author: MR. JUSTICE SCHWARTZ

text:
    Nancie H. Kespohl, Plaintiff, v. The Northern Trust Company, as Trustee, etc., et al., Defendants. Petition of Mural J. Winstin To Enforce Attorney’s Lien Against Nancie H. Kespohl, Individually and as Co-Executor of the Estate of Julius Kespohl, The Northern Trust Company, Trustee Under Trust Created by Julius Kespohl and Dated September 12, 1944, The State Street Bank and Trust Co., Executor and Trustee, and Albert S. Long. Mural J. Winstin, Petitioner-Appellee, v. Nancie H. Kespohl, Respondent-Appellant, Madeleine, Johnson, Executor of the Will of Albert S. Long, Deceased, Appellant.
    Gen. No. 51,227.
    First District, Third Division.
    March 21, 1968.
    Rehearing denied April 16, 1968.

      Yowell and Cessna, of Chicago (John T. Yowell and G. Kent Yowell, of counsel), for appellants.
    Mural J. Winstin, pro se, of Chicago, appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

This is an appeal from a summary judgment allowing the petition of Mural J. Winstin (Petitioner) for the enforcement of an attorney’s lien for services rendered under a contingent fee contract made with Nancie H. Kespohl (Respondent). The contract dated June 3, 1955, provided that Winstin and two other attorneys, Elmer S. Leesman and Albert S. Long, both now deceased, were to represent the respondent in proceedings involving the estate of her late husband Julius Kespohl and the validity of a trust created by him. Their fee was contingent upon the successful conclusion of the proceedings and was based on a percentage of the excess over that which she would have otherwise received. Respondent filed an answer to the petition. Her principal defense is that the death of two of the contracting attorneys rendered performance by all three attorneys impossible and that therefore the contract was void.

Julius Kespohl died in October 1953. The greater portion of his property was held in a trust created by him pursuant to an agreement with The Northern Trust Company as trustee. The respondent was named as a beneficiary of the trust, but only to the extent of ¼0ths of %0th part thereof, the value of which portion was $4,341.36. The respondent was dissatisfied and procured the legal services of Long and Leesman. They in turn asked the assistance of Winstin. Winstin agreed to assist in the litigation upon condition that the respondent would enter into a definite contingent fee contract. She agreed, and on June 3,1955, the contract in question was executed by herself and her three attorneys. Under the agreement the attorneys were to prosecute a suit in Cook County to have the trust annulled and set aside as to the respondent. In addition they were to proceed with a claim against the estate in Adams County, Illinois, where the will of Kespohl had been admitted to probate. Respondent agreed to pay her attorneys 45% of the value of any improvement in her share of the trust property effected after June 3, 1955, whether derived from the trust or from the assignment or release of any interest in the trust whether or not resulting from a decree, judgment or order or in compromise or settlement. The contract further provided that if the attorneys were not successful in the proceedings with respect to the trust, but were successful in establishing an interest against the estate in the probate proceedings pending in Adams County, the respondent was to pay them $15,000 at the rate of $1,500 a year. Otherwise they were to receive nothing. In the event of a dispute between the parties as to the amount or any other matter relating to compensation under the contract, it was agreed that the dispute should be determined by the Chief Justice of the Superior Court of Cook County. Such determination was to be final and not appealable.

One of the attorneys, Elmer S. Leesman, died on July 26, 1959, about five years prior to the termination of the proceedings in the Superior Court of Cook County. On April 24, 1964, twelve days prior to the entry of the final order in the suit against the trustee (the litigation then having been pending more than nine years) Long withdrew his appearance as one of the contracting attorneys and entered an appearance as a member of the firm of Yowell, Long, McDonald and Yowell. The change was made without the consent of Winstin, but with the consent of the client.

On May 6, 1964, an order was entered in the Superior Court declaring Nancie Kespohl to be the lawful widow of the testator and nullifying the trust agreement as to her. The court directed the trustee to pay to her one-half of the principal and interest of the trust fund. This increased her share from $4,341.36 to $149,039.46.

Winstin filed a petition with the Chief Justice pursuant to the clause of the contract before mentioned, to determine the compensation due the attorneys. A conference was held for that purpose, at which Long and Winstin agreed to pay Leesman’s widow $3,000 in discharge of any claim for services rendered by Leesman prior to his death. While this matter was pending, Long died and about three months after his death the court entered the following order:

“That Nancie H. Kespohl pay to Mural J. Winstin and the Estate of Albert S. Long, deceased, 45% of the value of the improvement in her estate, interest or right derived from said living trust; and that 22½ % of the 45% be paid to Winstin and 22½% of the 45% be paid to the estate of Albert S. Long, deceased.”

The order further provided that Winstin and Long each pay $1,500 to Leesman’s widow. The provisions of the order were not satisfied and thereupon Winstin instituted these proceedings. Summary judgment was entered on the petition for the enforcement of the attorney’s lien, and determination of the compensation before set out was reaffirmed by the court. Thereupon this appeal was taken.

The first point to be considered is whether a valid lien was created in favor of the contracting attorneys. The Attorney’s Lien Act, Ill Rev Stats, c 13, § 14 (1967) provides as follows:

“Attorneys at law shall have a lien upon all claims, demands and causes of action, including all claims for unliquidated damages, which may be placed in their hands by their clients for suit or agreement, for a reasonable fee, for the services of collection, or upon which suit or action has been instituted, for the amount of any fee which may have been agreed upon by and between such attorneys and their clients . . . and such lien shall attach to any verdict, judgment or decree entered and to any money or property which may be recovered, on account of such suits, claims, demands or causes of action, from and after the time of service of the notice.”

Respondent contends that the contract for a contingent fee did not amount to an equitable assignment of any portion of her interest in the trust fund. Her counsel’s theory appears to be that an attorney’s lien cannot be perfected unless the underlying contract for services contains language of assignment in favor of the attorney. We do not consider such language to be essential. The attorney’s lien is a creature of statute and the Act does not require an assignment of the client’s claim as a prerequisite for the attachment of the lien.

The respondent cites Reuben v. Katz, 12 Ill App2d 474, 139 NE2d 824 (Abst.) for the proposition that an attorney is not entitled to a lien against property gained on behalf of a client when the legal services rendered consisted of defending the client’s status as a surviving spouse. In that case the decedent’s second wife retained an attorney to prove that she had been legally married to the decedent and to enforce her rights as a surviving spouse. The marriage between the plaintiff Rhea Reuben and the decedent had been celebrated three days prior to the entry of the divorce decree terminating the decedent’s prior marriage. Counsel succeeded in having the date of the divorce decree entered nunc pro tunc as of the day preceding the second marriage, thus validating the marriage between Rhea Reuben and the decedent. Thereafter a settlement was reached and the plaintiff was accorded 21% of the net estate. The plaintiff’s attorney notified the administrator of his contingent fee contract with the plaintiff, and thereupon the administrator petitioned the Probate Court for instructions with respect to the payment of the fee. The sole question raised on appeal was whether the Probate Court had jurisdiction to adjudicate a controversy between an heir of an estate and an outside party. The attorney contended that he had a lien against the plaintiff’s share of the estate and that the Probate Court should adjudicate his rights -therein as a claim against the estate. The court held that the attorney was not entitled to a lien on the estate property. The court reasoned that counsel’s services consisted only of defending the plaintiff’s status as a surviving spouse, and although the plaintiff became entitled to certain property upon proving herself to be the decedent’s widow, counsel had not recovered property or money in her behalf.

Although the facts in the Reuben case are in some respects similar to those in the case before us, the legal question raised and the services rendered differ significantly. In Reuben the attorney merely obtained an order which in effect validated the plaintiff’s marriage to the testator. No direct recovery of money or property was accomplished by the action. In the instant case the suit was against a trustee and the purpose was to have the trust declared invalid and to procure for the plaintiff a share of the property which constituted the corpus of the trust. The plaintiff’s marital status as the widow was placed in issue by the trust company and was met by her as a preliminary condition. The court in its decree found that she was the widow, saying:

“The court further finds that, to contest the right of the plaintiff to maintain this action, the defendants have attacked the status of the plaintiff as the wife and widow of the said Julius Kespohl. . . . The defendants have not sustained their allegations that the plaintiff was not the wife and is not the widow of Julius Kespohl and . . . the plaintiff has sustained the allegation of her complaint that she was the wife and is the widow of Julius Kespohl . . .”

Mrs. Kespohl could not have prevailed in her suit against the trust company merely by proving that she was the widow of the decedent. The final decree in that suit recites that the defendant intended the trust to be testamentary, that it was not executed in conformance with the provisions of the Statute of Wills; that the transfer of the property to the trust was an evasion of the Statute of Wills and therefore it was illusory and invalid against the plaintiff. A widow suing in a personal injury or dram-shop case for damages as a result of her husband’s death might well be put to proof of widowhood, but that would not make a case for her. The distinction between the instant case and Reuben v. Katz, supra, is obvious.

We proceed to consider the contention that the duties of the contracting attorneys were personal and nonassignable and that the deaths of Leesman and Long terminated the contract. The respondent relies on Baxter v. Billings, 83 F 790 (8th Cir). In that case two women employed attorneys named Baxter and Yonley under a written contract which provided that they would receive 50% of the net proceeds of a suit. Thereafter Yonley died, and Baxter with the consent of the clients became associated with other lawyers, filed a suit and obtained a judgment for the clients. Shortly before this, Baxter notified the defendants that by virtue of the written contract he claimed a lien on the interest of the clients in the suit he had instituted. The court denied the enforcement of Baxter’s lien on the ground that the performance rendered by attorneys not parties to the contract was an unacceptable substitute for the services for which the clients had contracted. The court compared the contingent fee contract for legal services with a contract with an author to write a book and said (p 791):

“An agreement with a lawyer to commence and prosecute a suit is of the same character as a contract with an author to write a book. If the author dies, or abandons his work when it is half written, no substitute or successor can complete the book, and recover its price, because the literary ability of the original author, for the use of which the publisher contracted, has not been, and could not be, applied to it.”

One need only observe the dramatic increase in law firm personnel to see how far we have departed from this picture of the individual lawyer. A recent survey reveals that the nation’s twenty largest law firms vary in size from 106 to 169 members; that many other firms range in size from 30 to 100 partners and associates and the personnel within such offices fluctuates almost daily with the ebb and flow of accretion and attrition. “Why Law Is a Growth Industry,” Business Week, January 13, 1968, p 78. Baxter v. Billings, supra, and its analogy is ancient and outmoded.

In Morgan v. Roberts, 38 Ill 65 (1865), also cited by the respondent, the court found that four attorneys retained jointly to prosecute a suit abandoned their contingent fee contract and were thereby foreclosed from enforcing its terms against the client. The court observed that “there is strong presumption from the record that all the attorneys acquiesced in the abandonment of the case, as not one of them was known to move in the case after the second verdict was set aside.” The attorneys in the instant case did not abandon the case.

When Leesman died in 1959 Mrs. Kespohl did not undertake to rescind the contract, but on the contrary allowed the surviving attorneys to continue with the prosecution of the litigation. The Superior Court suit was successfully concluded in May 1964 by the surviving attorneys. During this five-year period Mrs. Kespohl neither said nor did anything inconsistent with the continuance of the contract. Twelve days prior to the entry of the favorable decree Long withdrew his appearance but entered a new appearance for Mrs. Kespohl in the name of his firm and together with Winstin completed the litigation. Mrs. Kespohl may not now complain that she was deprived of the skills and personal services for which she contracted.

The petitioner was entitled to an attorney’s lien and properly proceeded to enforce that right as prescribed by statute. Ill Rev Stats, c 13, § 14 (1967).

The decree is affirmed.

Decree affirmed.

DEMPSEY, P. J. and SULLIVAN, J., concur.


source: Caselaw Access Project

author: MB. JUSTICE SCHWABTZ

license: Public Domain

text:
    Charles Scheck, Plaintiff-Appellee, v. Evanston Cab Company, a Corporation, and James Pierce, Defendants-Appellants.
    Gen. No. 51,732.
    First District, Third Division.
    March 21, 1968.

      Bellows and Pickard, of Chicago (Jay W. Bellows and Theodore R. Pickard, of counsel), for appellants.
    Howard, French & Healy, of Chicago (Richard G. French, of counsel), for appellee.
   MB. JUSTICE SCHWABTZ

delivered the opinion of the court.

This action was brought to recover damages sustained by the plaintiff in a collision between his automobile and a taxicab owned by the defendant Evanston Cab Company and driven by James Pierce. Defendants admitted liability and the case went to trial on the issue of damages only. The jury returned a verdict for $7,500 and the court entered judgment thereon.

Four charges of error are to be considered: (1) there was no proper verdict, as the jury did not sign a verdict before it was discharged; (2) the verdict was excessive and contrary to the manifest weight of the evidence; (3) the jury should not have been instructed to disregard evidence as to a prior injury; and (4) the court erred in giving the jury plaintiff’s instruction No. 7. The facts follow.

On March 7, 1959, the plaintiff while driving his automobile on Lake Shore Drive near the intersection of Goethe Street in Chicago was struck in the rear by the taxicab. The plaintiff’s body went forward and his head went backward from the impact. At that time plaintiff said he felt a light tingle in his neck. No evidence of personal injury was noted in the police report. Plaintiff continued on his trip to South Bend, Indiana, and returned to Chicago the next day. Ten days later he saw Dr. Jack Robbins, an orthopedic surgeon. Dr. Robbins found that plaintiff had marked spasms of the muscles in his neck, the muscles standing out in bold relief, with a list to the right. He received therapy treatments for three days as an out-patient in the Evanston Hospital. On March 27, 1959, his condition was significantly unchanged and a head halter was prescribed. On April 7, 1959, the findings were similar, but a slight deformity had developed. On Dr. Robbins’ direction the plaintiff was admitted to Evanston Hospital on April 10th where he remained until April 15, 1959. He was put in traction and medication was prescribed to reduce torticollis, which the doctor defined as a constant or intermittent spasm of the muscles of the neck, also called a “wry neck.” Upon his discharge, the diagnosis was given as cervical radiculitis of the seventh cervical root. On May 19, 1959, the date of plaintiff’s last visit to Dr. Robbins, the doctor found that “(t)he neck was substantially unchanged, there was more limitation of motion as far as general neck motions were concerned. Torticollis list to the side was marked.” At that time the doctor gave the plaintiff instructions on living with the problem and told him that any treatment or medication he could prescribe would be useful only when the symptoms were severe. At the trial Dr. Robbins observed that plaintiff’s head was carried asymmetrically. He said it was a very mild case of spastic torticollis. Plaintiff had no loss of time from work, except for the five or six days when he was hospitalized.

Prior to the accident plaintiff had been injured when he fell from a sun porch on July 26, 1958. As a result of that accident he was hospitalized for two weeks. Dr. Robbins and Dr. V. Turner, his partner, later deceased, attended the plaintiff on that occasion, and Dr. Robbins described the injuries. He did not testify to any connection between the 1958 occurrence and plaintiff’s present complaint. Plaintiff testified that after his release from the hospital in August 1958 he had no difficulty with his neck or with his head pulling to the left or right until the accident of March 7, 1959.

Dr. Horace Turner examined plaintiff on behalf of the defendants shortly before the trial and his diagnosis of the plaintiff’s condition based on a physical examination and five X rays was that it was scoliosis or curvature of the spine. He saw no indication of spastic torticollis and he was not questioned as to any connection between the 1958 occurrence and the one here involved.

We proceed to consider the charge of error with respect to the verdict of the jury. When the jury reached a verdict and returned to the courtroom, the clerk was handed a form of verdict which was part of an instruction with respect to forms of verdict which could be returned. The instruction told the jury that if they found for plaintiff and against defendants, the form of verdict to be used was as follows:

“We, the jury, find in favor of the plaintiff and against the defendants and assess the damages in the sum of $-.”

The jury filled in the blank with respect to damages by inserting the figure, $7,500. The clerk read this in open court and in the presence of the jury. No poll of the jury being requested by either party, the jury was instructed to return to the assembly room. Shortly after they left, the judge observed that while the amount of damages had been stated, the verdict had not been signed by the jurors. He telephoned the assembly room and asked that the jury not be disbanded, but be brought back by a bailiff immediately. This was done. The bailiff was called by the defendants to testify at the hearing on the post-trial motion. She said that when she was informed of the judge’s direction, she brought the jury back immediately; that they were never out of her sight and that no one talked to them. Upon their return, the jurors were instructed by the court to go into the jury room and sign the verdict. The verdict was duly signed and returned and judgment entered thereon. It would have been a proper verdict even if not finally signed.

A verdict read in open court by the clerk in the presence of all the jurors is sufficient to establish validity, even though it was not signed by the jurors. Griffin v. Larned, 111 Ill 432; Mertz v. People, 81 Ill App 576. The Civil Practice Act (Ill Rev Stats, c 110, § 68(1) (1967)) provides as follows: “It is sufficient for the jury to pronounce their verdict by their foreman in open court, without reducing it to writing, if it is a general verdict. The clerk shall enter it in form, under the direction of the court.” There is no question whatever that the finding of guilty and the assessment of damages was the true verdict of the jury.

The second charge of error is that the verdict was excessive. The evidence amply sustains plaintiff’s claim that the injuries in question were the result of the accident. A competent medical expert testified that the condition was recurrent and permanent. Damages awarded in a personal injury case will not be set aside unless so palpably excessive as to indicate passion or prejudice on the part of the jury. Holsman v. Darling State St. Corp., 6 Ill App2d 517, 128 NE2d 581. No such passion or prejudice is indicated in the case before us.

The third point made by defendants is that the jury should not have been instructed to disregard the prior injury. The burden was on the defendants to show a connection with the prior injury. The fact that plaintiff referred to it in his opening statement does not relieve the defendants of the burden of establishing a causal relationship between the prior injuries and those presently involved. Caley v. Manicke, 29 Ill App2d 323, 173 NE2d 209 (Reversed on other grounds 24 Ill2d 390, 182 NE2d 206); Marut v. Costello, 53 Ill App2d 340, 202 NE2d 853 (Affirmed 34 Ill2d 125, 214 NE2d 768). The opportunity to do so was granted by the court, but defendants failed to establish a connection. The sole evidence presented on this phase of the case by the defense is that the same part of the anatomy may have been injured in both occurrences. The instruction was proper.

We proceed to defendants’ last contention, that there was error in giving plaintiff’s Instruction No. 7 (IPI 5.01). That instruction informed the jury that it could infer that the testimony of a witness not called would be adverse if the witness was under the control of the party and if the witness was not equally available to the adverse party. The unavailable witness was the codefendant James Pierce, an employee of the defendant cab company at the time of the occurrence. Liability was admitted, but the plaintiff desired to show by the witness in question the force of the blow as bearing on the question of damages. Defendants sought to minimize the extent of plaintiff’s personal injuries by showing that a nominal amount of property damage was inflicted in the collision and hence the impact was light. The defendant Pierce had knowledge of these facts. His testimony would not have been merely cumulative or corroborative. No evidence was introduced by the defendants to explain the absence of Pierce or their failure to produce him as a witness at the trial. Under such circumstances it was proper to give the instruction in question. Petersen v. General Rug & Carpet Cleaners, Inc., 333 Ill App 47, 77 NE2d 58; Bassi v. Morgan, 60 Ill App2d 1, 208 NE 2d 341. We find no error in the record.

Judgment affirmed.

DEMPSEY, P. J. and SULLIVAN, J., concur.


author: MR. PRESIDING JUSTICE DEMPSEY

text:
    Elsie Nei, Plaintiff-Appellee, v. Contracting & Material Company, a Corporation, Defendant-Appellant.
    Gen. No. 52,143.
    First District, Third Division.
    March 21, 1968.

      Tom L. Yates, of Chicago (Carl E. Abrahamson and T. A. E. Poehlmann, of counsel), for appellant.
    William L. Arnold, of Chicago (Edward E. Reda, of counsel), for appellee.
   MR. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court.

The trial of this personal injury action resulted in a jury verdict and judgment in favor of the plaintiff for the sum of $5,000.

On appeal the defendant contends that the judgment should be reversed because the plaintiff was guilty of contributory negligence as a matter of law, because the evidence was insufficient to support either the verdict or the award of damages and because the trial court erred in refusing to give a tendered defense instruction.

The plaintiff was injured in an automobile accident on what is now known as the Kennedy Expressway. Her auto ran into the car in front of her when this car stopped suddenly to avoid colliding with a ten-ton, six-wheel dump truck owned by the defendant which was transporting asphalt to locations in need of repair on the blacktop shoulders of the expressway. The day was clear, traffic was of medium density and the plaintiff was traveling in a southeasterly direction towards downtown Chicago. She testified that: she was going between fifty-five and sixty miles per hour — a speed under the maximum limit — in the middle lane and was keeping four to five car lengths behind the auto in front of her; she first noticed the truck on the right shoulder of the road when she was two blocks from it; when she was about a block away it moved into the right-hand lane of traffic; it did not stay in this lane but, when she was roughly sixty feet away, unexpectedly made a direct crossover to the left side of the expressway; as it went through the center lane, the brake lights of the car ahead of her flashed and the car stopped; she applied her brakes as soon as she realized what was happening but was unable to stop completely and ran into the rear of the car.

The driver of this car testified that: he was driving in the center lane and was two to three hundred feet from the truck when it pulled off the right shoulder of the road and, with no warning by directional lights or otherwise, crossed the three lanes of traffic at a sharp angle; when it first entered the center lane it was less than fifty feet in front of him; he had to apply his brakes very hard to avoid hitting the truck in the side as it moved crosswise, and it was directly in front of him when he came to a stop.

The truck driver denied that his truck was involved in the accident. He testified that: he had stopped his truck and deposited some asphalt on the right-hand shoulder approximately one mile northwest of where the accident occurred; he traveled in the right lane for two or three blocks at a speed of ten miles per hour; then, with his directional signals on and after looking into his rearview mirror and observing that the nearest vehicles were two or three blocks behind him, he proceeded into the center lane; he traveled a few hundred feet in the center lane at twenty-five to thirty miles per hour; he then crossed over the third lane and onto the left-hand shoulder where he stopped to drop off more asphalt and was there for half a minute before he heard the screeching brakes of the two autos.

It is the defendant’s contention that the plaintiff was guilty of contributory negligence as a matter of law because she was following the car ahead of her so closely that she was unable to stop without coming in contact with it. Several cases are cited in support of the proposition that a party who collides with a stopped vehicle is guilty of contributory negligence as a matter of law. However, as this court observed in Murad v. Witek, 48 Ill App2d 137, 199 NE2d 809 (1964), such cases must be decided on their own particular facts.

Traffic conditions on modern expressways differ sharply from those on side streets, arterial streets or even highways. Traffic proceeds at a high rate of speed— the minimum speed permitted on the expressway where the accident took place is forty miles an hour — and vehicles are constantly changing lanes. The faster vehicles usually use the lane or lanes closest to the median strip. Vehicles entering an expressway cross through traffic to reach these lanes and vehicles leaving the expressway execute a like maneuver from the faster lanes to the exit ramps. The maximum speed for trucks is less than the maximum speed for automobiles. Autos move around trucks and trucks move around slow-moving autos. Drivers are alert for openings and take advantage of those which enable them to change their positions. A careful driver, no matter what his speed, finds it almost impossible to maintain a safe distance from the car ahead; when he attempts to do so other cars quickly fill the space he has provided.

The purpose of expressways is to facilitate the rapid movement of a large number of vehicles through highly congested areas. To enforce a standard of care requiring drivers on expressways to maintain an interval between their vehicles and those in front of them so that, in all situations, they will be able to stop prior to coming in contact with the preceding vehicles or else be deemed guilty of contributory negligence as a matter of law would be unrealistic and would tend to defeat the very purpose for which expressways are constructed. Therefore, the circumstances which have led courts to find negligence as a matter of law in rear-end collisions on other roadways are not necessarily controlling in rear-end collisions on high-speed, urban expressways.

In the present case the trial court correctly submitted the issue of both the plaintiff’s and the defendant’s negligence to the jury. Whether the plaintiff kept a proper distance between her car and the one in front in view of the speed of the vehicles and the prevailing traffic conditions, whether her own speed was excessive under the circumstances, whether she acted reasonably in not reducing her speed when she first noticed the moving truck, whether her assumption that the truck would proceed in the right-hand lane was reasonable and whether she applied her brakes as quickly as she should have, were questions for the jury. There was sufficient evidence to sustain the jury’s finding that she was in the exercise of ordinary care for her own safety and, likewise, there was sufficient evidence to support its finding that the truck driver was negligent and that his negligence was the proximate cause of her injuries.

The defendant tendered the following instruction which the court refused:

“There was in force in the State of Illinois at the time of the occurrence in question a certain statute which provided that:
“ ‘No person shall drive any vehicle upon any public highway of this State at a speed which (1) is greater than is reasonable and proper with regard to traffic conditions and the use of the highway, or endangers the safety of any person or property; or (2) is greater than the applicable maximum speed limit established by this section or by a regulation or ordinance made pursuant to the provisions of this Article. The fact that the speed of a vehicle does not exceed the applicable maximum speed limit does not relieve the driver from the duty to decrease speed when approaching and crossing an intersection, when approaching and going around a curve, when approaching a hill crest, when traveling upon any narrow or winding roadway, or when special hazard exists with respect to pedestrians or other traffic or by reason of weather or highway conditions; and speed shall be decreased as may be necessary to avoid colliding with any person or vehicle on or entering the highway in compliance with legal requirements and the duty of all persons to use due care.’
“If you decide that a party violated the statute on the occasion in question, then you may consider that fact together with all the other facts and circumstances in evidence in determining whether or not a party was contributorily negligent before and at the time of the occurrence.”

Three recent rear-end collision cases have dealt with this instruction or one substantially like it. See Becherer v. Best, 74 Ill App2d 174, 219 NE2d 371 (1966); Berg v. Collier, 60 Ill App2d 145, 208 NE2d 353 (1965) and Wrighthouse v. Brown, 52 Ill App2d 191, 201 NE2d 752 (1964). In each of these cases the court concluded that the instruction was either properly given or incorrectly refused.

In the case at bar, the plaintiff objected to the instruction for the reason that there was no evidence that her speed was greater than the maximum limit. This was the same objection interposed in Berg v. Collier, supra. In dismissing the contention that the refusal to give the entire instruction was not error because part of the instruction referred to the maximum speed limit, the court said:

“Nor can we say that the giving of the instruction in the form tendered would be held to be reversible error. . . .
((
“To conclude that a jury would be misled by the inclusion of the reference to maximum speed limits unrealistically attributes to jurors a degree of naivete incongruous with the motorized age in which we live.”

In light of the above decisions, the instruction should have been given and the refusal to do so constituted reversible error. The jury could have concluded that speed was not a factor in the case since the plaintiff was proceeding under the speed limit. Such is not the law. A person can be driving under the speed limit and still be driving too fast for existing conditions. The plaintiff’s speed was an element for the jury’s consideration and the defendant was entitled to have an instruction on the subject. The tendered instruction would have been more clear if the reference to the maximum speed limit and other inapplicable phrases had been deleted, and this should be done if the case is retried and the instruction resubmitted; but the inclusion of these superfluous expressions did not render the instruction improper.

Because the cause must be remanded for a new trial, it is unnecessary to consider the defendant’s contention that the damages were excessive.

The judgment of the trial court is reversed and the cause remanded.

Reversed and remanded.

SCHWARTZ and SULLIVAN, JJ., concur.


text:
    Elsie Grasso, Plaintiff-Appellee, v. Edmund J. Kucharski, Recorder of Deeds and Registrar of Titles, and The County of Cook, a Body Politic and Corporate, Defendant-Appellant.
    Gen. No. 52,266.
    First District, Third Division.
    March 21, 1968.

      John J. Stamos, State’s Attorney of Cook County, of Chicago (Edward J. Hladis, Chief of Civil Division, Dean H. Bilton, Nicholas F. Trovato, and Ronald Butler, Assistant State’s Attorneys, of counsel), for appellant.
    James D. Griffith, of Chicago, for appellee.
   MR. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court.

The plaintiff was injured in May, 1960, when she tumbled over a stool in an aisle of the Cook County Recorder’s office. Her complaint charged that her injury was caused by the negligence of Edmund J. Kucharski, Recorder of Deeds, and the County of Cook. A motion to strike and dismiss the complaint was filed on behalf of both defendants, but was sustained only as to Kucharski. The cause proceeded to trial and a verdict for the plaintiff in the sum of $5,000 was returned by the jury.

The sole question presented for determination on appeal is whether the decision in Harvey v. Clyde Park Dist., 32 Ill2d 60, 203 NE2d 573 (1965), should be limited to incidents occurring after the date it was handed down. If the decision has only prospective application, the plaintiff’s judgment must be reversed for her injury occurred prior to the date of that decision.

In Harvey, the Supreme Court held unconstitutional the statute (Ill Rev Stats 1963, c 105, par 12-1) which granted park districts immunity from tort liability. In arriving at its conclusion the court took into consideration the entire legislative scheme relating to the tort immunity of governmental units under which complete immunity was conferred upon some, partial immunity upon a few and no immunity upon others. The basis of the decision was that the legislative classification was not rationally determined and was in violation of section 22 of Article IV of the Illinois Constitution which forbids the granting of any special or exclusive privilege, immunity or franchise to any corporation, association or individual. It was held that persons injured by the negligence of various governmental units were also classified by the legislative arrangement and that this was contrary to section 22 which prohibits the enlargement of the rights of one or more persons in discrimination against the rights of others.

While it was not so stated, there could be no doubt from a reading of the opinion that the court considered all of the governmental-immunity statutes to be in the same category as the park district statute. That this was so was confirmed in the case of Hutchings v. Kraject, 34 Ill2d 379, 215 NE2d 274 (1966). There the court considered the statute which granted counties immunity from negligence (Ill Rev Stats 1963, c 34, par 301.1) and, for the same reasons as set forth in Harvey, found it to be unconstitutional.

The Harvey and Hutchings decisions contain no language limiting their effect to occurrences subsequent to the date of their filing; despite this, it is urged that the case of Molitor v. Kaneland Community Dist. No. 302, 18 Ill2d 11, 163 NE2d 89 (1959), dictates that they be so limited. In Molitor a pupil was injured when a bus in which he was riding, and which belonged to the defendant, left the road, exploded and burned. Although the precise question before the court concerned the immunity of school districts, the effect of the decision was to abolish the common-law doctrine of sovereign immunity for all local governmental units in this state. The court limited the consequences of its holding to occurrences transpiring after the date of the opinion, for it believed that not to do so would work a hardship upon school districts which, in reliance upon the doctrine of tort immunity, had neither procured insurance nor investigated past accidents.

Following the Molitor opinion, the Illinois legislature enacted statutes which restored tort immunity to various governmental units including counties. The County of Cook maintains that it placed reliance on this statutory confirmation of its immunity and that it is a victim of the same lack of foresight attributed to school districts in Molitor.

Molitor involved a change in the common law —a departure from the principle of stare decisis. In cases which do not involve the constitutionality of a statute courts have the inherent power to declare that their decisions, even though they concern constitutional claims, shall not be applied retroactively. See, for example, Johnson v. New Jersey, 384 US 719, 16 L Ed2d 882, 86 S Ct 1772 (1966), which limited the decisions in Escobedo v. Illinois, 378 US 478, 12 L Ed2d 977, 84 S Ct 1758 (1964), and Miranda v. State of Arizona, 384 US 436, 16 L Ed2d 694, 86 S Ct 1602 (1966), to prospective application, and Linkletter v. Walker, 381, US 618, 14 L Ed2d 601, 85 S Ct 1731 (1965), which similarly limited the decision of Mapp v. Ohio, 367 US 643, 6 L Ed2d 1081, 81 S Ct 1684 (1961). Harvey and Hutchings, however, unlike Molitor, did not involve a change in the common law, but were concerned solely with the constitutionality of statutes. When a statute is declared to be unconstitutional it is considered to be void as of the date of its enactment. No rights can be predicated upon it, nor can it afford protection to anyone who has acted under it. In legal contemplation it is as inoperative as though it had never been in existence. Mills v. Peoples Gas Light & Coke Co., 327 Ill 508, 158 NE 814 (1927); Peterson v. Montegna & Co., 11 Ill App2d 109, 136 NE2d 586 (1956). If it were to be held that Harvey and Hutchings should operate prospectively only, it would be equivalent to declaring that the statutes which they invalidated were at one time constitutional. This cannot be done.

Since the injury suffered by the plaintiff occurred after the common-law doctrine of sovereign immunity was abolished in Illinois, the judgment of the Circuit Court is affirmed.

Affirmed.

SCHWARTZ and SULLIVAN, JJ., concur.


author: MR. PRESIDING JUSTICE ABRAHAMSON

text:
    Harold L. Jensen, Plaintiff-Appellee, v. Porter Richardson, Defendant-Appellant.
    Gen. No. 67-112.
    Second District.
    March 22, 1968.

      James K. McLaughlin, of Chicago, and Dario A. Garibaldi, of Flossmoor, for appellant.
    Anderson and Martenson, of Rockford, for appellee.
   MR. PRESIDING JUSTICE ABRAHAMSON

delivered the opinion of the court.

This is an appeal from the Circuit Court of Winnebago County. Plaintiff brought this action to recover for personal injuries occasioned by the negligence of defendant in driving his automobile. The accident occurred on February 4, 1966, in the City of Rockford. On April 24, 1967, the jury returned a verdict in favor of the plaintiff in the amount of $15,000, upon which verdict the court entered judgment. After the jury verdict, the trial court denied defendant’s post-trial motion seeking a new trial but did order a remittitur of $6,000 and entered judgment in favor of the plaintiff in the amount of $9,000. The plaintiff in open court agreed to the remittitur. The defendant stipulated to the liability so that the sole issue on appeal is whether the verdict and judgments were excessive and against the manifest weight of the evidence.

Harold E. Jensen, the plaintiff, testified that when his car was struck by defendant’s, his chest hit the steering wheel and he immediately experienced pain in his neck and back. He was taken to Swedish-American Hospital where the doctor took x rays and generally examined him. Dr. Young gave him medication, advised him to put boards upon the mattress of his bed, prescribed baths and fitted him with a steel brace similar to a corset. Plaintiff consulted Dr. Behr, who, after examining and taking x rays of plaintiff, prescribed a brace similar to the one he was wearing and prescribed additional medication and baths. The plaintiff testified he still suffered sharp pains in his back at the time of the trial. He further testified that his condition caused him to be absent from work for 32 days from the date of the accident through October 15,1966.

Plaintiff’s wife testified that prior to the accident her husband had been in perfect health and very active in sports; and that since the accident he suffered back pain in doing any physical work and no longer participated in skiing, swimming, bowling, playing baseball or other sports activities.

Plaintiff’s immediate supervisor at the garage where he works testified as to the physical exercise involved in the work duties performed by the plaintiff. He testified that prior to the accident the plaintiff had been very spry, gay and energetic. Since the accident he had slowed down, walked stiffly and had trouble opening hoods of the automobiles. Plaintiff did not present any medical testimony concerning the extent of his injuries.

At the close of plaintiff’s case the defense rested without presenting any evidence and stipulated that the instructions offered by the plaintiff should be given.

It is defendant’s contention that since the injuries complained of are subjective and are not visually discernible to the jury, that medical testimony is required to establish them; that the testimony of the plaintiff, his wife and his employer was not sufficient to establish a soft tissue injury such as the whiplash type of injury that plaintiff complains of. The only cases cited by the defendant in support of his contention that medical testimony is essential are from jurisdictions other than Illinois. In the case of Palmer v. De Filippis, 321 Ill App 186 at 198, 53 NE2d 34, the court stated:

“The law does not require that plaintiffs in every personal injury case produce a doctor to testify as to injuries alleged to have been sustained. Nor did defendants contend at the time of the introduction of the testimony in question that it was necessary for plaintiffs to produce medical experts to testify as to their injuries. It is customary for plaintiffs in injury cases to testify as to injuries they claim they received.”

In Hyatt v. Cox, 57 Ill App2d 293, 206 NE2d 260, the plaintiff testified to injuries similar to those complained of by the plaintiff in this case. As here, there was no medical testimony offered by either party and the evidence of injury to the plaintiff was based solely on his own testimony. In that case, at page 299, the court stated:

“Where the injury complained of is remote in time from the accident or the condition is one that is shrouded in controversy as to origin, such as the intervention of either a prior or subsequent injury or disease, layman testimony may be insufficient to establish a prima facie showing of a causal relationship. The testimony here did not require an opinion calling for specialized, scientific or medical expertise. The plaintiff related plain statements of subjective symptoms and allegations of pain and suffering immediately following a truck-automobile collision, which the jury was free to accept or reject in the absence of any countervailing evidence, medical or otherwise.”

The assessment of damages is a jury function but it is for the trial judge to duly consider the evidence in the case before him and in a proper case where he considers the verdict excessive, to either enter a remittitur, as was done here, or to grant a new trial. The fact that the court did order a remittitur did not establish that the verdict was the result of passion and prejudice by the jury. Andres v. Green, 7 Ill App2d 375, 383, 129 NE2d 430; Fitzpatrick v. California & Hawaiian Sugar Refining Corp., Ltd., 309 Ill App 215, 223, 32 NE2d 990.

We conclude that the amount of the verdict as reduced by the remittitur in this case cannot be said to be of such magnitude as to show passion and prejudice on the part of the jury. De Biase v. Moza, 81 Ill App2d 162, 224 NE2d 596 (Abst.); Redmond v. Huppertz, 71 Ill App2d 254, 217 NE2d 85.

For the reasons stated, we find that the judgment of the Circuit Court of Winnebago County should be affirmed.

Judgment affirmed.

DAVIS and SEIDENFELD, JJ., concur.


author: MORAN, J.

text:
    Robert Melliere and Margaret Melliere, Plaintiffs, v. Florence T. Kaufmann, William Kaufmann, and Unknown Owners, Defendants. Florence T. Kaufmann and William Kaufmann, Counter-Plaintiffs-Appellants, v. Robert Melliere and Margaret Melliere, Counter-Defendants-Appellees.
    Gen. No. 67-32.
    Fifth District.
    March 22, 1968.
    Rehearing denied April 19, 1968.

      Sprague and Bock, of Belleville (John R. Sprague and Ralph T. Stenger, of counsel), for appellants.
    Kassly, Weihl, Carr & Bone, of East St. Louis (Elmer C. Weihl, of counsel), for appellees.
   MORAN, J.

Defendants appeal from a judgment of the Circuit Court of Monroe County, quieting title to Tax Lot 3, Section 8, T. 4 S. R. 11 W. of the Third P.M., Monroe County, in the plaintiffs, Robert and Margaret Melliere, and dismissing the counterclaim of defendants which demanded that title be quieted in the defendants.

The property in question is a triangular parcel of land which is bordered on the west by the Mississippi River, on the north and east sides by the land referred to as the James’ farm, and to the south and east by a tract referred to as the Pape farm. These two farms are now owned by the defendant, and thus Tax Lot 3 is bordered on three sides by the defendant’s property and by the river on the fourth side.

This property was evidently a swampy island, consisting of approximately 24 acres, which was sold by the County of Monroe to D. M. Hardy in 1897 and subsequently conveyed to William Demint, who, at his death in 1927, left Corinne Mitchell a life estate in the property. In April, 1964, Corinne Mitchell and the owners of the remainder conveyed the property to the plaintiffs. Although the evidence is not clear on this point, sometime around 1910 the course of the Mississippi River changed and thereby bypassed the island. The resulting slough between the island and the shore has been diminished through accretion.

Shortly after purchasing the land, the plaintiffs were ordered off the property by the Kaufmanns. Thereafter, in March, 1965, various members of the Pape family conveyed to Mrs. Kaufmann all their interest in Tax Lot 3 by quitclaim deeds. The plaintiffs instituted this suit to remove the claims of the defendants as a cloud upon the title. The defendants counterclaimed, claiming title to the property by adverse possession, contending that the Kaufmanns and their predecessor in title have been in possession continuously, openly, notoriously, and adversely for more than twenty years. Ill Rev Stats c 83, § 1 (1965).

Since the appellants claim ownership of the fee by adverse possession, they must show that it had commenced prior to the creation of the life estate of Corinne Mitchell, for otherwise it could not commence against the remainder until after the termination of the life estate. Beasley v. Beasley, 404 Ill 225, 88 NE2d 435. Thus, it was necessary for the defendants to prove that adverse possession commenced prior to 1927 and continued for a twenty-year period. The trial judge, sitting without a jury, found that any claim of adverse possession did not commence prior to the death of Demint. The appellants contend that this finding was contrary to the manifest weight of the evidence. The theory of adverse possession is based on the Kaufmanns’ and their predecessors’ use of the Pape farm.

Clarence Pape testified on behalf of the counterclaim-ants that he was 55 years of age and moved on the farm around 1914 or 1915, when he was four or five years of age and lived there until 1929. He hunted, fished, and trapped all over the ground for thirty-five years; that his father cleared and planted approximately thirty acres of the land until he died in 1931 and after that, it was cleared and planted by their tenants until 1946; that they also harvested and sold lumber from it continuously.

George Pape, 73 years of age, testified on behalf of counterclaimants that he lived on the Pape farm for one year when he was working for his father, Herman Pape; that his father built his home on the Pape farm and lived there for about fifteen years, between 1920 and 1930; that he built the home about thirty-five years ago and lived there until the time of his death; that they grew crops on the farm and cut and sold wood. When asked if any part of Tax Lot 3 was cleared while he and his family had the property, he stated, “Just how close they got to it, that is hard to say. They went out to where the biggest patch of ground was open to get corn in.” Some corn was planted; and, in order to plant the corn, the timber had to be cleared. After his father died in 1922, his brother, William, lived in a building on Tax Lot 3. They sold the property a few years after his father died in 1922; but until it was sold, they rented the farm, including Tax Lot 3, to a Mr. Menke. He testified that he was present when sand was hauled from Tax Lot 3, which was used in the construction of a house. His brother, William, lived in a house there, while he (George) lived there.

Emma Pape testified on behalf of counterclaimants that she was 72 years of age and the wife of George Pape. She had been on the Pape Farm around 1910-1912 or 1915, but never saw the house that George testified his brother lived in. She never went out on the land and did not know whether they cut timber on it.

Louis Pape, 66 years of age, testified on behalf of counterclaimants that his father, Herman, died in 1931; that he was 16 years old when they moved to the farm in 1916 or 1917 and he stayed there until he was married in 1923. Before 1931 there was a certain amount of com planted, but not much. While he was home, his father and brothers did not do any hunting or fishing on the ground. His brother, Bill, lived in a house; but he did know when it was built, because he was gone from there at the time. Bill’s house was built before he moved back on the farm in 1932 or 1933. He stayed on the farm for about eight years. There were crops out to the river, but it was not cleared too far out. “It was the length of the farm and a piece extending west to the river.”

Huida Pape, 64 years of age and the wife of Louis Pape, testified on behalf of the counterclaimant that she married Louis in 1963, having been first married to his brother, Tom, in 1925; that she lived on the property for two years, between 1925 and 1927. She did not know where the house, which William lived in, was and did not know anything about crops being planted or timber being cut on Tax Lot 3.

Leona Allgire testified on behalf of counterclaimants that she lived on the James’ farm from 1918 until 1943. She testified that on Tax Lot 3 timber was cut periodically; that the Papes farmed as near the river as was cleared; that Herman Pape’s son, William, had a house thereon; and that the Papes hunted and fished on this property. In 1918, this witness was four years of age. In addition, her testimony is not clear whether these acts occurred prior to or subsequent to 1927.

The testimony of the various witnesses that hunting, timber cutting, and other acts of dominion had been performed on the property for numerous years was frequently confusing. In many instances it was impossible to tell whether the witness was referring to acts which actually took place on Tax Lot 3 or on other portions of the land. There were also many uncertainties as to whether the acts occurred prior to 1927. The appellants called some witnesses who knew nothing about the location of Tax Lot 3 and the activities, if any, which occurred thereon. For example, Huida Pape, the wife of one of the Papes, lived on the farm for two years but did not know whether any control was exercised over Tax Lot 3. Mens Josten, also a witness for the appellants, testified that there was corn growing there, but was uncertain whether it was on Tax Lot 3 or Pape land. Clarence Pape testified that they hunted on the property for thirty-five years, while his brother, Louis, testified that neither his brothers nor his father hunted on the ground. Clarence also testified that William’s Cabin was built in the 1930’s. On cross-examination Clarence said that he did not mean that thirty acres were cleared solely from Tax Lot 3, but he meant this amount was cleared from the farm as a whole — perhaps only seven or eight acres were cleared from Tax Lot 3. He also testified that in much of the direct examination he was talking about the Pape farm as a whole and not Tax Lot 3. Although Herman Pape had died in 1931 and the Pape farm was sold in 1946, George Pape testified that his father died in 1922 and that the farm was sold a few years after his father’s death. Although the Papes testified that William’s house was on Tax Lot 3, Menke testified that the house was not on Tax Lot 3. In addition, there were numerous conveyances of the Pape property in the record, none of which included a description of the property in question.

The testimony contained statements such as “the Papes claimed all the way to the river,” or “there was corn planted to the river.” The Papes’ farm had river frontage to the south of Tax Lot 3; and it was often difficult to determine if the witnesses, in making these statements, were referring to the river as it passed Tax Lot 3, or as it passed the Papes’ property.

We are aware that Tax Lot 3 was frequently subject to flooding, and thus the dominion over the land would be necessarily restricted. However, we recognize that where property is so situated as not to admit of permanent improvements or annual cultivation, it may, nevertheless, be subject to adverse possession. In such a case the test to determine possession is:

“. . . the continued claim of the party, evidenced by public acts of ownership such as he would exercise over property which he claimed in his own right and would not exercise over property which he did not claim. . . . The failure in one year or more to pasture the land or to use it otherwise, occasioned by high water overflowing the land, would not of itself, necessarily constitute an interruption of the possession.” Burns v. Curran, 282 Ill 476, 480, 118 NE 750.

The possession is not required to be more full than the character of the land admits. Walter v. Jones, 15 Ill2d 220, 154 NE2d 250.

The acquisition of title by adverse possession requires the strictest type of proof. Clavey v. Bobzien, 6 Ill2d 549, 129 NE2d 688. Since the evidence in the present case was somewhat conflicting and confusing, and since proof of adverse possession must be clear and convincing, we do not believe that the trial court’s finding that adverse possession was not proved prior to 1927, was against the manifest weight of the evidence. In Cagle v. Valter, 20 Ill2d 589, 170 NE2d 593, a similar factual situation was present. The plaintiff claimed title by adverse possession to a tract of river-bottom land. The plaintiff became the record owner of the adjoining property and lived on this property for seven years, and then it was occupied by tenants for a number of years. At the conclusion of the proof, the trial court dismissed the complaint. The issue on appeal was whether the trial court was justified in finding that the proof was insufficient to establish title by adverse possession. The Supreme Court held that “the inconsistencies in the record before us leave many questions in doubt, which could best be determined by the trial judge, who heard the testimony of the witnesses.” Id. at 593.

The present case, likewise, contains many inconsistencies and uncertainties. Clarence Pape was the one witness who seemed to be familiar with the location and use of Tax Lot 3. He testified that the family claimed and used the property since 1915. However, as was pointed out, this witness was only 4 or 5 years of age in 1915. The acts of control over Tax Lot 3 which he witnessed and participated in during, for example, the year 1930 or 1935, may or may not have occurred in 1915. His age at the time, plus the conflicting testimony of other witnesses, presents a question of fact. The trial judge was best able to decide the issue. We do not feel that the evidence presented constitutes the requirement of the strictest type of proof; and, therefore, the finding of the court was not contrary to the manifest weight of the evidence. Brown v. Zimmerman, 18 Ill2d 94, 163 NE2d 518.

For the foregoing reasons, the judgment of the trial court is affirmed.

Judgment affirmed.

EBERSPACHER and GOLDENHERSH, JJ., concur.


author: MR. JUSTICE SEIDENFELD

text:
    Henry J. Lynch, Plaintiff-Appellant, v. Nachusa Hotel Corporation, an Illinois Corporation, Arnold V. Lund and James Donnellan, Defendants-Appellee.
    Gen. No. 67-103.
    Second District.
    March 22, 1968.
    Mathew P. Cicero and John T. Beynon, of Rockford, for appellant.
    Reno, Zahm, Folgate and Skolrood, of Rockford, for appellees.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

The plaintiff is a licensed real estate broker who filed this suit against the defendant corporation, and certain of its agents, to recover a commission of $16,200. After a bench trial resulting in a judgment in favor of the defendants, the plaintiff has filed this appeal.

The singular issue is whether the trial court found against the manifest weight of the evidence by ruling that no commission was due. We are of the opinion that it did not, based upon the conflicting evidence.

There was no written agreement. The plaintiff’s claim is based on a series of conversations relating to the eventual sale and purchase of the Nachusa House Hotel in Dixon, Illinois. The testimony is in conflict as to whether certain of the conversations took place as well as to what was said.

The plaintiff testified in substance that he was a licensed real estate broker who, in September of 1962, was having a conversation with one Walter Williamson, the ultimate purchaser of the property in question. Williamson asked the plaintiff if this property was for sale, whereupon the plaintiff went to the hotel in Dixon and spoke with the defendant Lund, the general manager for the owners, in the presence of the defendant Donnellan, Lund’s assistant. When asked by the plaintiff if the hotel were for sale, Lund stated that it was not on the open market although it might be for sale to a responsible party. The plaintiff then disclosed the name of Walter Williamson, and Lund responded that he knew Williamson and his capabilities and would be glad to talk to him. The next day the plaintiff called Lund and told him that he had talked with Williamson and would arrange an appointment at a later convenient time. According to plaintiff there were a number of subsequent conversations with Lund as to a plat of the property and business figures, and plaintiff relayed such information to Williamson. Plaintiff testified that on November 19, 1962, he, Williamson, Lund and Donnellan conferred at the hotel. They hadn’t arrived at a price and the conversation was general as to what property was to be included.

Mr. Lund mentioned that $450,000 was invested in the hotel. Plaintiff and Williamson looked over the property on December 1, 1962, and on April 3, 1963, the plaintiff, Williamson and Lund had lunch at the hotel and again looked at various rooms. On May 4, 1963, plaintiff was given sales and profit and loss information which he noted. The plaintiff testified that at that time he asked Lund for a letter of authorization to complete the deal with Williamson. Lund supposedly said he could arrange it, but first had to be sure that Williamson was really interested in the price “we are talking about now.” Plaintiff arranged to bring Williamson down “to negotiate” and he, Lund and Williamson met on May 10, 1963, at Lund’s house. Lund mentioned the figure of $400,000, but Williamson said he would not be interested anywhere near that price. Williamson indicated that $250,000 would be a more realistic price, and even that would have to include additional real estate.

On May 13, according to plaintiff’s testimony, he talked to Lund and Donnellan on the phone and told them he thought Williamson would be interested in $250,000, and that the final price would end up probably in the vicinity of $300,000. On May 27th, plaintiff asked Lund to give him a gross figure “including commission,” and plaintiff remembers Lund saying “they would think it over.” (On cross-examination, however, plaintiff stated that Lund made no response to his request for a commission.)

Plaintiff testified to a number of other conversations between himself and Williamson, and between himself and Lund and Donnellan, between June, 1963, and January, 1964, which did not indicate any change by either party in the asking and selling price. There was no conversation thereafter except for an inquiry by plaintiff when he was passing through Dixon, at which time he was told by Lund “that they weren’t getting anywhere.”

Plaintiff also testified that he had had several prior dealings where Williamson purchased property — all of considerable size, and that he had been paid a commission on each of these transactions by the sellers.

Lund and Donnellan testified that at the original meeting in September, 1962, the plaintiff either said or implied that he and Williamson were associated, and both testified that they understood plaintiff to be acting for Williamson. Lund testified that plaintiff never mentioned a commission to him and never asked to represent the sellers. Donnellan concurred.

Lund, Donnellan and Williamson each further denied in their testimony being present at the meetings testified to by plaintiff between September 30, 1962, and May 10, 1963. In fact, Lund and Donnellan even denied the conversations testified to by the plaintiff after May 10,1963.

The testimony conflicted as to the initial asking price; the defendants’ proof was that the first price was either $450,000 or “close to $500,000,” while the plaintiff had testified that the original figure was $400,000. In any event, Williamson testified that when he heard the asking price, and how much land was included, he “wasn’t interested.”

Williamson further stated that he and the plaintiff only discussed the Nachusa matter once to any degree, and this a few days after the luncheon meeting in May, 1963. After that date Williamson’s conversations with the plaintiff regarded the purchase of other properties in Elgin and Beloit. In early 1966 Williamson was in Dixon on oil business, saw Donnellan, and negotiations again began for the purchase of the Nachusa Hotel and considerable additional property, concluding with a contract of sale dated March 16,1966 for $300,000.

While the testimony was conflicting on each issue in the case, that of Williamson was in substantial accord with that of Lund and Donnellan. The plaintiff’s testimony was generally uncorroborated.

In support of his appeal, the plaintiff argues that the facts show a contract whereby the defendants become obligated to pay him a commission. He further relies upon the rule that a broker’s commission is not defeated merely because the principals pursue direct negotiations. Finally, he urges that the defense of abandonment is without merit because even if he had abandoned all hopes for a sale, which he denies, certainly Williamson did not.

In granting judgment for the defendant, the trial court necessarily believed that the defendants had never accepted the plaintiff as a broker with the understanding, express or implied, that they would bear the cost of his commission, or, if such an agency did in fact exist, that it had been terminated by abandonment.

Either finding would have justified a dismissal of the complaint, and it is our opinion that there are sufficient credible facts in the record to warrant either finding. The prior dealings between the plaintiff and Williamson, the consistent testimony of the defendant that the plaintiff never discussed his commission with them, and that the plaintiff led them to believe that he was acting on behalf of Williamson, as well as the fact that it was the plaintiff who sought out the defendants with the knowledge that Williamson was interested in acquiring the property, taken together, would surely justify the conclusion that there was no meeting of the minds whereby the plaintiff would be acting for — and compensated by — the sellers. This was not overcome by Lund’s testimony on cross examination that Williamson told him some time in 1964 that the plaintiff was not acting for Williamson. Young v. Zimmer, 56 Ill App2d 298, 303-306, 206 NE2d 281 (1965).

Similarly, the unvarying testimony of the defendants and Williamson as to the cessation of negotiations for a considerable period of time, which were resumed without the solicitation of the plaintiff, would justify the finding that the parties had voluntarily abandoned their relationship, and that therefore the plaintiff was not the procuring cause of the ultimate sale, assuming one had existed. Stone v. Moloney-Bennett Belting Co., 159 Ill App 366-370 (1911).

Notwithstanding that the plaintiff’s testimony challenged most of that offered by the defendants, we cannot say that the trial court’s finding was contrary to the manifest weight of the evidence. The court heard the testimony, observed the witnesses, their candor and lack of candor, and their demeanor while on the stand. The question of credibility, therefore, was one to be determined by the court. Young v. Zimmer, supra, 306.

Two additional facts tend to support the trial court’s decision that the plaintiff was not representing the sellers, or that, in any event, he was not the procuring cause of the sale. First, the plaintiff amended his complaint prior to trial by adding a verified count (later voluntarily dismissed) which prayed for judgment against the purchaser, Williamson, and which alleged, inter alia, that “Walter A. Williamson employed the plaintiff in his capacity as a Real Estate Broker in order to purchase the Nachusa House.” Second, the fact that the ultimate sale included considerable property in addition to that originally discussed suggests that the plaintiff was not the procuring cause of the transaction which was in fact consummated, particularly since the plaintiff, even by his own testimony, was in no way involved in the sale of this additional property. Parenthetically, it is further noted that Williamson acquired the post office site in Dixon at the same time — a property which he had previously bid upon and lost to the sellers — in the amount of the seller’s bid plus subsequent taxes.

In a final effort to show that the defendants themselves regarded the plaintiff as having earned a broker’s commission, the plaintiff points to paragraph 19 of the final contract, which provides in part:

“It is understood that the purchaser will deliver at closing a complete release signed by Henry (Hank) Lynch of Rockford releasing Seller from any commission payable on account of this sale. If the Purchaser fails so to do he will indemnify Seller from any commission payable to Henry (Hank) Lynch on account of this sale.”

We cannot agree that the inclusion of this paragraph enhances the plaintiff’s rights, nor can we say that this provision should have changed the trial court’s decision. The draftsmen of the contract of sale were doubtless aware of plaintiff’s desire to collect a commission, and they covered the question by including the above language. To anticipate a challenge is not to admit that it is well founded. In any event, the fact that the provision throws the onus of plaintiff’s threat upon the purchaser would indicate that as far as the principals were concerned, the plaintiff was more likely the purchaser’s representative than the seller’s. The liability of the purchaser for the commission, however, is not here in issue since the plaintiff voluntarily moved to dismiss the purchaser, Williamson, from these proceedings upon the close of proofs.

The judgment of the trial court is affirmed.

Judgment affirmed.

DAVIS and MORAN, JJ., concur.


author: JUSTICE MORAN.

text:
    Mutual Services of Highland Park, Inc., an Illinois Corporation, Plaintiff-Appellant, v. S. O. S. Plumbing & Sewerage Company, an Illinois Corporation, Defendant-Appellee.
    Gen. No. 67-123.
    Second District.
    March 22, 1968.
    Robert Weber, of Highland Park, for appellant;
    Leonard E. Blum, of Chicago, for appellee.
   Opinion by

JUSTICE MORAN.

Not to be published in full.


author: MR. JUSTICE DRUCKER

text:
    Morgan J. Mathias, Plaintiff-Appellee, v. The Baltimore and Ohio Railroad Company, Defendant-Appellant.
    Gen. No. 51,889.
    First District, Fourth Division.
    March 20, 1968.
    Rehearing denied April 19, 1968.

      John H. Gobel, Nicholas Liontakis, and R. L. Galassini, of Chicago, for appellant.
    Robert E. Harrington and John J. Naughton, of Chicago (Henslee, Monek & Henslee, of counsel), for appellee.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

Defendant appeals from a jury verdict and judgment for $30,000 for personal injuries.

Plaintiff’s complaint filed November 21, 1960, under the Federal Employers’ Liability Act (45 USCA § 51) alleged that on November 21, 1957, while working for defendant at Willard, Ohio, plaintiff was injured by a ladder striking him on the head when it was knocked over by another employee pushing a wagon. Defendant’s answer denied the allegation of the complaint and affirmatively defended on the ground that on March 10, 1958, in consideration of the sum of $1,500 plaintiff released defendant of all claims and demands. Plaintiff’s reply to defendant’s answer set out fraud and misrepresentation in the procurement of the release and a mutual mistake of fact as to the nature and extent of the injuries. During the trial defendant admitted liability for the accident and the trial proceeded on the issue of the validity of the release.

On appeal defendant contends:

1. That the court erred in not directing a verdict in favor of defendant;

2. That it was error not to allow the showing of defendant’s surveillance movies;

3. That the court erred in submitting a special interrogatory on mutual mistake and refusing to submit a special interrogatory on fraud; and

4. That the court committed other trial errors.

Testimony of Plaintiff

On November 21,1957, while working for defendant at Willard, Ohio, he was struck on the forehead by the top of a falling ladder. He fell to the ground bleeding profusely from a one and one-half inch cut; he received first aid but was sent home by Dr. Drury and told to take the rest of the day off and apply ice packs. He did not return to work until November 27 but worked from then until January 10,1958; he had bad headaches and saw Dr. Drury three or four times during that period and received pain pills. His first fainting spell occurred on December 7, 1957, and the spells lasted until March; he was ordered to go to Willard Municipal Hospital for X rays in December of 1957, where he received pain pills and diathermy and was advised to have heat treatments. On January 10, 1958, Dr. Drury told him to stay off work for a week. He saw Dr. Book at Willard Hospital and was directed to go to Chicago St. Luke’s Hospital for examination by Dr. Harry Mock and two other specialists where he received spinal, brain wave and X-ray tests and had water injected into his ear. He was kept in traction from February 5 until February 21, 1958. He was told by Dr. Mock that there was nothing the matter with him and he believed it. On March 10, 1958, he had a conversation with Mr. Leaman (District Claim Agent for defendant) at his office; Mr. Leaman told him that he would have to sign a release to obtain his back wages and they would “come up with fifteen hundred dollars.” Mr. Leaman told him that he couldn’t come back for more money if he signed that release “. . . but they would play fair with me if [sic] any future doctor bills or if I had to go back to the hospital or anything like that they’d take care of it, and at that time I thought he meant wages also if I was off any more.” He signed the release and received $1,500 less the $329 which had been paid to him prior to that time as sick benefits.

He returned to work the next day, March 11, 1958. The defendant paid $325 in doctor bills after the settlement; however it stopped paying in April 1959. When he continued to suffer from dizziness and pain in his neck, he called in sick on May 25, 1960, and that was his last day of work on the railroad. He lost no time from work between March 1958 and May 1960. He saw Dr. Drury 156 times after the B. & 0. stopped paying, receiving diathermy treatments, pain pills and circulation pills for dizziness. He still suffers from dizziness, pain and severe headaches for which he took the pain and circulation pills prescribed by Dr. Drury and applied heat. The pills helped but caused extreme pain in his left eye. The defendant refused all medical expenses after August of 1959.

Prior to the accident he had no complaints of dizziness or pain in the back of his neck and no doctor had told him he had arthritis. (Defendant’s Exhibit 12 showed that in a complaint filed for a disability allowance with the Veterans Bureau in 1930 he listed symptoms of “dizziness, frequent urination, pains in back and through chest, severe headaches, nervousness.”) Dr. Drury was the only doctor actively treating him; the others were only examining him. He had a little dizziness between the time of the accident and the time he signed the release but he didn’t know at the time of the signing that he would suffer from fainting spells and pain in the back of the neck. The dizziness grew worse after the release, and he found it difficult to work around moving equipment now.

Testimony of Milton Leaman, witness for defendant

He was the claim agent who negotiated the release from plaintiff for $1,500. The amount of plaintiff’s lost wages was $776.96. In addition to the $1,500 settlement, $886 was paid by defendant for plaintiff’s medical expenses. He told plaintiff that he could not come back at any later date and receive anything; that defendant would take care of future medical bills so long as the medical department went along with it; that Leaman knew that plaintiff was receiving “future medical,” and that he was going to Dr. Drury, and that this was the reason he (Leaman) felt the company would go along with this as long as there was a relation between the accident and the condition.

Opinion

Defendant first contends that a verdict should have been directed in its favor at the close of all the evidence. Defendant admits its responsibility for injuries caused by the accident but argues that there was insufficient evidence to support the finding of mutual mistake or fraud necessary to set aside the release. In Dice v. Akron, C. & Y. R. Co., 342 US 359, 361, the court held that the “validity of releases under the Federal Employers’ Liability Act raises a federal question to be determined by federal rather than state law.”

In Graham v. Atchison, T. & S. F. Ry. Co., 176 F2d 819, the testimony of the plaintiff was similar to that of the instant plaintiff. In Graham the court stated at page 825:

The plaintiff testified definitely that he did not, at the time the release was signed, believe that he had this injury to the spine; that he believed that his injuries were not serious and that, as urged by Dr. Morrison, he could and should go back to work as quickly as possible. The jury might well have believed that he would not have entered into this release had he been informed of the true nature of the injury which he had suffered and of its permanency. There is evidence in the record that the injury is traceable to the accident and that it is of a permanent nature, requiring surgery to correct. The plaintiff had the right to have submitted to the jury, for their determination, these facts.

The following factors negative defendant’s contention that a verdict should have been directed in its favor:

(1) Plaintiff’s testimony that he was told shortly before he signed the release by Dr. Harry Mock (to whom he was sent by defendant and who was paid by defendant) that there was nothing the matter with him.

(2) Plaintiff’s doctor’s testimony that there was causal connection between the trauma caused by the injury and plaintiff’s condition.

(3) The affirmative testimony of some of the doctors called by defendant as to the existence of calcification of the fifth, sixth and seventh vertebrae, the relationship between this calcification and the plaintiff’s dizziness and headaches and the effect of the accident on this condition.

(4) Plaintiff’s testimony that he was told by defendant’s claim agent that defendant would pay for his future medical expenses.

The court’s refusal to direct the verdict was proper.

Defendant next contends that the court committed prejudicial error in refusing to admit surveillance movies into evidence. The movies depicted plaintiff doing maintenance work around his home, carrying a large post and riding atop his lawn mower. The validity of serveillance movies as evidence at a trial is well settled. McGoorty v. Benhart, 305 Ill App 458, 27 NE2d 289. In that case the court relied on Boyarsky v. G. A. Zimmerman Corp., 240 App Div 361, 270 NYS 134, which held that it was reversible error to refuse to allow the projection of motion pictures showing the physical capabilities of plaintiff. There plaintiff also claimed to have been hit on the head with resulting total disability and inability to work. (The object hitting him was a bolt two and one-half inches long and one and one-quarter inches across.) In the instant case plaintiff testified that he takes care of the maintenance of his house; that he mows the lawn which was four acres until he sold some of it. Previously he stated that he found it difficult to work around moving equipment. Plaintiff’s doctor testified that in his opinion plaintiff could not have continued working around moving machinery because of “episodes of dizziness or blackout and of recurrent difficulty in pain with the neck and head area.” Dr. Drury, plaintiff’s treating physician for over eight years, testified that in his opinion from the time he ordered plaintiff back to work in 1958 until March 1966 there were no objective findings which would prevent plaintiff from returning to work. Other doctors, testifying for defendant, found that plaintiff’s prior arthritic condition was affected slightly, if at all, by the trauma of the accident. Dr. Miller, after examining plaintiff in March 1966 had an opinion that a man in plaintiff’s condition “could return to his usual occupation consistent with his age.” In view of the conflicting testimony on plaintiff’s capacity to work, we believe the court erred in not allowing the motion pictures to be shown.

The next issue presented by defendant relates to the special interrogatories. Defendant requested the court to give two: one, asking whether there was any mutual mistake as to the nature and extent of plaintiff’s injury and the other, asking whether Mr. Leaman (defendant’s agent) was guilty of any fraud when he procured plaintiff’s release. The court gave the first one (which was answered in the affirmative by the jury) but refused to give the second. In Todd v. Borowski, 25 Ill App2d 367, 375, 166 NE2d 296, the court said:

Special interrogatories are used for the purpose of testing the general verdict against the jury’s conclusions as to the ultimate controlling facts — the statute expressly provides that the answer to the special interrogatory controls the general verdict when inconsistent, and it may not be nullified by disregarding its mandate. (Citing cases. Emphasis supplied.)

In determining whether the special interrogatory as to mutual mistake was proper, the trial court had to consider at the time it was presented to him, whether the answer to that interrogatory if inconsistent with a possible verdict would control that verdict; e. g. if the general verdict was in favor of plaintiff, a negative response to the interrogatory about mutual mistake would not control the general verdict because the jury might have believed defendant guilty of fraud. We therefore believe that the giving of the one special interrogatory did not relate to an ultimate controlling fact upon which the rights of the parties directly depended and the court erred in giving it.

Defendant urges twenty-six other trial errors. Since we have decided to reverse the judgment and remand the case for a new trial we deem it unnecessary to answer these points. We hope that the experience of the trial and the appeal will serve to acquaint the parties with these problems and lead to a more expeditious presentation of the evidence and instructions in the new trial.

The judgment of the Circuit Court is reversed and the cause remanded for a new trial.

Reversed and remanded.

MCCORMICK, P. J. and ENGLISH, J., concur.

       In addition to the claimed fraud on the part of Mr. Leaman in obtaining the release, plaintiff also urged that if there was no mutual mistake when Dr. Harry Mock told plaintiff that there was nothing wrong with him, then there was fraud. In Matthews v. Atchison T. & S. F. Ry. Co., 54 Cal App2d 549, 129 P2d 435, 441, the court said:
      The statement made to plaintiff by defendant’s physicians, that he had recovered, was one of fact. (Citing cases.) It was believed by plaintiff, and if it was also believed by the physician, the case is one of mutual mistake. If the statement was not believed by the physician, we have a case of fraud.


author: CREES, J.

text:
    The Independent Insurance Agents of Illinois, and Harold W. Sanks, et al., Plaintiffs-Appellants, v. John F. Bolton, Jr., Director of Insurance of the State of Illinois, Department of Insurance of the State of Illinois, and Transportation Insurance Company, Defendants-Appellees.
    Gen. No. 10,841.
    Fourth District.
    March 25, 1968.
    Gillespie, Burke & Gillespie, of Springfield, for appellants.
    Giffin, Winning, Lindner & Newkirk, of Springfield, for appellees.
   CREES, J.

This case arises from an appeal taken from the Circuit Court of Sangamon County where the action was filed to have an Administrative Review of an Order entered by the Director of Insurance.

A review of the facts is necessary for a proper understanding of the case. The three individual plaintiffs are licensed, independent insurance agents who sue in their own behalf and as representative of a class of 219 licensed independent insurance agents. The gravamen of their complaint regards the filing of a new policy form as provided by the Insurance Code with the Director of Insurance by the Transportation Insurance Company. The policy and related materials which consisted of numerous papers and documents in support of the new policy were filed at different intervals for an effective date of October 1,1965.

On November 16, 1965, the appellants wrote to the Director of Insurance and requested the Director of Insurance to review the filing of October 1, 1965, and to conduct a hearing on the new policy form. The purpose of the hearing requested by the appellants was that the new policy form was based on a group offer to employers of more than 1,000 employees, and that this form of insurance could not be offered to members of the public in general. The appellants urged that this type of policy was contrary to the public interest and discriminatory. The hearing requested is provided for in Ill Rev Stats c 73, § 1065.5(4) (1965).

The Director of Insurance did not grant the hearing as requested. On April 7, 1966, by a letter addressed to Mr. William Webb, President of the National Association of Insurance Agents of Illinois, he notified those individuals that he had adopted the views in a memorandum prepared by the Chief Counseling Deputy of the Springfield office of the Department of Insurance. The Director of Insurance concluded his letter by stating that the “filing is legal.”

On May 5, 1966, a complaint was filed in the Circuit Court of Sangamon County seeking an Administrative Review of the decision of the Director of Insurance. The authority for filing the complaint was under the provisions of 111 Rev Stats, c 73, § 1019(1) (1965). The prayer for relief was to have the decision of the Director of Insurance reversed and be given a hearing before the Director of Insurance, and an opportunity to present evidence at such hearing.

On May 13, 1966, a motion to strike and dismiss the complaint was filed by the Director of Insurance. The thrust of the motion was that when the Director of Insurance accepted the filing on October 1, 1965, this was a final administrative decision of the Director of Insurance; the Director could not review the October 1, 1965 filing; the appellants did not institute an action to review the final administrative decision of October 1, 1965, within 35 days from the date of November 16, 1965, as per the Administrative Review Act, Ill Rev Stats, c 110, § 267 (1965). The Director then raised the point that the filing was a new policy form and not a new rate filing which requires the hearing. Ill Rev Stats, c 73, § 1065.5 (1965).

Count II of the motion to dismiss is in the alternative that if the filing could be construed as a rate filing then that the Director of Insurance did not conduct a hearing within 30 days from the date of the request for one on November 16, 1965. The motion continues that the appellants knew that they were not going to get a hearing on or about November 30, 1965, and that within 30 days of that date, they should have filed their action for Administrative Review. The Director of Insurance reaches that conclusion because in the complaint the appellants allege that on numerous occasions they requested the Director after they filed their original request for a hearing, and the last date specified was November 30, 1965. The conclusion reached by the Director’s alternative argument is that the time for Administrative Review had lapsed and the original filing and order of the new insurance policy of the Transportation Insurance Company is now final.

On June 2, 1966, the Transportation Insurance Company filed a motion to dismiss; however, it was never argued because they joined in the motion of the Director of Insurance.

The court below ordered the parties to file briefs, oral argument was waived, and on August 12,1966, the motion to dismiss was granted. The court ruled in favor of the Director on two grounds: (1) That the Director of Insurance did not have authority to grant a rehearing, because the filing on October 1, 1965, was a final order. The court further stated that the appellants then had a duty to start their action at that time for Administrative Review. (2) The court held that the appellants are not the class of parties considered to be aggrieved as contemplated by the Insurance Code. Ill Rev Stats, c 73, § 1065.5 (4) (1965).

The court allowed the appellants leave to file an amended complaint, which was done, and both defendants were allowed to have their motion to strike and dismiss stand. The court adopted its ruling of August 12, 1966, and the motion to strike and dismiss the amended complaint was granted and this appeal was taken.

The Director of Insurance takes the position that on November 16, 1965, the appellants affirmatively knew of the acceptance of the new policy form and that action to review the filing and acceptance would have had to be started within 35 days of that date. The Director argues further that the letter from him to the appellants dated April 7, 1966, was only a courtesy and of no legal consequence for the taking of an appeal. We find this argument to be without merit.

The Department of Insurance has numerous administrative matters before it. When the Director fails to take action within 30 days, a citizen still has the right to expect that the Director will take such action as he is legally bound to take. It is not required that a citizen shall assume the Director will violate the statute, and upon this assumption take an immediate appeal or be barred of his rights. Our holding with respect to the first issue decided below is that the letter of April 7, 1966, was the date on which the Director of Insurance denied the appellants their request for a hearing.

To quote from the letter of April 7, 1966, the Director states that, . . . “the request for a hearing be denied.” This does not sound like a courtesy to the appellants, but notice of an Administrative Ruling.

The facts as have been stated earlier disclose that appellants desired a hearing on the new policy form, the Insurance Code gave them a remedy in that they could file with the Director and request such a hearing. The Director then should hear the nature of their objections, testimony and evidence should be received so a decision can be reached on all of the facts known to the Director. Here we did not have that sequence of events. A request for hearing was filed on November 16, 1965, and this hearing was denied on April 7, 1966. We hold the denial of a hearing was an error on the part of the Director of Insurance. Ill Rev Stats, c 73, § 1065.5(4) (1965).

Since a hearing before the Director is required, it is not necessary to discuss the other points raised.

Reversed and remanded to the Circuit Court of Sangamon County with directions to order the Director of Insurance to conduct a hearing.

Reversed and remanded.

SMITH, P. J. and TRAPP, J., concur.