author: GOLDENHERSH, J.

text:
    Gault H. Holt, et al., Plaintiffs-Appellees, v. A. L. Salzman & Sons, a Corporation, Defendant-Appellant.
    Gen. No. 49,430.
    First Judicial District.
    September 20, 1967.
    Rehearing denied November 10,1967.

      L. Louis Karton, of Chicago, for appellant.
    Philip H. Corboy, James P. Chapman, and John D. Hayes, of Chicago, for appellees.
   GOLDENHERSH, J.

Defendant, A. L. Salzman & Sons, a corporation, appeals from judgments entered in the Circuit Court of Cook County in favor of plaintiffs, Gault H. Holt, Fred Fanter and George Cady in the amounts of $16,250, $5,000, and $26,250, respectively, in their suits to recover for personal injuries. Plaintiffs, who are sheet metal workers, were engaged in laying metal sheets on the joists of a building then being constructed, when the joists collapsed, and plaintiffs fell and were injured.

Originally, in addition to the defendant, A. L. Salzman & Sons, Milton H. Callner, d/b/a Milton H. Callner & Company, Milton H. Callner, Inc., a corporation, Ceco Steel Products Corporation, and LaSalle National Bank, as Trustee under Trust No. 13411, were named as parties defendant. Neither the record nor the abstract shows when and in what manner the defendant, LaSalle National Bank, was dismissed from the case. On October 3, 1962, the court entered an order nunc pro tunc as of October 1,1962, which provided:

“This matter coming before the court on motion of the plaintiffs, the court being fully advised in the premises,
“It Is Hereby Ordered that these consolidated causes be, and hereby are, dismissed without costs and with prejudice as to Milton H. Callner, d/b/a Milton H. Callner & Company, Milton H. Callner, Inc., a corporation, and Ceco Steel Products Corporation, a corporation, only; and without prejudice to the causes of action proceeding as against A. L. Salzman & Sons, Inc., a corporation.”

Plaintiffs were then given leave to file, and filed instanter, their fourth amended complaint, naming the defendant, A. L. Salzman & Sons, a corporation, as the sole party defendant. The case proceeded to trial and the jury returned verdicts in favor of the plaintiffs in the amounts of $25,000, $7,500 and $40,000, respectively.

In its answer, and again in its post-trial motion, defendant alleges, and plaintiffs admit, that the defendants who were dismissed from the case have paid plaintiffs a total of $25,000. Upon denying the post-trial motion the court entered judgments in the above amounts, the figures being computed by reducing each verdict by the amount received by the plaintiff from the dismissed defendants.

Defendant contends that the payments by the dismissed defendants and the dismissal, with prejudice, of the cases against them, constituted a release of those defendants, and served to release all joint tortfeasors. Although the parties refer to “Covenants to Terminate Litigation” executed by plaintiffs in connection with the payments, no such documents appear in the record.

In support of its argument defendant cites Aiken v. Insull, 122 F2d 746 (CA 7th), Bryan v. Creaves, 138 F2d 377 (CA 7th) and Petroyeanis v. Pirola, 205 Ill App 310. That Aiken and Bryan are clearly distinguishable from this case is best demonstrated by the opinion written by Judge Kerner (also the author of Aiken) in Essington v. Parish, 164 F2d 725, wherein at page 729, he said: “However conflicting the authorities may be in respect to the proper construction of the instruments here involved, we think the law is now settled in Illinois that the substance of the agreement is the controlling factor, and that the essential fact to be determined is ‘what was the intention of the parties.’ Illinois looks to all the circumstances to determine whether or not the transaction was intended as, and was in substance, a settlement and satisfaction, or merely an agreement not to sue, and that, as was held in City of Chicago v. Babcock, supra, 143 Ill 367, 32 NE 271, is a question of fact. The Aiken v. Insull and Bryan v. Creaves cases, supra, are not opposite. In the Aiken case this court held that in substance (actual intent) as well as in form (language employed) the instrument constituted a release, while in the Bryan case, supra, 138 F2d 377, 378, the agreement recited that they (the parties) were ‘ “desirous of composing and compromising their differences” and that the contract should constitute “a full settlement of claims between the parties hereto, accruing up to this date” ’.” With respect to Petroyeanis, we can add nothing to the language found in Van Meter v. Gurney, 251 Ill App 184, 186-187, and quoted in Hulke v. International Mfg. Co., 14 Ill App2d 5, 142 NE2d 717.

Applying the rule as stated in Essington that the “essential fact to be determined is ‘what was the intention of the parties,’ ” we hold that the order entered by the trial court shows clearly and unequivocally that it was the intention of the parties not to release plaintiffs’ claims, but to terminate the pending litigation and desist from further proceedings, and the entry of the order of dismissal did not serve to bar plaintiffs’ claims against the defendant.

Plaintiffs’ fourth amended complaint is in two counts. In Count I they allege that defendant is a corporation engaged in the business and profession of architecture, that it was engaged by the dismissed defendants Callner to draw plans, specifications and drawings for a building and to “check, revise and approve” plans, specifications and drawings prepared by the dismissed defendant, Ceco Steel Products Corporation, and did so, that for the purpose of approving the work prior to payments to the subcontractor it was also engaged to check and inspect the performance of certain portions of the work including the erection of certain joists, and that plaintiffs were injured as the result of the collapse of the joists. This count charges defendant with 17 acts of negligence which will be enumerated and discussed to the extent necessary to this opinion. Plaintiffs also allege their freedom from contributory negligence.

In Count II plaintiffs allege that the defendant wilfully failed to provide and design proper, sufficient and adequate bar joists and bridging, failed to provide for the erection of said joists and bridging in a safe manner, failed in their plans, specifications and drawings to provide for proper and adequate stays, supports, joists and bridging, that it wilfully approved or designed plans for the joists without provision for proper intermediate supports, and wilfully approved or designed plans for joists which were inadequate to bear, in addition to the dead load, a live load of 50 pounds for every square foot, and that the foregoing constitute wilful violations of the Structural Work Act (c 48, §§ 60-69, Ill Rev Stats).

The evidence shows that Milton H. Callner, individually, or one of the Callner corporations, owned a parcel of land upon which a one-story commercial building was being erected. One of the Callner corporations acted as general contractor, and the Callner organization also had an architect in its employ. Defendant, a corporation engaged in the practice of architecture, was consulted by Callner, and there is no dispute that it prepared a substantial portion of the plans for the building, including the general layout and the plans for the columns, joists and roof decking. Defendant contends that Callner’s employee-architect was the architect on the project, that its assignment was merely to do the “overflow” drawings, and it had no responsibility for seeing that the building was constructed in accordance with the plans and specifications. The record reflects neither a written contract between the defendant and Callner, nor any contract between the Callner-owner entity and the general contractor.

Callner entered into a contract with one Paul Arra to erect steel beams and bar joists which Callner had purchased from Ceco Steel Products Corporation, and to erect a steel roof deck with materials purchased from the same source. Defendant furnished Callner with architectural plans without details or specifications, and Arra employed a structural engineer to prepare the detailed plans. These detailed plans were delivered to Callner, and the evidence shows that the purchase order to Ceco Steel Products Corporation was based upon these detailed plans approved by defendant in its capacity as architect.

The contract between Callner and Arra which was prepared by defendant, required Arra to perform the work in accordance with plans “prepared by A. L. Salzman & Sons, Architect,” and the provisions for payment, in two instances, provide for final payments to be made “after completion of such work and approval by the Architect.”

The testimony shows that in erecting the building, the distance between the columns was to be 44 feet, and the span between the horizontal steel beams upon which the roof deck was to be constructed, was 20 to 21 feet. The joists are described as being fabricated of steel bars with open steel angles between the bars.

The top of the joist is referred to as a flange and the bottom as the chord.

The plans called for the steel bar joists to be spaced at intervals of 7 feet. The plans also provided for “clear top” bridging which is described as a steel member placed perpendicular, and attached to the flange of the joist by means of a bolt or a shop welded stud. The purpose of bridging is to prevent the joists from twisting.

Chapter 69 of the Code of the City of Chicago contains the following provisions:

“69-4. The regulations, specifications, standards and tests of the technical organizations which are referred to in this code are hereby incorporated herein by such reference with the same effect as though set forth. Authenticated copies of all such regulations, specifications, standards and tests shall be kept on file in the office of the commissioner of buildings, available for public inspection and use.
“69-4.1. The following shall be deemed to represent, for the purposes of this code, accepted engineering practice with respect to the materials, equipment, systems and methods of construction respectively specified therein, except as otherwise specifically provided in this code or in any regulation adopted pursuant hereto.”

The Manual of the Steel Joist Institute is designated in the ordinance as the standard specification for steel joist construction (69-4.1 (f) Steels and Metals. Standard Specification for Steel Joist Construction).

The Steel Joist Institute Manual, to which the ordinance refers, contains the following provisions:

“SECTION 100. SCOPE

“(b) ‘Steel Joist Construction’ as governed by these specifications shall be that type of construction where decks and top slabs, as defined in Section 109 of these specifications, are supported by separate steel members herein referred to as ‘steel joists’, spaced not farther apart than twenty-four (24") inches on centers in floors and thirty (30") inches on centers in roofs, but in no case spaced farther apart than the safe span of the top slab, deck or flooring over said steel joists.
“(c) Where steel joists are used at wider spacings than specified in paragraph (b) of this Section, the construction shall not be considered as ‘Steel Joist Construction’ as defined in these specifications. Such steel joists shall be designed, however, in accordance with recognized engineering practice without exceeding the unit stresses specified herein.”
“SECTION 101. DEFINITION OF STEEL JOIST
“Any open web steel member suitable for supporting floors and roofs between the main supporting girders, trusses, beams or walls when used as hereinafter specified shall be known as a ‘steel joist’. Such steel joists may be made of hot or cold formed sections, strip or sheet steel, riveted or welded together, or by expanding.”
“SECTION 108. BRIDGING
“(a) As soon as steel joists have been erected, bridging shall be installed between them before the application of construction loads. This bridging shall be adequate to safely support the top chords or flanges against lateral movement during the construction period and shall hold the steel joists in an approximately vertical plane passing through the bearings.
“(d) If continuous horizontal bridging is used, it shall consist of not less than two one-half (%") inch round continuous steel bars. Each bridging line shall consist of one bar at top chords and one bar at bottom chords attached by welding at points of contact with each Open Web Steel Joist. The welding process must not damage the joist members.
“(e) The number of lines of bridging provided shall not be less than that specified in the following table:
Span Number of Lines of Bridging
Up to 14 feet — One row near center.
14 to 21 feet — Two rows placed at approximately % span apart and symmetrically disposed about the center of span.
21 to 32 feet — Three rows placed at approximately % points of span.”

Arra testified that prior to and at the time of the occurrence, the work was being done in accordance with the plans. He stated that he had furnished the owner “an extra heavy steel” rather than furnishing steel designed to the bare minimum, in that he had substituted beams which weighed 124 pounds to the foot for the beams provided for in the plans, which weighed 108 pounds to the foot. Over objection, he testified that after the accident the number of joists was doubled. Prior to the occurrence, the joists used were number 147 Ceco bar joists, spaced at 7-foot intervals. Afterward provision was made to instal number 127 Ceco joists midway between the 147 joists, also at 7-foot intervals, so that the spacing was reduced from 7 feet, to 3 feet 6 inches, between joists. He described the 147 joist as a 14-inch joist, and the 127 as a 12-inch joist.

Defendant’s officers testified that under the terms of its employment by Callner defendant was not required to furnish any supervision on the job, that Callner ran his own job, and defendant’s services were fully performed upon approval of the plans above described. They also testified that although no such qualification appears in the approval shown on the plans, defendant approved only the spacing and length of the joists, and not the details. “Details” are defined as explaining the types and sizes of materials and where they are to be placed, more fully than do the plans. Their plans did not designate the location of the bridging.

Defendant’s president testified that good architectural practice would be to put bridging lines at third points in a 20 or 21-foot span. He stated that although the Manual of the Steel Joist Institute did not show single bar bridging attached to the top flange of steel bar joists as an approved type of bridging, it did not mean that it was not approved or adequate for the type of construction here involved. He identified the bridging shown in a photograph of the structure as horizontal bridging. He stated that horizontal bridging as detailed in the Manual of the Steel Joist Institute required horizontal supports affixed to the top flange and to the bottom chord of steel bar joists.

The testimony is conflicting as to the number of times defendant’s architects were at the job site, and the purpose of their being there. The witness, upon being asked if he went out to the job site from time to time, answered: “I would go out to the bar joists to establish that work was completed.” Upon being asked: “And that was for the purpose of allowing a payout on the job, is that correct?”, answered “Yes.”

Defendant’s secretary-treasurer, who is an architect and a licensed engineer, testified that the purpose of bridging is to prevent twisting and torque.

Dr. John Hinckley, a physicist, and operator of a research and testing laboratory, called as an expert witness for plaintiffs, testified that in his opinion the design for the erection and bridging of the bar joists was not adequate to prevent roll over or torsion stress in the bottom chord or bar of the joists.

Alex Alexander, a licensed structural engineer called by defendant, testified that in his opinion the bridging shown in the plans was satisfactory.

Frank Wells, a licensed structural engineer called by defendant, expressed the opinion that the design for the spacing of the joists and the bridging was satisfactory.

Plaintiffs testified that they were employed to instal the roof decking. The decking material was corrugated steel sheets, 18 inches wide, but there is a variation in the testimony as to their weight and length. One of the plaintiffs described the sheets as being 20 feet in length and weighing 20 pounds, while Arra stated that each sheet was 14 feet long and weighed 50 pounds. Plaintiffs had laid a number of sheets in the morning and had lifted several bundles of the material up on the deck. There were 3 or 4 stacks of 20 to 30 sheets each on the deck when they stopped for their lunch break. Plaintiff, Cady, foreman on the job, testified that the procedures described were the same as those followed on all the other jobs on which he had worked.

After the crew returned from lunch, they went back up on the deck. Suddenly the metal sheets and the underlying joists collapsed, and plaintiffs fell to the ground.

The witnesses are in agreement that the joists have their greatest weight bearing capacity and strength while in a vertical plane, and their capacity and strength decrease as they deviate from the vertical. During the construction period there are lateral loads placed on the joists by virtue of the movement of workmen and materials. The Chicago Code requires that a building be designed to support its “dead load” which includes the joists, the decking and the roofing material to be placed on the decking, and a “live load” of 25 pounds per square foot. Once installed, the decking serves as bridging. The testimony here shows that although some of the decking had been laid it had not been welded to the joists.

Howard J. Richter, District Manager for Ceco Steel Products, testified that he went out to the job shortly after the occurrence, that there were no weld marks on the beam in the area where the joists collapsed, the interior bearing beam on which the joists were resting had a narrower top flange than the beam adjacent to it, and the bridging was spaced more than 11 feet apart which is not in accordance with the recommendations of the Institute or Ceco.

With respect to Count I defendant contends (a) the evidence fails to show that the plans drawn or approved by defendant were defective or improper, (b) that there is no evidence of improper architectural or engineering practice, (c) that even if the plans contained defects, there is no evidence that the plans were followed or that the defects were the proximate cause of plaintiff’s injuries, (d) that even if the plans contained defects which proximately caused the injuries, the evidence does not show that defendant failed to exercise the ordinary skill of its profession in approving such plans, (e) the court erred in admitting Arra’s testimony, over defendant’s objection, as to changes made after the occurrence, in the spacing and number of the joists.

Because it goes to the question of whether plaintiff has proved the elements of a submissible case, we shall first consider defendant’s contention (d). In Count I of their fourth amended complaint plaintiffs charged defendant with negligence, it answered, and the case was tried on an ordinary negligence theory, and not on the professional malpractice theory of liability which defendant now contends is applicable. In Benson v. Isaacs, 22 Ill2d 606, at 610, 177 NE2d 209, the Supreme Court said: “The law is clear that the theory upon which a case is tried in the lower court cannot be changed on review, and that an issue not presented to or considered by the trial court cannot be raised for the first time on review. In re Estate of Leichtenberg, 7 Ill2d 545.” The rule applies here and defendant’s contention (d) comes too late.

In Count I plaintiffs charge, inter alia, that defendant carelessly and negligently (a) designed portions of the structure, (b) approved the design and method of erection of certain joists and bridging, (c) failed to specify proper and adequate bridging, (d) approved specifications for joist spacings of 7 feet, (e) approved plans and designs which failed to meet the requirements of the Chicago Code, (f) failed to inspect the work. Assuming, arguendo, that defendant had no duty under the terms of its employment to supervise or inspect the work, the evidence reviewed is sufficient to support a finding that defendant was negligent either in preparing or approving plans which failed to provide for adequate bridging and proper joist spacing, and which did not meet the standards set by the Chicago Code and the Manual of the Steel Joist Institute, that the plans were followed, and defendant’s negligence was the proximate cause of plaintiffs’ injuries.

Defendant contends that the testimony of its expert witnesses shows that the bridging approved by defendant represented good architectural and engineering practice, and was in accord with what was customarily done in the construction of other buildings. In Darling v. Charleston Community Memorial Hospital, 33 Ill2d 326, 211 NE2d 253, in considering a similar contention, the Supreme Court, at page 331, said: “Custom is relevant in determining the standard of care because it illustrates what is feasible, it suggests a body of knowledge of which the defendant should be aware, and it warns of the possibility of far-reaching consequences if a higher standard is required. (Morris, Custom and Negligence, 42 Colum L Rev 1147 (1942); 2 Wigmore, Evidence, 3rd ed secs 459, 461.) But custom should never be conclusive. As Judge Learned Hand said, ‘There are, no doubt, cases where courts seem to make the general practice of the calling the standard of proper diligence; we have indeed given some currency to the notion ourselves. . . . Indeed in most cases reasonable prudence is in fact common prudence; but strictly it is never its measure; a whole calling may have unduly lagged in the adoption of new and available devices. It never may set its own tests, however persuasive be its usages. Courts must in the end say what is required; there are precautions so imperative that even their universal disregard will not excuse their omission’. The T. J. Hooper, (2d cir 1932) 60 Fed2d 737, 740.”

With respect to defendant’s contention (e), that the trial court erred in its ruling with respect to Arra’s testimony, the record shows that when plaintiffs’ counsel asked the question of which defendant now complains, the following ensued:

“Defendant’s counsel: Objection.
“The Court: Overruled.”

The record reflects no further objection and there is no motion to strike the testimony. In defendant’s post-trial motion the only reference to alleged errors in the admission of evidence is the charge that “The court erred in admitting incompetent and prejudicial evidence proffered by the plaintiffs over the objection of the defendant.”

It is the rule in Illinois that a general objection raises only the questions, of relevancy and materiality, Johnson v. Bennett, 395 Ill 389, 69 NE2d 899. The question, and the answer it elicited, involved changes made in the spacing and number of the bar joists after the occurrence. We need not decide whether, upon proper specific objection, the testimony should have been excluded, and under the holding in Larson v. Commonwealth Edison, 33 Ill2d 316, 211 NE2d 247, the evidence was both relevant and material. We hold that the question was not properly preserved for review for the reason that the post-trial motion does not meet the statutory requirement that grounds for new trial be specified with particularity. Lawler v. Pepper Const. Co., 33 Ill App2d 188, 195, 178 NE2d 687.

As to Count II, defendant contends that (a) there is no instrumentality involved which would subject defendant to liability under the Structural Work Act, and (b) the manifest weight of the evidence shows that defendant had no supervisory function at the job site. Defendant argues that “there is no evidence in this record that any ‘scaffolds, hoists, cranes, stays, ladders, supports or other mechanical contrivances’ were involved in the plaintiffs’ injuries.” Defendant further contends that defendant cannot be held liable under the Structural Work Act because the manifest weight of the evidence shows that defendant was not in charge of the work.

In Miller v. DeWitt, 37 Ill2d 273, 226 NE2d 630, the liability of the architects, and in Larson v. Commonwealth Edison Co., 33 Ill2d 316, 211 NE2d 247, the charges of violation of the Structural Work Act on the part of the defendant engineers, were based upon the fact that they exercised control which placed them, along with others, in charge of the work and imposed upon them liability under the Structural Work Act. In this case plaintiffs proceeded on a theory different from that of Miller and Larson, and the cases are therefore clearly distinguishable.

Although the Structural Work Act is more frequently referred to as the “Scaffold Act” its provisions are applicable to facets of structural work other than equipment and contrivances included in the generic term, “scaffold.” The sections pertinent here are sections 2 and 8 which provide:

“(2) If in any house, building or structure in process of erection or construction in this state (except a private house, used exclusively as a private residence), the distance between the enclosing walls, is more than twenty-four (24) feet, in the clear, there shall be built, kept and maintained, proper intermediate supports for the joists, which supports shall be either brick walls, or iron or steel columns, beams, trussels (trusses) or girders, and the floors in all such houses, buildings or structures, in process of erection and construction, shall be designed and constructed in such manner as to be capable of bearing in all their parts, in addition to the weight of the floor construction, partitions and permanent fixtures and mechanisms that may be set upon the same, a live load of fifty (50) pounds for every square foot of surface in such floors, and it is hereby made the duty of the owner, lessee, builder or contractor or sub-contractor, of such house, building or structure, or the superintendent or agent of either, to see that all the provisions of this section are complied with.”
“ (8) It shall be the duty of all architects or draftsmen engaged in preparing plans, specifications or drawings to be used in the erection, repairing, altering or removing of any building or structure within the terms and provisions of this act to provide in such plans, specifications and drawings for all the permanent structural features or requirements specified in this act; and any failure on the part of any such architect or draftsmen to perform such duty, shall subject such architect or draftsmen to a fine of not less than twenty-five (25) dollars nor more than two hundred (200) dollars for each offense.”

Civil liability for violations of the Act is created in the fourth paragraph of section 9 which makes no reference to “having charge of” the work. The term “having charge of” is found only in the first paragraph of section 9 which provides for criminal penalties. Section 8, which imposes criminal penalties on architects, contains no such provision.

We are not required to determine whether to impose liability based upon an alleged violation of section 8, the defendant must be proved to “have charge of” the work. Plaintiffs’ Count II does not charge that defendant had charge of the work, and defendant did not attack the sufficiency of the complaint. The case was tried, and the jury instructed, on the basis of an alleged violation of section 8, without regard to whether defendant was in charge of the work, and defendant’s contention with respect to “scaffolds, hoists, et cetera. . . .” appears for the first time on appeal. As heretofore stated “the theory upon which a case is tried in the lower court cannot be changed on review and an issue not presented to or considered by the trial court cannot be raised for the first time on review.” Whether defendant “had charge of” the work is, therefore, not an issue here.

From our examination of the record we conclude that there is sufficient evidence to support the verdict and we find no error which warrants reversal. The judgment of the Circuit Court of Cook County is, therefore, affirmed.

Judgment affirmed.

EBERSPACHER and MORAN, JJ., concur.


source: Caselaw Access Project

author: MOEAN, J.

license: Public Domain

text:
    Walter Jendreas, Plaintiff-Appellant, v. Erma Alexander, Defendant-Appellee.
    Gen. No. 50,782.
    First District, Fourth Division.
    September 20, 1967.

      Philip E. Howard and Jerome H. Torshen, of Chicago (Jerome H. Torshen, of counsel), for appellant.
    George F. Barrett, of Chicago (Donald J. Duffy, of counsel), for appellee.
   MOEAN, J.

Plaintiff appeals from a judgment of the Circuit Court of Cook County entered on a jury verdict in a personal injury case.

On the 17th day of September, 1957, plaintiff was seated in the rear of an automobile driven by one Tony Eeinhofer, which was involved in a six-car accident that occurred on South Shore Drive in the City of Chicago. The first three cars, including car No. 3 in which plaintiff was riding, had stopped, when car No. 3 was struck by car No. 4 operated by a man named Carter. The defendant, Erma Alexander was operating the fifth car which struck car No. 4, after it had been hit by car No. 6.

Plaintiff contends that the trial court erred in not directing a verdict for plaintiff on the issue of liability for the reason that the evidence, when taken most favorably toward defendant, proved that the defendant as a matter of law was the sole proximate cause, or at least a contributing cause, of plaintiff’s injuries. He contends, alternatively, that the verdict is against the weight of the evidence and he is entitled to a new trial.

Plaintiff’s evidence consists of his own testimony, the testimony of a passenger named Foss and certain claimed admissions in answers to questions given by the defendant when she testified at a former trial concerning the same accident.

Plaintiff testified that he and two fellow employees, Tony Reinhofer and Clarence Foss, were in an automobile going south on South Shore Drive on the 17th day of September, 1957, when it was involved in a collision. Rein-hofer was driving, Foss was seated next to Reinhofer in the right of the front seat and the plaintiff was seated in the back seat, directly behind Foss. There were two cars in front of the Reinhofer car and three cars behind it which were involved in the collision. The two front cars had stopped and the Reinhofer car had stopped about four or five feet behind car No. 2 and had been stopped about four or five seconds when it was struck by car No. 4 driven by a man named Carter. After plaintiff’s car had stopped, plaintiff looked over his left shoulder and saw the Carter car about one and one-half or two car lengths behind, going about thirty miles per hour and braking. He kept watching this car constantly until the time of the collision and testified that when car No. 4 hit the Reinhofer car, car No. 4 was going fifteen to twenty miles per hour and that it never stopped before it hit “our” car; that after the Reinhofer car was struck, it hit car No. 2 which in turn hit car No. 1. After the Reinhofer car was hit once, he felt it get hit in the rear again. He did not see any of the cars behind him other than the Carter car, prior to the accident.

Foss testified that their car was stopped for a couple of seconds when they first felt the impact of the collision; that their car was struck only once and that he heard a screeching of brakes before the collision. He did not see any of the cars behind them prior to the accident.

A court reporter testified that she had transcribed the testimony of the defendant at a prior trial involving the same collision. The claimed admissions in the testimony of the defendant, Erma Alexander, are substantially that she did not know exactly how many times the front end of her car came into contact with the rear of the Carter car; that when her Packard was hit in the rear, she guessed that there was about three or four feet between the front of her car and the rear of the Carter Ford; that the Carter car was standing still when she hit it; that she did not think that car No. 4 had run into car No. 3 before she was knocked into car No. 4 by car No. 6; that car No. 4 went forward after the front end of her car came into contact with it; that she supposed that car No. 4 then came into contact with the rear of car No. 3; that she was sure “it was such an impact I am sure it had to go in front and hit the car that was in front of him”; that she was sure that car No. 4 had come to a complete stop and had not run into car No. 3 before she was hit; that car No. 4 had come to a gradual stop; that she was driving 40 to 45 miles per hour when she was hit in the rear and that at that time car No. 4 was already stopped; that she did not know how many feet behind car No. 4 she was when she was hit in the rear, but she was quite a ways and could have stopped; that she was something a little less than a car length away when another car hit her car in the rear and that her car was going 25 miles per hour at that time and had slowed up to make a stop.

The defendant’s evidence consists of the testimony of the defendant, Erma Alexander, and Tony Reinhof er.

The defendant testified that she was driving south at the time and place in question at a speed of about 45 miles per hour and was not passing any cars; that there was a car in front of her which put on its brake lights and began to slow down; that she commenced to slow down also when she saw his taillights go on; that when she was trying to come to a complete stop, she was hit from behind; that just before putting her brakes on she was going 35 or 40 miles per hour; that when her car was hit from behind she was going ten or fifteen miles per hour and slowing down; that when her car was hit from behind that she was knocked backward and forward on the steering wheel and she hit the Carter car which had come to a stop at that time; that she looked in the rearview mirror when she saw the Carter car starting to brake and saw the lady in the car as she was braking to slow down; that the Carter car was stopped about one second before she hit it.

On cross-examination she testified that the Carter car was slowing down and came to a stop; that Carter made a sudden stop; that it did not appear as though he had slammed on his brakes; that Carter was stopped a couple of seconds before she hit him; that she looked into the rearview mirror after she saw Carter start to slow down and at that time Carter was two or three lengths ahead of her; that when she looked up again, the Carter car was the same distance in front of her as before; that her car was going 45 miles per hour when it was struck from the rear and she was seven to ten feet behind Carter at that time.

Plaintiff contends that under this evidence defendant was negligent as a matter of law and was the proximate cause of plaintiff’s injuries. He argues that defendant had a duty to observe cars ahead of her and to be sufficiently alert to have had her car under control, enabling her to stop; that even though she was struck by car No. 6 before she struck car No. 4, the evidence conclusively proves that she would nevertheless have struck car No. 4; that even though plaintiff’s evidence indicates that car No. 4 struck car No. 3 before car No. 5 struck car No. 4, nevertheless the defendant is liable because defendant’s impact with car No. 4 was almost simultaneous with car No. 4’s impact with car No. 3 and had an adverse impact upon plaintiff’s physical well being.

Judgments should be directed and judgments notwithstanding the verdict entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors mov-ant that no contrary verdict based on that evidence could ever stand. Pedrick v. Peoria & E. R. Co., 37 Ill2d 494, 229 NE2d 504.

The evidence when viewed in its aspect most favorable to defendant, is that defendant was driving at a speed of about 45 miles per hour, staying even with the traffic, when the car ahead of her began to brake and slow down; that she began to brake and decrease her speed, also, when she saw the taillights of the car ahead of her light up; that as she was coming to a stop and while slowing to a speed of ten to fifteen miles per hour, she was struck from behind, causing her to strike car No. 4. When we accept this version of plaintiff’s evidence, we conclude that defendant was not guilty of negligence as a matter of law.

Plaintiff argues that defendant is bound by the prior sworn testimony which she gave under oath and that we should consider only this testimony and disregard her testimony at the second trial. Any testimony she may have given at a prior trial may constitute substantive evidence against her of the facts stated, but it does not bind her as a matter of law. We believe the facts in this case are covered by the rule stated in Guthrie v. Van Hyfte, 36 Ill2d 252, at page 258, 222 NE 2d 492:

The fact that a witness, be he a party or otherwise, has made out of court statements inconsistent with his sworn testimony does not per se destroy the probative value of his testimony, and it ordinarily remains for the trier of fact to determine where the truth lies. (Cases cited.) Defendant argues that the contradictory statements here were those of plaintiff, himself, and cites numerous law review articles, text-writers and decisions to the effect that such statements constitute substantive evidence against him of the facts stated. Such is, of course, the rule, and proof of such statements was here admitted. It then became the duty of the trier of fact — the jury— to evaluate the sworn testimony, the prior inconsistent statements and the explanations thereof, giving to the various witnesses such credence as the jurors determined proper. (Cases cited.)

Nor do we agree with plaintiff’s alternative contention that he is entitled to a new trial because the verdict is against the manifest weight of the evidence. Manifest means clearly evident, clear, plain, indisputable. Prowell v. Twin Mills Lumber Corp., 79 Ill App2d 401, 223 NE2d 749-753; Brayfield v. Johnson, 62 Ill App2d 59, 63, 210 NE2d 28, 30. Applying the rule in these cases to facts in the present case, we are unable to say that the verdict is against the manifest weight of the evidence.

For the foregoing reasons, the judgment of the Circuit Court of Cook County is affirmed.

Judgment affirmed.

GOLDENHERSH and EBERSPACHER, JJ., concur.


author: MR. JUSTICE SMITH

text:
    Floraine Dokos, n/k/a Floraine Du Mez, Plaintiff-Appellant, v. Sophocles Dokos, Defendant-Appellee.
    Gen. No. 50,911.
    First Judicial District.
    September 20, 1967.
    Rehearing denied December 27,1967.

      Albert Koretzky, of Chicago, for appellant.
    Jacob Shamberg and William D. Sampson, of Chicago, for appellee.
   MR. JUSTICE SMITH

delivered the opinion of the court.

The parties were divorced in December, 1961, and custody of the minor children, Deborah now age 16, John now age 12, and Daniel now age 10, was awarded to the mother. In 1965, the mother filed her petition seeking an increase in child support payments and seeking permission from the court to continue to have her three children domiciled with her in Germany where her present husband is now employed. The defendant answered and filed a cross-petition for a change of custody or possession of the children to him on the ground that he wanted his children to be raised in the United States rather than in any foreign country. The trial court dismissed the petition for an increase in child support for want of equity and allowed the father’s cross-petition for custody of the children based upon a finding that “the court having deemed it to be in the best interest and welfare of the children to have them reared and educated in the United States . . .” From this decree, the mother appeals.

Patriotism is love of one’s country. Love of one’s country necessarily implies a profound faith in its government and in its ideologies and a proud faith in the superior excellence of its institutions and its opportunities. We would not cryptically criticize the proud patriotism reflected in the father’s desire to have his children educated in the United States nor the decree of the trial court basing a change in custody on that ground alone. Commendable as it is, it does not ipso facto supply the answer to what is for the best interest of these minor children. Praiseworthy as it is, it is not an all inclusive warranty that the children reared and educated under its beneficent influences will automatically achieve the fruition that ought to be theirs. Our own juvenile delinquency problems among all classes and all economic levels are mute, but stark evidence of this fact. It would seem, therefore, that a determination of what is for the best interest of minor children requires more. In our judgment, we must look at the home, at its influences, at its images, and at the guidance that it furnishes past, present and prospective.

The father met the second Mrs. Dokos in November preceding the divorce in December, 1961. In April, 1962, she obtained a Mexican divorce and she and the father were married on April 21, 1962. These minor children were not advised of this marriage. Deborah has never met her stepmother and the boys met her only a few days before the modifying petitions were heard in September, 1965. The father visited the children in Europe in February, 1964. The second Mrs. Dokos was not with him. He communicated with the children regularly by mail and they preceded their mother to the United States in July, 1965. The father saw them frequently subsequent to that date. He took them to the World’s Fair and Washington, D. C., and had them with him on this trip for about ten days. The second Mrs. Dokos was not with them. Indeed the Chancellor himself commented that the new Mrs. Dokos was “an uncertain entity” and only time would tell whether she would properly care for the children. She had no children either by her first or present marriage.

The plaintiff testified that she discussed her upcoming marriage to her present husband and the future of the children with the defendant in February, 1963. She advised him that her prospective husband was being sent to Germany by his employer and she guessed that it would be for from 18 months to 2 years; that she would not marry him if she couldn’t take the children with her; that the defendant father said he had no intention of causing her any trouble and wished her happiness; that she did marry her present husband on April 30, 1963, and in July the children went to her in Germany; that they attended school at the Air Force Dependent School where the tuition was $465 per child; that she contemplated sending the two boys to a preparatory school in London because she felt they would receive a better education there, and wrote to the defendant about it; that she did not hear from him and did not know that he objected to it until her petition for an increase in child support was filed; that her marriage abated the $425 per month alimony which she was receiving, and that she did not intend to reside permanently outside the United States.

After conclusion of the evidence, the mother’s attorney offered a proposition that the children stay in West Germany and continue their schooling at the Air Force Dependent School there, if this was the desire of the father and the court approved; that the court might determine whether the children should go to London, England, or continue their education in Germany; that the decree should provide that the father be granted the right of visitation during the summer, and that provisions be made for returning the children to this country during the summer months. In response to this, defendant’s attorney stated, “I want to make the point very clear that Mr. Dokos would not under any circumstances consider agreeing to permit the children to live any longer in Germany, whether they are going to school in Germany or going to school in England.”

Our statute provides that a court may grant leave for the removal of a child from Illinois whenever such removal “is in the best interests of such child or children” and that the custodian of such children may be required to give reasonable security for the return of the children when the court directs. Ill Rev Stats 1965, c 40, § 14. The mother sought the consent of the father, but not of the court to take the children with her to Germany. While we would have preferred that she had complied with the original decree of the court in this respect, her conduct here does not appear to have been contemptuous or in willful disregard of that order. Indeed she sought in her petition to have her initial action approved and her continued action authorized. The father initially consented and acquiesced for a period of 2*4 years without initiating any remedial action. In any event, a change of custody is inappropriate punishment for a contempt of court, if there was one. Szczawinski v. Szczawinski, 37 Ill App2d 350, 185 NE2d 375. It is but an oft repeated truism to say that children of tender years are normally awarded to a fit mother where they may have her constant care. Miner v. Miner, 11 Ill 43, 50, cited in Nye v. Nye, 411 Ill 408, 105 NE2d 300, 303. Nothing is more injurious to the welfare of the child than to have it shuttled between contesting parents. Bulandr v. Bulandr, 23 Ill App2d 299, 162 NE2d 585. It is, of course, true that it is not necessary for the validity of an order changing custody to another parent to establish by new facts the present unfitness of the parent to whom custody has been previously entrusted “if other circumstances are clearly shown which require a modification for the welfare of the children.” Kline v. Kline, 57 Ill App2d 244, 247, 205 NE2d 775, 777. There is nothing in this record that remotely faults this mother during the years the children have been in her custody other than the mother’s domicile presently in Germany. The suggestion that her desire to place the boys in an English preparatory school for awhile is evidence of her desire to get them from under foot and demonstrates her lack of solicitude for their welfare is factless fiction. She testified that she felt it would furnish them a better education than their present school. She solicited their father’s advice and consent — for five months he was silent. The mother has receded from her intention to place the boys in a preparatory school; has stated that she does not intend to remain permanently in Germany; has offered to let the children remain in the school they are now attending, and is willing that provision be made for returning the children to the father during the summer months. We are not unmindful of the fact that just this arrangement has been in practical force and effect for quite some time. There isn’t a scintilla of evidence that the children haven’t fared well under this arrangement. Indeed the father who now complains was happy to have it so initially, and his change of heart came only when the mother sought an increase in the child support. The father did not tell his children of his second marriage; he did not introduce them to his second wife; she in no way communicated with them; the boys knew her only for a matter of days and Deborah not at all. She is a stranger to them. As justification for this action on his part, the father testified that the divorce was a traumatic experience for them, and it was for this reason that he kept his second marriage a secret. He apparently now thinks that to uproot them and bring them into a new and strange home will not likewise require a traumatic readjustment. With this, we do not agree. While the acquiescence of both parents in the present proposed arrangement over a period of several years does not provide a straitjacket for the trial court in his obligation to make a determination as to what is for the best interest of the children, it does have some probative value and is persuasive. The experience of yesterday is the prologue for tomorrow. The father does not charge and the evidence before the trial court does not remotely suggest any insufficiency in the maternal care and training, any inadequacy in the present home of the mother or its atmosphere, any deficiency in the training now received by the children in an American school, nor any suggestion that they are not now being raised in the American Way of Life and in the American tradition. Thus, the sole basis for the change of custody in this case is the announced desire of the father that his children be raised in the United States and not in any foreign country.

The extensive involvement of this country throughout the world, militarily, diplomatically, and industrially, is too well known to be the subject of debate. The participation of both first and second-marriage families in this way of life must be conceded. Our statute authorizing the removal of a child or children from Illinois whenever such removal is in the best interest of such child or children is not expressly nor by necessary implication limited to a removal to another state in the Union. In our judgment, the philosophy expressed in Schmidt v. Schmidt, 346 Ill App 436, 105 NE2d 117, was a judicial expression of the power of the court to remove children from the State of Illinois where their best interests require and this philosophy was then made a part of the public policy of this State by the statute which was subsequently passed. In Trimble v. Trimble, 16 Ill App 2d 408, 148 NE2d 612, this same public policy was specifically approved and the cause was remanded to the trial court to consider the question of what is for the best interest of the minor children. In other jurisdictions, this has included the removal to a foreign country. Kirby v. Kirby, 126 Wash 530, 219 P 27 (and cases cited therein). From what we have already said, we necessarily conclude that under rule that the question of domicile, standing alone, is insufficient as a matter of law to warrant a change of custody, and the finding of the trial court that it was in best interest . . . based on that proposition alone is, on this record, against the manifest weight of the evidence. While we are reluctant to substitute our judgment for that of a trial court in the delicate area of child custody, the fact that the trial judge here saw and heard the witnesses is tissue paper thin to foreclose our conclusion on the record which we now examine.

Accordingly, this case is reversed and remanded to the trial court with directions to (a) reinstate the original custody provisions, and (b) reconsider the question of an increase in child support payments in the light of circumstances now existing.

Reversed and remanded.

CRAVEN, P. J. and TRAPP, J„ concur.


author: MR. PRESIDING JUSTICE CRAVEN

text:
    Benjamin Bridge, Jr., Appellant, v. Newridge Chemical Company, an Illinois Corporation, and Thomas E. Shine, Appellees.
    Gen. No. 51,174.
    First Judicial District.
    September 20, 1967.
    Rehearing denied October 13,1967.

      Irving Goodman, of Chicago, for appellant.
    Peterson, Lowry, Rail, Barber & Ross, of Chicago (Gerhard E. Seidel, J. Robert Geiman, and Peter M. Sfikas, of counsel), for appellees.
   MR. PRESIDING JUSTICE CRAVEN

delivered the opinion of the court.

The trial court dismissed plaintiff’s verified complaint in equity upon defendant’s verified motion and supporting affidavits and exhibits. The complaint sought specific performance of an alleged agreement between corporate defendant and plaintiff which would allow plaintiff to repurchase 500 shares of stock formerly owned by plaintiff which had been sold to the corporation on December 15,1961, at $5 a share. Plaintiff’s complaint acknowledges that the agreement does not provide for resale but alleges that the omission was a fraudulent act of the corporation committed by defendant Shine, its president.

The complaint sought ancillary equitable relief, but the chancellor dismissed the complaint in its entirety and entered judgment for the defendants.

Plaintiff Bridge and defendant Shine, subsequent to early 1957, were equal shareholders in defendant New-ridge Chemical Company, each with 10,000 shares. On January 29, 1958, Shine and Bridge were members of the Board of Directors and Shine was president. Bridge was secretary-treasurer. At the annual meeting on that date, which both attended, the Board of the defendant corporation resolved that the corporation could buy 1,000 shares of plaintiff’s stock at $5 per share with right of repurchase. This sale was consummated. On August 22, 1958, at a special meeting of the Board (same directors and officers), the corporation was authorized to purchase 500 shares of plaintiff’s stock at the same price. This resolution did not provide for repurchase. Minutes of this Board meeting were signed by plaintiff as secretary.

On January 28, 1959, at a shareholders’ meeting attended by plaintiff, the shareholders approved business activities of the corporation for the preceding year.

On December 15, 1961, a special meeting of the Board approved a resolution authorizing its president (Shine) and secretary (Bridge) to execute a stock purchase agreement between Bridge and the corporation in the event of Bridge’s death. This agreement confirmed Bridge’s holdings as of that date at 8,500 shares and denied the existence of agreements between Shine and Bridge, or either of them, and the company, other than that expressed in the agreement then made, respecting the disposition of Bridge’s stockholdings in the corporation.

On the same date, December 15, 1961, Bridge executed a hold harmless and indemnity agreement in favor of the corporation, signed by himself, individually on his own behalf, and for the company as secretary, which confirmed his ownership of 8,500 shares, and which recited that Bridge had lost the certificates evidencing his ownership of 8,000 of these shares.

Plaintiff was a director and officer from April 5, 1957, through April 26, 1965, and did not demand the right to repurchase any of his former shares until April 26, 1965. Eventually, while this litigation was pending, he received 1,000 shares per the agreement of January 29, 1958. The other 500 shares are still the subject of this litigation.

Plaintiff’s complaint proceeds upon the theory, in substance, that he was defrauded by Shine and the corporation by failure of the second resolution (August 22, 1958) to provide for repurchase of the 500 shares, that he has thereby lost equal participation with Shine as a stockholder in the corporation, and that a fiduciary and confidential relationship existed between himself and Shine during these transactions which was violated by Shine and the attorneys who represented Shine and the corporation in drafting for execution the agreement of August 22,1958.

The purported reliance by the plaintiff in his complaint on a fiduciary or confidential relationship between himself and the defendant Shine is not documented by any allegations of fact tending to establish the relationship. Their status as stockholders in the same corporation does not establish the relationship of fiduciaries nor does it carry with it a high degree of responsibility of one acting toward the other. There is nothing pleaded by way of an agreement between these parties that this relationship should exist or that the plaintiff was under any disability which would cause Shine to have a duty toward Bridge to watch out for his interests.

Bridge was a director and officer of the corporation and as such participated in and contributed to the corporate meetings resulting in the agreements sought to be avoided, without objection. Under these circumstances, the documents of which he complains were as much the result of his acts as a corporate official as the acts of any other individual acting on behalf of the corporation, regardless of who prepared the documents or chose the exact language.

The complaint is silent regarding any irregularity in the meeting at which the agreement to sell the stock was executed. It is silent also regarding acts constituting deception, duress or coercion by Shine or anyone else acting in behalf of the corporation in inducing or requiring Bridge to execute the agreement. Whatever the reason plaintiff had to sell these 500 shares to the corporation, there is no allegation that Shine or the corporation procured that position.

Plaintiff pleaded that the agreement was prepared by Shine’s attorneys, who were also attorneys for the corporation, and argues that this bivalent position makes the agreement presumptively fraudulent. If there were ambiguities in the agreement, rules of construction would require a construction of the agreement adverse to the preparer in the event extrinsic evidence was not available to explain the ambiguity but this rule of construction does not apply here. There is no ambiguity in this agreement, and one is not created because a separate agreement of an earlier date contains provisions this one does not have. In any event, the relationship pleaded between the attorneys and Shine and the corporation does not in and of itself raise the specter of fraud sufficiently for any court to presume it exists.

Plaintiff pleads that when the agreements were made he was in a “weak and debilitated condition” and “he placed great reliance on the integrity, the fairness and honesty of his partner for many years,” Shine.

Nothing in the complaint gives a clue to the actual relationship of Bridge and Shine outside the corporation which would support the conclusion that Bridge and Shine were partners and had, between themselves, the duties and obligations to each other of partners. Nothing in the complaint gives a clue to the physical or mental condition of the plaintiff during the time the agreements were made except the conclusionary language just quoted. However, the exhibits before the court relating to the questioned transactions reveal plaintiff’s active presence and participation in the corporate meetings at which the documents were approved and executed. The reliance by plaintiff, therefore, upon these allegations as being sufficient to impose a duty on the defendants to respond to the complaint is misplaced.

Fraud is not presumed. The facts constituting the fraud must be clearly and explicitly alleged. Anderson v. Anderson, 339 Ill 400, 171 NE 504 (1930). The same rule applies to the existence of a confidential or fiduciary relationship. Nechanicky v. Morton Park Federal Savings & Loan Ass’n, 32 Ill App2d 444, 178 NE2d 197 (1st Dist 1961). In addition, if .the requisite relationship exists, facts showing an abuse of the relationship must be pleaded. Aaron v. Dausch, 313 Ill App 524, 40 NE2d 805 (1st Dist 1942); Skidmore v. Johnson, 334 Ill App 347, 79 NE2d 762 (1st Dist 1948).

The complaint is deficient on all these grounds and the trial court was correct in dismissing it.

Affirmed.

SMITH and TRAPP, JJ., concur.


author: MR. PRESIDING JUSTICE LYONS

text:
    Robert Powell, for the Use of Willard Anderson, Plaintiff-Appellant, v. Prudence Mutual Casualty Co., Garnishee-Appellee.
    Gen. No. 51,281.
    First District, Second Division.
    September 29, 1967.

      Leon C. Wexler and Horwitz, Anest & Ozmon, of Chicago (Leon C. Wexler, of counsel), for appellant.
    George F. Barrett, of Chicago (S. W. Narusis, of counsel), for appellee.
   MR. PRESIDING JUSTICE LYONS

delivered the opinion of the court.

This is an appeal by the plaintiff, Willard Anderson, as the unsatisfied judgment creditor of one Robert Powell, from the entry of a final order by the Circuit Court of Cook County, which order dismissed plaintiff’s garnishment action, after hearing, upon the motion and in favor of the defendant-garnishee, Prudence Mutual Casualty Company (hereinafter referred to as Prudence), the vehicular public liability insurance carrier of the aforesaid judgment debtor, Powell. The order was entered and the cause dismissed without prejudice on February 4, 1966.

The facts are that the plaintiff, Willard Anderson, on November 26, 1957, had sustained personal injuries as a result of an automobile collision involving two vehicles, one being operated by Robert Powell and the other by Thomas Lewis. Plaintiff, who was a pedestrian at the scene of the collision, was struck by the automobile of Thomas Lewis, which was involved in a collision with the automobile driven by Robert Powell, at or near the intersection of LaSalle Street and Adams Street in the City of Chicago. Civil proceedings for damages were brought by the plaintiff, Willard Anderson, against Powell and Lewis, as co-defendants. This case was submitted to the jury on the issues of plaintiff’s due care, the defendants’ (Powell and Lewis) joint or several negligence and the measure of damages, if any. There was a finding for the plaintiff against defendant-Powell only, with damages being assessed in the sum of $65,000. Plaintiff had been represented in this former action by an attorney from Prudence.

Powell, the resulting judgment debtor, concurrent with these aforementioned events, was insured by Prudence for personal automobile liability with maximum policy limits of $10,000 (together with interest and costs) for injuries to any one person.

Lewis held, at the same time, a similar liability policy with State Farm Mutual Automobile Insurance Company, with an individual limit of $25,000. After return of the verdict in the personal injury case, Prudence, in accordance with the terms of its insuring agreement with Powell and by leave of court, deposited with the Clerk of the Circuit Court $10,262.30, for the benefit of the plaintiff and in full satisfaction of its obligation under the terms and limits of the aforesaid policy.

Thereafter in February of 1965, the judgment in the original action having remained unsatisfied, plaintiff, as judgment creditor of Robert Powell, filed an affidavit for garnishment, together with attached interrogatories, against the garnishee-insurer Prudence, requesting garnishment of $69,137.80, this sum representing the $65,000 judgment together with interest and costs. Such garnishment proceedings were predicated upon the alleged bad faith, fraud, and/or negligence of Prudence in failing to settle its insured’s liability within the limits of his policy, when such an out of court settlement allegedly could have and should have been effectuated. The averment has been persistently denied by Prudence throughout the proceedings which followed.

In response to the affidavit for garnishment and attached interrogatories, Prudence filed a motion to dismiss the garnishment action and to strike interrogatories five (5) through seventeen (17) as being irrelevant and outside the scope of garnishment proceedings. Interrogatories five (5) through seventeen (17) were stricken by the court, Prudence being ordered to answer to those which remained, within 20 days. Thereafter upon a full and extensive hearing, the court below sustained Prudence’s motion to dismiss the action as being outside the scope of the garnishment statute. An order was entered accordingly from which plaintiff appeals.

It is the plaintiff’s theory of the case that garnishment was and is the proper remedy for a judgment creditor, against the insurance carrier of his judgment debtor, for the recovery of a judgment rendered in excess of policy limits occurring as a consequence of the bad faith, fraud, and/or negligence of that insurance carrier.

It is the defendant’s theory of the case that garnishment is a strict statutory proceeding to test the limited issues of being indebted to, or being in the possession, custody and control of property belonging to a judgment debtor. Accordingly, the instant action, while available to an insured against his insurer in a direct proceeding, does not involve a claim in the nature of those contemplated by and within the realm of the garnishment statute.

The instant case involves an attempted implementation of the provisions of the Garnishment Act (Ill Rev Stats (1965) c 62, par 38, et seq.) to a factual situation which has heretofore eluded precise judicial construction. Essentially, there is but a single issue presented; to wit, whether the provisions of the Garnishment Act were intended by our General Assembly to afford a remedy to an unsatisfied judgment creditor, against the insurance carrier of the judgment debtor, for recovery of a judgment rendered in excess of policy limits. The averred misconduct of said insurance carrier notwithstanding, this court cannot envision such far-reaching application and must resolve the question in the negative.

Not every specie of liability owing by a garnishee to his judgment debtor is within the reach of an affidavit for garnishment. Rather, the garnishment statute itself clearly manifests an intention to confine the garnishing process to but two classes of assets; namely, (1) a debt, for the collection of which, the garnishee might have properly maintained the traditional actions of debt or assumpsit, or (2) property belonging to the judgment debtor in the possession, custody, or control of the garnishee. Capes v. Burgess, 135 Ill 61, 25 NE 1000 (1890). Garnishment is a purely statutory proceeding unknown to the common law and accordingly must be strictly construed so as to not be extended to cases beyond its intended realm of application. Freeport Motor Cas. Co. v. Madden, 354 Ill 486, 188 NE 415 (1933). An analysis of the nature of the purported asset made the subject of the garnishment writ necessarily follows.

It is well established that an insurer has no duty to initiate negotiations for the settlement of an action accruing against its assured. To impose such a duty would be to place the insurer at a negotiating disadvantage with adverse litigants unencumbered by an equal burden. Oda v. Highway Ins. Co., 44 Ill App2d 235, 194 NE2d 489 (1963). It has been similarly established that an insurer’s refusal to settle a case within maximum policy limits, resulting in a judgment against its assured in excess of that limit, does not render the insurer liable per se to its assured under the policy. Quite to the contrary, the insurer is simply held to a standard of reasonable conduct and avoidance of fraud, negligence, and/or bad faith (as questions of fact for a jury, and upon which issue the insured has the burden of proof) in refusing a proffered settlement within policy limits. Olympia Fields Club v. Bankers Indemnity Ins. Co., 325 Ill App 649, 60 NE2d 896 (1945); General Cas. Co. of Wisconsin v. Whipple, 328 F2d 353 (7th Cir, 1964).

Plaintiff, relying on the case of Comunale v. Traders & General Ins. Co., 50 Cal2d 654, 328 P2d 198 (1958), alludes to the theory that there exists in every contract of insurance an implied covenant of good faith and fair dealing for a breach of which a garnishor, as an assignee, subrogee, or third-party creditor beneficiary thereof, can properly maintain an action in garnishment. Prudence responds arguing that the asserted claim, if at all, is one in tort, as such is nonassignable in Illinois, and hence cannot be made the subject of a garnishment action, absent specific authorization in the Garnishment Act. Prudence cites Holowaty for Use of Cherka v. Prudential Ins. Co. of America, 282 Ill App 584 (1935) in support of its contention on the point.

The foregoing theories notwithstanding, plaintiff cannot prevail in garnishment even if this court were to accept his implied covenant theory as an accurate reflection of the applicable law. Plaintiff himself, citing Zimek v. Illinois Nat. Cas. Co., 370 Ill 572, 19 NE2d 620 (1939), candidly acknowledges that for a debt to fall within the legislative purview of the Garnishment Act, it must be both due without contingency and represent a liquidated or readily ascertainable sum. We cannot accept plaintiff’s suggestion that these requisite conditions do, in fact, exist.

The claim which plaintiff endeavors to assert against Prudence is predicated upon an alleged breach of duty owed by Prudence to Powell, is at best contingent upon proof of the requisite breach thereof (see Hodges v. Standard Acc. Ins. Co., 198 Cal App2d 564, 18 Cal Rptr 17 (1961)) and moreover cannot be said to fall within that category of choses in action made accessible in garnishment through the equitable powers of the court as defined in section 18 of the Act (Ill Rev Stats (1965) c 62, par 50). Construing a former and related provision of the Act, the court, in Burgess v. Capes, 32 Ill App 372 (1889),stated:

“. . . the expression ‘choses in action/ refers only to those in the possession, custody or charge of the garnishee belonging to the defendant (judgment debtor), and held against third parties.” (Insert supplied.)

Succinctly then, plaintiff’s theory of garnishment suffers from an inherent weakness under the case law on the subject, for it must necessarily assume as fact that which has yet to be proven and which is denied by the garnishee; i. e., that Prudence was guilty of a breach of some duty in allegedly refusing an offer of settlement within the limits of Powell’s policy. In plaintiff’s Comunale case no such contingency existed. Garnishment recovery there was allowed upon the theretofore established “wrongful denial of coverage.” As stated in Capes for Use of Haynes, Gordon & Co. v. Burgess, 135 Ill 61, 25 NE 1000 (1890):

“Where the liability consists of damages which are unliquidated and uncertain in amount, and can be rendered certain only by the judgment of a court, such liability can not be said to be due or to be capable of becoming due until judgment has been rendered. In such case the party liable is under no obligation to pay, nor can he discharge himself by payment, until his liability has been ascertained and fixed by judicial proceedings.”

Cf. Smith v. Wallace, 82 Ill App 145 (1899) and National Homes, Inc. v. American Nat. Bank & Trust Co. of Chicago, 16 Ill App2d 111, 147 NE2d 412 (1958).

The entry of a judgment adverse to the assured does not, by itself, liquidate the amount of the claim against his garnishee-insurer. While the prior judgment liquidates the amount of the liability as between the judgment creditor and debtor, it does not necessarily follow that the amount of the judgment so affixed becomes liquidated as concerns the garnishee, who ordinarily has agreed to indemnify only to the extent of the stated limits of its policy. Brack for Use of Baumgarte v. Logan, 350 Ill App 425, 113 NE2d 197 (1953). Such is the very case before us. Condition No. 7 of the instant insuring agreement specifically recited:

“Any person . . . who has secured such Judgment . . . shall thereafter be entitled to recover under this policy to the extent of the insurance afforded by this policy. . . .”

Accordingly, Prudence’s liability upon entry of the judgment against its assured is liquidated in the amount equal to the amount of the judgment rendered or the stated limits of its contract of insurance, whichever is less. Here, that amount is $10,000 together with interest and costs, a sum which has long been on deposit with the court below. An unliquidated claim is not a debt within the contemplation of the Garnishment Act and therefore not recoverable in an action brought under it. Brack for Use of Baumgarte v. Logan, 350 Ill App 425, 113 NE2d 197 (1953).

Plaintiff argues that garnishment not being a summary action, it is available as the proper facility to test the issue of Prudence’s liability for alleged refusal to settle, relying on the case of Kay v. Johnson, 81 Ill App2d 456, 225 NE2d 158 (1967). In the Ray case judgment creditors were allowed recovery in a garnishment action against the insurer of their judgment debtor. However, unlike the case at bar, and of particular significance as it relates to the questions of contingency and liquidation of the subject debt, in Ray the insurer denied any liability whatsoever under the policy based upon the alleged lack of cooperation of its assured. Moreover, the judgment rendered there was not in excess of the policy limits. Under such circumstances, the authority is devoid of a reasonable basis of comparison, for the onus there rested with the insurer-garnishee to establish its affirmative defense of lack of cooperation in avoidance of its otherwise unambiguous contractual obligation to pay within policy limits. See Paul v. Kirkendall, 6 Utah2d 256, 311 P2d 376 (1957).

Plaintiff has initiated garnishment proceedings predicated upon an alleged liability which has been shown to be neither liquidated nor free of contingency. We do not think garnishment was intended as the instrument to adjudicate these fatally absent states of facts, particularly where, as here, there exists a remedy in an action for damages by the insured against his insurer for the alleged wrongful conduct, the final order of dismissal here having been entered without prejudice and being unambiguous in this respect. Smith v. Wallace, 82 Ill App 145 (1899); Paul v. Kirkendall, 6 Utah2d 256, 311 P2d 376 (1957). To hold otherwise would require an obfuscation of the genuine issue presented and circumvent the manifest language of the Garnishment Act. The trial judge properly dismissed the garnishment action as not being the appropriate remedy.

For the above reasons, the final order dismissing the cause without prejudice is affirmed.

Affirmed.

BURKE and BRYANT, JJ., concur.


text:
    Russell Roth, Administrator, Plaintiff-Appellee, v. Lissner Iron & Metal Company, a Corporation, Defendant-Appellant.
    Gen. No. 50,322.
    First District.
    October 4, 1967.
    Rehearing denied December 28,1967.

      Joseph B. Lederleitner, of Chicago, for appellant.
    Thomas R. Benz, of Chicago (James P. Chapman and John J. Kennelly, of counsel), for appellee.
   MR. PRESIDING JUSTICE CRAVEN

delivered the opinion of the court.

Plaintiff, Russell Roth, is administrator of the estates of Theresa G. Roth, Kenneth R. Roth and Gale Ann Roth. In such capacity, he sued Lissner Iron & Metal Company for recovery under the Wrongful Death Act and received an adverse verdict of the jury. The trial court granted his post-trial motion for a new trial, upholding his contention that the verdict was against the manifest weight of the evidence. This court granted defendant’s petition for leave to appeal from the trial court’s ruling. The sole issue is whether the trial court erred in granting the plaintiff’s motion.

Plaintiff’s decedents were passengers in an automobile being driven in a northerly direction in Cook County, on Barrington Road, when their car collided in the intersection of Dundee Road on June 28, 1956, at about 11:25 a. m. All three lost their lives as a result of this collision. The other vehicle involved in the collision was a tractor-semitrailer combination owned by the defendant, Lissner Iron & Metal Company, which was being driven west by its employee. This unit was 52 feet long, weighed 27,000 pounds and was loaded with 4,000 pounds of scrap metal. All fourteen wheels were equipped with air brakes which were activated almost simultaneously, but from front to rear, by the brake pedal in the cab of the tractor.

The weather was clear and good. The pavement was dry. Dundee Road, in the area of the intersection, is a two-lane, two-way, hard-surface highway marked as Illinois Route 68. Some distance to the east, Dundee Road descends a slope which extends through the intersection an undetermined distance. There are stop signs for traffic proceeding both north and south on Barrington Road across the intersection. The westbound truck was to the right of the northbound car. The view from Dundee Road is obscured by brush in the southeast quadrant of the intersection but there are places close to the intersection and entering the intersection where the view to the south is at least 150 feet. The view to the north, upon approaching the intersection from the east, is largely unobstructed. There was a truck following the defendant’s truck approximately 200 or 250 feet behind it. These trucks had traveled together for approximately six miles at a speed of approximately 40 mph.

The driver of the defendant’s truck testified that his attention was diverted as he approached the intersection by a car traveling south on Barrington Road coming from his right. He testified that he looked to the left as he approached the intersection and saw no traffic in that direction. He then looked to the right and saw the car that distracted him because he could not tell if it would stop for the stop sign. When he was very close to the intersection, this car stopped short of the intersection to turn around. He then looked back to the left and saw the car containing the Roths coming from his left across his path. He applied his brakes but the collision occurred immediately thereafter. His speed was about 40 mph. The investigating police officer testified that there were 51 feet of skid marks on Dundee Road extending east from the point of impact. About 80 feet of the skid marks were east of the east side of Barrington Road.

The defendant’s driver testified that the truck was in good mechanical condition prior to the impact, that the brakes were in working order and that the truck was equipped with a governor which prevented the truck from attaining speeds in excess of 40 mph. The driver of the following truck testified that the defendant’s vehicle was being driven at a speed of about 40 mph as it approached the intersection, that as the defendant’s truck neared the intersection he saw a car cross from left to right in front of the truck ahead of him, and that he saw the truck swerve, the brakes applied, and that almost simultaneously the collision occurred between the two vehicles.

The defendant contends, based upon this testimony, that the trial court abused his discretion in granting a new trial because this testimony created a question of fact for the jury and their determination that the defendant was not negligent was supported by substantial evidence.

It is the plaintiff’s contention that the trial court’s action was proper, arguing that the distraction of the defendant’s driver by the car on his right was unreasonable and unnecessary; further, that the evidence showed that the defendant’s driver was acting upon a conclusive presumption that no person or vehicle coming from his left would become a hazard to the operation of his truck and that it was negligent for him not to have seen and avoided the car occupied by the plaintiff’s decedents before he did see it. Plaintiff contends that since there was no evidence of a legal relationship between the deceased persons represented by the administrator and the driver of the car which would operate to bar them because of that driver’s negligence and there was evidence that the deceased persons were persons of careful habits, this negligence requires the defendant to respond in damages for the deaths caused by this collision.

A verdict is against the “manifest weight” when an opposite conclusion is “clearly apparent,” Tabor v. Tazewell Serv. Co., 18 Ill App2d 593, 153 NE2d 98 (3d Dist, 1958), or the finding of the jury appears to be “unreasonable, arbitrary, and not based on the evidence,” Stobbs v. Cumby, 9 Ill App2d 138, 132 NE2d 448 (3d Dist, 1956). It matters not that the trial judge hearing the evidence and observing the witnesses might be disposed to reach a different conclusion on the same evidence. If there is evidence which if believed by the jury would support the conclusion they reach, the trial court is unwarranted in interfering with the result. The credibility of witnesses is primarily for the jury and the ultimate conclusion of whether the conduct of a party is that of a reasonable person acting under similar circumstances shown by the evidence is, in a jury trial, a jury question. Stobbs v. Cumby, 9 Ill App2d 138, 132 NE2d 448 (3d Dist, 1956).

The plaintiff’s contention that the distraction of the defendant’s driver was unnecessary and unreasonable, and therefore negligence, is argument. Whether the defendant’s driver was operating his truck under a “conclusive presumption that he had the right of way” is also a jury question under these circumstances. The apparent nonacceptance by the jury of either of these propositions does not strike us as so unreasonable or arbitrary a result as to require judicial interference with that result. The defendant’s truck was on a highway which had preference over traffic on Barrington Road at this intersection. The fatal car approached him from his left and even without the stop sign would be obliged to yield to him. His distraction was not controverted, only the length of time it lasted.

There is no certainty here as to the visibility, speed or rate of closing of the car containing the Roths as it approached the intersection from the truck’s left. There is no certainty that it stopped for the stop sign and then pulled out into the path of the truck or whether it entered the intersection without stopping. The certainty of its visibility and location requiring application of the rule in Dee v. City of Peru, 343 Ill 36, 174 NE 901, 904 (1931) is entirely lacking here. There is nothing to indicate that, beyond question, had he been looking to his left the defendant’s driver would have seen the vehicle with which he later collided. In the absence of such overwhelming certainty, his conduct is not negligence as a matter of law, but only if found to be so by the duly constituted trier of fact, in this case — the jury. De Legge v. Karlsen, 17 Ill App2d 69, 149 NE2d 491 (1st Dist, 1958).

Plaintiff contends that the defendant’s negligence is judicially established by the driver’s testimony at the coroner’s inquest in which he stated he did not see the plaintiff’s car until too late to avoid the collision. He also stated there that he had not seen the car when he had previously looked to his left as he approached the intersection. At the trial, he said his recollection was much fresher at the inquest than at the trial. These matters were all before the jury. There is no binding judicial admission of negligence to be found in these statements which requires resolution of the negligence issue against the defendant. These statements are evidentiary admissions to be weighed by the jury, not conclusive judicial admissions of negligence precluding the party-defendant from putting in proof on this issue. The effect of the former testimony of this witness on his credibility at the trial was for the jury under appropriate instructions of the court. Bartolomucci v. Clarke, 60 Ill App2d 229, 208 NE2d 616 (4th Dist, 1965).

In view of this evidentiary situation, the trial court erred in granting the motion for a new trial. The judgment of the circuit court is reversed and the cause is remanded to that court with directions to enter judgment on the verdict.

Reversed and remanded with directions.

SMITH and TRAPP, JJ., concur.


author: MR. JUSTICE DRUCKER

text:
    Laura May Winston, Plaintiff-Appellant, v. Sears, Roebuck and Co., a Corporation, Defendant-Appellee.
    Gen. No. 51,738.
    First District, Fourth Division.
    October 9, 1967.
    Rehearing denied and opinion modified January 3, 1968.

      Tinney, Bentley, Guthrie, Askow & Howell, of Chicago (Richard James Stevens, of counsel), for appellant.
    Arnstein, Gluck, Weitzenfeld & Minow, of Chicago (John F. McClure and Paul L. Leeds, of counsel), for appellee.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

Plaintiff sues to recover damages for the torts of trespass, assault and invasion of her right of privacy which she allegedly suffered at the hands of defendant’s servants. At the close of plaintiff’s evidence, the trial court concluded that she had failed to establish agency and directed a verdict for defendant. Plaintiff appeals from this directed verdict assigning as error the court’s failure to admit certain interrogatories into evidence as well as the court’s finding that plaintiff had failed to make out a prima facie case.

In her complaint, plaintiff alleged that agents of defendant forced their way into her apartment, physically assaulted her and removed various items of furniture which she had purchased from defendant under a conditional sales contract, In its answer defendant admitted that various items of furniture had been purchased from defendant under a conditional sales contract but stated that title was reserved in defendant until the full purchase price was paid, that plaintiff was in default and that defendant had the option, upon default, to take back the merchandise. The answer denied that “five duly authorized agents of the defendant” committed the acts complained of.

At the trial plaintiff adduced the following evidence:

Jerome Smith, her six-year-old grandson, was living with her in her six-room apartment at 603 East 60th Street, Chicago. On March 2, 1960, plaintiff had been out working and was due to arrive home at about 6:30 p. m. At 6:30 the doorbell rang and Jerome opened it, expecting his grandmother. Instead, a man flashed a badge, pushed the door open on Jerome, came in and sat down. When plaintiff arrived home at 7:00 p. m. that evening a man was waiting for her in the lobby of her apartment building. He chased plaintiff up the stairs and followed her into her apartment where the other man was waiting. After unsuccessfully attempting to put the men out, plaintiff began to cry. One of the men pushed her down on the couch and pushed her back down each time she tried to stand up. The men read off a list of items which they were there to take. Five men came into the house. They spent four hours in Mrs. Winston’s apartment. During this time she attempted to call her sister, her pastor, her employer and a lawyer she knew. Each time one of the men took the phone from her before she could complete the call. She was forcefully thrown across her bed, felt something snap and bled profusely. She put some keys in her bosom and one of 'the men reached down her bosom and removed them. The men knocked the drapes off the wall, disconnected the range and carried it out. They dumped the dirty clothes on the bathroom floor and carried out the hamper. The frozen foods were dumped on the floor and the refrigerator removed. They took the Dutch oven, ripped the rugs up and left tacks all over the floor.

During the trial plaintiff sought the admission into evidence of Interrogatories 3, 8 and 9 and the answers thereto. They read as follows:

No. 3. Q. List the names and addresses of all agents or employees of the defendant who made any arrangements concerning the repossession of. merchandise from the plaintiff’s apartment, which repossession occurred on March 2, 1960.
A. E. W. Prichard 820 S. Scoville, Oak Park, Ill. P. Janks 10208 S. St. Louis, Evergreen Park, Ill.
State whether subsequent to March 2, 1960, the defendant ever had physical possession of any of the merchandise repossessed from the plaintiff on March 2,1960. No. 8. p
Yes. i>
If the answer to the preceding question is that the defendant had possession of some or all of said merchandise, state No. 9. p what disposition the defendant made of such merchandise.
A. The rug has been destroyed.
Drapes now in possession of defendant. Gas range now in the possession of defendant.
Eefrigerator has been sold.
Hamper now in the possession of defendant.
Scale donated to the Chicago Boys’ Clubs.
Dutch oven donated to the Chicago Boys’ Clubs.

The trial judge refused to admit them into evidence and at the close of plaintiff’s case directed a verdict in favor of defendant.

Plaintiff contends that the court erred in directing a verdict for defendant and claims that in refusing to permit the introduction into evidence of Interrogatories 3, 8 and 9 and the answers thereto the court prevented plaintiff from proving a prima facie case. Defendant argues that the answers to the interrogatories were properly excluded as they had no probative value in determining agency. We believe that the answers should have been admitted, since they did have probative value when considered in the light of our views on permissive inferences, hereinafter expressed.

Defendant also urges that the court properly directed a verdict in its favor because plaintiff did not sustain her burden of proof in that no direct evidence of agency was introduced. However, a prima facie case can be created by inference or presumption.

In Trustees of Schools of Tp. No. 8 v. Lilly, 373 Ill 431, 26 NE2d 489, the court defined a presumption at page 438:

A presumption is an inference which common sense draws from the known course of events or from circumstances usually occurring in such cases. (Sears v. Vaughan, 230 Ill 572.)

In Johnson v. Pendergast, 308 Ill 255, 139 NE 407, at 261, the court said:

Where two facts are so related to each other that in reason and human experience the existence of one may fairly be inferred from the other, the law may declare that proof of one shall be prima facie evidence of the existence of the other. Such a rule is one which the policy of the law and the ends of justice require, and in every case it is sufficient to authorize the finding of the fact presumed to exist unless contradicted or explained.

See McElroy v. Force, — Ill2d —, — NE2d —.

In Brill v. Davajon, 51 Ill App2d 445, 201 NE2d 253, the court at pages 449, 450, discussed the creation of a prima facie case of agency:

Generally, a party injured by the negligence of another must seek his remedy against the person who caused his injury. The doctrine of respondeat superior is an exception to this general rule. Under this exception the negligence of an employee is imputable to his employer if the relationship of principal and agent existed at the time of and in respect to the particular transaction out of which the injury arose. Metzler v. Layton, 373 Ill 88, 25 NE2d 60; Union Bank of Chicago v. Kalkhurst, 265 Ill App 254. Thus it matters little that the negligent employee was usually the agent of his employer if, at the time he injured the third party, the relationship of principal and agent was temporarily suspended. If he was not acting as his employer’s agent at the time of the injury, the employer cannot be held liable for his tort. The burden of proving that an employee was acting as the agent of his employer is upon the party who asserts the agency.
The same general principles apply if the injury is caused by an automobile owned by the employer and driven by the employee. In cases where an automobile is involved the plaintiff’s burden of proving the driver’s agency is initially eased by a presumption which arises from proof or admission of ownership of the automobile: it is then presumed that the automobile is controlled and driven by the agent of the owner. Robinson v. Workman, 9 Ill2d 420, 137 NE2d 804; McCarty v. Yates & Co., Inc., 294 Ill App 474, 14 NE2d 254; Howard v. Amerson, 236 Ill App 587. Moreover, if the name of the defendant is displayed
on a motor vehicle, there is a presumption that the vehicle is owned by and operated for the defendant. Sutherland v. Guccione, 8 Ill App2d 201, 131 NE2d 130; Robeson v. Greyhound Lines, Inc., 257 Ill App 278; Bosco v. Boston Store, 195 Ill App 133. These presumptions, while rebuttable, create a prima facie case and throw the burden of going forward with the evidence upon the defendant who then must show nonagency at the time of the occurrence. If such evidence is produced by the defendant the presumptions disappear. With the prima facie case of agency overcome, the overall burden of proving agency remains where it started, upon the plaintiff.

While Brill and the authorities cited therein deal with situations involving motor vehicles, these principles are not peculiar to vehicles. In Dibble v. San Joaquin Light & Power Co., 47 Cal App 112, 190 P 198, an appeal was taken from a denial of a nonsuit at close of plaintiff’s case. The appellate court affirmed (hearing denied by Supreme Court) holding that plaintiff made out a prima facie case. The court stated at page 199:

Appellants first argue that as there was no direct testimony that either Schultz or Moore were employed by the defendants, and no evidence as to the kind of work they were doing at the time of the fire, they may have been strangers to the defendants and not in any way connected with them. This contention cannot be upheld. The men appeared to be engaged in some kind of work connected with the business of the defendants. They were working on the right of way of defendants’ power line. One of them was descending from one of the power line poles. The other was close at hand. No other men were in sight. The implements for their work were scattered about. The fire pot, the torch, and the wagon and team, were all indicia of their employment. The facts were sufficient, in our judgment, to make a prima facie showing of the existence of the relationship of principal and agent between the corporation defendants and the workmen, which, in the absence of evidence to the contrary, was ample to support the findings of the trial court that such relation existed at the time of the fire. 1 Labatt, Master and Servant, § 22, pp 69, 73. The fact that one is performing work and labor for another is prima facie evidence of an employment and supports a presumption that such person is the servant and employe of the other, in the absence of evidence to the contrary. King v. Hercules Powder Co., 178 Pac 531; Indiana, etc., Railways v. Adamson, 114 Ind 282, 15 NE 5; Waaler v. Great Northern Railway Co., 22. SD 256, 117 NW 140, 18 LRA (NS) 297; Robinson v. Doe, 224 Mass 319, 112 NE 1007; Bush v. Southern Railway Co., 63 SC 96, 40 SE 1029; Howell v. Mandelbaum & Sons, 160 Iowa 119, 140 NW 397, Ann Cas 1915D, 349. (Emphasis supplied.)

The presumption relates only to the agency question and need not determine ultimate liability.

When an owner of personal property makes arrangements to repossess his property from another and gains physical possession thereof, we believe that a reasonable inference may be drawn that the repossessors acted on behalf of the owner of the property. This inference establishes a prima facie case of agency and thus puts the burden on defendant of showing facts which negate his responsibility as principal. Those facts might include evidence that the tortfeasor was acting outside the scope of his employment, as in Brill, or that agency did not exist for some other reason, such as that he was not subject to the necessary control of the defendant.

In the instant case defendant’s answer admitted that the repossessed items were sold to plaintiff under a conditional sales contract; that there was a default in payment by plaintiff; that under the contract defendant became entitled to the property. The answers to the interrogatories admit that defendant made arrangements to repossess; that the property was received by defendant and that defendant retained some of the items and disposed of the others. The evidence disclosed that the only items which were taken were those included in the conditional sales contract held by the defendant. We believe it is evident that the answers to the interrogatories had worth in testing whether the activities of the men who repossessed defendant’s property were on behalf of defendant. Defendant’s answer to the complaint, its answers to the interrogatories and the evidence taken together were sufficient to raise an inference of agency and thus establish plaintiff’s prima facie case. If defendant then wished to rebut this inference of agency, it was required to proceed with the production of such evidence.

We find that the court erred in denying the admission of the interrogatories and in directing a verdict for defendant. The judgment is reversed and the cause remanded for a new trial.

Reversed and remanded.

ENGLISH, P. J. and McCORMICK, J., concur.


text:
    Angelo Perciabosco, d/b/a Rex Electric Shop, Plaintiff-Appellee, v. Albert Pranno, Defendant-Appellant.
    Gen. No. M-51,647. (Abstract of Decision.)
    First District, First Division.
    October 9, 1967.
    Reginald A. Barnett, of Chicago, for appellant; James P. Chapman and Anthony J. Bosco, of Chicago, for appellee.
   Opinion by PRESIDING JUSTICE MURPHY. Not to be published in full.