author: MR. PRESIDING JUSTICE FRIEND

text:
    In Matter of Estate of Ruth Herron Owens, also Known as Ruth Herron Dennis, Deceased. Appeal of Tready Jackson Smith, Executrix Under Last Will and Testament of Ruth Herron Dennis, Deceased, Petitioner Below, Appellant, v. Richard A. Dennis, Respondent Below, Appellee.
    Gen. No. 46,632.
    First District, First Division.
    October 31, 1955.
    Released for publication November 16, 1955.
    Richard Altieri, of Chicago, for appellant.
    Chino & Schultz, of Chicago, for appellee.
   MR. PRESIDING JUSTICE FRIEND

delivered the opinion of the court.

The executrix of the will of Ruth Herron Dennis, deceased, appeals from an order of the Superior Court of Cook County finding that the lawful surviving husband of decedent is the respondent, Richard A. Dennis. The Probate Court of Cook County, where the matter was first heard, had found that decedent’s marriage to Dennis was void because she was previously married to Flenoid Owens who was still living at the time of her death. The Superior Court found that decedent’s previous marriage to Owens was dissolved by a divorce decree entered on July 21,1927 in the District Court of Pushmataha County, Antlers, Oklahoma. The estate, on the other hand, contends that Owens’ marriage was not dissolved, and that the decree of divorce introduced in evidence in the Superior Court proceeding was a false record.

The facts essential to an understanding of the controversy are that Ruth Herron and Flenoid Owens, residents of Guthrie, Oklahoma, were married there on June 19,1916. At first they lived with her family; later they moved to Okmulgee, Oklahoma, where, from 1919 to 1921, they resided at the home of a Mrs. Fields. In 1921 Owens left his wife because of strained relations, while she continued to live at the Fields home for another two years.

In June 1923 Ruth Owens sued her husband for divorce in Okmulgee County, Oklahoma. Owens filed a general answer and waiver of summons. The suit was dismissed November 23,1924. In 1925 the parties lived together for five weeks in Tulsa, Oklahoma, and then separated again, when Owens left Ms wife the second time. Ruth Owens subsequently established residence in various places, including Kansas City, Missouri, and ultimately located in Chicago, Illinois, where she died January 5, 1953. On July 21, 1927 Ruth Owens divorced Flenoid Owens in Antlers, Oklahoma, the decree having been signed by Judge Earl Welch, then a district judge and now a member of the Supreme Court of Oklahoma, where he has served for more than fifteen years. The executrix contends that the decree is a forged and false record.

It further appears that Flenoid Owens married Nettie Wilkas in Drumright, Oklahoma in 1927; she died January 5,1935. Ruth Herron married Sidney Johnson in Chicago on July 26, 1928, and divorced him in the Superior Court of Cook County, Hlinois, on July 22, 1938.

On May 5, 1937 Flenoid Owens married Kanzella McGee in Guthrie, Oklahoma; that marriage was annulled in San Francisco, California, at the instance of the wife, on August 7,1950, on the ground of the insanity of Owens at the time of the marriage. Owens had first been declared incompetent on July 28, 1945 and committed to the State Hospital for the Insane in Taft, Oklahoma; he was discharged on December 6, 1946, ordered readmitted on October 30, 1947 and again on July 23,1951; on June 22,1953 the Logan County Court of Oklahoma declared Owens to be of sound mind; however, his death on July 11, 1954 occurred in the state mental institution.

The deceased married the respondent, Richard A. Dennis, in St. Louis, Missouri, on April 15,1940, where they lived together until a divorce suit was filed by Ruth Dennis in 1948; the suit, however, was dismissed as the result of a reconciliation. The parties lived apart from October 28, 1942 to May 15, 1944, while Dennis was serving in the army. They separated a second time on December 31,1950 and were living apart at the time of her death, January 5, 1953. On May 21, 1951 the deceased had executed a will as Ruth Herron Dennis, naming her sister Tready Jackson Smith as executrix and bequeathing all her property to the two sons of the executrix.

Flenoid Owens and Jewel McGill were living as husband and wife in Guthrie, Oklahoma, without benefit of clergy, for some time prior to Buth Dennis’ death. His marriage to ICanzella McGee having been annulled, and while he was still incompetent, he married Jewel McGill on April 26,1953 in Oklahoma City, Oklahoma. No children were born to any of the parties as the result of these various marriages.

The will of Buth Herron Dennis was admitted to probate in Cook County, Illinois, on April 27,1953; on that day, and again on May 27, 1953, Bichard Dennis renounced the will under the statute. The property inventoried in the estate consists of $30,000 in realty and of $22,379.22 in personalty. After Dennis’ first renunciation, the executrix, her sister and a brother visited Flenoid Owens in Oklahoma in May 1953. On being asked if he had ever obtained a divorce from Buth Herron, he replied that he had not. The executrix then filed a petition in the Probate Court to amend the table of heirship in the estate so as to show that Flenoid Owens was the surviving husband of the deceased. That petition, which was originally notarized in February 1953, had the date overlined to read June 2, 1953, and was filed on June 3, 1953; it alleged that the marriage between the deceased and Bichard Dennis was void because she had never been divorced from Flenoid Owens. Dennis filed an answer to the petition, denying all material allegations thereof, other than the death of deceased, and reasserted his status as her surviving husband.

On June 22,1953 Flenoid Owens was declared competent in Oklahoma; thereafter, on July 14, 1953, while proceedings were pending in the Probate Court, Elliodor Libonati, an associate of the attorney for the executrix who was handling the estate, visited the courthouses of Logan, Creek, Pittsburgh, Tulsa, Okmulgee and Payne Counties of Oklahoma, and of Jackson County of Missouri, and checked, over a period from 1916 to 1950, for a possible divorce record between the deceased and Flenoid Owens; he found only a divorce suit in Okmulgee County which had been dismissed in 1924.

In the hearing in the Probate Court on August 13, 1953, Owens denied any marriages other than those to the deceased and to Jewel McGrill, which had taken place after the deceased’s death. The Probate Court, on August 14, 1953, entered an order finding that Owens was the surviving husband of the deceased and that their marriage had never been terminated, and amended the table of heirship accordingly. Thereupon Dennis perfected his appeal to the Superior Court, where a trial de novo began December 1,1953 and continued sporadically until September 23,1954, on which date the trial judge entered an order finding that Bichard A. Dennis, rather than Flenoid Owens, was the lawful surviving spouse of the deceased. Flenoid Owens had died in an Oklahoma mental institution on July 11, 1954, without having renounced the deceased’s will.

In their respective briefs the parties set forth, at great length and in detail, testimony adduced in the Superior Court, much of which is conflicting, but in the view we take the greater part of it is not relevant to a decision of the issues involved and need not be recounted here. The salient question upon which the decision must rest is whether Buth Herron, the deceased, was divorced from Flenoid Owens prior to her marriage to Bichard Dennis, and whether the divorce decree entered in Oklahoma could be attacked collaterally on grounds of fraud in the Superior Court of Cook County. The court here found that it could not.

In the course of the hearing, respondent testified that after he learned of the divorce proceedings in Antlers, Oklahoma, he was advised that the courthouse there had burned, and that some of the records had been destroyed in the fire; that he had employed an attorney there by the name of Edward Dudley, who called him two or three days later and asked him to come back to Antlers; that Dudley had located the attorney, F. L. Welch, who had. handled the divorce case for the deceased, and that Welch produced in court an original duplicate of the divorce decree, whereupon the decree was restored. F. L. Welch was a brother of Earl Welch, the judge who had signed the decree originally and who had then been a member of the Supreme Court of Oklahoma for fifteen to twenty years, and its past chief justice. Petitioner was not notified of the restoration proceeding in Oklahoma, nor was she a party thereto, and her counsel argues that this circumstance renders the restoration proceeding invalid. However, the court in Oklahoma, in restoring the lost and destroyed decree, found that no notice was required under the restoration statutes of that state and found further that the duplicate original of the decree presented amounted to an original decree “of equal and more force and importance than a certified copy would be thereof.” When Flenoid Owens learned of the order of restoration, he filed a petition pro se to vacate the order and divorce decree and caused a nonresident summons served on both Richard Dennis and the executrix. The executrix submitted herself to the jurisdiction of the Oklahoma court by filing her consent to- the petition. The Oklahoma court denied Owens’ petition, and the petition of his administratrix and no appeal was taken from that order of dismissal. A copy of respondent’s petition to restore the lost and destroyed decree of divorce, and the order entered thereon, was introduced in evidence in the Superior Court. Respondent also introduced into evidence a copy of Owens’ petition to vacate the order restoring the lost decree, as well as a copy of the order dismissing the petition, and a copy of the death certificate of Flenoid Owens showing that he had died on July 11, 1954, an inmate of Taft Hospital. There was also introduced in evidence a copy of the marriage license and certificate issued on April 4, 1927 at Dr'umright, Oklahoma, to Flenoid Owens and Nettie Wilkas, as well as a copy of the marriage license ánd certificate of Flenoid Owens and Jewel McGill, dated April 26, 1953, at Oklahoma City, Oklahoma, and copies of the files in the insanity proceedings of Flenoid Owens, with dates of commitment, release, restoration and history. In one of these exhibits Flenoid Owens was termed a single person, and as of July 21, 1951 was living with a common-law wife, Jewel McGill.

In her brief petitioner is forced to urge either: (1) that the Pushmataha County divorce decree was actually granted but is invalid because the deceased had not been a resident of that county for the necessary statutory period, or (2) that the Pushmataha County decree had never been in existence, and the duplicate original thereof was forged and the restoration on the basis of such forgery was obtained by fraud. These two positions are incompatible; nevertheless, petitioner argues both of them in her brief. As to the first premise, she contends that her witnesses established the fact that the deceased had never lived in Antlers, Oklahoma, but was at the time of the divorce living with Sidney Johnson in Chicago; she supports the second theory by contending that her “offer of proof” should have been permitted to show that the judge could not have signed the duplicate original decree because he was also present on that same day in a different county, and that expert testimony would show the document to be a forgery by signature and typewriting.

Of course, if petitioner contends that the decree in Oklahoma was invalid because of lack of residence there, she must admit that it was entered there in the first place, and consequently she would be forced to the position of attacking the decree on the ground of fraud. However, on this phase of the case it has been held that such an attack may not be made in another state unless by one who did not perpetrate the fraud or who was not in privity with such person, i. e., the attack may be made only by an innocent party. A discussion of this principle will be found in the University of Illinois Law Forum, Vol. 1941, No. 4, p. 567. See also Dow v. Blake, 148 Ill. 76.

Upon the foregoing state of the record there followed a colloquy in the Superior Court as to whether petitioner could attack in Illinois the decree of divorce on the ground that it had been procured in Oklahoma through decedent’s alleged false representations as to her periods of residence in Pushmataha County; the court here found that such attack could not be made in Illinois and held that an attack on the method of restoring the divorce decree and a determination whether the signature on the duplicate original decree was genuine or forged could be made only in the State of Oklahoma.

We think the court was correct in his ruling for the following reasons. We find no provision for notice in restoration proceeding in the Oklahoma statutes. Moreover, the order of restoration specifically found “under and by virtue of the Statutes of the State of Oklahoma covering the restoration of lost and destroyed records that no notice of this hearing was required to be given to any party and that this Court has jurisdiction to hear the same without notice to any party. . . . The Court further finds that a duplicate original of such decree of divorce . . . , duly signed by Honorable Earl Welch, the then District Judge . . . , showing said original decree to have been filed by and with the District Court Clerk of Pushmataha County, Oklahoma, on July 21, 1927, was preserved in the files of the attorney who represented Ruth Herron Owens in the divorce action hereinbefore referred to. . . . The Court further finds that the duplicate original of such divorce in effect amounts to an original of such instrument and is declared to be of equal and more force and importance than a certified copy would be thereof.”

If, on the other hand, it is the intention of the petitioner to show that the Pushmataha County decree had never been in existence and the duplicate original thereof was forged, and that the restoration on the basis of such forgery was obtained by fraud, the question arises as to where the proper forum could be for such attack. Petitioner contends that the proper forum would be in the State of Illinois because the death of Flenoid Owens prevented her from making a direct attack on the decree in Oklahoma, but the record shows that the only attack on the decree made in the State of Oklahoma was by Flenoid Owens, who filed a petition to vacate the restoration and decree solely for lack of notice and the decedent’s alleged lack of residence; it was not charged by Owens that any forgery had been committed; nor did petitioner herein join as a party there to Owens’ petition to any such charge. Therefore, if the Oklahoma decree was to be attacked on the ground of forgery or falsification of court records, the proper place of attack would be the jurisdiction where the records were located, and the judge whose name was forged or otherwise used fraudulently would be available. His testimony as to the date of the execution of the duplicate or forgery of his signature, if such be the case, would be vital; and indirect evidence of experts on the authenticity of the signature would hardly be controlling as against his testimony. In summary, it is notable that the petition filed by Owens in Oklahoma did not raise the contentions here made by petitioner herein.

It seems strange indeed that after the numerous marriages and divorces of the parties, and after complete reliance on the divorce on all sides, Owens, after twenty-six years, should be presented as the surviving husband by the executrix, after both Ruth Herron Dennis and Flenoid Owens, the principals, have died. It is significant that the deceased herself considered the divorce valid, for she took means to divorce Sidney Johnson after marrying him, and twice instituted divorce suits (though in neither instance did she prosecute to a conclusion) against respondent, after marrying Mm, and that in her will she described herself as Ruth Herron Dennis. In Pierotti v. Pierotti, 343 Ill. App. 116, the court held that one who accepts the benefits and privileges of a divorce decree by a remarriage, even though the decree be void for want of jurisdiction, is estopped from thereafter assailing the decree, and quoted as follows from Cummings v. Huddleston, 99 Okla. 195, 226 Pac. 104: “ ‘If there were no established rule of estoppel in such cases, this would be a most excellent proceeding in which to establish one. However, the rule is well and generally settled that one who accepts the benefits and privileges of a divorce decree by a remarriage, even though the decree be void for want of jurisdiction, is estopped from thereafter assailing such decree. [Citing numerous cases.]”’ And of course the executrix has no greater rights than the deceased. See Dow v. Blake, 148 Ill. 76.

For the reasons indicated, the judgment of the Superior Court should be affirmed, and it is so ordered.

Judgment affirmed.

BURKE and NIEMEYER, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE LEWS.

license: Public Domain

text:
    George W. Konchar, Appellant, v. William G. Knox, Lucille Daily Knox, and K & K Excavators, Inc., Appellees.
    Gen. No. 46,679. (Abstract of Decision.)
    First District, Third Division.
    October 13, 1955.
    Released for publication November 10, 1955.

      Hubbard, Hubbard & Dorgan, for appellant;
    Sladkey, Lanham, Olds & Swanstrom, for appellee;
    Jerome J. Sladkey, and George P. Novak, of counsel.
   Opinion by

PRESIDING JUSTICE LEWS.

Not to be published in full.


author: JUSTICE EOVALDI.

text:
    Frances Hoffman, Plaintiff-Appellee, v. City of Aurora, Defendant-Appellant.
    Gen. No. 10,873. (Abstract of Decision.)
    Second District.
    October 28, 1955.
    Released for publication November 16, 1955.
    Harold L. Beamish, for appellant;
    Petersen & Goldsmith, for appellee;
    John S. Petersen, and Zalmon Goldsmith, of counsel.
   Opinion by

JUSTICE EOVALDI.

Not to be published in full.


author: JUSTICE BURKE.

text:
    Dushan C. Deshick, Appellant, v. Best Kosher Sausage Company, Appellee.
    Gen. No. 46,594. (Abstract of Decision.)
    First District, First Division.
    October 31, 1955.
    Released for publication November 16, 1955.
    Theodore L. Forsberg, for appellant;
    Hinshaw, Culbertson, Moelmann & Hoban, for defendant;
    Oswell G. Treadway, of counsel.
   Opinion by

JUSTICE BURKE.

Not to be published in full.


text:
    Bennet Botsford Young, Petitioner-Appellee, v. The Lake Dearborn Corporation, etc., et al., Defendants. Katherine W. Bradley et al., Petitioners-Appellees, v.The Lake Dearborn Corporation, etc., et al., Defendants. Appeal of Evelyn Pratt Ellithorpe, Defendant-Appellant.
    Gen. Nos. 46,648, 46,649. (Abstract of Decision.)
    First District, First Division.
    October 31, 1955.
    Rehearing denied November 16, 1955.
    Released for publication November 16, 1955.
    Weightstill Woods, for appellant;
    Wilson & Mellvaine, for appellees;
    W. S. Bodman, of counsel;
    Sarsfield Collins, guardian ad litem, for certain minors.
   Opinion by

JUSTICE BURKE.

Not to be published in full.


author: JUSTICE FRIEND.

text:
    Dolores Roberts Artery, Appellee, v. Gilbert Artery, Appellant.
    Gen. No. 46,659. (Abstract of Decision.)
    First District, First Division.
    October 31, 1955.
    Released for publication November 16, 1955.

      Nathan M. Gomberg, for appellant;
    Sidney D. Missner, of counsel;
    Julius Lucius Echeles, and Frank W. Oliver, for appellee.
   Opinion by

JUSTICE FRIEND.

Not to be published in full.


author: JUSTICE NIEMEYER.

text:
    Ida M. Mazur and Sarah M. Cohen, Appellees, v. Chicago Transit Authority, Appellant.
    Gen. No. 46,591. (Abstract of Decision.)
    First District, First Division.
    October 31, 1955.
    Released for publication November 16. 1955.
    Thomas C. Strachan, Jr., James 0. Dwight, Harry I. Parsons, and George C. Bunge, for appellant;
    Arthur J. Donovan, of counsel;
    Irving G. Zazove, for appellees.
   Opinion by

JUSTICE NIEMEYER.

Not to be published in full.


author: MR. JUSTICE FEINBERG

text:
    Veronica Stark, Appellant, v. William F. Stark, Appellee. John and Isabelle Rubien, and Casimir Griglik, Respondents-Appellees.
    Gen. No. 46,628.
    First District, Third Division.
    September 21, 1955.
    Released for publication November 23, 1955.
    Sol R. Friedman & I. S. Friedman, and Jerome Berk-son, all of Chicago, for appellant; William J. Teed, of Chicago, of counsel.
    Gariepy & Gariepy, of Chicago, for John and Isabelle Rubien,. respondents-appellees; Fred A. Gariepy, and John Spalding, both of Chicago, of counsel.
   MR. JUSTICE FEINBERG

delivered the opinion of the court.

This appeal is by plaintiff from orders entered, bearing upon the care, custody, control and education of the three minor children of the, parties to the divorce action.

On December 29, 1943, plaintiff was awarded a decree of divorce, which divided the custody of the minor children between herself and the defendant. The decree further provided that the minor children reside at Dundee, Illinois, with the intervenor, Isabelle Bubien, a sister of the plaintiff, and gave the right of visitation to plaintiff and defendant. Since the decree plaintiff twice remarried. Plaintiff, after the death of her third husband, filed a petition on June 20, 1953, nearly ten years after the decree, for the modification of the decree of divorce respecting the custody of the minor children, then aged 14, 13 and 11 years, respectively, and prayed for an order awarding her sole custody. John and Isabelle Bubien intervened in opposition to plaintiff’s petition for modification. The petition and intervening petition were referred to a regular master of the Superior Court to hear the evidence and report his findings of fact and conclusions of law. After a full hearing, the master filed his report, finding that plaintiff is an unfit person to have the care, custody or control of the minor children; that the best interests of the children require they continue to be in the care, custody and control of the intervening petitioners; and recommended an order in accordance with his findings. Exceptions filed to the report were heard, and an order was entered sustaining the master’s report, denying plaintiff’s petition for modification, and awarding the sole care, custody and control of the minor children to the intervening petitioners.

On September 10, 1954, plaintiff filed a petition to vacate the order awarding the custody of the children to the intervening petitioners. Upon a hearing this petition was denied. No appeal was taken or application made for leave to appeal from the above orders.

Thereafter, the master filed a petition directed against plaintiff, seeking enforcement of the order theretofore entered against plaintiff to pay his master’s fees. Plaintiff filed a counterpetition, which for the first time, so far as the record discloses, asserted that the court was without jurisdiction when it referred the custody hearing to a master; that all proceedings before the master and all orders entered subsequently which depend upon the master’s report are null and void, and therefore the master could not legally ask for fees or seek enforcement for payment; and again prayed for an order awarding her sole custody of her minor children. Upon a hearing the latter counterpetition of plaintiff was dismissed, which order is included in plaintiff’s appeal.

The only point raised by plaintiff upon this appeal is that the court, in referring the custody hearing to a master, was without authority or jurisdiction to make the reference, since there is no provision in the Divorce Act, § 18 [Ill. Rev. Stats. 1953, ch. 40, § 19; Jones Ill. Stats. Ann. 109.186], for such a reference. Plaintiff relies upon Simpson v. Harrison, 328 Ill. App. 425, 433, to sustain her contention. That case dealt with an order of reference to a special commissioner and not a regular master of the court, and held the proceedings before the special commissioner were void. However, the same court in Phillips v. O’Connell, 331 Ill. App. 511, 528, expressly reversed its holding in the Simpson case and held such proceedings are voidable, not void. To the same effect is Pokorney v. Pokorney, 348 Ill. App. 364, 370.

While section 18 of the Divorce Act is silent with respect to any reference to a master after a decree of divorce, upon any hearing involving the custody of children, there is nothing in the statute that prohibits such a reference. No case has been cited by plaintiff which holds that such a reference to a regular master of the court is without authority and void. The master’s report and recommendations are merely advisory. We find no reason why a court of chancery cannot refer a hearing as to custody of minor children to a master. Such procedure was followed in Swanson v. Swanson, 335 Ill. App. 644 (abst.), where, after decree, a reference was made to a master for hearing as to the custody of children, and the court sustained the master’s report.

The order of February 19, 1954, sustaining the master’s report and awarding the custody to Rubien, from which there was no appeal, is res adjudicata as to all circumstances and conditions of the parties existing up to the time of the entry of that order. The same holds true with respect to the order denying the petition to vacate the order of February 19, 1954. The subsequent counterpetition filed by plaintiff showed no, change in circumstances of the parties that would warrant any other order for the custody of the children.

The orders appealed from are affirmed.

Affirmed.

LEWE, P. J. and KILEY, J., concur.


author: MR. JUSTICE KILEY

text:
    Clarence E. Wagner, Appellant, v. Illinois Central Railroad Company, a Corporation, Appellee.
    Gen. No. 46,555.
    First District, Third Division.
    September 21, 1955.
    Released for publication November 23, 1955.

      Louis G-. Davidson, of Chicago, for appellant; Louis P. Miller, of Chicago, of counsel.
    Herbert J. Deany, Charles I. Hopkins, Jr., and Robert S. Kirby, all of Chicago, for appellee; Joseph H. Wright, of Chicago, of counsel.
   MR. JUSTICE KILEY

delivered the opinion of the court.

This is an appeal by plaintiff from a judgment for $80,000 in his favor.

Plaintiff was a conductor employed by defendant in December 1951, when he was injured in an interstate train movement in Kentucky. He sued for damages under the Federal Employers’ Liability Act. The first trial in February 1952 resulted in a verdict and judgment for $130,000. The trial judge granted a new trial on the ground of error in the instructions. The second trial in February 1954 resulted in the verdict and judgment for $80,000 subject of this appeal.

In the instant trial the court gave on behalf of defendant instruction number 11 which told the jury “that any award made to plaintiff as damages . . . is not subject to federal income taxes, and you should not consider such taxes in fixing the amount of any award made to the plaintiff. . . .” The question is whether this was reversible error.

The court gave the instruction on the authority of Hall v. Chicago & N. W. Ry. Co., 349 Ill. App. 175. That decision gave approval to arguments and instructions informing the jury that judgments are exempt from federal income tax and reversed an order granting a new trial. On defendant’s subsequent appeal from the judgment on the verdict, this court reversed. Plaintiff appealed to the Supreme Court which reversed the decision of this court, 5 Ill.2d 135, 152 and decided that “the incident of taxation is not a proper factor for a jury’s consideration, imparted either by oral argument or written instruction. It introduces an extraneous subject, giving rise to conjecture and speculation.” The Supreme Court said “so long as that possibility” existed that the jury used the income tax factor in its calculation the court could not say the trial court abused its discretion in granting a new trial. The trial court in the instant case denied plaintiff’s motion for a new trial before the Supreme Court decided the Hall case.

Here the question in the case is different from that in the Hall case since the court denied a new trial to plaintiff. We think, however, the plainly inferable rule from the Supreme Court decision is that introducing the tax question into a suit for personal injuries is prejudicial error if that question possibly entered into the calculation of the jury’s award. We think from a comparison of the verdicts in the first and second trials, it is possible that question was a factor and we conclude, therefore, that the giving of defendant’s instruction 11 was reversible error. On this basis alone we are compelled to reverse.

Instructions were given at the trial referring to “the issues” (pl’s. inst. 9) to the “negligence charged” (def’s. inst. 5) and to impeachment on a “material point” (def’s. inst. 23). There was no foundation for these since no instruction defining the issues was given. In Warnes v. Champaign County Seed Co., 5 Ill.App.2d 151 the Appellate Court for the Third District suggests an instruction proper for this purpose. We think also that neither instruction 16 nor 18 should have been given.

For the prejudicial error in giving defendant’s instruction 11 the judgment is reversed and the cause remanded for a new trial.

Judgment reversed and cause remanded.

LEWS, P. J. and FEINBERG, J., concur.


text:
    Tevel Feldman, Appellee, v. Guiseppa Cipolla and Anna Cipolla, Appellants.
    Gen. No. 46,584.
    First District, Third Division.
    September 21, 1955.
    Rehearing denied November 23, 1955.
    Released for publication November 23, 1955.

      Anthony M. Anzalone, of Chicago, for appellants ; Joseph J. Lo verde, of Chicago, of counsel.
    Abraham M. Horwitz, of Chicago, for appellee; Herbert M. Wetzel, of Chicago, of counsel.
   MR. JUSTICE KILEY

delivered the opinion of the court.

This is an action for damages based upon fraud and breach of warranty in a real estate transaction. The finding and judgment were for plaintiff in the sum of $1,986. Defendants have appealed.

The real estate involved was in Chicago and was improved with a three-flat building and cottage. Negotiations were begun in the fall of 1950 and on November 11th the parties made a contract for a warranty deed. The purchase price was $23,500. The contract subjected the sale to “existing leases expiring as shown on reverse side.” These leases were described in a rider as follows:

“1st floor — lease expires in 1952 and provides for $63.25 as monthly rental.

“2nd floor occupied by Sellers.

“3rd floor, from month to.month, rental 63.25.

“Cottage lease expiring in 1952, rental 25.00.

“Sellers agree to deliver possession of the apartment occupied by them . . . within 15 days from date of closing. ...”

On December 12, 1950 defendants made an affidavit of title “to induce” the plaintiffs to purchase the property, and in the affidavit the leases were described as in the rider. The warranty deed was signed and was notarized on December 12, 1950. It made no reference to the leases.

April 30, 1952 plaintiff accepted written notice of the first floor lessee’s election to exercise an option for a renewal for three years at the same rental. Plaintiff brought this action April 10, 1953.

The question is whether the evidence justified a finding of either fraudulent concealment or breach of warranty because of defendant’s failure to notify plaintiff of first floor lessee’s option right.

The trial court could properly infer from the testimony that plaintiff had demanded the first floor lease during the negotiation for, and making of, the contract and at the closing of the deal; that defendants deliberately withheld the lease from plaintiff until after the deal was closed; and that plaintiff had no actual notice of the lessee’s option until April 30, 1952. Presumably these were the inferences drawn by the court and the basis of the decision.

Plaintiff knew that a tenant was in possession of the first floor apartment and was bound to inquire and determine the terms of the tenancy. Joiner v. Duncan, 174 Ill. 252; Coari v. Olsen, 91 Ill. 273, 280; Fisher v. Michigan Square Bldg. Corp., 328 Ill. App. 143, 161. The court in the Duncan case said that since Pfeiffer, as mortgagee, failed to make inquiry of the rights of those in possession, his position Was no better than it would be had he made inquiry and learned the truth. The court stated at 174 Ill. 257: “Actual possession of land is notice equal to the record of a deed under which the party in possession claims, and a purchaser is bound to inquire by what right or title the party in possession holds, and he will take subject to that title, whatever it may be. (Coari v. Olsen, 91 Ill. 273; Morrison v. Morrison, 140 id. 560.)”

Plaintiff, Feldman, therefore, was bound to determine the tenant’s rights. Had he done so he would have learned of the option to renew. Having closed the deal without having made inquiries he cannot legally attribute the result to misrepresentation of the sellers. The finding of fraud was error.

The affidavit of title and warranty deed were contemporary documents. Both were delivered to plaintiff. The deed made no reference to the leases but the affidavit described the leases, though it made no mention of the option. The affidavit gave plaintiff the same notice of the tenant’s possession of the first floor apartment that was given him in the contract.

Since the documents were contemporary and related to, and were part of, the same transaction, they are to be read and construed as a single instrument. Wilson v. Roots, 119 Ill. 379. We think the affidavit of title modified the covenant in the deed against encumbrances upon seller’s title. In Beach v. Miller, 51 Ill. 206, there was no affidavit modifying the covenant. We conclude that in the instant case there was no breach of warranty.

A finding that there was fraud or a breach of warranty is not justified. For the reasons given the judgment is reversed and the cause remanded with directions to enter judgment in favor of defendants.

Reversed and remanded with directions.

LEWS, P. J. and FEINBERG, J., concur.


author: MR. PRESIDING JUSTICE HIBBS

text:
    Paul Harris Furniture Company; Helen B. Wyatt and William Wyatt, Doing Business Under Name and Style of Hotel Byers; Singer Sewing Machine Company, Plaintiffs-Appellees-Cross-Appellants, v. William Morse, and L. M. Neff, Doing Business Under Name and Style of Automatic Heat Company et al., Defendants; A. J. Walker, Doing Business Under Name and Style of The Walker Construction Company, Defendant-Cross-Appellee; The McNamar Boiler & Tank Company, and General Tank Company, Inc., Defendants-Appellants-Cross-Appellees.
    Gen. No. 9,986.
    Third District.
    October 19, 1955.
    Rehearing denied November 28, 1955.
    Released for publication November 28, 1955.

      LeForgee, Samuels & Miller, of Decatur, for defendants-appellants McNamar Boiler & Tank Company and General Tank Company, Inc.; Carl B. Miller, and Jerald E. Jackson, both of Decatur, of counsel.
    Harry I. Hannah, and John J. Yelvington, both of Mattoon, for plaintiffs-appellees-cross-appellants; Jos. P. Smith, Jr., of Mattoon, of counsel.
    Earl S. Hodges, of Springfield, for defendant-crossappellee A. J. Walker; Samuel C. Patton, of Springfield, of counsel.
   MR. PRESIDING JUSTICE HIBBS

delivered the opinion of the court.

The parties bring to this court appeals and cross-appeals from judgments entered in three suits consolidated for trial involving extensive damages to the properties of the plaintiffs resulting from an explosion and fire due to escaping propane gas from an underground propane gas tank located on the rear portion of property owned by the City Drug Store in the city of Mattoon, Coles County, Hlinois.

The plaintiffs-appellees and also cross-appellants here are Paul Harris Furniture Company, a corporation, Helen B. Wyatt and William Wyatt, doing business under the name and style of Hotel Byers, and Singer Sewing Machine Company, a corporation, hereinafter referred to respectively as Harris Furniture Company, Hotel Byers and Singer. The defendants were the same in each of the three causes, some of whom are also cross-appellants, and are respectively William Morse and L. M. Neff, doing business under the name and style of Automatic Heat Company, Acme Gas, Inc., a corporation, A. J. Walker, doing business under the name and style of The Walker Construction Company, The McNamar Boiler and Tank Company, a corporation, and General Tank Company, Inc., a corporation, hereinafter referred to respectively as Automatic Heat Company, Acme, Walker, McNamar Boiler and General Tank.

McNamar Boiler was the manufacturer of the propane gas tank here involved. General Tank was its sales agency, and the two corporations had an interlocking board of directors with the same individual as president of each corporation.

At the close of plaintiffs’ case William Morse and L. M. Neff, doing business as Automatic Heat Company, original defendants, were dismissed on motion for directed verdict. Acme made a settlement with plaintiffs prior to trial, took a covenant not to sue, and was dismissed without prejudice. Under the covenant not to sue Harris Furniture Company received the sum of $8,940.34, Hotel Byers the sum of $18,391.61 and Singer the sum of $1,611.47.

No questions are raised on these appeals involving either the complaints or answers of the respective parties.

In order to fully comprehend the issues before this court we deem it essential that a statement of facts be made before setting out the judgments of the trial court and the various questions raised by the appeals and cross-appeals.

The essential facts in this case are not in substantial dispute. Broadway, an east and west avenue, is one of the principal streets in the business section of the city of Mattoon. It is intersected at right angles by 16th Street, which runs north and south. One block to the east it is intersected by 15th Street and one block to the west by 17th Street. One-half block south of Broadway Avenue is an alley running east and west between 15th and 17th Streets. At the southeast corner of Broadway and 16th Street is a shoe store and next to it to the east is the City Drug Store, which occupies all the lot on which it is located, except a small strip of vacant property at the rear between the store and the alley. Across the alley to the south and at the southeast corner of 16th Street and such alley was a building occupied by the Central Illinois Public Service Company, three or four stories in height with downspouts from the eaves which connected directly with a twelve-inch sewer extending east and west about seven feet under the surface of the alley. The fall of the sewer is east from the manhole in the alley at 16th Street and towards the west from that point to 17th Street. The plaintiff Harris Furniture Company had a store on the south side of Broadway Avenue almost halfway between 16th and 17th Streets and extended to the alley. Plaintiff Byers Hotel had a four-story building at the southeast corner of Broadway and 17th Street which in part extended to the alley. The lobby thereof was at 1619 Broadway and the upper three stories of the hotel were over Nos. 1615, 1617, 1621 and 1623. Singer occupied the first floor of 1615 Broadway between Harris Furniture and Hotel Byers. The sewer in the alley between 16th Street and 17th Street is connected by laterals to the basements of all of the plaintiffs’ buildings.

City Drug Store in October 1951 contracted with Morse of Automatic Heat Company for the installation of certain gas heaters for the consumption of either natural or propane gas. The source of the propane gas was to be a 500-gallon tank to be placed in an excavation back of the drugstore in the small vacant tract next to the alley. The cost of installing the tank was not included in the contract of the Automatic Heat Company.

Automatic Heat Company ordered the tank of Acme sometime in September 1951, but did not specify a particular brand of tank or the manufacturer. At that time the tank here involved was on Acme’s storage lot. On August 31, 1951 Acme ordered the tank from General Tank by a purchase order for a 500-gallon underground propane tank without specifying any dimensions or characteristics. On September 4, 1951 tank E 6054, being the one thereafter installed for City Drug Store, was received by Acme. The invoice covering the tank was received on September 6, 1951 and the Data Sheet hereafter referred to was received between September 7th and 9th. The Data Sheet was a form required by the American Society of Mechanical Engineers Code, usually referred to as the A.S.M.E. Code. The rules and regulations of the State Fire Marshal required that tanks of this character be made in accordance with that code. The purpose of the Data Sheet was to show that the manufacturer of the tank described therein had complied with such code. On the Data Sheet covering the tank in question was a certificate signed by McNamar Boiler which stated: “We certify the above data to be correct and that all details of materials, construction and workmanship on this unfired pressure vessel conform to the A.S.M.E. Code for Unfired Pressured Vessels.” On the Data Sheet was this item: “18. Drain connection.......(size) in,” and the size of the drain connection was not filled in. The tank weighed about 1600 pounds, had four short legs attached to the sides or bottom, and it had an opening or drain connection in the bottom three-fourths of an inch in size constructed for the installation of a plug with screw threads on it. This tank had been manufactured by McNamar Boiler, and before being sold by General Tank, was according to the practice of the manufacturer subjected to the hydrostatic test. The plugs were first prepared with a compound or coating of a heavy, paint-like material, the color of which varies. Sometimes it is black, sometimes dark brown and sometimes red. The purpose of the compound is to prevent water from leaking out of the tank during the test. The tank is then filled with water by high-pressure hoses until the pressure reaches four hundred pounds. The inspectors then go around the tank and inspect each welded seam and each opening that had been welded into the tank, looking for small seepages and leaks of any kind.

When the Data Sheet was received by Acme, an employee took it over across the highway where the tank was stored on a storage lot standing flat on the ground with forty or fifty other tanks. A representative of Acme saw two openings in the top of the tank in question, both described in the Data Sheet, but failed to see the drain connection in the bottom. The tank remained in Acme’s lot from the day it was received on September 4, 1951 until it was removed on the 26th or 27th day of the following November.

On November 25, 1951 Morse of Automatic Heat Company requested Walker to dig the excavation back of the City Drug Store for the installation underground of the tank. Walker knew that the excavation was made for the installation of a propane gas tank. His employees in making such excavation cut through at least two tile about three feet underground that ran into the sewer. This fact was known to Walker, but he did not stop the outlets and failed to advise Automatic Heat Company or Acme or City Drug Store or anybody else of such fact. Acme neglected to give the tank a protective coating before inserting it in the ground, although such coating is required by the National Board of Fire Underwriters. The tank was removed from the Acme lot on November 26th or 27th, 1951 by Acme and was taken over to the excavation at the City Drug Store and lowered into the ground. After the tank was installed, Walker, through his employees, backfilled the excavation and placed a concrete protective housing over the dome of the tank.

Acme, on the 24th day of January 1952, placed 425 gallons of propane gas in the tank. On Sunday, the 27th day of January, 1952, a substance which the witnesses assumed was steam was seen to come out of the ground in the vicinity of the tank, and then suddenly there was a flash of light and fire behind the City Drugstore and along- the sides and out of the downspouts of the Central Illinois Public Service Company building. Shortly after, viz., about ten or fifteen minutes, there were violent explosions in the Harris Furniture Company store and the Byers Hotel and then these building's caught fire. Most of the hotel windows were blown out. In the basement the metal attachments to the toilet and lavatory facilities were melted. A portion of the concrete first floor was dropped into the basement. Doors were blown off the hinges and walls and partitions were moved and extensive damage was done on all floors throughout the hotel. In the Harris Furniture Company store the merchandise was blown about and misplaced, furniture was burned and smoke-damaged, pictures destroyed and windows blown out. In the Singer Sewing Machine store the damage arose chiefly from falling debris and heat.

On Tuesday, January 29, 1952, the tank was removed from the pit by Acme. It was found that there was no plug in the bottom outlet and Edward McLean, called as an expert, and who was present at the time of the removal of the tank, testified concerning the drain opening that “inside the tank opening on the threads of the coupling there was paint or something.”

It is unnecessary to set out in detail the undenied expert proof in this case that these explosions and fires were caused by escaping gas from the tank which eventually flowed into the sewer, and so far as the plaintiffs are concerned, came in contact with an electric motor operating in the basement of one of the buildings, and a gas pilot light and a burning fire in one of the other buildings.

It is worthy to note that the witness, Donald Jackson, who during the time here involved worked for Acme as a bookkeeper, testified that with every shipment of above-ground tanks from McNamar there was always a box of plugs, generally in the dome of one tank, and such plugs were put in the storage room and remained in a box while the tanks were in the storage lot. He also testified that after the explosion and during the taking of an inventory a three-quarter inch plug was found in the Acme storage room.

In the trial of the case proof of damages was made pursuant to a stipulation entered into by all of the parties, whereby the defendants reserved all question of liability, and particularly as a means of saving time, stipulated that the laying of foundation for proof of damages was waived and consented to raise no question about the usage of the schedules or summary of damages which the plaintiffs had prepared, and agreed to waive the introduction of the original books and original vouchers and supporting invoices and not to question that the plaintiffs had paid out or become liable to pay out the items of damages reflected in the schedules, provided the plaintiffs support those schedules by at least one witness per schedule or one witness per plaintiff, and to offer no evidence regarding damages in addition to the items of damages reflected upon the schedules; that the schedules be offered in evidence and constitute documentary proof. Checks, invoices and other separate and numbered items not required by the defendants, it being understood that the defendants reserved the right to cross-examine if they should see fit, and defendants reserved all question with reference to the proper measure of damages.

Pursuant to the stipulation Harris Furniture Company scheduled a total loss of $67,992.19, gave credit for the amount received from Acme of $8,940.34, leaving an uncompensated loss of $59,051.85. Hotel Byers’ loss as per schedule was the sum of $111,394.18, and after giving credit for the amount paid to it by Acme under the covenant not to sue of $18,391.61, left an uncompensated loss of $93,002.57. The schedule of Singer showed a total loss of $8,122.85, a credit for the amount received from Acme under the covenant not to sue, viz., $1,611.47, leaving an uncompensated loss of $6,511.38. The jury returned the following verdicts against all defendants remaining in the cause: Harris Furniture Company, $8,940.34, Hotel Byers, $18,391.61 and Singer, $1,611.47, being the identical amounts which the respective plaintiffs received from Acme under the covenant not to sue.

Thereafter McNamar and General Tank and Walker made motions for judgment notwithstanding the verdict, and plaintiff Harris Furniture Company moved the court to enter judgment in its favor against all of the defendants in the amount of $59,051.85 and costs and in the alternative moved that in the event said motion for judgment notwithstanding the verdict be denied that the verdict upon the question of the liability of the defendants be sustained and judgment be entered thereon upon the question of liability only and plaintiff be granted a new trial upon the sole issue of the amount of damages. Hotel Byers made like motions, but requested the court to enter judgment in its favor against the defendants in the amount of $93,002.57 and costs and a like motion in the alternative for a new trial only on the sole issue of the amount of the damages. Singer made a like motion for judgment notwithstanding the verdict but in the amount of $6,511.38 and costs and a like motion in the alternative for a new trial only on the issue of the amount of the damages. The motion of McNamar Boiler and General Tank for judgment notwithstanding the verdict was denied. The motion of Walker for judgment notwithstanding the verdict was granted. The respective motions of the plaintiffs, namely, Harris Furniture Company, Hotel Byers and Singer were denied. Judgment was entered on the verdicts of the jury in favor of Harris Furniture Company against the defendants, McNamar Boiler and General Tank, in the sum of $8,940.34, in favor of Byers Hotel against said defendants in the sum of $18,391.61, and in favor of Singer against said defendants in the sum of $1,611.47.

The appeals and cross-appeals bring to this court for review all of the post-verdict motions and rulings by the trial court above set forth.

We are faced first with the question of the liability of defendants, McNamar Boiler and General Tank, the manufacturer of the tank in question and its sales agency, who purchased it from McNamar and sold it to Acme. Plaintiffs contend the tank in question was shipped by McNamar without a plug in its bottom drain hole, that this was a negligent act on its part, which permitted the propane gas to escape after its subsequent installation and was a proximate cause of the damages complained of here. McNamar and General Tank contend that throughout the trial of this case, and on appeal here, plaintiffs have merely assumed that there was no plug in the drain hole when it left the possession of McNamar Boiler and General Tank and that no plug was furnished for it. They further say there is no proof in the record supporting such charges.

The tank in question was sold by McNamar Boiler to General Tank on June 23,1951 and was shipped from Tulsa, Oklahoma to the latter company at St. Louis, Missouri. Thereafter it was sold to Acme and delivered to it at Mattoon, Illinois by truck on September 4,1951. The tank was unloaded on a storage lot opposite Acme’s office and remained there with other tanks until it was delivered to the excavation prepared for it behind the City Drug Store on or about November 26, 1951. The proofs show that sometimes the plugs were forwarded not in the respective holes in the tank but in a box in the dome of one of the tanks. Carroll J. Creager, manager of Acme, testified that he checked the tank shortly after its arrival in Mattoon. Regulations of the State Fire Marshal required that the tank be coated with coal tar or asphalt by the installer, but it appears that this was not done. Moreover, Creager admitted that the tank was not examined to see if its bottom drain opening was plugged. Donald Jackson, an employee of Acme at the time of the occurrences in question, testified that a plug of the size required to fit the drain opening of the tank in question was found much later at Acme.

It is clear that innumerable opportunities existed for the plug to have been lost or removed from the tank’s opening, if it had been in the opening, or from a box in the dome of the tank, from the time it left Tulsa and St. Louis until it was taken from the storage lot on or about November 26th. It had been standing there since September 4, 1951. Under these circumstances the fact that there was no plug in the opening at the time it was removed from the excavation on January 29,1952 is no proof that it was never there or that it never was furnished by McNamar Boiler and General Tank.

In Rotche v. Buick Motor Co., 358 Ill. 507, Rotche purchased a Buick automobile from the Cicero Sales Company. Twenty-six days later, while returning home from a trip, plaintiff applied his foot brake and the car turned to the right, struck a culvert, plunged through a ditch, about twelve feet deep and landed in a plowed field. Besides the damage to the automobile the plaintiff was injured. An examination of the automobile disclosed that a clevis and two cotter pins, a part of the braking mechanism, were missing and possibly a cotter pin was unspread. At page 516 the court say: “The mere fact that an accident resulting in an injury to a person or in damage to property has occurred does not authorize a presumption or inference that the defendant was negligent. The burden was upon the defendant in error to prove by competent evidence, direct or circumstantial, that the plaintiff in error was guilty of negligence in the manufacture or assemblage of the automobile in question. (Citation.) Testimony concerning the condition of cotter pins in the brake mechanism several weeks after the accident occurred without proof that the condition of the pins remained unchanged was inadmissible and should have been excluded. Such testimony was not responsive to the allegations of the declaration and could not subject the plaintiff in error to liability. (Citations).

“Two witnesses called by the defendant in error stated generally that the automobile was in the same condition when they examined it in Chicago as when they saw it in the field immediately after the accident. In the field they saw the cable detached, but neither testified that he saw an unspread cotter pin or that such a pin was missing. No other witness saw the automobile immediately after the accident. The garages in Des Plaines and Chicago to which the wrecked automobile was successively removed were public and accessible to any person who might wish to enter them. The car was not kept in either garage under the observation or protection of any person. Ample opportunity was afforded after the accident and before any witness took particular notice of the car to tamper with the cotter pins. These pins were made of soft metal and without exerting effort or skill could.be removed or straightened in a few moments. Without a proper foundation being laid for the evidence, the condition in which the car was found several weeks after the accident had no tendency to show how the parts had been assembled at the factory. Such proof even failed to establish the condition of the car when the accident occurred.” The plaintiff’s judgment was reversed and the cause remanded.

In this case the tank in question with other tanks was in a storage lot across the street from Acme’s office from September 4, 1951 until November 26th of that year. There was ample opportunity for strangers and unauthorized persons to remove the plug from the tank, or in the event it was in a box in the dome of the tank, or in the dome of some of the other tanks there stored, to take and remove such plug or plugs.

Plaintiffs also rely on the testimony of Edward McLean, who examined the tank immediately after it was removed from the ground. He stated that “inside the tank opening on the threads of the coupling there was paint or something.” Plaintiffs urge that this paint was the original paint applied by McNamar Boiler and argue that this is further proof that no plug was ever in the opening after it was painted. Assuming that the substance in question was the original paint applied by McNamar Boiler we find no proof that inserting a plug would have damaged the paint in the opening, and if it would have done so, that the paint in the opening was damaged. McLean’s testimony can also be interpreted to mean that a substance other than paint was found in the opening. In this connection it is significant that James Jackson, president of both McNamar Boiler and General Tank, testified “that before shipment, a test plug is coated with a sealing compound and inserted in the drain hole and the tank filled with water under pressure.” Eobert Bobinson, an employee of Acme, also testified that it was customary there to remove all plugs and coat them with a sealing compound when preparing tanks for installation. The substance referred to by McLean could therefore have been a residue of this compound. If so, there is another hiatus in the proof. If the substance was left after the test plug was removed by McNamar Boiler, there is no proof as to whether insertion of another plug and its subsequent removal would have destroyed that residue. The same question is presented if we assume that a plug coated with sealer compound was inserted by Acme and later lost or removed. We do not believe the proof that “paint or something” was in the opening at the time the tank was removed from the ground, without further proof explaining its significance is sufficient evidence compelling the inference that no plug was in the opening when the tank left Tulsa, or from St. Louis when it was shipped to Acme, or was not otherwise supplied to Acme.

Plaintiffs rely strongly on an alleged omission in the Data Beport issued by McNamar Boiler concerning this tank. Under the regulations of the State Fire Marshal’s office one copy of the report was required to be filed in that office and another sent to Acme. These reports give the specifications of the tank and are in general form with blank spaces which must be filled in describing a particular tank. In the Data Beport issued concerning the tank here there appeared the following: “18. Drain connection .... (size) in,” which was not answered. Plaintiffs contend that this amounted to a representation by McNamar Boiler that the tank in question had no bottom drain opening. In this connection it should be pointed out that Frank J. Kressberger, Asst. State Fire Marshal, in whose office one copy of the report was filed testified: “With reference to the tank, item No. 18 indicates to me that the drain outlet will not be used on this tank for a liquid take-off line. From the report I’d assume there was a drain outlet on the tank. The fact that the size is not filled in indicates that it is not going to be used.”

Also, as evidence of the reliance placed by Acme upon these reports, at least in some instances, the testimony of Donald Jackson, a former employee of Acme, is illuminating. He stated that “on some occasions we would receive data reports as much as two and three weeks after we had received the tanks. Sometimes the tanks had already been installed by that time.”

In any event any omission on this report is not evidence that the tank was shipped out by McNamar Boiler without a plug in its bottom drain hole or in a box in the dome of the tank. This, in our opinion, is a decisive issue as far as McNamar Boiler’s liability is concerned. The burden of proving that McNamar Boiler and its sales agency, General Tank, were guilty of negligence rested upon the plaintiffs. This burden can be sustained by circumstantial evidence, but it is not sufficient to prove a mere possibility.

In Celner v. Prather, 301 Ill. App. 224, the court said at page 227: “Proof of a mere possibility is not sufficient. A theory cannot be said to be established by circumstantial evidence, unless the facts are of such a nature and so related, as to make it the only conclusion that could reasonably be drawn. It cannot be said one fact can be inferred, when the existence of another inconsistent fact can be drawn with equal certainty.” In Coulson v. Discerns, 329 Ill. App. 28 at page 32 the court say: “A fact cannot be established by circumstantial evidence unless the circumstances are of a nature and so related to each other that it is the only conclusion that can be drawn therefrom, and mere conjecture, guess or suspicion is insufficient.” To the same effect is Ohio Bldg. Safety Vault Co. v. Industrial Board, 277 Ill. 96 and O’Connor v. Aluminum. Ore Co., 224 Ill. App. 613.

We believe that plaintiffs have failed to produce evidence which required the court to submit the issue to the jury and therefore erred in overruling the motion for judgment notwithstanding the verdict presented by McNamar Boiler and General Tank.

We come now to the plaintiffs’ appeal from the order of the circuit court sustaining a motion filed by Walker for judgment notwithstanding the verdict. The sole issue before the court on that motion was whether, considering all the evidence and the inferences that could be reasonably drawn from it most favorable to the plaintiffs, there was a total failure to prove any necessary element of plaintiffs’ case against that defendant. (Heideman v. Kelsey, 414 Ill. 453.) On this appeal we can only determine whether the circuit court was justified in finding as a matter of law that the plaintiffs totally failed to prove any negligence by Walker, as charged. He was employed by Automatic Heat Company to excavate a pit for the propane gas tank described above. One of his employees who did the actual digging cut two string of tile lying about three feet beneath the surface behind the City Drug Store and extending from that store towards the sewer in the alley. Walker testified that he knew a tank for the storage of propane gas was to be installed in the excavation. He also testified that he knew the tile had been cut and inspected the site thereafter, but that he did not notify Automatic Heat Company, City Drug Store, Acme or anyone else that the tile had been severed. Subsequently after Acme had installed the tank, he backfilled the excavation and placed a concrete platform over it. Plaintiffs contend that this was sufficient proof to warrant the jury finding Walker guilty of negligence which was a proximate cause of plaintiffs’ damages.

It is a general rule that an independent contractor whose work has been accepted by his employer is not liable to third persons for injuries received as a result of defective construction or installation. (Empire Laundry Machinery Co. v. Brady, 164 Ill. 58.) There are many exceptions to this rule, however, and these are summarized in Healey v. Heidel, 210 Ill. App. 387. One such exception was there stated at page 391 to exist where “the thing dealt with is imminently dangerous in kind, such as poisonous drugs incorrectly labeled, dangerous chemicals, unwholesome food, a defective gun, explosives, and the like.” We believe that a tank for the storage of propane gas comes within this exception, and that Walker therefore had a duty to properly make the excavation and to advise Automatic Heat Company, City Drug Store and Acme that he had severed the two drain tile leading from the drugstore towards the sewer in the alley.

There is ample proof in the record to support plaintiffs’ theory that propane gas escaped from the open drain hole in the storage tank and eventually passed through the severed tile to the sewer behind City Drug Store and in that sewer to the various properties of plaintiffs where it exploded and caught fire.

We also believe that the evidence in the record is sufficient to support the jury’s conclusion that Walker’s failure to repair or replace the severed tile, or at least to notify his employer, City Drug Store or Acme of the severance of the tile, amounted to negligence on his part. While he might not have foreseen the catastrophe that occurred as a result, in part, of his acts, we believe that he should have foreseen that injury or damage of some sort would occur. (City of Dixon v. Scott, 181 Ill. 116.) The jury undoubtedly decided that he should have anticipated that circumstances could arise whereby the propane gas stored in the tank on the premises in question might leak therefrom, and the tile which had been severed would provide a route whereby the gas could escape from the premises and cause damages. In our opinion this determination is supported by the evidence.

We also feel that a jury could properly find that Walker’s negligence was a proximate cause of plaintiffs’ damages. He was a part of the joint effort of several firms to install a propane gas heating system for the City Drug Store. Even though the negligence of others may have contributed to the damage that resulted Walker is liable for his own negligence, if it contributed substantially to that result. (Consolidated Ice Mach. Co. v. Keifer, 134 Ill. 481.) The case of Merlo v. Public Service Co. of Northern Illinois, 381 Ill. 300 cited by Walker is not in point. There W.P.A. workmen engaged in constructing a sewer were electrocuted when the tip of a boom of a crane came into contact with the overhead wires of an electric company, while they were holding the crane’s metal cables. The Supreme Court there held that the electric company’s failure to properly insulate its wires created only a condition making the injury possible and was not its proximate cause. The electric company was not participating in the construction of the sewer and contributed nothing toward the final result. The cases of Seith v. Commonwealth Elec. Co., 241 Ill. 252, Illinois Cent. R. Co. v. Oswald, 338 Ill. 270, Briske v. Village of Burnham, 379 Ill. 193, and Storen v. City of Chicago, 373 Ill. 530 can all be distinguished for similar reasons.

We conclude that the verdict of the jury finding Walker guilty of negligence can be supported by the proof in this case and therefore agree with plaintiffs’ contention that the circuit court erred in sustaining Walker’s motion for judgment notwithstanding the verdict.

There remains only the question presented by plaintiffs’ cross-appeal from the order of the circuit court denying their motions for judgments notwithstanding the verdicts and in the alternative their motions for a new trial on the sole question of the amount of damages. These motions sought to induce the court to enter judgment in the amounts proved by plaintiffs pursuant to a stipulation of all the parties instead of the smaller amounts returned by the jury, or in the alternative to order a new trial on the sole issue of the amount of damages. Plaintiffs claim that the stipulation as to the manner of proof of damages and the proofs submitted thereunder conclusively settle the amount thereof. With this contention we cannot agree. The stipulation related solely to the manner of proof and not to the amount of damages. In addition the defendants reserved the right to cross-examine the witnesses on the question of damages and reserved all questions with reference to the liability and to the measure of damages. In line with such stipulation each of the witnesses for plaintiffs on the amount of the damages was extensively cross-examined and objections made in some instances that the proper measure of damages had not been applied.

These were tort actions in which the question of liability was one of the principal disputed issues. The amount of damages were unliquidated, and serious questions were presented whether plaintiffs had applied in their proofs the proper measure of damages. The determination as to the amount of damages in such cases is peculiarly a function of the jury. It has a right to pass upon the credibility of the witnesses and view their testimony in the light of their common observation and experience as men and women in the ordinary affairs of life.

We believe if the judgments as prayed for in their respective motions were entered there would be in the language of Hughes v. Bandy, 404 Ill. 74 at page 80: “A wrongful exercise of judicial power and authority which, in effect, deprived the defendant of a right of trial by jury.”

In Hughes v. Bandy, 336 Ill. App. 472 this court held that where there is evidence which standing alone tends to prove material allegations of a complaint or answer a motion for judgment notwithstanding a verdict should be denied even if there is a preponderance of all of the evidence in favor of the person filing the motion. We further held that this was true even though the only relief sought by the motion was judgment for a stipulated amount of damages which was greatly in excess of the amount returned by the jury. This decision was affirmed by the Supreme Court in Hughes v. Bandy, supra. We believe this decision applicable here. There was sufficient evidence in the record in support of plaintiffs’ complaints to compel the submission of the issue of Walker’s liability to the jury. Plaintiffs therefore cannot attack the verdict by a motion for judgment notwithstanding even if the attack is confined to the amount of damages allowed and that amount was stipulated as plaintiffs assume. (McCaskill v. Quintano, 350 Ill. App. 374.)

We noted in the Bandy case that the verdict there was obviously a compromise verdict and suggested at page 479 that it “should not have been permitted to stand if the plaintiff had made a motion for a new trial. Instead of making an alternative motion for a new trial the plaintiff made only a motion for judgment notwithstanding the verdict. Here plaintiffs did make an alternative motion but only for a new trial on the sole question of damages. Plaintiffs have cited no statutory authority authorizing a trial court to so limit the scope of a new trial, if granted. They cite Section 92(e) of the Civil Practice Act, Ill. Rev. Stat. 1953, Chap. 110, Par. 216e [Jones Ill. Stats. Ann. 104.092, subd. (e)], which authorizes partial reversal by a reviewing court and Section 68b, Ill. Rev. Stat. 1953, Chap. 110, Par. 192b [Jones Ill. Stats. Ann. 104.068, subd. (b) ], which provides for partial remandment by the reviewing court for the purpose of assessing damages in the trial court and argue by analogy that a trial court should be permitted to grant the same relief, if timely asked for. If such power exists in a trial court, it is clear that it is limited in scope. The Supreme Court of the United States has held that such power should not be exercised “unless it clearly appears that the issue to be retried is so distinct and separable from the others that a trial of it alone may be had without injustice.” (Gasoline Products Co. v. Champlin Refining Co., 283 U. S. 494, 75 L. Ed. 1188; 98 A. L. R. 941 for collection of cases; and Bristow “Verdicts” 40 Ill. Bar Journal 319, 321.) While it is arguable that the issue of damages is distinct from that of liability in this case because of the stipulation entered into by all the parties, there is still a further restriction. When the size of the verdict indicates that it was a result of a compromise, it is held generally that the entire verdict is tainted and a new trial should be ordered on all issues. (See 98 A. L. R. 944 for collected cases.) We believe this to be a sound rule. In Simmons v. Fish, 210 Mass. 563, 97 N. E. 102 the court said: “A verdict which is the result of real harmony of thought growing out of open-minded discussion between jurors with a willingness to be convinced, with a proper regard for opinions of others and with a reasonable distrust of individual views not shared by their fellows and of fair yielding of one reason to a stronger one, each having in mind the great desirability of unanimity both for the parties and for the public, is not open to criticism. But a verdict which is reached only by the surrender of conscientious convictions upon one material issue by some jurors in return for a relinquishment by others of their like settled opinion upon another issue and the result is one which does not cornmand the approval of the whole panel, is a compromise verdict, founded upon conduct subversive of the soundness of trial by jury.” It is clear that the verdict here was a result of a compromise. The amount awarded each plaintiff bears no relation to the damages but is exactly the same as the amount paid in each instance by Acme under its covenant not to sue.

As was said in the Simmons case, supra: “. . . it would be a gross injustice to set aside such a verdict as to damages alone against the protest of a defendant, and force him to a new trial with the issue of liability closed against him when it is obvious that no jury had ever decided that issue against him on justifiable grounds.” While it is true that we have held here that the jury’s verdict against Walker was not subject to challenge on the question of liability because there was evidence to support it, this does not mean that a verdict reaching an opposite conclusion might not have been upheld, if similarly attacked.

Because the verdict against Walker was obviously a compromise, if any part of it is vulnerable it should be set aside completely and a new trial had of all the issues involved. Plaintiffs, however, are limited to the relief prayed for by them in their respective motions. Since they moved not for a new trial generally but for a new trial on the question of damages and since such motion cannot properly be granted in this case, the verdict of the jury with respect to Walker must be sustained. The circuit court therefore properly overruled both of plaintiffs’ post-trial motions.

In view of our conclusions aforestated, it is not necessary to discuss further the stipulation as to proof of the plaintiffs’ damages entered into between the parties, nor whether the proper measure of damages was applied.

The orders of the Circuit Court of Coles County overruling the motion of Paul Harris Furniture Company,

a corporation, Helen B. Wyatt and William Wyatt, doing business under the name and style of Hotel Byers and Singer Sewing Machine Company, a corporation, for judgments notwithstanding the verdicts or in the alternative for a new trial on the question of damages alone is affirmed. The action of that court in overruling the motions of McNamar Boiler and Tank Company, a corporation and General Tank Company, Inc., a corporation, for judgments notwithstanding the verdicts and judgments entered upon such verdicts is hereby reversed. The action of the trial court in sustaining the motion of A. J. Walker, doing business under the name and style of The Walker Construction Company, for judgment notwithstanding the verdict and the judgment entered in accordance thereby is reversed and the court is directed to enter judgments against A. J. Walker, doing business under the name and style of The Wálker Construction Company for the amount of plaintiffs’ verdicts.

Affirmed in part and reversed in part and remanded with directions.


text:
    James W. Meridith, Plaintiff-Appellant, v. Board of Education of Community Unit School District No. 7, Christian County, Illinois, and John Sanders et al., Defendants-Appellees.
    Gen. No. 10,008.
    Third District.
    October 19, 1955.
    Rehearing denied November 28, 1955.
    Released for publication November 28, 1955.

      Raymond P. Barra, and Harold Broverman, both of Taylorville, for appellant.
    Hershey & Bliss, of Taylorville, for appellees; Charles E. Bliss, Richard G. Hershey, and Holland P. Tipsword, all of Taylorville, of counsel.
   MR. PRESIDING JUSTICE HIBBS

delivered the opinion of the court.

The appellant, James W. Meridith, plaintiff in the trial court, brings this cause by appeal from the Circuit Court of Christian County, heard there under the Administrative Review Act (Ill. Rev. Stat., Chap. 110, Secs. 264-279 [Jones Ill. Stats. Ann. 104.094(1)-104.-094(16)]). The trial court reviewed an administrative decision of the Board of Education of Community Unit School District No. 7 of Christian County dismissing the appellant as a teacher in that school district after a hearing held pursuant to the Teacher Tenure Law (Ill. Rev. Stat., Chap. 122, Secs. 24-1-24—7 [Jones Ill. Stats. Ann. 123.1124-123.1130]). The hearing was held on April 6, 1954 and the final determination of the Board dismissing the teacher was made on April 9, 1954.

The Board of Education passed a resolution on March 15, 1954 which directed that a notice of dismissal be sent to the appellant as required by the provisions of the Teacher Tenure Law setting forth the reasons for his discharge, which were: (1) His outside activities; and (2) That the best interests of the school required it. Thereupon a notice under that date was mailed and received by the appellant on the following day, March 16th, wherein he was advised that he would be dismissed as a teacher at the close of the then school term because “the best interests of the schools operated by the Board of Education require such dismissal or removal.” Thereupon the appellant pursuant to the Teacher Tenure Law (Sec. 24, Chap. 122, Ill. Rev. Stat. 1953) requested and was granted a public hearing, which was held on the date aforementioned, April 6, 1954.

The leading facts in the matter are not in substantial dispute. The district was organized in July 1948 and from that time on Meridith was employed as a teacher in the agricultural department. His duties required him to work twelve months a year, conducting a classroom during the ordinary and customary daily school periods and vocational duties outside of the school periods and outside of the schoolhouse. In this connection the State department of Vocation and Education makes certain requirements of each agricultural teacher and required the appellant to submit certain reports to it concerning his activities outside of school hours. The Stonington School District is made up of one incorporated community and the remainder, about seventy sections, of agricultural lands. Each of the agricultural students was required each year to have a farm project, either with reference to the growing and raising of grain, or the raising, feeding and care of swine, beef or other activity of like character, all under the supervision and direction of the agricultural teacher. In the event the report of the agricultural teacher to the State department of Vocation and Education met the minimum requirements the District was entitled to a certain “reimbursement” in funds from the State of Illinois. The reports of Meridith to the State department of Vocation and Education show that he was doing vocational work which just met the minimum requirements of the department, although he was receiving the average compensation paid throughout the state to teachers in that branch of instruction.

At the time Meridith was employed or shortly thereafter he engaged on his own behalf in selling seed oats. Gradually from that time on he increased the scope of his nonteacher activities to testing soils, sale of fertilizer, doubled the size of his fertilizer facilities, erected a second building and advertised in a newspaper his business and that he had added new blending equipment for the purpose of blending fertilizer in accordance with orders.

On January 15,1954 Meridith was before the Board and was asked if he would give up the fertilizer business and teach school, or, if he wanted to resign and go into business. He informed the Board that if he could sell 500 tons of fertilizer that year that he would not teach next year. He refused to state to the Board whether he would give up his outside business. He then stated he didn’t think he was getting enough money and that he was doing just what he was getting paid for and no more.

It is contended by the appellant that the causes of his dismissal were remediable and that under such circumstances it was the duty of the Board of Education to give him reasonable warning in writing stating specifically the causes which, if not removed, might result in charges, and the failure of the Board to give such reasonable warning in writing was bad faith on its part.

Sec. 7—16, Chap. 122, Ill. Rev. Stat. 1953 [Jones Ill. Stats. Ann. 123.846] provides under the powers of the Board of Education: “To dismiss and remove any teacher, whenever, in its opinion, he is not qualified to teach, or whenever, in its opinion, the interests of the schools require it, subject, however, to the provisions of Sections 24-2 to 24—7, inclusive.” Sec. 24—2 of the same chapter provides: “Any teacher who has been employed in any district as a full-time teacher for a probationary period of two consecutive school terms shall enter upon contractual continued service unless given written notice of dismissal stating the specific reason therefor, by registered mail by the employing board at least sixty days before the end of such period.” The section further provides: “This section and succeeding sections do not modify any existing power of the board except with respect to the procedure of the discharge of a teacher and reductions in salary as hereinafter provided.”

Sec. 24—3, as amended April 17, 1953 provides: “Notwithstanding the entry upon contractual continued service, any teacher may be removed or dismissed for the reasons or causes provided in Sections 6-36 and 7-16, in the manner hereinafter provided.” Then follows the procedure to be adopted in case the dismissal results from a decision of the Board to decrease the number of teachers employed or to discontinue some particular type of teaching service. The section further provides: “If the dismissal or removal is for any other reason or cause it shall not become effective until approved by a majority vote of all members of the board upon specific charges and after a hearing, if a hearing is requested in writing by the teacher within ten days after the service of notice as herein provided.” It further provides: “Before service of notice of charges on account of causes that may be deemed to be remediable, the teacher shall be given reasonable warning in writing, stating specifically the causes which, if not removed, may result in charges. The decision of the board as to the existence of reasons or causes for dismissal or removal shall be final unless an appeal to the county superintendent is taken.” This same section was again amended on May 9, 1953, whereby the last quotation from the April 17, 1953 amendment was changed so as to read: “Before service of notice of charges on account of causes that may be deemed to be remediable, the teacher shall be given reasonable warning in writing, stating specifically the causes which, if not removed, may result in charges. The decision of the board as to the existence of reasons or causes for dismissal or removal shall be final unless reviewed as provided in Sec. 24-8 of this Act.” Sec. 24—8 of the act [Jones Ill. Stats. Ann. 123.1130(1)] provides in substance that the provision of the Administrative Review Act shall apply and govern all proceedings for the judicial review of final administrative decisions of the school board under Sec. 24—3 of the Article. Under many holdings of the Supreme Court we do hold that the latter amendment to the section, namely on May 9, 1953, being inconsistent and contrary to the amendment adopted on April 17, 1953 concerning the review of the decision of the Board of Education is controlling. (People ex rel. Hines v. Baltimore & O. S. W. R. Co., 366 Ill. 318; People ex rel. Martin v. Village of Oak Park, 372 Ill. 488; People ex rel. Schlaeger v. Mattes, 396 Ill. 348.)

Appellant has taken the position that the causes of his dismissal were remediable and the failure to give written notice is in itself evidence of bad faith. The statute uses the term “may be deemed to be remediable.” Sec. 7—14 of Chap. 122 [Jones Ill. Stats. Ann. 123.844] provides: “The board of education has all the powers of school directors as set forth in Article 6, is subject to the same limitations, and in addition thereto has the powers enumerated in Secs. 7-15 to 7-22, inclusive.” A reading of the powers of school directors as set forth in Article 6 and as set forth in Secs. 7—15 to 7—22 [Jones Ill. Stats. Ann. 123.845-123.849(3)] inclusive of Chap. 122 demonstrates the broad, comprehensive, discretionary powers of school directors and boards of education in the management and operation of schools within their jurisdiction. It will be noted that Sec. 24—2 of the Teacher Tenure Law specifically provides: “This section and succeeding sections do not modify any existing power of the board except with respect to the procedure of the discharge of a teacher and reductions in salary as hereinafter provided.”

In Powell v. Board of Education, 97 Ill. 375, it is said at page 387: “Directors are invested by law with large discretion in all matters pertaining to the management of schools. With the discretionary powers of officers, whether executive or judicial, courts have no rightful authority to interfere unless where there has been such abuse of their discretion as works palpable injustice or injury.” To the same effect is McCormick v. Burt, 95 Ill. 263 at page 265. In Board of Education v. Stotlar, 95 Ill. App. 250 the court say at page 254: “When the teacher is dismissed and the reason therefor springs out of his own conduct, and the directors so charge, it is essential that some other person than the contracting parties should be arbiter in the matter; but when the dismissal is dependent on a cause that the Board of Education in ‘their opinion’ may entertain, where is the teacher’s remedy in case of a dismissal, at least so long as the board exercises the power in good faith? . . . Whether appellant acted wisely or not in dismissing appellee is a matter this court can not inquire into; that matter must be left to the citizens of the school district. All that we determine in the present construction of the law is, that if the matters set forth in the resolution passed at the meeting of May 26th are true, this court is unable to say that the Board of Education was actuated by mere caprice. . . .”

These cases clearly indicate the law on the discretionary power of school directors and boards of education prior to the adoption of the Teacher Tenure Law. So that the purpose and object of the act would not be misconstrued and misapplied, the legislature by Sec. 24—2 specifically provided: “This section and succeeding sections do not modify any existing power of the board except with respect to the procedure of the discharge of a teacher. . . .”

The spirit of the act is plainly indicated, that is to say, the Board of Education or school directors, as the case might be, should retain all of its power, discretionary and otherwise, but afforded a remedy to any teacher under tenure who was discharged in bad faith through caprice or arbitrarily, and spelled out the procedure to be followed in the event the Board of Education or school directors determined that a teacher should be discharged.

Under this construction of the act the determination of whether or not a cause of dismissal is remediable vests discretionary power in the Board of Education,- and that has been the holding of the courts since the adoption of the Teacher Tenure Law. In Biehn v. Tess, 340 Ill. App. 140, a superintendent principal, who was also a teacher, was dismissed and he alleged that the cause for his dismissal was remediable and he should have been given an opportunity to remedy the causes; the court there say at page 152: “. . . We agree with defendants that it is within the discretionary power of the board to determine whether the causes for dismissal, under the provisions of Sec. 24-3 of the School Code were remediable. This is a direction to the Board and involved the exercise of judgment. A court of equity does not have the power to override the judgment of the board that the causes were not remediable.” In Eveland v. Board of Education of Paris Union School Dist., 340 Ill. App. 308, the contention was there made by the teacher that the causes of his dismissal were remediable and no notice was served upon him and therefore the proceedings were invalid. This court at page 320 said with reference to such contention: “. . . It is our opinion that the statute gave the Board ample authority to determine in the first instance what causes were or were not remediable, and that the Board was well within its rights in apparently determining, in the first instance, and until a final hearing, that the charges, particularly when considered as a whole, were not remediable.”

In Donahoo v. Board of Education, School Dist. No. 303, 346 Ill. App. 241, this court said: “Moreover, it has been repeatedly held by the appellate courts of this state that the Tenure Law, being in derogation of the common law and creating a new liability, should be strictly construed in favor of the board of education.” (Citations.)

In view of the foregoing we must conclude that the Board was well within its rights in apparently determining, in the first instance, until a final hearing, that the charges, particularly when considered as a whole, were not remediable.

In view of the record that was made at the hearing was the trial court justified in holding that the Board of Education in the exercise of its discretionary power was justified in determining that the causes were not remediable 1 In the first place courts of review, that is to say this court and the trial court, can not under the Administrative Review Act disturb the findings of fact made by the Board and the discretion exercised by it unless, manifestly against the weight of the evidence. (Drezner v. Civil Service Commission, 398 Ill. 219; Oswald v. Civil Service Commission, 406 Ill. 506.) In this cause the appellant was not only engaged in an outside business but had increased the same to an extent where he was not only selling seed oats and other seeds but had erected a building for the sale of fertilizer and another building, commenced to blend fertilizer, possessed a truck in his business and advertised extensively. When called before the Board of Education on January 15, 1954 and asked if he would give up the fertilizer business and teach school or if he wanted to resign and go into business, he informed the Board if he could sell 500 tons of fertilizer that year he would not teach the following year but refused to give the Board a definite answer on what he was going to do. Furthermore, he told the Board he was doing just what he was getting paid for and no more. He was receiving the average salary of teachers in his class of work but so far as his vocational duties were concerned was doing the minimum amount of work required in order for the Board of Education to receive “reimbursement” from the State of Illinois:

It was peculiarly a province of the Board of Education in the exercise of its discretion to determine whether the outside activities of the appellant had progressed to such an extent as to interfere with the performance of his duties as a member of the teaching staff of the educational institutions under its direction. The best interest of the schools of the district is the guiding star of the Board of Education and for the courts to interfere with the exercise of the powers of the Board in that respect is unwarranted assumption of authority and can only be justified in cases where the Board has acted maliciously, capriciously and arbitrarily.

We cannot say that the manifest weight of the evidence shows the causes for his discharge, viz., the best interests of the schools operated by the Board required his dismissal, was remediable, nor can we say that the manifest weight of the evidence shows that the Board acted in bad faith.

The judgment of the Circuit Court of Christian County is affirmed.

Judgment affirmed.