitions upon certain activity in and around the reservoir and generally covers the use of the reservoir and adjoining land. It is an ordinance enacted under the police powers of the City (Culver v. City of Streator, 130 Ill. 238, 243). It contains restrictions as to building a structure to be located within a certain zone; prohibits maintenance of slaughter houses; prohibits pollution of water; prohibits the use of firearms; prohibits the cutting of ice; and deals with various other items of a similar character.

One section of the ordinance deals with boating and, among other things, restricts the permissible horsepower of motor boats, and sets forth numerous restrictions on boating; requires a license for each boat; prohibits operation of motor boats without mufflers; prescribes speed regulations; prescribes steering and sailing rules; and prohibits pollution of water by persons operating boats. Other sections provide for appointment of police officers and cloaks them with powers and duties to enforce the provisions of the ordinance, and likewise, provides that all violations are misdemeanors and prescribes fines and punishments.

Nowhere in the ordinance does any provision imply that the City Council intended to expand the civil liability of the City, and if any of the enforcement officers, under the terms of the ordinance, could have required Reynolds to properly moor his boats, any failure to do so is simply a failure to enforce the police powers and would not render the City civilly liable to the plaintiff. The ordinance, in fact, does not authorize any of the City agents or police authorities to take action with respect to the boats, their protection or manner of mooring, or set up any requirements that boat owners tie or locate their boats, or keep them in a particular condition. We cannot read into an ordinance a foundation for liability, and under the facts, the amended complaint fails to state a civil duty owing to plaintiff’s intestate which was violated by the City. It is apparent therefore that no act or omission charged against the City in the amended complaint constitutes actionable negligence on part of the City.

The motion to dismiss the amended complaint was, therefore, properly allowed, and should be affirmed.

Judgment affirmed.

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


text:
    Marjorie Lingle, Plaintiff-Appellant, v. Harry M. Slifer et al., as Members of Board of Education of St. Elmo Community Unit School District Number 202, and St. Elmo Community Unit School District Number 202, Fayette County, Illinois, Defendants-Appellees.
    Term No. 55-0-16.
    Fourth District.
    February 1, 1956.
    Released for publication February 23, 1956.

      Harold N. Lingle, of Anna, and Charles E. Myers, of Vandalia, for plaintiff-appellant.
    Will P. Welker, of Vandalia, for defendant-appellee.
   JUSTICE CULBERTSON

delivered the opinion of the conrt.

Marjorie Lingle (hereinafter called plaintiff) petitioned the Circuit Court of Payette County for a Writ of Mandamus and sought to compel the Board of Education of St. Elmo Community Unit School District Number 202 to reinstate her as a school teacher in the school district for the school year of 1954-1955. In the complaint plaintiff asserts that she is under the Teachers Tenure Act (1953 Illinois Revised Statutes, Chapter 122, Paragraphs 24 — -2 and 24 — 3 [Jones Ill. Stats. Ann. 123.1125, 123.1126]). The individual defendants named are the members of the Board of Education. It was set forth in the complaint that plaintiff was continuously employed as a teacher of music from the time of the organization of the school district in 1949 until the termination of service as hereinafter stated.

It is clear from the record that plaintiff was under the Illinois Teachers Tenure Act referred to, and that by the terms of such Act, removal or dismissal as it results from a decision of a Board of Education to decrease the number of teachers employed by the Board or to discontinue some particular type of teaching service, requires that written notice be given to the teacher by registered mail at least sixty days before the end of the school term, together with a statement of honorable dismissal and the reason therefor. There is a further provision that if the position so discontinued is reinstated within a period of one calendar year, it must be tendered to the teacher dismissed because of such discontinuance.

A letter was sent to the plaintiff from the Board of Education, advising that the Board of Education notified plaintiff by registered mail as required by law that “the particular position now held by you is abolished. Therefore, there will be no place in the schools for you after the end of the current school year. This dismissal is honorable. There is no desire to do you an injustice nor to under-estimate the many good things you have done over the years.” The letter was dated March 23, 1954. It was contended by plaintiff that her position had not in fact been abolished and she was wrongfully so advised. She presented herself to the Board of Education and offered to resume her duties as a teacher, but was denied such right by the superintendent. The evidence in the cause discloses that teaching or instruction in music of the character conducted by plaintiff was, in fact, discontinued, and that such music instruction was not being taught in the school district. No teacher of vocal music was employed by the Board to take the place of plaintiff, nor was the instruction of music assigned to any other teacher.

At a regular meeting of the Board of Education on March 14,1955, minutes of the Board meeting of March 22, 1954 were amended and the amendment allowed, showing the action of the Board authorizing the dismissal. After the action of the Board the Notice of Dismissal dated March 23,1954 was sent by registered mail and was received by plaintiff.

The record of a School Board may be amended at any time to show what was in fact done at such proceeding (Phenicie v. Board of Education, St. Joseph Community High School Dist. No. 305, 326 Ill. 73). The Board of Education may order the clerk to amend the record of a previous meeting to show the facts, although the personnel of the Board has changed and a long period of time has elapsed (Board of Education of Glencoe v. Trustees of Schools, 174 Ill. 510). Boards of Education have not been required to maintain the highest degree of formality in the conduct of proceedings on the principle that to do so would result in injury to the public (Board of Education of Glencoe v. Trustees of Schools, supra, pp. 510, 513), and formality or a high degree of accuracy on the part of School Trustees and officials is not exacted by the Courts (Sloan v. Hawkins, 337 Ill. App. 345, 352).

The Court, in the case of Phenicie v. Board of Education, supra, at page 78, stated: “The general rule established by the decisions of this Court is, that a School Board has the right to amend the record of its action at any time so as to make them conform to the real facts.” The record shows that four former members of the Board of Education who know the facts and the two new members who heard a full disclosure and discussion of the proceedings, voted to allow the amendment to show the action and proceedings which resulted in the motion to except certain named teachers, one of whom was plaintiff, from those who were to be re-employed.

It is contended in this Court by plaintiff that allowance of the amendment was improper and that the record of the proceedings of the Board of Education, as originally kept, constituted the only lawful evidence of the action taken and could not be contradicted or supplemented by parol evidence. She sought to introduce evidence of conversations by members of the Board of Education among themselves in their official capacity, but the Court refused to admit such evidence on the ground that the record could not be contradicted by parol evidence. This was proper under the precedents in this State (Phenicie v. Board of Education, supra).

The contention made by plaintiff to the effect that the letter to plaintiff did not indicate that the teaching of music was abolished, is difficult to sustain. The letter and the action of the Board seem consistent and clear. It is apparent from the record that an extensive plan of reorganization and readjustment was being carried out by the Board of Education and that certain positions, including the teaching of music by plaintiff at four rural centers, were abolished, and four specific teachers were not rehired.

Under the law, unless plaintiff establishes a clear right to mandamus, it should not be granted. Under the facts in the record there was compliance with the Teachers Tenure Act as to notice of dismissal. The position formerly filled by plaintiff, so far as the record discloses, was abolished and not given to any other person. Under the facts in the record and in light of the rule of construction that a statute creating a new liability such as the Teachers Tenure Act should be strictly construed in favor of the Board or person sought to be subjected to its operation (Anderson v. Board of Education of School Dist. No. 91, 390 Ill. 412), we believe the Court below properly concluded that plaintiff had not established her right to a writ of mandamus and the judgment of the Circuit Court of Payette County was properly entered. Such judgment will, therefore, be affirmed.

Judgment affirmed.

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


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    Trico Community Unit School District No. 176, Perry, Randolph and Jackson Counties, Illinois; Herman Wedemeyer and John Meyerhoff, Plaintiffs-Appellants, v. County Board of School Trustees of Randolph County, Illinois, and Steeleville Community Unit School District No. 138, Randolph County, Illinois, Defendants-Appellees.
    Term No. 55-0-27.
    Fourth District.
    February 1, 1956.
    Released for publication February 23, 1956.

      House & House, of Nashville, for plaintiffs-appelants.
    Walter J. Schuwerk, of Evansville, for defendantappellee.
   JUSTICE CULBERTSON

delivered the opinion of the court.

This case comes to us for decision hy transfer from the Supreme Court. The proceedings below were initiated and prosecuted under one of several methods provided for by Section 4B — 2 of the School Code (Illinois Revised Statutes, 1953, Chapter 122, Paragraph 4B- — 2 [Jones Ill. Stats. Ann. 123.754B(2)]). Two-thirds of the legal voters residing in three separate and distinct territories lying within Trico Community Unit School District No. 176, referred to in the record as the North, South and Shiloh territories, filed petitions with the Randolph County Board of School Trustees requesting the detachment of said territories from the Trico District and their annexation to Steele-ville Community Unit School District No. 138. In each instance, after a public hearing, the hoard granted the prayer of the petitions and upon administrative review in the Circuit Court of Randolph County, where the causes were consolidated hy stipulation, its decisions were affirmed. The Trico District and certain of its residents have filed a consolidated appeal for a review of the order of the Circuit Court. It is contended here as it was contended below, and assigned as the sole error for our consideration, that the decisions of the Board are against the manifest weight of the evidence.

Before proceeding to a recital and consideration of the evidence there are significant provisions of article 4B of the School Code (1953 Illinois Revised Statutes, Chapter 122, Paragraphs 4B — 1 to 4B — 26 [Jones Ill. Stats. Ann. 123.754B(1) — 123.754B(26)]), relating to changes in boundaries of existing school districts, which should be noted. Section 4B — 2 provides that the detachment from and annexation to an existing school district may be accomplished by the appropriate county board of school trustees when petitioned: (1) by the boards of each district affected; (2) by two-thirds of the legal voters residing in each district affected; and, (3) by two-thirds of the legal voters residing in any territory to be detached from one or more districts. It is the method last mentioned, which alone permits the action to be initiated by persons representing less than the whole of the districts affected, that was employed in this case. Section 4B — 4 of the same article provides for a public hearing on such petitions and the taking of evidence for the purpose of determining whether or not it is for the best interest of the schools of the area and the educational welfare of their pupils that the proposed changes in boundaries be granted. To aid the trustees in their determination, the section provides that they shall hear evidence concerning the school needs and conditions both of the affected and surrounding territories and as to the ability of the affected districts to meet the standards of recognition as prescribed by the Superintendent of Public Instruction. Further guides for the board are, that they shall take into consideration the division of funds and assets which will result from the change in boundaries requested, and shall determine whether it is to the hest interests of the schools of the area and the welfare of the pupils that such change be granted.

It may be seen from the provisions discussed that although the residents of territories within the district may initiate a petition for detachment because of personal desires or convenience, much more is needed to support the board’s decision to change established boundaries. The welfare of the affected districts and their pupils as a whole must control rather than the wishes of a few, and such petitions granted only where the benefit derived by the annexing and affected areas clearly outweighs the detriment resulting to the losing district and the surrounding community as a whole. To this end, therefore, the Courts, upon administrative review, have a duty to consider the record to see if the findings and decision of the administrative agency are supported by the evidence. If not, it is their further duty to set the decision aside (Secaur v. Illinois State Civil Service Commission, 408 Ill. 197; Harrison v. Civil Service Commission of Chicago, 1 Ill.2d 137).

In order to better understand the factual problem at hand it may be well to review the organizational history of the Trico and Steeleville Districts. Trico was first organized in 1948 as a consolidated high school district for the communities of Ava, Campbell Hill, Willisville, Percy, and Cutler. Bonds were issued and a single high school plant, constructed to accommodate the projected attendance for the entire area, was built at approximately the geographical center of the district. At that time however, no attempt was made to consolidate the elementary schools which were operating at each of the above-mentioned communities and at other points within this district. It was not until August, 1953, that the present Trico Unit District, having jurisdiction over both elementary and secondary schools, was formed. On this date, however, there was no definite plan for the centralization of the elementary school plants. Steeleville, on the other hand, was first organized as an elementary district to service the village of Steeleville and the surrounding area. Although a centralized elementary school plant was established, the area retained its nonhigh status until the formation of the present unit district in the spring of 1953. At that time steps were immediately taken to operate centralized elementary and high school units at Steeleville.

The territories with which we are concerned in this proceeding are located on the extreme west side of the Trico District and immediately adjoining the Steele-ville area. Together they contain a total of seven sections of land with an assessed valuation of $330,000. The North territory, with eleven voters residing therein and comprising approximately one-third of the above-stated area and valuation, is located almost equidistant between Steeleville and Percy. One mile to the south lies the Shiloh territory, the largest of the three, which, in addition to having a total of 62 registered voters, contains almost two-thirds of the total area and valuation affected. Located three-eighths of a mile further south is the South territory, which consists of only one farm and one family.

At the public hearing conducted by the board it was established that some of the territory proposed to be detached was closer to the Steeleville schools, that the courses of study in Trico and Steeleville were identical, that Steeleville has remodeled one school and has built a new grade school building, that it has adequate bus service for all students, including parochial, and that the residents of the disputed territory did most of their trading, selling of produce and banking in Steeleville. Certain residents of the affected areas also advanced their reasons for favoring the change. Some thought that the bus service provided by Steeleville was superior to that of Trico and would, in at least one case, relieve á child of walking one and one-half miles to catch a bus. Others pointed out that the elementary school at Percy, a Trico unit, unlike the elementary school at Steeleville, did not have a definite hot-lunch program in operation. The same witnesses also expressed the sentiment that their children had friends, and would be happier at Steeleville. The majority of the persons testifying, however, gave as their primary reason, the fact that their children were attending an elementary parochial school in Steeleville. They felt, not only that it would be better for their children, upon graduation from the parochial school, to go directly into Steeleville High School along with their classmates, but also that the annexing district would furnish free bus transportation for these parochial students.

When such evidence is measured by the statutory standards, we find it insufficient to support the decision of the board. Apart from the personal and general reasons advanced by the witnesses, the record shows that the Steeleville Unit District was organized only a few months before the petitions herein were filed. At that time, its present area and revenue must have been considered sufficient to fulfill the purposes desired. Since there is no evidence of adverse conditions arising since that date, it must be concluded that the added income and area which would be provided by the proposed annexation, although welcome, is not needed by the annexing district. Neither is such a change necessary for the educational welfare of the children residing in the affected territories. The petitioners do not seriously contend that the curriculum and educational opportunities offered by either district is superior to that of the other. Rather, they urge such action primarily for the sake of personal preference and convenience. It may well be that certain of the children, if allowed to choose, would prefer the Steele-ville District. Unfortunately however, in our modern system of education with its complicated revenue and transportation problems, such choice is not always possible. If it were, the well-planned procedure for the establishment and stability of school boundaries would be for naught. The record does disclose that if the annexation were approved, the residents of these territories would be allowed to send their children, free of charge, by Steeleville busses to the parochial school. Since the Steeleville District has for some time transported these children on a fee basis, the benefit to be gained is therefore limited to the fare involved. Furthermore, the record discloses that a parochial school of the same denomination operates at Campbell Hill, in the Trico District, and that many of these children would be transported to this school by Trico, free of charge, if they so desired.

The petitioners also contend that Trico does not have an adequate transportation service, a centralized elementary school plant, and a hot-lunch program at all its schools. It must be remembered, however, that the Trico Unit District was organized and its Board of Education elected only a few days before the initiation of the present action, and that prior to that time it had no jurisdiction whatsoever over the elementary schools of the area. Also, it will be noted that many of the children residing in the three territories are now of pre-school age and that various witnesses, in voicing their preference for the Steeleville' District, were concerned, not so much with the problems as they now exist, but rather with the conditions that they may expect when their children reach the elementary age. Since it is only reasonable to assume that these problems which resulted from the smaller elementary districts will now largely be eliminated by the formation of the present unit district, it can hardly be said that the proposed annexation will materially benefit either the annexing or affected areas.

On the other hand, snch action wonld not only reduce the size and revenue of the Trico District, but it would also be detrimental in other respects. For the present, Trico had planned to continue operation of the elementary schools located at Shiloh and at other points within the district. However, the Shiloh school buildings are located within the area to be detached. If the proposed annexation is approved, the students of this community remaining in the Trico District will be forced to attend the elementary school located at Campbell Hill. According to testimony offered at the board hearing, this in turn would involve not only an added transportation problem but would also cause an overcrowding of the latter school. Furthermore, the careful planning which preceded the location and construction of the present Trico high school plant would be materially frustrated by such action.

For these reasons, it is our opinion that the findings of the County Board of School Trustees were against the manifest weight of the evidence and that the lower court erred in affirming this decision. The judgment of the Circuit Court of Randolph County is, therefore, reversed.

Judgment reversed.

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