text:
    Community Unit School District No. 6 of Macon and Christian Counties, Illinois et al., Plaintiffs-Appellants, v. County Board of School Trustees of Sangamon County, Illinois et al., DefendantsAppellees.
    Gen. No. 10,053.
    Third District.
    February 23, 1956.
    Rehearing denied March 19, 1956.
    Released for publication March 19, 1956.

      Sorling, Catron & Hardin, of Springfield, and Monroe and McGaughey, of Decatur, for appellants.
    R. W. Deffenbaugh, of Springfield, for certain defendants-appellees; George P. Coutrakon, State’s Attorney of Sangamon County, and Thomas W. Hoopes, both of Springfield, for County Board of School Trustees of Sangamon County, defendantappellee.
   PRESIDING JUSTICE HIBBS

delivered the opinion of the court.

A petition was filed by more than two-thirds of the voters of a territory comprising approximately four and one-third sections of land located within Unit School District No. 6 of Macon and Christian Counties, hereinafter referred to as District No. 6, requesting the detachment of such from District No. 6 and the annexation of the same to Community Unit School District No. 12 of Sangamon and Macon Counties, hereinafter referred to as District No. 12, pursuant to the provisions of article 4B of the School Code (Ill. Rev. Stat. 1953, chap. 122, pars. 4B — 1 et seq.).

A previous petition for detachment and annexation attempted to include this territory but failed to include it because of an incomplete description. After timely notice, a hearing was conducted by the County Board of School Trustees of Sangamon County, hereinafter referred to as the “Trustees,” which resulted in a decision granting the petition to so detach and annex.

District No. 6 and certain individual residents thereof filed a complaint for a review of such administrative decision under the provisions of the Administrative Review Act (Ill. Rev. Stat. 1953, chap. 110, par. 264 et seq.). After a hearing thereon the Circuit Court entered an order affirming the action of the Trustees.

The appellants, being District No. 6 and others appealed directly to the Supreme Court of this State contending, first, that the Trustees’ decision was contrary to the manifest weight of the evidence, and second, that article 4B of the School Code was unconstitutional in that it was indefinite and unlawfully delegated legislative powers. While this cause was pending in that court, it determined the question of the constitutionality of section 4B of the School Code in School Dist. No. 79 v. County Board School Trustees of Lake County, 4 Ill.2d 533, and there held that section 4B was constitutional and provided sufficient standards for the exercise of administrative discretion to render the delegation of power immune from constitutional attack. Thereafter the Supreme Court transferred this case to this court for decision. (6 Ill.2d 320.)

The only question before this court for determination is whether the action of such Trustees pursuant to the statute was contrary to the manifest weight of the evidence.

Article 4B-5 of the School Code (Ill. Rev. Stat. 1953, chap. 122, par. 4B — -5) provides for the review of decisions of County Boards of School Trustees in accordance with the provisions of the Administrative Review Act. Section 11 of the latter Act (Ill. Rev. Stat. 1953, chap. 110, par. 274) directs that every action to review such a decision by the courts shall extend to all questions of law and fact presented by the record made by the administrative agency (in this case the Trustees) and the findings and conclusions of such agency shall be held to be prima facie true and correct. These provisions for review have been construed to mean that the courts do not have the power to conduct a hearing de novo, nor to reweigh the evidence, but have only the duty to review the record to see whether the findings and decision of the administrative agency are supported by competent evidence. (Harrison v. Civil Service Commission of Chicago, 1 Ill.2d 137; Stricklin v. Annunzio, 413 Ill. 324; Secaur v. Illinois State Civil Service Commission, 408 Ill. 197.)

The School Code sets up two separate and distinct types of standards for the Trustees, one a mandatory statement of conditions requisite to the granting of any petition and the other a guide to the exercise of administrative discretion. Section 4B-3 of the School Code (Ill. Rev. Stat. 1953, chap. 122, par. 4B — 3) provides that no petition for annexation or detachment under the Act shall be granted if any of the following conditions exist:

(a) If there will be any nonhigh school territory resulting from the granting of the petition.

(b) Unless after granting the petition any community unit district or high school district created shall have a population of at least 2,000 and an equalized assessed valuation of at least $6,000,000 based upon the last full, fair cash value as equalized by the Department of Revenue as of the date of filing of the petition.

(c) Unless the territory within any district so created and any district whose boundaries are affected by the granting of such petition shall after the granting thereof be compact and contiguous except as provided in Section 4B — 4 of this Act.

(d) To create any school district with a population of less than 2,000 unless the Superintendent of Public Instruction and the County Superintendent of Schools of each county in which the proposed district will lie shall certify to the county board or boards of school trustees that the creation of such new district will not interfere with the ultimate reorganization of the territory of such proposed district as a part of a district having a population of 2,000 or more.

Both Districts here involved have high school and elementary school facilities serving their entire territory; both after the detachment in question would have a population of over 2,000 and an assessed valuation of well over $6,000,000 and would be compact and contiguous. There is no dispute in the evidence and no question raised in this appeal as to their fulfillment.

The standards for the exercise of administrative discretion, set up in Section 4B-4 of the School Code provide that: “The county board of school trustees shall hear evidence as to the school needs and conditions of the territory in the area within and adjacent thereto and as to the ability of the districts affected to meet the standards of recognition as prescribed by the Superintendent of Public Instruction, and shall take into consideration the division of funds and assets which will result from the change of boundaries and shall determine whether it is to the best interests of the schools of the area and the educational welfare of the pupils” that such change be granted.

In School Dist. No. 79 v. County Board School Trustees of Lake County, 4 Ill.2d 533, the court had under consideration the construction of Section 4B-4 and there said at page 537: “It is to be admitted that these standards are general rather than specific in nature. However, it would be both impossible and undesirable for the legislature to draft rigid nondiscretionary standards which would embrace each and every school district boundary change, for conditions surrounding the changes are seldom the same.”

This brings us to a review of,the record in the light of the standards set up by the legislature for the only purpose of deciding whether- the findings and decision of the Trustees are against the manifest weight of the evidence. (Local Union No. 222, Oil Workers’ International Union v. Gordon, 406 Ill. 145.)

The territory in question is a long, narrow, irregular strip along the west boundary line of District No. 6 with an assessed valuation of substantially $700,000. The twelve students residing therein are equally distant from the school maintained by each of the Districts, although there was some testimony that the distance would be greater to the new school proposed by District No. 6. The territory here involved together with several others adjacent thereto at one time belonged to District No. 12, but was thereafter added to District No. 6 in 1948. Later most of the territories, other than the one here involved, were reannexed to District No. 12 by a petition that failed to include this territory because of an error in description.

District No. 12 does not appear to have any financial difficulties. It maintains kindergarten and lunch facilities, in its buildings has inside drinking and toilet facilities, needs no additional administrative personnel, has adequate facilities for homemaking, science, business education, social studies and physical education, and its recognition by the State Superintendent has not been questioned.

District No. 6 has less adequate facilities. Some of its buildings lack kitchens and indoor toilets. It does not offer industrial arts or homemaking and has inadequate equipment in science, business education and social studies. While the Superintendent of Public Instruction has signed a report indicating an inadequacy of facilities the evidence shows that the Superintendent of School District No. 6 believes that they were given full recognition. The evidence also shows an acute problem of elementary housing.

The evidence further shows that District No. 6 has an equalized assessed valuation of $12,070,625; it is educating 596 students in four elementary schools and one high school and has an assessed valuation of $20,252 per student. District No. 12 has an equalized assessed valuation of $9,067,385, educates between 310 and 362 in two schools with an assessed valuation of between $25,000 and $29,250 per student depending upon the enrollment figure used. The territory in dispute has an approximate assessed valuation of $700,000 and at the time of filing of the petition contained twelve children who had reached school age.

Both Districts have the maximum educational fund rate of $1 without referendum. Neither have sought to obtain a referendum to permit a rate of up to $1,775. District No. 6 levies a maximum of $0.25 for building fund while District No. 12 levies only $0,065. Although District No. 6 is under financial stress, it has failed to increase its tax rate by referendum. On two occasions bond issue referendums which were submitted for a new school in the eastern part of District No. 6 were defeated by voters in the western part of the District where the disputed territory is located. The evidence as to the actual loss of revenue to District No. 6 as a result of the proposed detachment is in conflict. Such District claims an annual loss of $8,750, while other credible evidence, including the testimony of the County Superintendent of Schools of Sangamon County, shows a possible annual income cut of only $4,375.

The evidence further shows that due to the erection of certain industrial plants especially one by the Caterpilar Company, near the City of Decatur and just east of the eastern boundary line of District No. 6, there is a considerable residential development in the eastern part of that District, which no doubt induced the submission of a proposition to build a new school house in that vicinity, which was defeated on two occasions by vote of the people.

. The foregoing statement shows clearly that the Trustees have heard evidence as to the school’s needs and conditions and the ability of the respective Districts to meet the standards of recognition prescribed by the Superintendent of Public Instruction and considered the division of funds and assets which would result from a change of boundaries together with other evidence as to local conditions. These hearings were held after due notice had been given and at the conclusion thereof the Trustees found, “The granting of said petition will not cause the districts affected to be unable to meet the standards of recognition as prescribed by the Superintendent of Public Instruction;” and “That the prayer of said petition should be granted because it appears that it will be to the best interests of the schools and the educational welfare of the pupils.” It also found that, upon detachment, the educational opportunities of the pupils residing in the area included in the petition would be greater.

The courts have heretofore stated that they will not overturn an administrative decision unless manifestly against the weight of the evidence, but will reverse only if the findings and decision are not supported by the evidence in the record. (Brown Shoe Co. v. Gordon, 405 Ill. 384; Drezner v. Civil Service Commission, 398 Ill. 219; Community Consol. School Dist. No. 201 of La Salle County, Ill. v. County Board of School Trustees of La Salle County, Ill., 7 Ill.App.2d 98.)

This rule as to administrative decisions is especially salutary when applied to detachment and annexation petitions. Every such petition may raise problems local in nature and quite often not susceptible of definite proof. School districts are mere creatures of legislative acts and it is vested with complete power to determine the bounded areas of school districts. (People ex rel. McLain v. Gardner, 408 Ill. 228; People v. Deatherage, 401 Ill. 25.) It has attempted various solutions of the practical and often disturbing problems involved. It has previously given the township trustees power to lay out school districts. (Metz v. Anderson, 23 Ill. 463.) Later power was given to an ex-officio board to allow or deny petitions for boundary changes. (Milstead v. Boone, 301 Ill. 213.) Subsequently such power was vested in the County Superintendent of Schools and then in the county judge. (People ex rel. Dolan v. Dusher, 411 Ill. 535; Board of Education of Waverly Community Unit School Dist. No. 6 v. Nickell, 410 Ill. 98.) Later discretion over school boundary matters was vested in the county board of school trustees. People v. Deatherage, 401 Ill. 25.

By Section 4B of the School Code the legislature enacted certain very general standards to regulate the discretion of the Trustees. The reviewing courts must take cognizance of the fact that these standards as thus set up are for the guidance of the administrative bodies and not for this court to apply on review to conflicting evidence. The power to reverse the action of the Trustees comes to an end when we determine from the record that they have not departed from such standards and their findings are not contrary to the manifest weight of the evidence.

The Trustees have duly conducted the hearings required by Section 4B-4. The absolute standards of Section 4B-3 have been complied with. The only question we have to decide is whether the findings of fact of the Trustees are supported by the record.

There was evidence heard by the Trustees as to the lack of facilities in District No. 6, by the Superintendent of the District, who testified that in his opinion recognition will be granted by the Superintendent of Public Instruction even though this area be detached therefrom. We cannot say that the findings by the Trustees that the granting of the petition will not cause either District to lose recognition, is contrary to the manifest weight of the evidence. In the exercise of their discretion the Trustees found that the granting of the petition would be in the best interests of the schools and the educational welfare of the pupils. That is a discretion that is by law vested by the legislature in the Trustees. This court is not authorized to exercise that discretion. It can only pass upon whether there is substantial evidence in the record in support of the findings. The Trustees have considered and determined the immediate benefit to the pupils in the territory in dispute; the benefit in tax revenue to District No. 12 and the consequent loss to District No. 6; and the benefit of the removal of the pupils from District No. 6 which is suffering an acute housing problem. They have considered the future plans and needs of the Districts and the failure of District No. 6 under financial stress to increase its tax rate by referendum. They have considered and have heard the evidence on the bond issue referendums for a new school in the eastern part of District No. 6 and that the same were defeated by the voters in the western part of the District where the disputed territory is located.

It is aptly said in Community Consol. School Dist. No. 201 of La Salle County, Ill. v. County Board of School Trustees of La Salle County, Ill., 7 Ill.App.2d 98, at page 102: “While it is true that the loss of the valuation might cause an increase in the tax rate, surely the legislature had this in mind when it provided a method of detaching property from one school district and annexing same to another, knowing that in each such case there would be some financial loss to the school district from which the territory was detached. It was certainly not the intention of the legislature to freeze the boundaries of school districts in order to prevent an increase in the tax rate.” And again the court say: “It can readily be seen, therefore, that District No. 201 is nowhere near its legal statutory rate. And, even if it was, the rate could be raised by referendum. In the ease of Trustees of Schools v. School Directors of District No. 2, etc., 190 Ill. 390, it was held that a proposed change in a school district is not rendered unjust, unreasonable and oppressive by the fact that to carry out such change the district will have to be taxed to the statutory limit.”

The Trustees saw the witnesses, received the report from the County Superintendent of Schools as to the school needs and as to whether it would be to the best interests of the schools of the area and the educational welfare of the pupils that the territory be detached from District No. 6 and annexed to District No. 12. It is probable that these factors could not be weighed on the analytical scale of the “best interests of the schools of the area and the educational welfare of the pupils” by the Trustees and this court without some varying opinions but they must be weighed. That burden has been placed upon the Trustees by the legislature. The Trustees are more familiar with the local problems involved and far better able than this court to evaluate the numerous factors involved in the division of assets and tax revenues between the Districts. They are better acquainted with the movement of industry and population in the community. They can better understand the local conditions which cannot come to life to us from the cold record. They can best judge the ability of the Districts to meet demands for increased revenue and the intensity of conflicting opinions within a school district which may prevent any improvement of the school facilities or educational program within the foreseeable future.

It is true that with every detachment there is a resulting loss of tax base valuation and in income to the district losing a portion of its territory. This cannot be considered as preventing detachments and annexations for the legislature has seen fit to permit such action with evident knowledge of the consequences. School districts are given the remedy of increased tax income by referendum and a failure or a refusal of the electorate to accept this remedy is not conclusive in a detachment proceeding. Any tax rate, approved by proper referendum, within the limits set by the legislature, is valid. (Trustees of Schools v. School Directors of Dist. No. 2, 190 Ill. 390.) We cannot say it is unjust, unreasonable and oppressive to levy a tax within the limit fixed by the legislature. Nevertheless such refusal may cause residents of the district who desire better school facilities to seek to annex to the district which in their opinion is more desirable.

It is necessary for us to consider the over-all school situation. School districts as such own no property. Their status, in our system of government in this State has many times been determined by the courts. The law on this subject is well stated in the case of People v. Deatherage, 401 Ill. 25, at pages 31 and 32, where it is said: “With or without the consent of the inhabitants of a school district, over their protests, even without notice or hearing, the State may take the school facilities in the district, without giving-compensation therefor, and vest them in other districts or agencies. The State may hold or manage the facilities directly or indirectly. The area of the district may be contracted or expanded, it may be divided, united in whole or in part with another district, and the district may be abolished. All this at the will of the legislature. The ‘property of the school district’ is a phrase which is misleading. The district owns no property, all school facilities, such as grounds, buildings, equipment, etc., being- in fact and law the property of the State and subject to the legislative will. People ex rel. Taylor v. Camargo School Dist., 313 Ill. 321, and cases cited therein.”

In the present case the Trustees have accepted the delegation of this legislative power and carried out its execution in accordance with statutory methods. It matters not that we might weigh the statutory facts differently or execute the power in another manner. From this record it appears that there is substantial evidence therein supporting the findings of the Trustees and we cannot say that their order is contrary to the manifest weight of the evidence.

The judgment of the Circuit Court of Sangamon County affirming the decision of the County Board of School Trustees is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: JUDGE REYNOLDS

license: Public Domain

text:
    Mabel Ward et al., Plaintiffs-Appellees, v. Illiopolis Food Lockers, Inc., Defendant-Appellant.
    Gen. No. 10,035.
    Third District.
    February 23, 1956.
    Released for publication March 12,1956.

      William P. Roberts, of Illiopolis, and Drach and Horwatk, of Springfield, for defendant-appellant.
    Pree and Pree, of Springfield, for plaintiff sappellees.
   JUDGE REYNOLDS

delivered the opinion of the court.

The defendant in this case operated a slaughterhouse, food locker and meat market in the Village of Illiopolis, Illinois. It had been in business at the same location for about 14 years. The locker and slaughterhouse are located in a semi-commercial part of the village. Complaint was filed by 25 residents of the village asking for an injunction to restrain the defendant from killing, cattle and hogs within the village limits, and for damages. The complaint charged the business of the defendant was a common nuisance, and that as so operated it was offensive to the neighborhood because of the noise, the offensive odors, and that it impaired the health and comfort of the plaintiffs and the citizens generally; that the quiet, peace, health and comfort of the plaintiffs and the citizens of the village had been interfered with and that they were deprived of the comfort and enjoyment of their properties, and that the operation of the slaughterhouse had affected adversely the salability and value of their property.

The court ordered an injunction to issue against the defendant, after 90 days from the date of the order, but allowed no damages. From that order the defendant appeals to this court.

An examination of the record shows that the evidence was conflicting. Several witnesses testified that they saw animals killed in the rear of the locker, and that before the building was built, this was done quite openly, mostly by shooting the animals in the trucks that brought them to the slaughterhouse, and then removing the bodies into the dressing tent or room. That the animals especially the cattle would bawl from time to time, and that sometimes the trucks would wait there for one or one and one-half hours before they were killed. The shooting was done with a 22 rifle. Some two or three years before the suit, on recommendation of a State Inspector, a building was built and thereafter nearly all the killing was done inside. These same witnesses testified they could hear the shots after the building was built. Nearly all of the witnesses for the plaintiff complained of the offensive odors and smells, and the noise. Some of them testified that there were numerous flies about the establishment. Some of these witnesses lived quite close to the slaughterhouse, especially A. T. Ward and his wife, but others lived some two or three blocks away, and had passed • the slaughterhouse from time to time. Opposed to this testimony there were several witnesses for the defendant who stated that there was no odor, other than a market or meat odor, that the noise did not bother them or that they had not heard any noise, and that they had not observed any flies.

The operators of the slaughterhouse testified that they observed all laws and rules regarding sanitation and cleanliness in the operation of their business; that there was no great noise; that there was no odor other than the meat odor, and that there were no flies; that they killed about 100 cattle a year and about the same number of hogs; that the bulk of their slaughtering was done in the months of January, February and March; that in the summer months they slaughtered once a week; that they used insecticide everywhere necessary; that they used the coagulation method on the blood and this was placed in containers and picked up promptly by a rendering concern. The Mayor of the village testified that he had inspected the plant numerous times because of complaints, and found nothing wrong. A representative of the Illinois Department of Agriculture testified that as part of his duties he inspected the plant of the defendant several times and found that each time it met the requirements of the sanitary law. Arthur M. Nelson, a former meat inspector for the United States and afterwards as an inspector for the State of Illinois, testified that he visited the slaughter house of the defendant two or three times, and that he at the first visit made certain recommendations which he found on his next visit were carried out by the defendant. Mr. Nelson stated that the plant of the defendant was better than average as to sanitary conditions. The ordinance of the Village of Illiopolis under which the plant of the defendant operated was introduced in evidence.

It must be conceded that the operation of the business of the defendant was neither a public nuisance nor a nuisance per se. If a public nuisance it would be necessary that the suit be brought in the name of the public, and certainly the operation of a slaughterhouse under certain conditions is not a nuisance per se in Illinois. The slaughtering of animals for food is a legitimate business and must necessarily be carried on in the vicinity of each city or town the inhabitants of which need to be supplied with meat, and consequently cannot be claimed per se to be a public or private nuisance unless established so near a center of population or a private dwelling as necessarily and unavoidably to hurt and annoy the public or invade and do damage to private vested rights of an individual, Am. Jur. Yol. 48, page 463. In this case, Illiopolis is a small village in the County of Sangamon. The testimony shows that a large segment of its population is that of retired farmers. There is no clear showing that the establishment of the defendant was in such a closely built up section of the village as to render its operation a public nuisance. In fact, the evidence shows that while the area had some private dwellings, it also had several business establishments within a short distance of the plant of the defendant. From the evidence this court cannot conclude that the neighborhood was such a residential area that the very nature of the business of the defendant would be offensive. On the contrary the evidence shows that the business of the defendant had been operated without very much complaint at the same location for several years.

The grounds relied on by the plaintiffs for an injunction were the noises of the animals left in the trucks, their bawling and crying, the presence of offensive odors and smells, the excessive number of flies, and the depreciation of the value of their properties. The plaintiffs claimed that these alleged conditions constituted a nuisance and affected adversely the health, property, welfare and well-being of the people of the community and of the plaintiffs.

The testimony as to the noise of the animals is very inconclusive. It was testified by three or four witnesses that the noise of the animals held in the trucks in the rear of the locker plant annoyed them. That the animals would bawl, although they limited the bawling to once or twice an hour. Animals cooped up in a truck are naturally frightened and uncomfortable and they will bawl. But unless this bawling was continuous and to such an extent that the whole neighborhood was annoyed and disturbed, it would seem to this court that such noises are the same noises they would obtain in any area where cattle are hauled or kept. To say that this constituted a nuisance would be going far indeed. The testimony as to excessive noise of the animals in the trucks is fairly well confined to the testimony of A. T. Ward, his wife, Mabel Irene Ward, his brother-in-law Sam Headrick, and his sister-in-law Nell Headrick. Mr. Arthur E. Hunter, one of the witnesses for the plaintiffs testified that the noise of the animals in the trucks was moderate. Others testified that they heard the bawling of the cattle but failed to state if the noise annoyed them or was disturbing in any way.

Some of the plaintiffs claimed there was an excessive amount of flies around the plant. But this was rather definitely contradicted by the testimony of the Mayor, the State Inspector for the State Department of Agriculture, and Mr. Arthur M. Nelson, as well as by Lee Febus, and Dean Febus.

The question as to the depreciation of the value of the properties of the plaintiffs would have to rest upon the testimony of Mr. Isaac Loose, the president of the village bank. Mr. Loose was asked if he had an opinion as to whether or not the presence of the slaughterhouse has and would affect real estate or properties nearby and immediately adjoining. He stated that in his opinion that it would lower the value. Asked if that would be substantial, he replied that he did not know. That he was not able to say how much. This witness testified as to no specific instance and only stated his opinion. Again, this testimony is inconclusive and fails to prove the contention of the plaintiffs that the values of their properties had been adversely affected.

The other ground, offensive odors and smells, was strongly established by the plaintiff witnesses, and just as strongly denied by defendant witnesses. It was admitted that there was some odor, but it was denied that the odors were such that constituted a nuisance. A number of authorities from other jurisdictions are cited in connection with this point, but they are not binding upon this court. However, the law in Illinois on this point was laid down in the case of Gardner v. International Shoe Co., 319 Ill. App. 416, in a very exhaustive and well reasoned decision. That case was affirmed in the case of Gardner v. International Shoe Co., 386 Ill. 418. The Gardner case was a joint suit by eight husbands and wives and one individual to recover damages, charging the International Shoe Company with improper conduct in the operation of its tannery and settling basin in the village of Hartford, Illinois, and alleging as a result of such alleged improper conduct, the defendant shoe company necessarily caused odors which interfered with the plaintiff’s use, occupation, and wholesome enjoyment of their respective homes, and caused the plaintiffs substantial damages, peculiar to them. That court reviewed a number of cases in Illinois on the question of nuisance. In that case as in this, the plaintiffs claimed the odors were offensive. In that case the plaintiffs claimed that the offensive odors at times caused nausea and headaches. But the court held that this in itself did not constitute a nuisance. The court in that case quoting from the case of Strachan v. Beacon Oil Co., 251 Mass. 479, said: “ ‘The defendant is engaged in a lawful business in the conduct of which it is found that odors necessarily will escape into the air; but it also appears that the defendant has adopted the most improved methods and devices to control and confine such odors. ... It also is further found that such odors would not be unbearable or injurious to the health of normal persons.’ ” And the court, referring to the same case of Strachan v. Beacon Oil Co., supra, and others cited, said: “These cases discuss principles applicable to the operation of business which unavoidably and reasonably discharge odors and scents. They consider the burdens necessarily incident to life in urban and industrial communities where the air is filled with unpleasant odors which are inevitable and unavoidable in the conduct of factories and industries in such a district, and are a necessary incident of life therein.” And in reversing the judgment of the trial court the court said: “To permit the judgment to stand in this case and to countenance recovery in this class of cases, would expose the industrial world to litigation, the extent of which one’s imagination toils in vain to comprehend. Conceive, if you can, the thousands of delicate stomachs and sensitive olfactory organs that would be grievously disturbed and offended by odors that are unavoidably induced by stockyards and chemical plants that abound in every metropolitan area.”

In affirming the opinion of the Appellate Court, the Supreme Court, in Gardner v. International Shoe Co., 386 Ill. 418, said: “But there was no proof of injury to the health of any of the plaintiffs, or that the plant or pool in connection therewith were improperly operated, or that the odors complained of were not reasonably necessary, considering the neighborhood.” And the court, in that case further said: “The principle to be derived from these authorities is that the unlimited and undisturbed enjoyment which one is entitled to have of his own property must be qualified to this extent, that trifling inconveniences resulting from the useful employment of a neighbor’s property must be submitted to when what is complained of arises from and is suitable to the locality and when the employment of one’s premises under the circumstances is reasonable.”

It is the law in Illinois that the reviewing court will not undertake to substitute its judgment for that of the trial court, unless the verdict or judgment is clearly and palpably against the weight of the evidence. But on the other hand, where the verdict or judgment is clearly and palpably against the weight of the evidence, it is the duty of the reviewing court to interpose its judgment and reverse the judgment of the lower court. Such appears to be the case here.

In the instant case, the plaintiffs failed to prove by a clear or greater weight of the evidence, such unreasonable or offensive noises as to constitute a nuisance. They also failed to so prove that there was any danger or threat to health or that any one had so suffered in health by the operation of the plant of the defendants. They proved odors, but in the light of the Gardner v. International Shoe Company cases, their proof of such odors was not such- that would justify the court in destroying the business of the defendant by granting the injunction. The testimony of State officials charged with the duty of supervising-such establishments so as to safeguard the health of the community and those citizens affected, shows conclusively that the defendant had complied with all sanitary and regulatory measures required by the State. It had improved its plant and taken all proper precautions to reduce noise, odors and promote the safety of its operation. In the opinion of an expert witness, Mr. Nelson, it was “better than average” as to such establishments in Illinois. From an examination of the whole record, and all the evidence, this court must hold that the judgment of the trial court was against the manifest weight of the evidence, in the light of the law in Illinois, was clearly and palpably erroneous, and should be reversed.

Reversed.


text:
    Margaret Nell Stobbs, Executor of Last Will and Testament of Clarence Elvin Nell, Deceased, Plaintiff-Appellee, v. Ray Cumby, Clarence C. Hatcher and Thomas S. Smith & Sons, Inc., Defendants-Appellants.
    Gen. No. 10,012.
    Third District.
    February 23, 1956.
    Released for publication March 12,1956.

      Rinaker, Smith & Hehron, of Carlinville, and Julian Hutchens, of White Hall, for defendants-appellants.
    W. 0. Harp, of Roodhouse, and L. A. Mehrhoff, of Carrollton, for plaintiff-appellee.
   JUDGE REYNOLDS

delivered the opinion of the court.

This case comes to this court on a petition for leave to appeal from the order granting a new trial in the Circuit Court of Greene County, Illinois. The jury found the defendants “Not Guilty” and the trial court granted a new trial solely on the ground that the verdict was against the manifest weight of the evidence, stating that there were no other errors in the trial of the case.

The suit was brought by the daughter, Margaret Nell Stobbs, as Executor of the Estate of Clarence Elvin Nell, deceased, against Bay Cumby, Clarence C. Hatcher and Thomas S. Smith & Sons, Inc. Clarence Elvin Nell was killed in a collision between a railroad motorcar in which Nell was riding, and an automobile driven by Bay Cumby, at the intersection of the Gulf, Mobile & Ohio Bailroad with Illinois State Boute No. 106, a short distance west of Boodhouse, Illinois. The deceased was riding in a work car or motorcar of the railroad proceeding westwardly, in the course of his employment as a pipe fitter for the railroad. The motorcar was being operated by Baymond Monroe, another employee of the railroad, and at the time of the collision, under the direction and supervision of the deceased. The automobile was being driven by Bay Cumby, an employee of Thomas S. Smith & Sons, Inc., operating under the name of “Smith Orchard” at Boodhouse, Illinois. Cumby was on his way to town to get some repairs for a pump for the orchard company. He was under the supervision of Clarence Hatcher, the orchard boss, but was not at the time of the accident, performing any personal duty for Mr. Hatcher, but was on company business. The automobile which was a Buick, was the property of Clarence Hatcher. The railroad track runs east and west, and the state highway which is concrete slab 22 feet in width runs north and south.

The surrounding land is fairly level. The highway is straight for about one-half mile north of the intersection and one-half mile south of the intersection, so that visibility is good in either direction for one-half mile. The highway is nearly level, with a slight rise as it crosses the railroad track. The railroad is straight and level, with a little cut of about one and one-half feet some distance back from the highway. There are no buildings or trees near the intersection that would obstruct either the view of those riding a motorcar on the railroad, or those in vehicles on the highway. The weather on the day in question was clear, there was no ice on the highway and the sun was shining brightly. The accident occurred about 7:45 a. m.

The deceased, and Raymond Monroe were riding in the railroad motorcar which was a vehicle about five feet long and five feet wide. It was a gasoline driven motorcar propelled by a belt arrangement that worked with a clutch. There was no gear driving arrangement, but the driver or operator of the motorcar would slip the belt until the vehicle was under way. This was necessary to put the motorcar into motion, and to cross the highway would take about ten or fifteen seconds or longer. The railroad motorcar had an aluminum colored top, and the body was painted orange. There was an isinglas or plastic windshield, and canvas covered windows at the sides. The canvas covering on the drivers side, or south side was pulled back. On the side of the car occupied by Nell, the canvas was in place and when the motorcar pulled up to the intersection, the car was stopped, Mr. Monroe looked to the south and saw no one, and Mr. Nell opened the canvas and looked to the north. Mr. Monroe also looked to the north and saw no one coming. Mr. Nell then gave Monroe the “high-sign” to proceed. Monroe then proceeded to put the motorcar in motion across the highway. He did not see anything until the collision, and after the collision found himself in the motorcar some distance down the road to the south, with Mr. Nell lying on the pavement. Mr. Cumby came and helped him out of the car. There was a flasher signal at this crossing, but it was testified that a motorcar such as the deceased and Monroe were operating would not operate the flasher signals.

Ray Cumby testified he was driving as he approached the intersection at a speed of approximately 35 to 40 miles per hour. He did not see the railroad motorcar until the collision.

There was some testimony that there were weeds growing in the field at the north east quarter of the intersection, and the height of these weeds was estimated as the height of the fence, or approximately two and one-half to three feet. The exhibits in the case do not show the weeds to be much obstruction to the view of anyone on the highway or the railroad.

In addition to the verdict of the jury that the defendants were “Not Guilty,” the jury answered three special interrogatories in the negative. The jury found that neither Clarence Elvin Nell, the deceased, Raymond R. Monroe, and Ray Cumby were guilty of any negligent act.

The sole question presented here is whether or not the trial court should have granted the motion for a new trial. The trial court in granting the motion stated that the reason the court allowed the motion for a new trial was that the court felt that the verdict was against the manifest weight of the evidence; that the court felt that no error in the instructions or otherwise was committed in the trial of the cause.

It must be conceded that the trial court has broad discretionary power to grant a new trial, and his action will not be reversed on appeal except in case of clear abuse of such discretion. Yet at the same time, under the authority of Section 77 of the Practice Act [Ill. Rev. Stats. 1955, ch. 110, § 77], the reviewing court cannot disregard questions that fairly challenge the action of the trial court, and is not warranted in. disregarding them by simply reiterating the principle that a reviewing court should not interfere with the discretion of a trial judge. As was said in Wettaw v. Retail Hardware Mut. Fire Ins. Co., 285 Ill. App. 394, “That the Act (Section 77 of the Civil Practice Act) is designed to promote justice, and to prevent a verdict, warranted by the record and justified by the evidence, from being set aside and lost to the party who was fairly entitled thereto, and such litigant forced to undergo the hazards of another trial with its further incidents of delay and expense, does not admit of argument. We think it clear that where a party litigant feels aggrieved at the order of a trial court in setting aside a verdict in his favor, and presents to a reviewing court, upon a petition for leave to appeal from such order, grounds which are reasonably debatable and fairly challenge the propriety of the grant of the new trial, the reviewing court should permit the appeal to be taken.”

And the court in that case continuing, said: “If the rule were otherwise, then when a new trial was awarded solely upon the ground that the verdict was contrary to the manifest weight of the evidence, section 77 would be meaningless and of no avail to the complaining party. ... We think the section contemplates that where such ground is presented, the reviewing court should ascertain whether the record raises a fair question as to the propriety of the court’s ruling, though it be on matters of fact, and if it does, then grant leave to appeal from the order awarding the new trial.” This interpretation of Section 77 was reiterated in the case of Hall v. Chicago & N. W. Ry. Co., 349 Ill. App. 175.

Here most of the facts are undisputed. Yet the interpretation of these facts into a verdict is essentially one for the jury. The trial court has no right to substitute its judgment on the facts for that of the jury, or simply because he disagrees with the verdict.

There are numerous cases that hold that the order of the trial judge granting a new trial was erroneous. As has been said, reviewing courts are reluctant to reverse an order of a trial judge granting a new trial. But where the reviewing courts, upon the whole record have felt that there was an abuse of discretion on the part of the trial judge, these courts have not hesitated to reverse the order. Scott v. Freeport Motor Casualty Co., 379 Ill. 155; Randolph v. City of Chicago, 315 Ill. App. 85; Goodrich v. Sprague, Receiver, 314 Ill. App. 671; Necheles v. Jefferson Ice Co., 336 Ill. App. 153; Franks v. Childs, 345 Ill. App. 83; Ashton v. Sweeney, 350 Ill. App. 135. In the case of Franks v. Childs, 345 Ill. App. 83, the reviewing court said this: “The jury by their verdict and by the special interrogatories, found that the plaintiff was not guilty of contributory negligence. We cannot say that their findings are so unreasonable, arbitrary, and not based on the evidence, that it would justify the trial court in granting the defendant a new trial. The finding of the jury is binding on this court under the facts and the law as disclosed by this record, and should not be disturbed. The plaintiff is entitled to have the benefit of his verdict.”

In this case, the jury has determined the question of negligence, and by its decision found the defendants “not guilty.” Here was an open highway, and the deceased, or his agent, Monroe, pulled the short railroad motorcar out into the path of the automobile. The jury could very well have found that the deceased or his agent, or both were guilty of contributory negligence. They could and did determine that the defendant Ray Cumby was not guilty of negligence, in not seeing the motorcar in time to stop and avoid the collision. We do not believe the trial judge had the right to interpose his judgment for that of the jury on the question of facts presented in this case. The order granting a new trial should not have been made. For that reason, the order of the trial court granting a new trial is reversed and remanded with instructions to set aside the order granting a new trial and to enter judgment on the verdict in favor of the defendants and against the plaintiff for costs.

Reversed and remanded with instructions.


text:
    H. E. Genck, and August Zoutte, Partners Doing Business as Young’s Washer Service, and Russell Lowe, Plaintiffs-Appellees, v. James G. McGeath et al., Defendants. Grace L. Lum, Defendant-Appellant.
    Gen. No. 10,031.
    Third District.
    February 23, 1956.
    Released for publication March 12,1956.

      Earl S. Hodges, of Springfield, for defendant-appellant ; Samuel C. Patton, of Springfield, of counsel.
    Brown, Hay & Stephens, of Springfield, for plaintiff s-appellees ; Paul W. Gordon, Jr., of Springfield, of counsel.
   JUDGE REYNOLDS

delivered the opinion of the court.

Plaintiff Russell Lowe, was a driver for Young’s Washer Service. Plaintiffs H. E. Genck and August Zoutte were partners doing business as Young’s Washer Service, in the City of Springfield, Illinois. Defendant Grace L. Lum was driving one of the vehicles involved in a collision and the defendant James R. McGeath was the owner of the vehicle driven by Grace L. Lum. The case arose out of a collision between a truck belonging to the Young’s Washer Service, driven by plaintiff Bussell Lowe, and a car driven by defendant Grace L. Lum, at the intersection of South Glen-wood Avenue, with Highland Avenue, in Sangamon County. South Glenwood Avenue runs in a general northerly and southerly direction and Highland Avenue runs in a general easterly and westerly direction. The driver of the truck, Bussell Lowe was proceeding-in a northerly direction on South Glenwood Avenue, and the defendant Grace L. Lum was proceeding in an easterly direction on Highland Avenue. The two vehicles collided in the intersection of the two streets or roads.

Suit was brought by the plaintiffs for damages to the truck and personal injuries to Bussell Lowe, in the Circuit Court of Sangamon County. Trial was had before a jury. Five witnesses testified in behalf of the plaintiffs, namely the plaintiff driver of the truck, Bus-sell Lowe, the two partners H. E. Genck and August Zoutte, Charles P. Forgas, a garageman, and Sergeant Joseph G. Sanders, of the Illinois State Highway Police. The defendants offered no testimony. At the close of the plaintiff’s evidence, the court allowed a motion by the defendants to instruct the jury to find the defendant James B. McGeath “Not Guilty” and did so instruct the jury. At the close of all the evidence, both the plaintiffs and the defendant Grace L. Lum moved for an instruction for a directed verdict. The court denied the motion of the defendant Grace L. Lum but allowed the motion of the plaintiffs and instructed the jury to find the issues in favor of the plaintiffs Genck and Zoutte, and assess their damages at $700.29 and in favor of the plaintiff Bussell Lowe and assess his damages at $15. Judgment for the plaintiffs and against the defendant Grace L. Lum was entered for those amounts, and from that judgment the defendant Grace L. Lum appeals to this court.

The appeal is made on two grounds: A. That the court erred in directing a verdict for the plaintiffs. B. That the court erred in denying the defendant’s motion for a new trial. If the court erred in directing a verdict for the plaintiff, it would necessarily follow that the court erred in refusing to allow the motion for a new trial. However, two other points are raised on the ground that the court erred in denying the motion for a new trial. The defendant contends that the court erred in admitting in evidence over the defendant’s objection, Plaintiff’s Exhibit 1, and that the evidence was not competent to sustain the amount of the verdict. This court is bound by the record and the record shows that Plaintiff’s Exhibit 1 was admitted without objection in the final minutes of the trial. Even though the defendant disputes the record, this court will have to consider the record true and correct.

This leaves only the one point for this court to pass on, namely, Did the court err in directing a verdict for the plaintiffs? In order to properly pass on this question it is necessary to examine the evidence for the plaintiff. In doing so, only the testimony of two of the witnesses for the plaintiff should be considered, namely Bussell Lowe and Sergeant Sanders of the Illinois State Police. There were other witnesses but their testimony was mainly to the extent of the damage to the truck. Mr. Zoutte did testify that he talked to the defendant Grrace L. Lum shortly after the accident, but his testimony in that regard has no bearing on the question before this court.

The driver Bussell Lowe testified he was driving at a speed of about 20-25 miles per hour, proceeding in a northerly direction on South Grlenwood Avenue, as he approached and entered the Highland Avenue intersection and as follows:

Q. Did you look in either direction prior to approaching the intersection?

A. Yes, I did.

Q. Will you describe if you can — you recall the general nature of that intersection?

A. Yes, I do.

Q. Will you describe it for the jury?

A. It would be called a suburban intersection; there are houses on all four corners; on the southwest approaching the intersection there is about three-four large trees, along the sidewalk area; and outside of that I imagine it is just like any other intersection.

Q. That is the southwest corner?

A. That is the southwest corner.

Q. Now, did you say you looked prior to going into the intersection; that you looked to either side?

A. That is right.

Q. Did you see anyone ?

A. No.

Q. Any approaching vehicle?

A. When I approached the intersection I didn’t see nothing.

Q. When was the first time that you realized that there was another vehicle in or approaching that intersection?

A. When I was at least half way into the intersection was the first time I saw the other car.

Q. How did you happen to see it then?

A. I heard a horn; I believe it was hers, and I happened to glance over my left shoulder and saw her in the back of me, and when I did I saw she was going to hit me so I stepped on the gas trying to get away, but there was loose gravel on the road and I couldn’t get enough traction.

On cross examination, the plaintiff Eussell Lowe testified as to the condition of the roadway on which he was driving as follows:

Q. What was the condition of the surface of Grlenwood?

A. There was gravel on the road; I guess they just oiled it or something.

Q. There was loose gravel on the road, wasn’t there ?

A. Yes.

And again on cross examination the driver Bussell Lowe testified as follows:

Q. When you came up there from the south you looked but you couldn’t see because of these trees, could you?

A. I could see.

Q. You could see?

A. Yes.

Q. How far did you see?

A. I would say approximately 10 foot.

Q. Ten feet from where?

A. From the corner.

Q. From the corner; you mean you could see ten feet to the west?

A. That is right.

Q. Which way did you look first?

A. To the west.

Q. You looked to the west first. Then which way did you look?

A. To the right, to the east.

Q. As you came along there you were traveling about 20 to 25 miles an hour?

A. Yes.

Q. Where were you traveling on Grlenwood? What part of the street?

A. On the east side of the street.

Q. That street isn’t very wide there, is it?

A. I imagine it is regulation size; I don’t know.

Q. It is about a two lane street?

A. Yes, that is right, a two lane.

Q. It is not a paved street.

A. No.

Q. It is an oiled street?

A. That is right.

Q. With loose gravel on top ?

A. That is right.

Q. How far would you say you were south of Highland when you looked?

A. Oh, it couldn’t have been too far from the corner.

Q. How far?

A. Five-six feet.

Q. Five or six feet south of the south edge of Highland when you looked to your left which is west, and you saw 10 feet beyond the west edge of South Glen-wood?

A. That is right.

Q. And you then — you continued across at the same speed?

A. Yes.

Q. You didn’t look back to the west until after you heard a horn, did you?

A. That is right.

Q. At that time the automobile of the defendant was just about to hit you, wasn’t it?

A. Not quite; she still had some distance to go.

Q. She had two or three feet?

A. At least.

And later in the cross examination, this witness testified as follows:

Q. I just ask you. You didn’t see her, did you?

A. No I didn’t.

The State Highway Policeman, Joseph G. Sanders didn’t see the collision but arrived there shortly after-wards. He talked with both Grace L. Lum and Russell Lowe. His testimony as to his conversation with the parties was as follows:

Q. Did you talk to Mrs. Lum following the accident?

A. Yes sir, I did.

Q. What was her state? I mean her condition at that time?

A. Well, she was real excited as result of just having been in an accident, which is quite normal for persons involved in an accident; and I took the information as she described it; she saw this car at the last minute and tried to miss it.

Q. She saw the truck?

A. Yes, she said that at the last minute she saw the truck — seemed to be the story of both parties as near as I can recall, at this time, — that they didn’t see one another until just almost just before they hit, at which time it was too late to avoid the collision.

One of the necessary averments in a cause of this character, is that the plaintiffs were in the exercise of due care and caution for their own safety. In Paragraph 7 of the complaint it is averred that the plaintiff and each of them were in the exercise of due care and protection for their own safety and for the safety and protection of the said truck. This allegation i's denied in the answer of the defendants. Thus the issue of whether or not the plaintiffs were guilty of contributory negligence is raised. Wherever an issue is made in a case and evidence must be introduced to maintain the issue, controverted questions of fact are involved in the case, which include not only evidentiary facts but ultimate facts, even though there be no conflict in the testimony or the evidence may be agreed upon or embodied in a stipulation of facts. Chicago Title & Trust Co. v. Ward, 319 Ill. 201; Brelie v. Klafter, 336 Ill. 175; Armstrong Paint & Varnish Works v. Continental Can Co., 301 Ill. 102; Dandyline Co. v. Linsk, 295 Ill. 69.

The case of Payette Fruit Packing Co. v. Oregon S. L. R. Co., 180 Ill. App. 253, was a case involving damage to melons. The defendant filed an affidavit denying liability, denying that the plaintiff suffered the damage complained of and denied that if there was any damage sustained that it was the fault of the defendant. The court in that case said: “These questions were all such as should have been submitted to the jury, and we know of no rule, in such circumstances, which authorizes the court to direct a verdict.”

Even where there is no dispute in the evidence but where inconsistent conclusions may legitimately be drawn, the question is one for the jury. Panczko for Use of Enright v. Eagle Indemnity Co. of New York, 346 Ill. App. 144; Minters v. Mid-City Management Corp., 331 Ill. App. 64.

“If there be any difference of opinion on the question so that reasonable minds may not arrive at the same conclusion, then the question is one of fact for the jury.” Bale v. Chicago Junction Ry. Co., 259 Ill. 476; Chicago Union Traction Co. v. Jacobson, 217 Ill. 404; Louthan v. Chicago City Ry. Co., 198 Ill. App. 329; Kelly v. Chicago City Ry. Co., 283 Ill. 640; Doran v. Boston Store of Chicago, 307 Ill. App. 456.

In the case of Minters v. Mid-City Management Corp., 331 Ill. App. 64, citing Moran v. Gatz, 390 Ill. 478, the court said: “What is negligence or contributory negligence cannot be defined in exact terms. Each case must be determined from its particular facts.”

It was held in the case of Wallis v. Villanti, 2 Ill. App.2d 446, that if the matter was a question of fact it was a matter for the jury. In that case the court said: “It has been held in Illinois that unless the evidence is such that all reasonable minds would agree that the defendant was not negligent in his acts, or that the injury complained of was the result of the plaintiff’s own negligence, it is a question of fact and not of law.” Citing McDonald v. Stiner, 342 Ill. App. 651; Monroe v. Illinois Terminal R. Co., 346 Ill. App. 307.

In the Wallis v. Villanti case, the court held that negligence is a positive wrong and the burden of proving it is upon the party averring it, not upon the defendant to disprove it. And the court in that case held that negligence may be either by commission or omission.

The question of contributory negligence is one which is pre-eminently a fact for the consideration of the jury. Monroe v. Illinois Terminal R. Co., 346 Ill. App. 307; Blumb v. Getz, 366 Ill. 273.

Applying the law of these cases to the instant case, can it be said as a matter of law that the plaintiff Russell Lowe was not guilty of contributory negligence? We think not. It is true that the defendant offered no evidence. Yet, there was a burden upon the plaintiffs to prove that the driver of the truck was not guilty of contributing to the accident. He admits that he could only see about ten feet west from the intersection when he entered it. He testified that there was loose gravel on the roadway so that when he tried to accelerate his vehicle, he could not. He admits he was driving 20 to 25 miles an hour upon a road surface that had loose gravel on the top or driving surface. He admits that he did not see the car of the defendant Grace L. Lum until it was too late to avoid the accident, and this is borne out by the testimony of the State Highway Policeman. All these admissions, even in the.absence of any denial evidence on the part of the defendants, raise a question of fact as to whether or not the plaintiff Russell Lowe contributed to the accident, by failing to exercise due care and caution for his own safety and for the safety of the truck he was driving. These are questions of fact and questions that should have been submitted to a jury. In the opinion of this court, they are not questions that all reasonable minds would agree upon.

For the reasons stated, the judgment is reversed and remanded for a new trial.

Reversed and remanded.


author: JUDGE CARROLL

text:
    Eugene S. Krupinski, Jean Krupinski and Beverly Krupinski, an Infant, by Eugene S. Krupinski, Her Next Friend, Plaintiffs-Appellants, v. L. L. Denison, Defendant-Appellee.
    Gen. No. 10,028.
    Third District.
    February 23, 1956.
    Released for publication March 12,1956.

      B. Gr. Heckenkamp, of Springfield, and Robert H. Krasnow, of Chicago, for appellants.
    Harris & Harris, of Lincoln, for defendant-appellee; Homer B. Harris, Sr., Thomas M. Harris, and Homer B. Harris, Jr., all of Lincoln, of counsel.
   JUDGE CARROLL

delivered the opinion of the court.

This appeal presents the single question as to whether the Court below erred in dismissing plaintiffs’ cause with prejudice for want of prosecution and entering judgment in favor of defendant.

The case, which is a personal injury suit, was filed in the Circuit Court of Logan County on September 3, 1954. A motion to dismiss the complaint was allowed and an amended complaint filed June 28, 1954. The defendant answered and the cause was set for trial by jury on November 29, 1954. Due to the illness of one of the plaintiffs, the cause was removed from the trial call on November 30, 1954 and subsequently set for trial on Monday, February 21,1955.

At noon on Saturday, February 19, 1955, the Clerk of the Court informed plaintiffs’ counsel by telephone that the cause would not be tried on February 21st due to the fact that the trial of a preceding case had not been completed and that plaintiffs’ case would in all probability be called for trial on February 23rd.

On Monday, February 21,1955, counsel for plaintiffs made an oral motion for a continuance supported by the affidavit of R. G. Heckenkamp, one of plaintiffs’ counsel. From the affidavit it appears in substance that plaintiffs, who were residents of Chicago, were fully prepared to go to trial on February 21st; that upon receipt of a telephone message from the Clerk advising that the case would not be reached until February 23rd, plaintiffs’ counsel attempted to contact the plaintiffs and other witnesses but could not reach them until late Saturday, February 19th; that counsel was then informed that one of the witnesses, N. F. Sandomier, the treating physician for all the plaintiffs, would probably be unable to be in Lincoln for the trial on February 23rd as he had previously arranged his schedule so as to be present to testify at the trial on February 21st; that upon denial of plaintiffs’ motion for a continuance on the 21st, plaintiffs again contacted their physician, who informed them that he would be unable to be in Court on February 23rd because of his hospital and surgical schedule; that since February 22nd was a legal holiday, time would not permit the obtaining of a subpoena to compel the doctor’s attendance on February 23rd; that the affiant was engaged in a criminal case previously set for hearing on February 23rd in Winchester, Scott County, Illinois and that because of the limited time available, plaintiffs would be unable to obtain other counsel to properly represent their interests.

Defendant’s counsel filed a counter affidavit stating that a further continuance of the case would be prejudicial to the rights of the defendant because the defendant was 86 years old and in feeble health; that one occurrence witness was then dead and another witness was more than 70 years old. However, this counter affidavit does not appear to dispute the facts alleged in plaintiffs’ affidavit.

The Court denied plaintiffs’ motion for a continuance and the Clerk was directed to call 12 jurors for examination on voir dire. Plaintiffs then moved for leave to take a voluntary nonsuit, which motion was denied. A motion by B. C. Heckenkamp for leave to withdraw as attorney for plaintiffs was likewise denied. Counsel for plaintiffs then informed the Court that in the absence of plaintiffs, one of whom was a minor, he was not in a position to proceed. Thereupon, the Court allowed the defendant’s motion to dismiss the case with prejudice for want of prosecution, and entered judgment for the defendant. From this order the plaintiffs have appealed.

A determination as to the correctness of the Trial Court’s action in refusing to grant plaintiffs’ motion for a continuance involves reference to the portions of the Statutes applicable to such motions. Sec. 59 of the Illinois Civil Practice Act, Chap. 110 [§ 183], Illinois Revised Statutes 1953, provides that:

“Additional time may be granted on good cause shown, in the discretion of the court and on such terms as may be just, for the doing of any act or the taking of any step or proceeding prior to judgment in any civil action.

“The circumstances, terms and conditions under which continuances may be granted, the time and manner in which application therefor shall be made, and the effect thereof, shall be according to rules.”

Supreme Court Rule 14, Chap. 110, Illinois Revised Statutes, Sec. 259.14 is as follows:

“When either party shall apply for a continuance of a cause on account of the absence of material evidence, the motion shall be supported by the affidavit of the party so applying or his authorized agent, showing that due diligence has been used to obtain such evidence, or the want of time to obtain it, and of what particular fact or facts the same consists, and if the evidence consists of the testimony of a witness, his place of residence, or if his place of residence is not known, showing that due diligence has been used to ascertain the same, and that if further time is given such evidence can be procured. . . .

“No motion for the continuance of a cause made after the cause has been reached for trial shall be heard, unless a sufficient excuse is shown for the delay.”

It is obvious from the foregoing Rule that the Supreme Court has made no attempt to prescribe any rigid formula which the Trial Court must follow in passing upon a motion for continuance. The decision to be made in each case is left to its sound judicial discretion. In the exercise of this broad discretion, the Trial Court is, however, required to act judiciously with due regard for the objective of attaining justice. Where it appears that such principle has been disregarded, a reversal is justified. Adcock v. Adcock, 339 Ill. App. 543; Heideman v. Kelsey, 3 Ill.App.2d 189; Crystal Lake Country Club v. Scanlan, 264 Ill. App. 44.

In the numerous cases in which reviewing courts have dealt with the question here presented, the decisive factor has been whether the party applying for a continuance has shown a lack of due diligence in proceeding with the cause.

In the instant case, it appears that the issues were not joined until September 3, 1954. On November 30, 1954, plaintiffs sought and were granted a continuance because of the illness of one of the plaintiffs. There was no indication that such a continuance was sought for the purpose of delay nor was it resisted by the defendant. It also appears from their motion and affidavit that plaintiffs were in fact ready for trial on February 21st and that the situation leading to their application for a continuance was created by the February 19th telephone message from the Clerk of the Court to their counsel advising him that the trial would be delayed until February 23rd. The unfortunate and unavoidable circumstance necessitating the change in the trial date cannot be charged to lack of diligence on the part of the plaintiffs.

We think the affidavit of plaintiffs’ attorney shows that under the existing circumstances due diligence was exercised to obtain the testimony of their physician whose testimony constituted evidence material to their cause. Obviously, the fact that the doctor had arranged his schedule so as to be able to go to Lincoln on February 21st is a most reasonable excuse for his inability to again rearrange his schedule so as to be present in that City on February 23rd. The argument that plaintiffs’ failure to have a subpoena served upon the doctor evidences lack of diligence on their part is inappropriate in this case where the record affirmatively shows the plaintiffs to have been ready to proceed on February 21st, the day set for trial. The affidavit also clearly indicates that lack of time caused by the changing of the trial date rendered it impossible to subpoena the doctor.

On this review we are not dealing with a. case which has been pending for a long period and where there have been numerous continuances granted. On the contrary, only a little over five months intervened between the time of the filing of the answer and the date on which plaintiffs’ motion was denied and the cause had been previously continued but once. While fully subscribing to the principle that trial courts should refuse to tolerate applications for continuances designed only to delay the administration of justice, we deem it equally important to observe that no litigant should be foreclosed of his right to a day in court merely because circumstances beyond his control impel his request for a continuance.

Since in this case there appears to be no support for the conclusion that plaintiffs failed to show due diligence in attempting to go forward with their case, we are of the opinion that the Trial Court erred in denying their motion for a continuance.

The parties have devoted a considerable portion of their argument to the question whether the Court erred in dismissing the cause with prejudice. Since we have determined that this cause must he reversed because of the Trial Court’s error in denying plaintiffs’ motion for a continuance, it follows that the form of the order of dismissal requires no separate consideration.

The judgment of the Circuit Court of Logan County is reversed and the cause remanded with directions to reinstate plaintiffs’ complaint and set the cause for trial in due course.

Reversed and remanded with directions.


text:
    Illinois Transit Lines, Inc., and Kenneth DeFosse, Plaintiffs-Appellants, v. Packer City Transit Lines, Inc., and Herman Debban, DefendantsAppellees. Packer City Transit Lines, Inc., Plaintiff-Appellee, v. Illinois Transit Lines, Inc., and Kenneth DeFosse, Defendants-Appellants.
    Gen. No. 10,025.
    Third District.
    February 23, 1956.
    Released for publication March 12,1956.

      Earl S. Hodges, of Springfield, for plaintiffs-defendants-appellants; Samuel C. Patton, of Springfield, of counsel.
    Harold Gr. Talley, of Alton, and Griffin, Winning, Lindner & Newkirk, of Springfield, for defendants-plaintiff-appellee; Harold Gr. Talley, of Alton, Alfred F. Newkirk, and Robert H. Brunsman, of Spring-field, of counsel.
   JUDGE CARROLL

delivered the opinion of the court.

As the result of a collision between the truck of Packer City Transit Lines, Inc., and a bus owned by Illinois Transit Lines, Inc., two suits were filed in the Circuit Court of Sangamon County. One action was brought by Packer City Transit Lines, Inc. (hereinafter referred to as plaintiff) for damages to its truck and cargo and a similar action for property damage was filed by Illinois Transit Lines, Inc., and Kenneth DeFosse, its driver (referred to herein as defendants).

The cases were consolidated for trial resulting in a verdict for plaintiff. The court overruled defendants’ motions for judgment notwithstanding the verdict and for a new trial and entered the judgment from which defendants bring this appeal.

Defendants contend (1) that the Trial Court erred in denying- their motions for a directed verdict and for judgment notwithstanding the verdict because plaintiff and its driver employee were guilty of contributory negligence as a matter of law and (2) that the Trial Court erred in denying their motion for a new trial because of the giving of certain instructions tendered by plaintiff.

Facts not appearing to be disputed are that on June 17, 1949 a group of about 35 employees of Sangamo Electric Company of Springfield, Illinois, chartered a bus from Illinois Transit Lines, Inc. for transportation to a baseball game in St. Louis, Mo.; that the bus was driven by Kenneth DeFosse a mechanic and part-time driver for the bus company; that following the game, the bus left St. Louis to return to Springfield at approximately 11:30 P. M. Daylight Saving Time; that a stop of about % hour was made at Edwardsville, Illinois; that the bus then proceeded North on U. S. Highway 66; that about 1% miles South of Staunton Junction where the highway is two lanes in width, the bus overtook and passed the truck and then returned to its own or the right hand lane and continued North; that at Staunton Junction U. S. Route 66 becomes a 4-lane highway and continues as such for about 3 city blocks to an underpass; that North of the underpass the 2 North bound traffic lanes are separated from the 2 South bound lanes by a grassy island or parkway approximately 30 feet wide; that about % of a mile North of the underpass the 4 traffic lanes converge into 2 lanes; that there was a barricade for the 2 North bound lanes where the same veer to the West to converge with the 2-lane highway going North; that there was a black line in the center of the converging lanes with a yellow or “no passing” line starting 300 feet South of the island dividing the 4 lanes; that on the East side of the 4-lane highway and a block to the South of the barricade there was a restaurant and service station known as the Mill Cafe; that about 400 feet South of the barricade there was a driveway across the island to permit Southbound traffic to enter the area of the Mill Cafe; that at a point in the general vicinity of the barricade and where the 2 North bound lanes swing West to merge with the 2-lane highway, the right front of the truck collided with the left side of the bus; that the 2 vehicles locked together, proceeded some distance and came to rest both headed West and partly on the West shoulder of the road; that the truck caught fire and the same together with its cargo of pickle jars was completely destroyed.

The evidence as to the conduct of the drivers of both vehicles at and just prior to the time of the occurrence is in dispute. However, on this review we are not concerned with the fact that on the question of the contributory negligence of plaintiff the evidence may be in conflict. This is true because the defendant does not argue that the verdict is manifestly against the weight of the evidence but seeks reversal on the ground that plaintiff and its driver were guilty of contributory negligence as a matter of law.

If this argument is to prevail, then this court must find upon consideration of all the evidence together with all reasonable inferences which may be drawn therefrom, in its aspect most favorable to plaintiff, that there is a total failure or lack of evidence fairly tending to prove due care on the part of the plaintiff. Contributory negligence becomes a question of law only when all reasonable men would agree that the injury complained of resulted from plaintiff’s own negligence. McDonald v. Stiner, 342 Ill. App. 651; Wallis v. Villanti, 2 Ill.App.2d 446; Citizens Nat. Bank of Decatur v. Doran, 3 Ill.App.2d 383.

Plaintiff’s driver, Herman Debban, testified that' as he came up from under the underpass he saw the bus stopped or parked on the right side of the pavement in the right traffic lane going North; that the bus was headed North in the portion of the highway which converges into the 2 North bound lanes; that the bus was “dead headed” for and near the barricade; that he could see the stoplights on the bus and the bus itself; that he approached the bus at approximately 30 miles per hour; that he signalled with his headlights by blinking them up and down with the dimmer switch; that the purpose of the blinking was to signal his intention to pass the parked bus; that when about 50 feet from the rear of the bus he started to pull across to the left traffic lane; that the bns was then stationary; that when he was astraddle the yellow and black lines of the pavement and about 35 feet from the bus, it suddenly and without warning started up; that the bus driver gave no signal of his intention to start or turn; that the bus made a sharp left-hand turn — a “U” turn; that he applied his brakes hard enough to make tracks on the pavement and pulled to the left but that the 2 vehicles collided.

Vernon Warhaust and Oscar Maurer, passengers on the bus, testified the bus was stopped on the East side of the pavement at the point fixed by Debban; that the bus driver had been requested to stop at the Mill Cafe but had passed up the driveway to same; that the bus driver was making a turn to go back to where he could cross the island into the Mill Cafe; that after glancing in his rearview mirror he put the bus in gear and made a 90-degree turn to his left; that the direction the bus moved would be “across lane of traffic going North to the West” and that the collision occurred a little North of the island.

Police Officer John Kahle testified that the night of the accident he interviewed the bus driver who told the witness that he planned to return to the Mill Cafe for a rest stop and was making a “U” turn to go back to the Cafe when the collision occurred.

While the foregoing testimony does not represent all of the evidence, we deem it sufficient for the purpose of determining the question as to whether in this case the plaintiff failed to produce proof upon the essential element of due care.

The defendants’ argument appears to proceed upon the theory that if the truck crossed the yellow or “no passing” line in attempting to pass the bus or failed to give the required passing signal, such conduct on the part of the truck driver, under the circumstances then existing, constituted contributory negligence as a matter of law.

In passing npon defendants’ motions for a directed verdict and for judgment notwithstanding the verdict, the Trial Court was only required to consider the evidence in the record favorable to plaintiff together with all favorable inference which might be drawn therefrom and if such evidence thus considered fairly tends to prove that plaintiff exercised due care then the issue of contributory negligence was properly submitted to the jury. Sims v. Chicago Transit Authority, 4 Ill.2d 60; Geraghty v. Burr Oak Lanes, Inc., 5 Ill.2d 153.

In brief, the testimony of Debban the truck driver was that the bus was stopped on the highway; that when he attempted to pass after blinking his lights the bus suddenly started and without warning made a sharp “U” turn to the left and although he applied his brakes the collision occurred. We do not think the fact that the truck driver crossed the yellow line to pass a vehicle standing in his lane of traffic is contrary to what a reasonably prudent person would do under the same circumstances. It would appear most reasonable for the driver to assume that the parked bus would not suddenly turn to the left. In order to be consid-

ered in the exercise of due care Debban was not required to stop the truck until such time as the bus might proceed. Coming upon a parked or stalled vehicle upon the highway is not an uncommon experience. The fact that the bus was stopped on the highway near the barricade would seem to afford a reasonable assumption on the part of the truck driver that the bus would not suddenly make a sharp turn to the left. Under the circumstances, the conduct of Debban, who was in control of his vehicle, in blinking his lights and pulling to the left reasonably supports no conclusion that he was negligent in so doing.

The term contributory negligence is not susceptible of exact definition. That which constitutes such negligence in a given case depends upon the circumstances which call for the exercise thereof. A court is permitted to say that the conduct of a person renders him guilty of failing to exercise due care only when it can be said that in his action he was clearly and palpably negligent. Thomas v. Douglas, 1 Ill.App. 2d 261; Sims v. Chicago Transit Authority, supra.

We are of the opinion that consideration of the evidence favorable to plaintiff in the light of the law applicable thereto must lead to the conclusion that it fairly tends to establish due care on the part of plaintiff.

The issue of contributory negligence thus became a controverted fact question and the Trial Court did not err in submitting the same to the jury.

Defendants’ contention that the Trial Court erred in denying their motion for a new trial is grounded upon the giving of four instructions tendered by plaintiff and designated in the record as Nos. 20,13,12 and 17. The criticism leveled at Instruction No. 20, which is on the subject of assessing damages, is that it did not limit the jury’s consideration of the evidence to that pertaining to damages and also only required that the damages must be proven by the evidence and not by a preponderance thereof. Since it appears that defendants given Instruction No. 8 is subject to the same criticism, they are not in a position to maintain their complaint as to Instruction No. 20. Westis v. Aughinbaugh, 6 Ill.App.2d 94.

Instructions Nos. 13 and 12 relate only to the contributory negligence of defendants in their suit against plaintiff and Herman Debban and as on this review we are concerned only with the case in which plaintiff obtained judgment, the above instructions are not properly before this court for review. Defendant’s claimed error in the giving of plaintiff’s Instruction No. 17 is not included under Points and Authorities in their brief as required by Rule 7 of this court and accordingly the same is not entitled to consideration.

The instructions in this case considered together appear to have correctly informed the jury as to the law applicable to the evidence and it would not appear that the giving of the same resulted in prejudice to defendants as claimed.

For the reasons herein indicated, the judgment of the Circuit Court is affirmed.

Affirmed.


text:
    Myrtle Taber, Plaintiff-Appellant, v. John Defenbaugh, Defendant-Appellee.
    Gen. No. 10,039.
    Third District.
    February 23, 1956.
    Released for publication March 12,1956.

      Kenneth A. Green, of Mattoon, for plaintiff-appellant.
    Harry I. Hannah, of Mattoon, for defendantappellee; Joseph P. Smith, Jr., of Mattoon, of counsel.
   JUDGE CARROLL

delivered the opinion of the court.

This action was brought under the provisions of Secs. 60 and 69, Chapter 48, Illinois Revised Statutes, 1953, commonly referred to as the Scaffold Act, by the widow of Thomas Taber to recover damages for the loss of his life.

The case was tried by the Court. At the close of plaintiff’s ease, defendant moved the Court to enter judgment finding the defendant not guilty. The Court allowed such motion and entered an appropriate judgment from which plaintiff has appealed.

The single question presented on this review is whether the evidence considered in the light most favorable to plaintiff is sufficient to support a finding in her favor.

The complaint in substance charged that the defendant was the owner of certain premises on which a dwelling house was being constructed; that defendant supervised such construction and gave all orders relative thereto; that a scaffold was used in the building of said dwelling; that the scaffold collapsed while decedent was working thereon; and that as the result thereof, decedent was thrown to the ground sustaining injuries resulting in his death.

The pertinent portions of the Scaffold Act are:

“That all scaffolds, stays, ladders or supports erected or constructed by any person, firm or corporation in this state for the use in the erection, repairing, alteration or painting .of any house, building, or other structure, shall be erected and constructed in a safe, suitable, and proper manner, and shall be so erected and constructed, placed and operated so as give proper and adequate protection to the life and limb of any person or persons employed or engaged thereon . . . and any owner, contractor, sub-contractor, foreman or other person having charge of the erection, construction, repairing or alteration of any building or other structure within the provisions of this Act, shall comply with the terms thereof . . . and for any injury to person or property, occasioned by any wilful failure to comply with any of its provisions, a right of action shall accrue to the party injured, for any direct damages sustained thereby

This Statute requires compliance by an owner, contractor, sub-contractor, foreman or other person having charge of the building project. It is not disputed that defendant was the owner of the premises upon which the house was being constructed, nor that decedent was working on a scaffold at the time he fell. However, before the defendant can be held liable, proof must be made as to all essential elements. One of these elements is that it be shown that the defendant was actually in charge of construction of the building.

The briefs of the parties indicate agreement that the determinative issue herein is whether the plaintiff produced evidence tending to establish the status of the defendant as being one in charge of the construction of the building. This question must be answered from a consideration of the evidence.

Frank Dobbs, a son-in-law of the decedent, testified that he worked on the house two days helping lay floor and roof joists; that at that time decedent and a Mr. Beagin were also working on the building; that defendant said the lumber was culled out and to put good lumber on the roof; that defendant asked Dobbs if he would lay his hardwood floors for him; that defendant was working on the ceiling joists doing some hammering; that Dobbs worked on the house at the request of the decedent and received no pay therefor; and that he knew nothing about the relationship between the defendant and the decedent.

William A. Beagin testified that he worked four days on the defendant’s house; that he was employed and paid by the decedent; that on one occasion he saw the defendant doing something in the attic; that defendant showed the witness where he wanted the doors and windows; that on one occasion defendant told decedent to check some expected material when it arrived to see if it was correct and in the right amount ; and that on another occasion decedent told defendant about being short on 2x4’s and defendant replied that he would order them.

This appears to be all of the evidence in the record pertaining to the relationship which existed between the decedent and the defendant. The plaintiff argues that this evidence clearly shows that compliance with the Statute was required of the defendant as the owner, foreman and person having charge of the dwelling house in question. It is further argued that the record clearly shows that no contractor or sub-contractor was involved in the building project.

There appears to be no room for dispute over the fact that plaintiff failed to establish by direct proof the contractual relationship existing between the plaintiff and the defendant. The record appears to be conspicuously silent so far as direct evidence is concerned, on the question as to whether the decedent was employed by the defendant as a laborer or whether the relationship between he and the defendant was that of owner and contractor.

The evidence does show that on one occasion the defendant indicated the location of windows and doors; that he ordered lumber which the decedent requested; that he asked the decedent to check the delivery of lumber. In this situation, plaintiff must rely upon such circumstances bearing on the question as appear from the evidence.

On the other hand, Reagin was hired and paid by decedent and in the absence of proof to the contrary, must be regarded as having been an employee of the decedent and under his control. Dobbs helped in building the house at the request of decedent and donated his services to the decedent. The circumstances under which Dobbs and Reagin worked on the building would seem to be consistent with an assumption that decedent was an independent contractor building a house for defendant.

There is no general rule which can be followed in all' cases in solving the question as to whether men working and contracting together are to be classified as employees or independent contractors. Each case must depend upon the facts as the same appear therein. No one feature of the relationship is determinative but all must be considered together. Nelson Bros. & Co. v. Industrial Commission, 330 Ill. 27. However, our Courts have held that the most important single factor entering into determination of the relationship between the parties is the right of the employer to control the manner of doing the work, though not the exercise of that right. As aptly stated by the Supreme Court in Immaculate Conception Church v. Industrial Commission, 395 Ill. 615, “It is not the fact of actual interference with the control but the right to interfere that makes the difference between an independent contractor and an employee. As a general rule, an independent contractor is one who contracts to do a specified piece of work, furnishing his own assistance and executing the work either entirely in accordance with his own ideas or in accordance with a plan previously given him by the person for whom the work is done, without his being subject to the orders of the latter in respect to the details of the work.” (Nelson Bros. & Co. v. Industrial Commission, 330 Ill. 27; Meredosia Levee & Drainage Dist. v. Industrial Commission, 285 Ill. 68.) In determining whether decedent was an employee or an independent contractor we are confined to the evidence bearing on such question. This evidence consists entirely of a showing with regard to the conduct of the defendant on a few isolated occasions to which we have previously referred.

When all of the circumstances shown are considered together there would appear to be no basis therein for the conclusion that the defendant retained the right to control the manner in which the decedent did the work of building defendant’s house. The evidence upon which plaintiff relies as proof of an employer and employee relationship, taken in the aspect most favorable to her, fails to even show an actual interference by the defendant with decedent’s control or supervision of the construction.

The construction of a house is a project involving many details including plans, specifications, materials, labor, and many other items. As to what right, if any, defendant had to exercise control over the construction project embracing these numerous details the plaintiff’s evidence fails to show. We think any conclusion reached from the evidence that defendant assumed supervisory control over all the operations required in the construction of the house would amount to extending the meaning of the words “supervision” and “control” far beyond their accepted meaning.

It is the opinion of this Court that the decedent was not an employee but an independent contractor, and, therefore, plaintiff is not entitled to recover under the Scaffold Act.

A considerable portion of plaintiff’s proof is devoted to argument concerning the construction of the Statute in question and the applicability thereunder of the doctrine of res ipsa loquitur to the facts herein. In view of the conclusion reached, consideration of these other points argued is not required.

For the reasons herein indicated, the judgment of the Circuit Court of Coles County is affirmed.

Affirmed.