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Full text of "Illinois Appellate Court Unpublished Opinions: first series"

77^5-2- 



Digitized by the Internet Archive 

in 2010 with funding from 

CARLI: Consortium of Academic and Research Libraries in Illinois 



http://www.archive.org/details/illinoisappellat286illi 



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$8310 sip « ■: .(■■■; 

PHILLIP Wf IHBMa, ^f\ / \ ) '^- AI#SAI, FHOM 



Appellee, 



MUSIC If .«. comiT 



V. 



FaAM 0. NIOODIMUS, Jr., and MOHMAM B. ) OF Oi'IiaiiaO, 

PITOAIHS, Heceivers of Wabash hallway 
Company, 

Appellants. 



MH. pREsioisG jusfioi lUJuL s'lLnrfBis fis oPiiiiOM OF tm Qmm^ 

This is an gippeal from © ^^dgsaent of the Sit\in.ioipsl Oourt 
of Chlea^o against defendants, the receivers of the sabaah ?^llway 
Company, for the sum of 1150,00, fhe action is predicated upon a 
charge th«t defendsnta acoepted the delivery of a carload of horaes 
at Kansas Oity, Missouri, for plaintiff, to be transported to 
Oook, Indiana, and th-Jt through the negligence of the defendants, 
one of the jiorse© ?ras killed, ttfo were blinded, and one was dlesbled*, 
The trial iras before the oourt without a, jury. 

Plaintiff testified that on March 19th, 1934, at Kanses 
Oity, Missouri, he bought 26 horses and shipped them on the «abash 
:^ilway from Kansas Oity, and that he received a bill of l?5ding 
for the 3a«e from the "^aba.sh Hallway Company. The bill of lading 
together with the paid freight bill of the New York Central Rail^sy, 
whioh latter company received the shipment froas the aa^ash RailRray 
Oomwany, and delivered the sajae to the plaintiff, 'syers offered and 
received in evidence. The bill of lading issued by the Wabash Rail- 
way at Kansas Oity, Missouri, on aareh 19th, 1934, recited th© 
receipt in apparent good order, of 36 horses from the Kansas Oity 
Horse ?>■■ Mule Q<MBpany, subject to the classification and tariff in 
effect, for transportation and delivery to the plaintiff at Oook, 
Indiana, as ordinary live stook. This bill of lading ims signed by 
the agent of th© railway oompany and the plaintiff as caretaker of 
the property in transit. Plaintiff t rave ll^d with the stook upon 









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free traasportatloa furaished by the defendants. Tbe renditions in 
the bill of lading are that the carrier, exoept in case of its 
negligence, prifflarily contributing, should not be liable for loas or 
daiaage to the horses oaused by the act of Uod, public ©neay, the 
inherent vice, weakness or natural propensity of the aniatals, their 
crowding one upon the other, their kicking, or otherwise injuring 
themselves, or for the «et or default of the ahip-:>er or owner; thst 
any person aocompanylng the live stock, should take care of, feed 
and water the saaie while being transported, sjad that the shipper,, 
meaning plaintiff, should load and unload the live ©tock into and out 
of the oars at hie own risk and expense, and that before the live 

stock should be removed from the oarrier*0 possession, the shipper, 

i 
oi?ner or consignee should inform the railway company in writing, of 

any possible or manifest injury thereto. The freight bill, oalled 

a delivery receipt, of the Hew York Oentral Lines, was issued to 

plaintiff as ooaaignee, and dated M&roh Slst, 1934, at Oook, Indiana. 

This freight bill is for carrier charges for trsjaaportation of 36 

horses fro® Kansas City, Missouri, to Oook, Indiana, and is for the 

avM of 11130.95, and shows the delivery thereof to plaintiff on the 

day of its date, and upon it is his aoknowiedgfaent of the receipt of 

the horses jya g ^ood order . Plaintiff testified substantially that he 

wFis present at Kansa-s Oity when the horses were loaded, and th^^t they 

were in number one condition at that timej th?t he rode on the train 

with the horses, but that h« was in the caboose; that the horses were 

imlosded in transit for feed and water at East Bt. I^ouis, ?/hefe they 

remained about six hours, being again loaded at lis 00 at night of the 

day of the shipaent; that he went bsck to the caboose, and th-t he saw 

t|# horses wten they reached his bara; that they were unloaded at Oook, 

Indiana, six miles from the b^sm «t about 8 or 9 in the evening, and 

that it was then dark; that soiae of his helpers did the unloading, at 

Oook, Indiana, and that he and his helpers led the horses from there; 



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that two hours were ar^^uixed in leseling the horses fro» Oook to the 
b-^rn; that when he got to the b^rn, the horses were examined, and 
it was found thn they were bruised and tliat nearly eveyy one of 
them wn& disa,bled, that there w'.sn*t one which was as perfaet a® 
they were when they were put in the o-^r; thr?t eoiae of thea were 
better, aad aoae were worse, but there were a eouple of thea "we 
saw ao help for" J. that the next moiming whea he oame to the b'^rn, 
he sa^sr one of the horses dead, aad that the horae showed erideHoe 
of having been bruised, and th^^t the horse was laying in the ear 
when they unloaded the horses at Oook. This witness testified that 
the horse ^es worth il50»00i that three other horses were bruised, 
and one horse had a badly swollen neok; that these three hdfses were 
worth fro« $135 to #135 when put on the car at Kansas Olty, and thst 
after they were blinded, they were worfeht 130 to |40* He testified 
that another horse was damaged in the bsek, and he sold him for Sl5, 
aad that this horse was worth $130 «hen loaded at Kansas Clty« This 
witness testified thnt all told, his d^saage would be about 1700. It 
was here stipulated that the proper olslffl hsd been filed with the 
railway ©oispany. This witness also testified to the effeot th??t be 
had had experience covering a period of gS ot 30 ye^rs In selling 
horses at Grown Point, Indiana; that the horses w^ere bought by hia 
through the Kansas Olty Horse & Mule Oompany, who were the consignors 
in the bill of lading; that at the tiaie the horsses were maoaded at 
East St« Louis, they were driven out of the c«r, where th^ were 
fed, and that at that time, they were all on their feet s^nd moving 
around the lot; that he did not see the horses at Qsnville, where 
they were transferred from the 'Mbash aallwty to the Big Four Rallw&yi 
that he was present at Oook at about i o'cloek at night, when the 
horses were unloaded* He testified that be signed a receipt for 
the horses la a book kept by the railway for that purpose* He 



s 

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4 

identified the Im»©1e and his receipt, and stated th?t he, with his 
ffl0n, drove the horses from the railroad to his ham, that they weye 
tied together, and that they did. not h&ve to help asy of the horses 
at that time, and that the hoTse whioh subseauently died, was laying 
dofm in the aar at the time the witness went to the oar to uniosd 
these horsea« 

SeversJL employees of the plaintiff who aaaiated in unload- 
lag the h07ees fro® the oar and in talcing them to his ham, testified 
substantially to the saaae effect as the plaintiffs 

The agent of the Kew Yort: Central Hallway Oompaiay, a witness 
produced by the defendant, testified th^t be was present when the 
horses were unloaded, and that after the horses were unloaded, pl^tlB- 
tlff paid the freight and signed a receipt for the freight, and 
stated In this receipt that the horses were "received In good order**, 
and th?it the plaintiff ' einberg had ample opportunity to inspect 
the hordes before they sere unloaded. 

Another witness for the defendant testified to the effect 
that he was a track operator for the Mew Tori Central fiailway Ooapany 
at the time th© horses were received at Gook, Indiana, and that it 
was hla duty to take care of all freight thr?t came in while he was on 
duty; th'it he assisted in the unloadlxig; th-t it was dark when the 
horses were unloaded, sjnd th??t he furnished lanterns so that the 
defendant and his helpers could see them taken froa the cars, and that 
he saw the whole proceeding; that the horses travelled down the chute 
frwB the ear, and that they showed no evidence of having been blinded 
or crippled, that Weinberg and his helpers put halters on the horses 
and led them away, and that »elhberg told the witness that they were 
a pretty fair bunch of horses*, fhis witness further testified to the 
effect that he heard no complaint about the condition of the horaes 



Ik 

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xintll two naonths later, and tli%t at tb© time of the unloading, there 
waa sufficient light so he oould tell whether any of the horsea 
were ©rippled or blind. 

A live stook agent of the defendant oomimny who etated thsat 
he was a resident of Kansas Oity, testified that he, as staoh «'gent, 
signed the contract with plaintiff for the shiiment of the horses 
at Kansas Oity on Mar«h 19th, 1334, the date of their shiisaentj that 
he saw Weinberg about three months after, and that Weinberg aaid 
nothing about the ehipaent, ncr that the horsea were injured in 
transport. 

In vieir of the proTiaione in t'aia contraot, and -fter taking 
into consideration all of the evidence, we reseh the oonolusion that 
plaintiff haa not establiahed his right to recover by the manifest 
T^eight of the evidence. His contract olesrly provides that he, the 
person aocoiapanying the shipment, should feed and wster the horses, 
and otherwise 03 re for them during their shlment# There is no 
proof thst the oarrier was guilty of negligence. The undisputed fact 
tMt the horses were received by plaintiff In apparent good order, 
and that he made no complaint is to their alleged condition nt thsi.t 
time, aor until some weeks la-ter, has also beea considered* 

fhe Judgment is reversed and the ostuse is remanded. 



HSBEL, J. km 0MIS S. mhii'^m, 3* 



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i^imUOV ,i. .i4(5VZ.iaU& .A 8XMG, GJIA .It «.*; 



38396 ( yj 

GEORas PLACziaEwioz, ) /appeal from 



Appellee, 



GIROUIT OOIJHT 



WILHELMIKA K. BOHGMEIER and ADOIilH | COOK OOUKTY, 

J. BORGMSIER, her husband, 1 

Appellants. I 28 6I.A. OOS"^ 
MR* PRESIDING JUSTIOS PIALL DBLIVSHED THS OPINION OF THE COUHT. 

This is an appeal from a decree of foreclosure entered in 

the Oirouit Oourt of Cook County on May 22nd, 1935* The bill of 

complaint filed in the cause on January 20th, 1934, alleges that on 

May 32nd, 1927, the defendants, Wilhelmina K. Borgmeier and Adolph 

J, Borgmeier, her husband, executed a principal note, of date May 3nd, 

1927, for |8,000.00, payable in five years after date, with interest 

at the rate of ^^ per annum, the interest payments being evidenced 

by coupon notes of even date with the principal note, secured by a 

mortgage on real estate, and that on May 14th, 1932, an extension 

agreement was entered into between the parties, which was eseouted 

by Wilttfilmlna K» Borgmeier in person, and as attorney in f^ct for 

also 
Adolph J» jiorgmeier. The bil3/ axieges defaults in the paysaaent of 

both the principal note and interest, together with defaults in the 
payment of taxes agreed to be paid by the makers of the trust deed 
and notes, and that on November 35th, 1933, «ilhelwiina K* Borgmeier 
and Adolph J* Borgmeier conveyed the title to the mortgaged premises, 
which they had previously held, to H. A, O'Connor, one of the defend- 
ants. On March 32nd, 1934, the appearances of i/l^ilhelmina K« 
Borgmeier, individually, and as administratrix of the estate of 
Adolph J, Borgmeier, deceased, and H. A, O'Connor, together with a 
demand for a jury trial, were filed. On April 3nd, 1934, a dodumeat 



seses 

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3 

entitled an answer and counter claim was filed by ifiilhelmina K. 
Borgmeier, as administratrix of the estate of Adolpli J. Borgmcier, 
in which the death of Adolph J. Borgaaeier is suggested, together 
with her appointment as administratrix of his estate, and in which 
she denies that Adolph J» Borgmeier executed the notes and trust 
deed, as set forth in the bill of complaint, denies that Adolph J« 
Borgmeier entered into the extension agreement as recited, denies 
that there were any defaults in the payment of the principal note 
and interest, and that there has been any default in the payment of 
taxes. In this document it is further recited that the extension 
agreement between the parties, entered into on May 14th, 1933, pro- 
vides that of the principal amount agreed to be paid, the sum of 
17,500,00 was extended as follows: |500*00 to become due May 15th, 
1933, and the balance of |7,000.00 to become due ttay 15th, 1935; 
that simultaneously with the extension agreement, Adolph J. Borgmeier, 
by Wllhftlmina K* Borgmeier, his alleged attorney in fact, executed 
six interest coupon notes numbered 1 to 6 inclusive, with interest 
at Qf> on the sua of |7,500.00, payable on November 15th and May 15th 
In each year, until the maturity of the principal aim should be paid; 
that in consideration of the extension, Wilhelmina K, Borgmeier, his 
attorney in fact for Adolph J» Borgmeier, was compelled to pay the 
complainant #713,00 in cash, thnt ia to say |500»00 to b® applied on 
the principal sum of •|8,000«00 then matured, leaving a balance of 
|7, 500,00, which was extended by this agreement, and the fxorther sum 
of |213«00 as a ooiamission. It is ohsJged in this answer that the 
contract for the payment of |313«00 made the whole agreement usurious, 
and that thereby the complainant forfeited the whole amount of the 
interest agreed to be paid, and that at the time of the execution of 
the original mortgage, and of the power of attorney under which the 
extension agreement was executed, that Adolph J« Borgmeier wss inooa- 
petent, and that the principal note, trust deed, extension agreement. 



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3 

and ail of the documents upon whioh tlie foreclosure proceeding is 
predicated, are null and void* Defendants prayed tMt all these 
documents be ordered oanceiled^ and thst certain moneys be ordered 
paid to them, 

A motion was made by plaintiff to strike the answer and 
oount er olaim, but no order was ever entered upon such motion* A 
motion was made by plaintiff to refer the cause to a Master in 
Ohancery to he^&r evidence on the bill of complaint and answers, to 
which defendants objSoted, The caxise w?is thereupon ordered referred 
to a Master in Ohancery to take testimony on the issues made, and 
upon notice to the defendants, the cause caaie on for hearing before 
the Master* Defendants appeared and objected to the taking of any 
proofs upon the ground that a demand for a jury trial had been filed 
by the defendants, and that they refused to participate in the hearing 
before the Master because of such jury demand, Without further object-" 
ion, plaintiffs offered proofs to svtstain the allegations in the 
bill of complaint, and no evidence was offered on behalf of defendants^ 
The Master heard the evidence and prepared and filed a report, to 
which the defendants filed objections and exceptions. The Master's 
report found that the note, trust deed, extension agreement and 
extension coupons were executed by the defendants, as hereinbefore 
recited, that the defaults have occurred, as alleged, and reoomaended 
that a decree of sale of the mortgaged premises be entf^red* Defend- 
ants objections and exceptions were overruled, and the decree appealed 
from was entered on May 23nd, 1935, oadering the sale of the property, 
and dismissing the courier claim* 

As recited in the brief filed by defendants in the cause, 
the grounds for reversal urged b.tb that they were entitled to have the 
issues of fact concerning the affirmative defenses raised in their 
answers and counter olaim, tried by a jury; that the cause was not 



6 

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4 

at issue, and should not have been referred to a Master in Chancery} 
that Adolph J. Borgmeier was incompetent to execute the principaJ. 
note, trust deed, extension agreement snd extension coupons, and his 
name should be expunged therefeom; that usury existed in the exten- 
sion of the principal note and trust deed herein foreclosed, and 
that plaintiff mist forfeit all interest contracted to be received 
under the extension, and is entitled to recover only the principal; 
that after deducting the uaiirious amotonts alleged to have been paid, 
no default existed under the terms of the trust deed, and that 
"the master's report and the decree are at variance with the allega- 
tions of the complaint* 

As already stated, these defendants appeared before the 
ms-ster, ^ere evidence was introduced by plaintiff which proved 
the giving of the notes and mortga-ge, as alleged in the bill of 
oomplaint, the oxeoutios, of the extension agreement, and the defaults 
charged in the bill, and no evidence w-is offered by defendaasits to 
oonfcrovert this proof, or to sustain the charges made in their 
answer. So far as the right to a trial by jury ia concerned, idiioh 
seems to be the principal contention of defendants, the Supreme Court 
^^ ^'etniager v« Metropolitan Fire Insurance Oo. « 359 Ill» 584, page 
590, said: 

"The right of trial by jury guaranteed by the constitu- 
tion is only in such actions as were known to the ooiHaon law* 
Yihere equity takes jurisdiction the defendants are not 
deprived of their constitutional right to a trial by jury, 
A trial by jury is not a matter of right in an ©cuity pro- 
ceeding, fiiehl V. Rlehl. 347 111. 475; Horth i^meriean Ins^ 
Go. V. Y'ites. 214 IIU 272; Turnes v* Brenokle. 349 111. S94; 
KeHrh V. Henkleman. 173 id, 137; Bg^ton v. Sirbour, 104 U, 3, 
136, 36 U ed. 673«»« 

The contentions of the defendants here are without merit 

therefore, the decree of the Circuit Oourt of Cook County is 

affirmed, 

AFFIRMED. 

H£B£L, J. ABB DIMIS S» SULLIVAH, J. GOIGUE. 



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38437 

GEHEIIBTl AB.GEWTIIA DEL BOGOIO, ) WP1S-4L FROM 

Appellee, 

LEaLIE MARlMaER and VIRGIL MARIIG2H, ) OOOK OOUITY, 

AppeUants. }_ ,,. ^ ^ - r& .fi ^^ 



SUPERIOR OOURT 



MR. PHSSIDIKG JUSTICE HALL BlSLIVSiRSD THE OPIMIOK OF THE OOimT, 

This action was brotight by plaintiff against defendants to 
recover damages for in^^^^i^s said to have beega received through tjie 
negligence of the defendants. The cause was submitted to a jury, 
which retxirned a verdict for the plaintiff in the stim of |3, 500*00, 
upon which judgment iras entered, Froai this judgment, this appeal 
Is being proaecutedi, It is defendant's contention that defendant 
was not negligent, and that plaintiff was guilty of contributory 
negligence* It is also claimed by defendants, that the damages are 
exoeasive, that the court erred in allowing plaintiff to inform the 
%y3XY that defendant wa.8 protected by liability insurance, and in 
giving and refusing certain instructions. 

The record disoloaea that on the night of January 3, 1933, 
plaintiff was walking along the dirt shoulder east of a two lane 
paved highway on Harlem Avenue in Oook County, and that defendant, 
while proceeding south on the west lane of such paved highway, 
suddenly turned directly towards the east and towards plaintiff and 
struck her» I3efendant's statement, as set forth in their brief 
filed here, is as follows: "The accident out of which this litigBtion 
arose occurred on Harleis Avenue about a block and a half north of 
Irving Park Botilevnrd, shortly after midnight on January 3, 1933. 



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At that time, Harlem Avenue, wliicli mins in a nortli and ecmtli 
direction, was a two lane concrete highway, approximately eighteen 
feet wide. Both east and west of the pavement there w-s a shoulder 
six to eight feet wide, Ta the e?j8t of the east shoulder, there 
was a ditch four or five feet wide and six feet deep, ?^nd beyond 
that were open fielde» On the night in question, the plaintiff, 
who was then eighteen years old, attended the danoe with three of her 
friends at the Yellow Lantern Ballroom, which was located on the 
east side of Harlem Avenue sbout three blocks north of Irving F^rk 
Boulevard,, The plaintiff testified that she and her three friends, 
Anita, Jack and Mildred, left the danoe hall together shortly after 
twelve ©•clock, and proceeded to wslk toward Irving Park Boralevard, 
where they expected to board a feeder bus. She stated that she 
walked with ^nita, and that Jack and Mildred were about fifteen or 
twenty feet ahead of them, and that at all times they were walking 
on the dirt shoulder about three feet east of the east edge of the 
pavement on Harlem Avenue, Before the plaintiff left the danoe hall, 
she had had a conversation with Sick ftusso, who wanted to take her 
home in an automobile. She told liok that maybe she would go with 
him, but while he and his friends were getting their wraps, the 
plaintiff and her friends started on. When the plaintiff had reached 
a point about a block away from lihe dance hall, a whistle called 
her attention to an automobile in which Sick and his friends were 
riding. Kick asked Anita if she and the plaintiff wanted to go homt. 
This discussion continued for about four or five minutes, with the 
plaintiff and Anita walking along, and the obt in which Hick and his 
friends were seated, driving slowly along the dirt shoulder on the 
west side of H rlem Avenue. The plaintiff remembered nothing from 
the time they were standing talking to the boys in the automobile. 



r; 



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tuatil she fotmd lierself in the Belmont Hospital, "There was no 
dispute that the pavement wag dry and free from ice, snow and sleet*" 

It is in evidence that when plaintiff was struck, she was thrown 
about five feet into the air, and a distance of about ten feet 
from where she ns3 struck, and that she was then picked up and taken 
to a hospital. Defendant's statement proceeds as follows: "The 
automobile involved in the accident was a four door model A Ford 
Sedan, owned by the defendant, ?irgil Maringer, At the time of the 
occurrence, the defendant, Leslie Msringer, was driving the car, 
having obtained his brother's permission to take a friend, Roy 
Wftlkes,to his home. Prior to leaving the dance hall, three other 
persons who had attended the dance, got into the oar for the purpose 
of being taken to the feeder btis on Irving P-rk Boulevard. Is Leslie 
Maringer drove the Ford south on Harlem Avenue from the dance hall, 
he drove at a speed of twenty to thirty miles an bout* fher® was 
one car ahead of him* About a block south of the dance hail it 
began to slow down. There was no c-ir on the west shoulder of the 
road at the point where the accident occurred. When the oar ahead 
started to slow down, Leslie was about tisenty feet in back of it» 
He then decreased the speed of his oar until he wss less than ten 
feet behind the other oar* As Leslie swerved his car to pass the 
car in front of him, about five feet sfiparated the two cars* At 
that time, he was going from fifteen to twwaty miles an hour. As 
he swerved into the northbound lane, there was no traffic coming 
from the south closer than a block or a block and a half away. As 
he got his oar parallel with the one he was j>as8ing he had increased 
his speed to about twenty two miles an hour, and at that time, the 
plaintiff and her friends loomed up before him. They were •s'^alking 



5 

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» 

side by side holding hands, one on th® pa-rement, and two on the 

shoulder of the road. The plaintiff and her friends were then 
about six feet in front of Leslie's car. Leslie, In an effort to 
avoid striking them, thereupon swung his oar sharply to the left into 
th© ditoh on the ease side of Haxlea Avenue. Before starting to 
pass the oar in front of him, Leslie soxinded his horn loiag and loud. 
As he was headed directly east after imklng the turn toward the 
ditoh he heard a very dull thud, and later found th^t it had struck 
the plaintiff, « 

It is defendant's contention that when Leslie Miringer, the 
defendant who was driving the oar which caused the accident, turned 
to pass a oar which was in front of hia, that the three girls men- 
tioned were walking along the highway on the east side, and that 
two of them were walking on t he dirt shovilder, and on© of them ©n 
the fiaveffient, and th;-t in order to avoid hitting the one who waat 
walking on the pavement, he waa obliged to drive straight east, and 
in so doing, struck and injured the plaintiff. H© insists that he was 
not at fault in what he did» 

Mildred Capeoe, the Mildred referred to in defendant's 
statement of the case, testified to the effect that as the three 
girla mentioned, including plaintiff and ©ne Anita Gonforti, walked 
along, the witness and one Jack Oupella walked behind them, and that 
Genevieve and Anita walked ahead, and that at no time were either of 
these persons on the oonorete pavement, but on the eontrary, that 
they were all walking on the dirt shoulder^ 

Anita Oonforti testified to the same effect, and we find 
nothing in the record to refute this testimony, except the evidence 
of the defendant Leslie Maringer* 



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As to the extent of plaintiff's injuries, ber attending 
pliyaioian testified that prior to the accident, lie htad treated 
plaintiff for minor alljaents, including a oold and the "flu**; that 
prior to the accident, he Had occasion to make a general examination 
of the plaintiff, and th^t he ♦'found her general condition good**; 
that on January 3, 193", he was csJLled to treat the plaintiff at 
the Keystone Hospital, and that he found her in a semicofflatose con- 
dition, her pulse weak and rapid, and that she h3.d a bandage on her 
head; th- 1 he found a scalp wound about 3|- or 3 inches long, i^hioh 
was brought together by three clipsj that there was an abrasion in 
the region of the right shoiilder blade near the arm pit, which had 
dressing on it; that there was e. contusion in the region of the right 
hip, or oacro-iliao region near the spine, evidenced by discoloration, 
and some swelling and tenderness in th t region, right at about the 
level of the crest of the hip bone or ilium; th t there iiras a marked 
flatness which extended from the symphysis pubis up to the level of 
the umbilicus, evidencing a marked distention of the bladder; that 
the symphysis pubis is the lower bounding of the abdoaen anteriorly; 
that he examined all of the reflexes; that the deep reflexes of the 
upper limb or upper extremity were normal; th^t the reflexes of the 
abdomen musclea by superficial stiaalatioa made by stroking the skin 
of the abdomen, were not normal; th?t he attended the patient 
oommenoing on the ocoasion mentioned, and for some tisie thereafter; 
that he obsesrved the absence of the normal reflexes, and that this 
condition indicated an injury to the nerve system; that he sent 
the patient to the Belmont Hospital by ambulance, and that she 
remained in that hospital for three weeks; that x-rays were made of 
thi« plaintiff; th--t he had had experience with x-ray pictures, and 
that th© x-rays introduced in evidence pepresented the region 
referred ti in his examination* From these x-ray pictures, the witness 
testified thet there was a zigzag line of fracture with saw-like 



s 

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edges extending clear across the inferior articular process of 
the vertebra; th- 1 the Inferior process is a process extending 
froffl the lateral and posterior aspects of the vertebrae and forming 
part of the arch of tlie vertebral canal* He described and testified 
to other conditions of the vertebrae; th^t he found a soiBainuted 
fracture, which is one tbat is splintered; th-'t he found from the 
x-ray picture an enormous dilation of the bladder; that it indicated 
that the pelvis ras twisted, and that the two sides are not symmet- 
rical, and that in his ooinion the condition found was permanent. 
This doctor testified that in his opinioft, plaintiff's condition, 
as described, w%a permanent. 

As to her injuries, plaintiff testified to the effect 
thst during the time she was in the hospital, she suffered much 
pain in the lower part of her spine; th-t she had a bruise on her 
head and received treatment for that; that she could not pass urine 
for several days; that she had x-ray pictures taken; tb«t the 
doctor placed a cast around her body, which started from her chest 
all around her body to her left knee and up to her right thigh; 
that the oast remained on her body for two months; that when she 
left the hospital, she went home in an ambulance; that when she had 
the cast on her body, she lay in bed for a month or so» and then 
gradually got up with her siother's support with the cast still on; 
that during the time she had fhA oast on, she suffered pain in the 
lower part of her spine and all through her back; that before the 
accident, she was in good health, but that after the oast was 
removed, she suffered pain in her back and spine, and continued to 
•tiffer for some time, that she suffered a constant pain; that at 
the time of the trial, her condition was suoh that after the least 
bit of work, she wajs ccaapelled to lie down and rest, and thr;t then 
she had pains in her b??ck and spine; that she had done some house- 
work from the time she got out of bed; that she worked for the 



t,u'.i;J-.taitcc ^-r' 'niyax-eXc ^jcteiiKiqo s^d ax fmif b&xl:l&B&* toioot airit 

♦ 

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7 

Ourtiss Oandy Company for two montba; that she started to 30 work 
in July, X934, approximately l|- years after the accident, but 
that she left the work for the reaaoa that she could not stand it, 
because of the pains in her back; that her w^ork there wj^s wrapping 
oandy bars; that she had been under Dr^ Weinberg's care since she 
got out of bed, and after the cast was taken off; thf5t about one 
year after she left the hospital, she had to go to Dr. Weinberg 
because she could not urinate, and that she had seen him with 
referttnQ« to this condition several titass since* 

Dr. Charles Pease, a witness for the plaintiff, testified 
to the effect that be had examined the plaintiff shortly before 
the trial, that he had her take off all her clothes and examined 
her back and legs; that she had limited motion of her back, luabar 
region of lower back, loss of lower lusibar lordosis, and she had 
left lumbar scoliosis; th't the motion of her back was limited in 
all directions, also, that he found sca&e structural shortening of 
the muscles in the Itaabar region; th?t scoliosis is a curvature 
of the spine; that he took x-ray pictures of the plaintiff, which 
were introduced in evidence; that he had had experience in the 
reading of x-ray films; that from this reading he found, among other 
things, a crack in the vertebra on both the right and left sides, 
and that he found other cracks of the vertebrae. He described other 
conditions found in the x-ray pictures, which, in his opinion, in- 
dicated that an injury had occurred to these organs* 

Another doctor who ex^ained the plaintiff on October 31, 
1934, testified as to conditions which were similar to those found 
by Dr. Pease, He stated that chronic cystitis means inability to 
control the urine. This doctor gave his opinion that the fractures 
which he found, together with the other conditions, could have been 
catted by the injury deseribedn 



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8 

Dr. D« C» Duval, a witness for the defeadant, testified 
in sutostanoe thrt on January 3, 1933, on behalf of tae defendants, 
he examined the plaintiff at the Keystone Hospital; that when he 
arrived at the boepital, the plaintiff was in bed, and that she 
then had b. circular hajadage around her head, th?t he did not see 
the wound underneath, it having been freshly dressed; that there was 
nothing of a traumatic nature or any manifestation of any injury 
to the parts examined; that hia examination disclosed no other 
injuries in the way of contusions, laoerationa, bruises or discolor- 
ations of any part of the bsok; th t there was no bruise, contxision 
or edemio swelling on the lower part of the back in the region of 
the hip, or anywhere below the shoulders when he examined this 
young woman; that she could flex her liabs readily, that her piils© 
was of good quality and the r-'te of 80, and that is normal for a 
person of the age of 19; that he had had experience treating patients 
with cystitis, r/hioh is an infleamattoa of the bladder, and th'^t such 
inflaamation is an abnormal condition produced either by trauma, or 
hy infectious process, and that by traxxma, he meant injury* He 
gave his opinion that, ns to some of the conditions shown by th© 
x-ray and testified to by the other physicians, they were congenital, 

A Or. R. T. Vaughn, produced by the defendant, testified 
that he had examined the x-ray films concerning which 9r» Weinberg 
testified, and disagreed with Dr. .einberg concerning his testimony 
to the effect that the x-rays indicated fractures* 

Defendant insists that the trial court erroneously allowed 
the plaintiff to deliberately bring before the jury the fact that 
a liability insurance company w-s interested in the case on behalf 
of the defendants, and that this was prejudicial to the defendant. 

Dr. Duval, who, as stated before was produced as a witness 
by defendant, testified that on the day of the accident he visited 
the Keystone Hospital, where plaintiff then was, and examined her. 



•ba am^}/ ;>siEt,t |Isfi'i-;TSofa sm^'^Y^l sfii?- ;''b I'l 1 ;tixi;,elq- ails' fosa.ltS:SKB ©if 

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9 

On cross-examination, he was asked at whose request iie visited %]ie 

hospital at the time to make such examination, to which objection 

was made, which objection was overruled. His answer was that h© 

represented a Mr. De Shields, who was at that time with the Bankers 

Indemnity Insurance Ootapany, and that he w-^s paid |10,00 for the 

examination made by hia. Objection was mad© to the answer, and a 

motion to strike the testimony* fhe objection was overruled, and 

the motion was denied. 

The precise question we^s presented in the case of Hrisley 

Cio» V, Burke. 203 111. 350, and the Supreme Court said: 

"In the cross-examination of a physician who testified 
in behalf of the appellant company as to the condition, 
physically, of the appellee soon after the injury was 
received, it was developed that the physician had been em- 
ployed to make the examination for the purpose of becoming 
a w^itness in the case, and had been paid for his services 
in so doing. The fact the physician had been engaged and 
paid to aake the examination and for the purpose of giving 
testimony in the case was proper for consideration, as bear- 
ing upon the weight and value of his testimony, ( Jones v. 
Portland. 88 Mich, 64.) The fact that in developing the 
proof that the witness was employed and paid to make the 
examination it indidentally appeared h/B was paid by ar. 
accident company does not constitute error demanding tna 
reversal of the judgment." 

See also Kiewert v, Balaban & Katz gorp«. 351 Ill» App» 

343, where this court said; 

"Dr. Otto Ludwig, who treated the plaintiff immediately 
after the accSd.ent, ?ms asked on oross-eKaminstion as to who 
paid him for the services and answered, 'the Zurich Insurance 
Oompany*' No objection appears to have been made at the tiae 
nor was an exception taken to the answer; nor can we see any 
reason why the witness might not be asked, as it sight have 
a bearing on the credibility given his testimony if it should 
appear thr-^t he had been paid by or on behalf of the defendant*" 

Also, in Taber v, ^ittelle. 330 111. App, 653, Abstract 

Opinion No, S8099, a similar situation was presented, and in 

passing upon the question, this court said: 



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^That it may be reversible error, either in tbe 
preliminary examination of jurors or during the course 
of tbe trial, to endeavor to ore?te prejudice toy any 
means tending to bring information before the jury 
that the defendant is insured against liability on 
the cause of action, is tindoubtedly true, but we are not 
aware of any case which holds th^t pertinent and material 
evidence should be exUuded because it might incidentally 
thereby be made to appear that the defendant carried 
insurance, « 

Defendants complain because of the refusal of the court 

to give the following instruetions submitted under the provisions of 

the Oivil Practice Act: 

'•If you believe from the evidence under the instruc- 
tions of the court that on the occasion in question as the 
defendant's automobile approached the place of the occurrence, 
it was being operated with ordinary care and caution, and 
that just prior to the occurrence in question an emergency 
presented itself, then if the defendant, J^eslie M/ringer, 
did not act with such perfect judgment as would be exercised 
under other and different oiroumstsnoes, he might still not 
be negligent, provided he acted as a reasonably prudent 
person would act under similar oircuastanoes. VJhen a driver 
of an automobile is confronted with a sudden emergency, 
then failure on his part to exercise the beat judgment the 
case renders when considered after the event, such fact does 
not necessarily establish conduct inconsistent Mth the 
exercise of ordinary care*** 

"If you believe from the evidence that the defendant, 
Leslie Maringer, immedigtely prior to the accident in ques- 
tion without fault on his part, f?a,s confronted by a sudden 
emergency, th«n you are instructed that under such eircum- 
stanoes, if you believe it to be the f-^ct, the defendant 
Leslie M'fringer would not be required to use the saae degree 
of self-posse 88 ion» coolness and judgment as when there is 
no eminent peril or emergency; but if under such circum- 
stances, the defendant Leslie Mrringer acted as an ordinarily 
prudent person would have acted under the same cirCMistanoea, 
he wotild not be guilty of negligence*" 

*If you believe from the evidence that as the defendant, 
Leslie Maringer, turned to pass an automobile proceeding south 
on Harlem -.venue that he was oonfronted by the vision of 
persons standing or vralfcing uoon the east side of the paved 
portion of Harlem Avenue, thst such persons were so close 
to the front of his automobile th-t he could not stop the 
same before striding one or more of said persons, and could 
not turn to the right on said highway to avoid said oersons on 
account of the presence of the automobile which he was then 
passing, and if you believe from the evidence that in turning 
to the left and running into the ditch at the east side of 



01 

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11 

Harlem Avenue and in operating his automobile prior to tlie 
ooourrenoe here in question, Leslie Ma.riager 7^as acting 
as a reasonably pnudent person w^ould have aot«d under the 
same clrctimstances, then you are instructed that there can 
be no recovery in this oasSn" 

The defendant Leslie Maringer alone testified that as he 
turned out to pass the car in front of him, he wag confronted by 
one of the girls, who, he stated, v^as walking on the paved portion 
of the highway, and these instructions proceed upon the theory 
that with the peril before him of striking one of the girls, he was 
justified in turning his oar at a right angle and striking the 
plaintiff, who was at all times walking along the unpaved portion 
of the shoulder of the road. The two witnesses who were walking 
with plaintiff both testified that prior to and at the tiae of the 
accident, neither of them were walking on the p?3ved highway. The 
clear preponderance of the evidence is to the effect that the defend- 
ant had no such peril before him as these instructions suggest, and 
as would justify the court in giving the® to the jury* we have 
examined other objections made to given and refused instructions, 
and from an examination of th© instructions gi^en, we are of the 
opinion that the jury was fully and fairly instructed and that all 
questions of fact were fully and fairly presented to ths jury* We 
can see no reason for disturbing the verdict and judgment. There- 
fore, the jtidgmsnt of the Superior Court is affirmed* 

AFFIRMED* 
HSBEL, J. m-Q DSNIS £, SULLIVAN, J, COHOUR* 



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^-4 



38458 / / I /I 

SDiAKD S. KMIKSOHMIDT, /) / APPEAL FROM ^^: I 



SUPERIOR oouaT 



Plaintiff - Appellee, 
▼• 

FLOREUOE OTIS, ) OOOK COUHTY. 

Defendant - Appellant. } O Q Hi T /i Hi 



loA. ^ 



MR. PRESIDING JU3TI0E HAU DELIVERED THE OPINION OF THE OOURTa 

Plaintiff bxougbt suit against defendant to recover for 
injtixies alleged to have been sustained through defendant's negligenoe 
in the operation of her car. The trial was hy a jury, which returned 
a verdict in f^vor of plaintiff and against defendant for the sum of 
|2,181«30, upon which the judgment appealed from was entered. 

The accident out of which the claim arises occurred shortly 
after 10 o» clock on the night of March 24th, 1933. Plaintiff was 
driving south on the west driveway of a two lane highway near Lake 
Bluff, Illinois, and defendant was driving north on the east drive- 
way of th« same highway. At the time of the accident in question, 
a heavy snow was falling. 

Plaintiff testified to the effect that as he was driving 
along, two cars going nojrfeh, passed *' quickly in succession**, and that 
as he saw the lights of the second car, it came towards him, and that 
this second oar struck plaintiff's oar ^ust ba,ek of the front fender, 
and again toward the rear "by the rear wheel on the running board, 
and that plaintiff ismaediately felt his oar swerve to the left, that 
he attempted to turn to the right putting his foot on the pedal to 
stop the car, and that his oaf kept going to the left and ran into 
a truck on the east driweway of the road in question. 

From the evidence, it appears that shortly prior to the 
accident, the defendant, going north, had turned her oar to the left 
and had passed a truck proceeding in the s^me direction as defendant. 
It was with this truck that plaintiff's oar collided after defendant's 



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2 

oar had passed the truck, and after it had come in oonte^ot with 
plaintiff's oar. 

The driver of the truck testified on behalf of plaintiff 
to the effect that the truck which plaintiff's car struck, consisted 
of a tractor and trailer, and that together they weighed ahout 
13,000 pounds gross, that they were about 30 feet long and 7^^ feet 
wide, that he had a load which weighed about 18,000 po\map,aM that 
the load and truclc together weighed about 31,000 pounds; that he 
was headed north on his way to Waukegan, and vrse ^uat coming to the 
north limits of Lake Bluff when a Ford Ooupe (defendant's car) 
passed him going north, and that this coupe went over the road to 
the left, and that one set of its wheels went off the road to the 
left and then went back on the road* This witness further testified 
in substance, that he then slowed down, and thet the car whioh 
passed him, whioh was a Ford, disa.pi>eared, and th t he did not see 
the collision between the Ford and the Cadillac, plaintiff's car* 
He further stated that the Oadillac oar then collided i^ith the 
car of the witness; that at the time of the collision, he was 
coming to the top of a hill, th it he saw the headlights of plain- 
tiff's car and immediately ]3ut on hia brakes, but before he could 
coae to a dead stop, plaintiff's car hit him; that as a result of 
tlie collision, the front end of plaintiff's oar was smashed, and 
was partly underneath the witness's truck, and that plaintiff's 
oar came to rest over on the right aide of the north driveway of 
the road; th t the car of the defendajit passed his truck 4 or 5 
minutes before the collision between the Gadillao and the truck of 
the witness* He further stated that after the oar of the defendant 
had passed the truck, it was on its own side of the road, and that 
he did not see it again xintil after the collision with his truck. 
He stated that when the car of the plaintiff collided with the truck, 
it was going with sufficient force so that when it hit the end of 



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the truck, it bounoed around on the road, to th© south and g^ve 
him ft good bump, and thst he, the witness, was thrown into the front 
part of the truok. He stated that at the time he first saw the 
lights of plaintiff's car ooraing towards his truck, the Ford oar 
of the defendaixt had gone out of his vision north on its own part 
of the road; that the last he saw of the Ford car (defendant's oar) 
"it was ahead of me on its own side of the road going notth*'. 

Several witnesses testified for the plaintiff to the 
effect that as defendant's oar approached, plaintiff was driving 
entirely within the west driveway of the road going south, and 
that at no time did he go over the center of the highway dividing 
the two driveways. Several witnesses for the defendant testified 
to the same effect as to defendant's driving, and as to the position 
of her oar, stating that at the time in question, it was well withia 
the east driveway. 

The evidence is conflicting as to which of the parties was 
responsible for the aooident* The fact remains, however, that the 
imdisputed evidence shows that plaintiff's ear was driven with such 
force against the heavy truck, which, at the time of the oollision, 
according to the testimony of the driver was praotioally at a stand- 
still, thrft plaintiff's ear was almost demolished, and that the 
heavy truok was badly damaged^ 

Defendant testified that at a dinner shortly prior to 
the accident, she drank a cocktail. In the course of the argument 
to the jjury by counsel for plaintiff, the following ooourred: 

^'Mr, Jones: (Oounsel for plaintiff) * * * There are a 
great many safety campaigns going on continuously. Some 
are effective and some are not." 

"Mr. Vogei: (for defendant) If the court please, I 
think this argument, this type of argument, is wholly 
improper and I object to it." 



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"THe Oourt; I didn't h»9X it.« 

"Mt» Vogel: ^bat is done with reference to safety 
campaigns throughout the country is certainly an improper 
sulsject,*' 

*Mx» Jones: There will be nothing said about what 
is being don© in safety casapaigna." 

"Mr* Vogel: I object to it," 

"The Court: Objection overxuied.'^ 

"Mr* Jones: There is one campaign for safety on our 
highways which is going on quietly day by day, which is 
the most effective campaign which has ever been inaugurated, 
and th^t is the campaign th^t is going on in a jury box 
of this kind and all kinds in Illinois. If, as and when 
carelessness on the highway is expensive, then Carelessness 
on the highway will cease to be a menane* These people 
are going to keep on driving O'lrs* You may meet them* I 
may meet theta. This defendant is going to keep on driving 
a car» The next time a situation of this sort - *• 

"Mr. Vogel: I submit, if the Court please, this is a 
highly improper form of argument,'' 

"The Court: Your objection is overruled," 

«Mr. Vogel* I want to note an exception. Tour Honor*" 

"Mr» Jones: If these circumstances occur again, the 
defendant is going to know it is a matter of a day in court, 
where the defendant is going to know there is compensation at 
the end of the trial, oompens»tion for the man who is injured 
"by the carelessness of the careless driver, and I submit to 
you gentlemen that the earless driver, had a fev! drinks, or 
had at least one drink, and thereafter starts down the road 
through a snowstorm ^hioh encrusted the windshield so you 
can't see throxigh it except through the opening made by the 
windshield wiper, who goes up a perfectly strange road, 
follows another car around a 30-loot truck, is CBxeless, and 
in this instance carelessness brought it s result* There are 
lots of times when you can do th t and an accident does not 
follow* But if an accident does follow from it, and an 
accident did follow from it, and this accident is now in 
your hands, * * * Those are the elements of damage which we 
are asking you gentlemen, at this time in your particular 
portion of this campaign for safety on the highways, to award 
to this plaintiff,* 

Counsel's remark has in it a suggestion that defendant's drinking 
liquor had to do with the accident. One witness for plaintiff testi- 
fied that shortly after the accident, defendant's breath sraelled of 
liquor, Another witness for plaintiff, evidently produced for the 



si 






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purpose of showing defendant's condition, testified that she, witii 
the other parties involved in the accident, together with the 
witnesses and police officers, proceeded to the police station at 
Lake Bluff, Illinois, and arrived there about 10:30 o'clock, and 
after the aooident* H6r testimony was to the effect th'st she saw 
defendant there, and th-t ** there was nothing peculiar ahout her 
manner" • There ia nothing in the record to indicate that defendant 
was intoxicated at the time of the accident* 

As stated, a number of witnesses were produced by each, 
side as to the position of the t?/o cars iaimediately prior and sub- 
sequent to the happening of the accident, and the evidence as to 
whose negligence caused it was about evenly divided. Under the cir- 
cumstances, the argument of counsel should have been confined to 
a discussion of the issues in the case. 

In Lindenberger v, Klapp. 254 111, App« 193, an action 

was broxight by a husband for damages based upon the charge of the 

alienation of the wife's affections, Ootiiisel for plaintiff, in his 

closing argument to th© Jury, said: 

"Boys, the question that you have to determine is, 
whether a rich man like Klapp can break up a poor ti^an 
like Lindenberger* s home and enjoy his wife, or whether 
the poor devil has any rights in this urorld*" 

In its opinion in reversing the case, the court said: 

«We think this sBPgument was improper and the trial 
court very properly sustained an objection to it and 
instructed the jury to disregard this statement. The 
purpose of an argument to a jury is to enlighten them 
what the evidence is in the case and the law applicable 
thereto, and any argument that tends to inflame or pre- 
judice the jury is objectionable. Both our Supreme Court 
and Appellate Courts when their attention h?s been called 
to the some have not hesit-ted to reverse a case on this 
ground alone, when an objection has been made to the 
improper arg-ument in the trial court. The attorney in 
this case was not talking about the evidence, but 'gas 
attempting to create prejudice, and » judgment founded on 
a verdict tainted with such an argument cannot be permitted 
to stand* In the case of aioklioh v, Schnitker. decided 



a 

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;fci?.e *?!;/(; aria- ©^ ^a^iwg-xs ®flxeoio 

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sda- o# eivsm a©©fJ e,?uC aoi*oa(;rfo ii.fi flsrfw .erroX/' Bniro^^ 

ei X^Ktoi'd.': ©jtitf t^xiJOD X».ii# exfS- ax taBm^it 'x9qotqmi 

Lstf^Xa'Tsc- acf ;rofifi,j';o taemj-si-yA sib riows ciJ-iw MtaA-Qt toXfciev b 



"by this oourt at the October tera. A* C. 1938, (not 
reported in full), we held: 'If counsel persisted in an 
improper argument to the jury and an ol^jection is made 
and sustained, said argument coming from counsel of 
atiility, age and experience in the praotioe of i*s, and 
if it tends to excite the passions and prejudice of the 
jury, neither the attorney nor his client aay oomplain if 
the verdict is set aside for that reason alone, • ( Illinois 
Power &. Light Gorp » v, Lyon. 311 111* 133; Uitv of ■ieat 
Frankfort v« Marsh Lodge . S15 111* 33; 'rtebash E, Oo. v» 
Billin&:;s. 313 111, 37, 43; Pity of Oentralia v<. Avres, 
133 I 11^ App, 290, 294. )« 

In ^^eil V. Hpgen» (Ky.) 170 S. %• 618, counsel for plain- 
tiff in his argument said: 

"You should find a verdiot against the defendants in order 
to protect the lives of citizens in traveling on the highT«y, 
and thnt would be a warning to the drivers of automoMles on 
the highway." 

and in reversing the judgment, the court said; 

"If as a inatter of fact plaintiff and his property 
were injxired by reason of defendant's negligence, he was 
entitled to such a sum as would reasonably compens??te him 
for the damages actually sustained, but no more* * * * * 
We therefore conclude that an ai'gument like the one in 
question, which was evidently designed to play on and in- 
crease this natural prejudice, and therefore to arouse 
the passions of the jury, was not within the bounds of 
legitimate argument* 'inhere an automobile o^ner or driver 
is negligent snd injures another, he should answer only 
for the reasonable consequences of his own acts. He ahould 
not be Mulcted in dsaages in order that a verdict In his 
case may operate as a warning to others* ^^s the langus.ge 
complained of wss not within the range of legitimate" 
argument, we conclude th^rt the trial court sliovild have 
sust?ined defendants' objection thereto and admonished the 
jury not to consider it." 

We are of the opinion thst the argument of counsel for 

plaintiff iraa of such ^ highly prejudicial oharaoter, that the cause 

should be and it is reversed and retaeuaded for a new trial* 

HSVIRSED MO REMANDED. 



HEBEL, J, ANS DEfilS E» SULLIVAH, J. COHOUa* 



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Ho. 38467 / ' "> 1 i 

/ / I ^■- 

In the Matter of the Estate of / ) / I ^ 

JOHN SAR30N HSSLSR, a Minor, / ) / .. 1>^' | 

/ *T X APP1L4L lEOM I f 

aaRL R. H^LSR, GU^JiDIiJJ, ) 

) CIROTIT GOUET 
Appellant , ) 

▼. ) COOK COUNTY 



JOHN F^IRSOH HSSLSR, illNOR, 

Appellee. 



) 



^-v. 






MR. PRESIDING JUSTICE HALL DSLITSRID THE OPINION OF TBIE COURT. 

Carl R. Healer, guardian of his minor son, John J^rson Hesler, 
presented his final report of guardianship to th© Probate Court of Cook 
County, for approval. Object ions were filed to this report by the ward, 
who, at the time of filing suoh objections, had attained his majority, 
in wftiich he alleges that certstn loans made on his behalf amounting to 
#11,100,00, were made contrary to law, and Ifaat the guardian should ac- 
count to the ward therefor; that the guardian is the father of the 
ward, and that on November 19th, 19E3, the guardian applied to the Pro- 
bate Court for, and was granted, an order authorising the payment of 
^50.00 a month from the fionds of the estate of the ward to be expended 
by the guardian for th© support and education of the ward, ?;ithout any 
representation in the petition that the guardian was financially un- 
able to furnish support and education for the ward, and that during the 
period of guardianship, the guardian had ample funds to provide for 
the support and education of the ward without resorting to the funds 
of the ward. On March 7th, 1934, after a hearing in the Probate Court, 
the court entered an order to the effect that all orders theretofore 
entered granting leave to the guardian to invest the funds of the ward 
in real estate mortgage loans, which as originally made or as extended, 
matured beyond the minority of the ward, be vacated and set aside, and 
that the guardian account for and pay to the ward in cash the sum of 
i#ll, 100.00, the same being the amount of the principal notes repre- 



/ ( 

I 



/ 

% 

X 



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2 

sented by eertain real estate mortgage loans, together with interest on 
the principal emount of said loans from the date of investmea t of the 
funds of said ward in said loans to the dete of payment of such interest 
hy said guardian to the said ward at the rate of 5 per oent per annxm, 
and that the guardian be allowed credit on aceount of the total amount 
of such interest to be paid to the ward, an amount representing all in- 
terest obtained from said loans theretofore paid into the funds of the 
estate of the ward by the guardian; that all orders theretofore entered 
authorizing the guardian to make expenditures frcei the funds of the 
ward for the support and education of the ward be vacated rmd set aside 
and that the guardian account for and pay to the ward the sum of 
|3, 225,00, the same being the amount expended by the guardian frcm the 
funds of the ward for the support and education of the ward in excess 
of the amount foxind by the court under the evidence to be justified 
for such purposes, and that the guardian pay to the ward within thirty 
days the several amounts found to be due him. Frcm. the order of the 
Probate Court, an appeal was taken to the Circuit Court, and after a 
hearing, tbat court foxmd, among other things, that Carl R. Eesler, 
as guardian, had filed an inventory of tb© assets of the estate of 
John Far son Hesler, minor, which was approved by the order of the Pro- 
bate Court; that from time to time the guardian filed reports and s.o~ 
counts in the Probate Court, shoMng receipts and disbursements; that 
the guardian from time to time petitioned the Probate Court for author- 
ity to invest the funds of the ward in eertain real estate mortgage 
loans, which investments at the time of the filing of the final report 
and aceount of the guardian on January 20th, 1934, amoimted to the sum 
of 113,300.00. The coiirt then made eertain findings regarding loans 
made by the guardian, and further found that on November 19th, 192S, 
the guardian had appli©i to the court for an order authorizing the 
payment of fSO.OO a month froci the funds of the ward to be expended by 
the guardian for the support and education of the ward, without any 



s 

s;:L'' '.to t .-cjii^asvnx 'So ets-o a£jj ££0i^ axi;-ioX M/j« to li-xswciiiDs X.6C[X3ii±^q erid 

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3 

representaticai in the petition that the guardian was financially un- 
able to furnish support and education for the ward from, his oisn funds; 
that pursuant to this petition, orders were entered granting leave to 
the guardian to expend froa -fee funds of the ward the sum of OSO.OO 
per month on account of his support and education, which sums at the 
time of the filing of the final report and account, aggregated the to- 
tal sum of |6,450.00, and that from the evidence presented upon the 
hearing of the objections and the petition, the income of the guardian 
durlQg the period from the time of his appointment to the date of the 
filing of his final report and account vras such as to justify expendi- 
tures froa ihe funds of the ward for the support and education of tie 
ward of a som not to he in excess of ;^25,00 per month, or a total of 
|3, 225.00 for the entire period. The covirt ordered that the guardian 
account for and pay to the ward in cash the sum of |5, 600.00, that 
being the amoimt of the principal notes represented by certain real 
estate mortgage loans, together with the interest upon the principal 
amount of such loans frcrn the date of the investment of the funds to 
the date of the payment of t^te interest by iiie guardian to the ward, 
and that the guardian be allowed credit on account of the total timount 
of interest paid to the ward. It was fxxrther ordered by the Circuit 
Court that the orders theretofore entered by the Probate Court, au- 
thorizing the guardian to make expenditures frcei the fuads of the 
ward for the support and education of the ward, be vacated and set 
aside, and that the guardian be directed to pay the ward the sum of 
#3,325.00 on such account, and that the guardian he ordered to pay 
to the ward, in addition to the sums mentioned, the sum of ^1,455.31, 
the amount shown by the guardian in open court to be held by him as 
fimds of the ward. Prom this order, the appeal here is being prose- 
cuted. Also, a eross-appeal has 'been taken by the ward. It is as- 
serted by him that the father should not be allowed any credit for 
moneys expended by the father, as guardian, on his son's account. 



6 

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4 

The errors assigned here by the guardian ar© as follows: 
"That the court erred ia finding that the income of the guardian dur- 
ing the period from the time of his appointm^it to the date of the 
filing of his final report and ao count was suoh as to Justify expendi- 
tures from the funds of the ward for the support and education of said 
ward, of a sum not in excess of .|25.00 per month during said period, 
or a total sum of |3,S25.00; that the court erred in vacating and 
setting aside all orders entered by the Probate Court authorizing the 
guardian to make the expenditures frcE iiie funds of the ward for the 
support and education of the ward; that the court erred in holding 
that the guardian should account for the suci of |3, 225*00, being the 
amount expended by the guardian from the funds of the ward for the 
support and education of the ward in excess of the amount found dtie 
by the court to be justified for such purposes.'* 

Counsel for John Farson Hesler, the ward, state in their 
brief here, that "there are but three questions of fact that are de- 
terminatiTe of the issues raised by appellant. First, the inocae of 
the father during the period of the guardianship. Seecaid, the ex- 
penditures by the father as guardian for the support, maintenance and 
education of the minor during the period of the guardianship. Third, 
the expenditures by the father for his owe maintenance dtiring the 
period of the guardianship." The record shows, as is hereinafter in- 
dicated, that the facts as to the first two questions are undisputed. 
The only question before us for consideration and determination is 
whether or not the trial court erred in requiring the guardian to pay 
over to t^ ward the sum of #3,225.00, this being just one half of 
the amount of #6,450.00 whidi he had expended, and which he seeks to 
retain. 

The evidence discloses that some time prior to the death of 
Marguerite LaRos, formerly Marguerite Hesler, the Biother of the minor. 



e.'ij ^-rcisd ,OC.cjaii^iyt to mte. (xit lol ^JiiiJOGOi; Mjuoxle asiJi^BiJs orfrf- tfisrid 

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5 

the parents of the ward had been divorced, and that vintil her death, he 
had been living with his mother, and that at the time of her death, he 
was about the age of ten years; that at that time, the father, now the 
guardian of the minor, was residing with his brother in Chicago; that 
the father is a aaleaaan, and was compelled to be absent fram Chleago 
for a large portion of the time involved in his guardianship; that in 
the Fall of 1923, the guardian placed his son and ward in the Mor^n 
Park Military Acadesiy, and that the son attended such school as a stu- 
dent, for a period of seven years, vjhen he completed, what would cor- 
respond in the public schools, to a grammar school education, together 
with four years of high school; that upon bis graduation from the 
Morgan Park Military Academy, he entered Denison College, where he re- 
mained for a period of one year, and that he then entered Beloit College, 
where he was a student for two years prior to reaching his majority, 
and where he continued nnd was still a student at the time of the trial 
of the cause in the Circuit Court. The evidence further shows that on 
November 19th, 1923, the guardian filed his petition in the Probate 
Court, in which he set up the income received from the trust estate 
already created f cr the minor; that there had been received from such 
trust estate monthly payments of ^150,00, and that at the time of the 
death of the mother of the ward, he, the ward, had no one to care for 
him but his father, and that since the father's appointment as guard- 
ian on March 13th, 1923, the father had entire ocaitrol and charge of 
both the person and estate of jdoB his son. The evidence shows that in 
placing the child in the Morgan Park Military Academy, and his entire 
action in connection with his guardianship, the father acted for- the 
best interest of his child. It was stipulated in the trial that the 
income of the father and guardian for the years 1923 to 1933 inclusive, 
and up to September 6th, 1933, amounted to |58,878,17 - gross. The 
evidence is rather vague as to the father's cost of living during the 



&£ ,ii£-Be.r:5 10(1 'to 'SjiUvJ sjIj t0, tfiiilf ban .lodtoi:: aid dihr ■'^ntrtl fiescf l)-s 

3/S' Tfosz ^tadtA M^ .ssiia*- (tB.rid' ^n tsA^ js^io^ xfst 'io 03 j eii;f ;fiJOo'.« as 

j.aiR'- iag.s.old'j ai 'isri^to-x^J aid ■i^J'ii? 3ii2^%l3©"C saw ,Ti:ojEi«i csd!^ le> uskiiisw 

ogsoliiO ssTri'i rf'^eadi.; ed ocJ ls®iI©cfsoa saw l>su- ,ri£RK!«XBa xi ai Tt^xtfs'l ®rf 

xil; iM:j iql.r*m.mi£M'i;:'t% Bid ai MTlGrsxl -^mlt QiS^ lo mi^toq Q'^tist s& ig 

n:^ioM <sd'i si triBw jbiir; aos slii b&OBlq aBlbihu^,, esii ,sasx Io lll^1 mi 

-Ota x: as le^rjiiee tloijs b&ta&ttB aoe sdt d'sif* bUB .''ipseABO^.. Y'^tsd'iXiK 2(ib 

-aoo BXj-jow fexi'^/ . &©d- aXqisoc srf iteaV ,aii.9r .rroYaa to Ijoi'ieq fl lot fine 

sflS- xa<n1 mx^siis^jj^ig std noqu t^t \loodoQ d^td Io aisi^x i-uot ii^l 
•-o'l Qti Qt&d^ .eseXIoC; n:oaifl!eCI fcsi&ifiXG M Ci^mbist>A x^nttliU alls*! Ksgio 

lo'i ©aso ts^f oiio on fisil ,l>xow scio «9it ^MiiW s;.{J lo ladiom. edi lo iia'B© 

?co ©5p.0^o Sitfc! lo'itaoo QlttiiB bBd 'isid.fB'x edi ,SiiSI ^iiiHL lioinU tso ass 
ill J'arf^ swoxfc 00Ef9fii:v& erff ,isos siri set* lo 95f..;-d-ae 60/- iioe^g ©rf* iito 

mit id betOB iBMs^t &dt ^itiAaswtbinu^ aifi dtt\-f noiifo©£taoo jtxX aoi^t) 

oiiji- j<:4iJt Irtf.^ ^dt ml he-^BlsKiiiQ fijaw i?C .MM© Sjtxi lo ia^i^iitt *a® 

.e-9-i.aj3XDir£ S^fX o4 SS^i ^r'SBeif 9i** 10I iislJiisiia Ma ^9il#j8i sii;f lo eaioon 

©iiT .asoig - ?X.8?St8c<^ oj bQ&miomB ^SSex fii*S i9<fra?';Jq:sc; oJ- qu ba 



6 

period of the guardianship. The father, as guardian, has made no 

claim for compensatioii for his services. 

Both parties to this litigation seem to rely largely upon 

the ease of Bedford v. Bedford, 136 111. 354, to sustain their ecmten- 

tions here. In tliat case, the Suprecia Court said; 

"At coBnaon lavf the father was hound to support his children, 
end the strict rule was that he was entitled to no reimhxxrse- 
ment for his outlays in providing such support, as a goieral 
rule, no allowance will be made hlta out of the property of his 
infant children, if his owi means are adequate for their main- 
tenance. If he is able to take care of them out of his owm, 
estate, he must do so. Vihere, however, the father is without 
any laeans, or is without sufficient means to maintain and edu- 
cate his children suitably to their condition and prospects, 
equity will make him an allowance out of their estates for such 
purpose. In the matter of granting such an allowance courts 
are more inclined to be liberal than was their practice in the 
early history of the law. It is not necessary that the father 
should be actually bankrupt or insolvent in order to justify 
a charge against the property of his infant children for their 
support. The welfare and happiness of the children must be 
considered, and if the 3means of the father are inadequate to 
the praaotion of their welfare and happiness, their o?m property 
may be resorted to for their maintenance either in whole or in 
part. Bach case %tdll depend largely upon its omi circxaastEinces, 
In determining whether the estate of the children shall be 
drawn upon and to v/hat extent it shall be drawn upon, the amoimt 
of their fortune, their condition and expeatancies, the means 
of their father, and the just claims of others upon his bounty, 
will all be taken into consideration, (shouler's Domestic Be- 
lations, sec. 238} 3 Pom. So. Jur. sec. 1309, note 4; Hewport 
V. Cook . 2 Ashm. 332; Gilley v, Gilley , 79 Me. 292 | Seller y, 
H^ilIerT 25 Pla. 236)." 

We are of the opinion that this ease is decisive and controlling here. 

In view of all the circumstances in the case, smd taking 

into consideration both the income of the child and the inoaae of 

the father, we can see no reason why the judgment of the Circuit 

Court should be disturbed. Therefore, the judgaent is affirmed. 



EEBSL, J, and DSHIS E. SULLIViiH, J, GOHCOR. 



.aeoiv'iaa sLd ao'x iioxd-saxxeqaoo lot miaJLc 

jfxft'x.ollfio alii ■■yTE.Qijciiia o;! .DXiwod saw lerU'el »di wbI aoitsaoo d-.:i.'' 
' •"«£i.y<l£ii9'x Oil ot i)oI'J'J:t.K£> as'Ki' ail iBiSi asw oXw':): ^tsi-xSs ex!;]' has 

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fijoiltt?? p,l t&sii Kit edt ^'X7i■v&nod ,&'i8iiw .oe oft *3i/n! etl ,0d"n#a9 

,a*osqa.oTC Ji>aw noli-lLsmQ il^d-^i o^ xld&i'Xue rrei^irfo alii Qtr^o 
fio/j-E aol adtfiJae ti'&Ji^ "io tjaws docsisoXXa aa Mid ©3fi)ia XXirv? ^ij'lwa 

aadS'B'i 0M^ oexiJ- ■^7X/-5sa©«5!3iS ^oa ax d-'I .WisI BHi to xio:lrs,xd X-^i.^& 

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-sS oxitgi^jsoa a"i0Xii©i?6) *x£?-.ix^.vioiiis>ioo oi'-X£i aesLso'' ocf XX 3 XXiw 
t^O'rcw©!-! ?-^ scfoG ,0O<iX ,ose .%ti;'^» .oS ,..C2©1 g |8gS .osa ^aiioWaX ..■■;., 

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'io BS^onl. Qdd" Mc Mivfo od& "Io .'saooixl: sda^ iJi^ocf xioiteisfclsxioo od-fti 

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No. 38477 

/ " J I ^ 

H. B. WAGKSRLE, / )^0^ / | ^'■■ 

/ ) 

Appellee, / ) / 



T. 



) y APPSia FROM 

,..^'") cJDEERlOR COURT " 

GLOBE IKDIMIITY CCMP/JOT, a cor- ' ) 

poratlon, ) COOK CQTOTY 

Appellant , ) 



MB. PRSSlDIIfG JUSTICE HALL DELIVERED THS OPINION OF TH®. COURT. 

This is an appeal from a judgsent of tiie Superior Court 
of Cook Covmty against defendant, entered on July 11th, 1935, for 
the siaa of #11,840.18. The action is upon an appeal hond giren by 
one Louis Nies, as principal, and hy the defendant herein as surety 
in the ease of Waokerle y« Hies , et al .. said bond having been filed 
in the Municipal Court of Chicago in ease No. 1434970 in that court, 
wherein a judgment was obtained against Nies. in appeal to this 
oourt from the judgaent in Municipal Court ease No* 1434970, was 
perfected, the judgjaaat appealed from was here affirmed, cind on ap- 
peal to the Supreme Court of the state, the Judgment was there af- 
firmed. After the mandate of the Supreme Oourt had been filed in 
tte Munioipal Court in ivaekerle y« Nies . et al. No. 14S4970 in that 
court, a petition under Section 21 of the Municipal Court Act, in 
the nature of a bill for review, was filed in the Munioipal Court 
by Nies, seeking to hare the judgaent against him vacated, and the 
pendenoy of the petition in that ease is urged as a defense in this 
suit. There is no question as to the amount of the judgment. After 
a hearing in the Municipal Court on the petition to vacate the 
judgment against Nies, a motion to strike the petition was granted, 
and the petition was dismissed. From that order, an appeal is being 
prosecuted here, case No, 38421 in this oourt. 

Contemporaneously vdth the filing of the opinion heroin, 



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Y*©-x«a ss xiiuiexi ta«l>rce"J:©b axiS- "Ctf Jtef: ^Isqisisiig as ,i3€»l$$ alaod oho 

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siicj fiix-o ,ii€-J.iJ8av Kiif tsxxi.oS/3 s\<isi«g&wf; swfv ©vofl oir ^ui^iees ,B3XH "^tf 
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2 

this court is filing an opinion in case No. 38431, in vihioh the 
judgm^t of the Municipal Gourt, in dismissing the petition filed 
in the Kvmioipal Gourt, is affirmed. 

This ease is governed by the opinion in ease No* 38421, 
inasmuoh as all pertinent questions raised here as to the liability 
• .h of defendant on the appeal bond are there determined. The judgment 
!^"'"of the -ite»^ff«4f«* Gourt against the defendant, Globe Indemnity Com- 
pany, is affirmed. 

AiTIIMED 
SBBEL, J, and DMIS E. SULLIVM, J, CONCUR. 



No, 38492 

THE PSOPLl OF THE STATS OF ILLINOIS ex rel, 
OSG^M NELSOK, as Auditor of Public Ao- 
oounts of the state of Illinois, 

Complainant, 



CITIZENS TRUST iiND SAVINGS B/iHK, a OorpQlra- 
tion, et al,, 

Defendants. 



A/ 




CONTINMTAL ILLINOIS NATION^iL ByJ5K J>1D TRJJ'aT 
GOMPiJNY 0? CHICAGO, a Corporation, as 
Sxeoutor of the Lest Sill tmd Testament 
of Ossian Cameron, Deceased, 



Appellant , 



T« 



WILLI/iM L. 0»CONKSLL, Receiver of Citizens 
Trust and Savings Bank, a Corporation, 

Appellee . 






APPE/iX FROM 



SUPl^KIOR COURT 



COOK C0TM1T 



MR. PRSSIDHIG JUSTICE HALL DSLITERSD THE OPINION CP TfK COURT. 

In a proceeding brought for the purpose of liquidating the 
affairs of the Citizens Trust and Savings Bank, Ossian Cameron, now 
deceased, filed a petition in which h© sets forth that he had ad- 
vanced and paid to the Citizens Trust and Savings Bank on Jtme Mth, 
1981, the sum of #3,000.00, and on September 23rd, 192E, the sua of 
#831.44. In this petition he prays that his claim be allowed as a 
preferred claim against the assets of the bank, with interest from 
June 14th, 1921, on the #3,000.00 so alleged to have been advanced, 
and interest on the amount of :^p831,44 from September 23rd, 1922, at 
the rate of &% per annum from the dates mentioned to August 5th, 1930. 
He alleges that the amounts referred to were advances made by Cameron 
to tjid were received and retained by the bank as a trust fund. 

The record indicates that at a meeting of the directors 
of this bank held on JtH).e 7th, 1921, which was attended by Cameron 
as one of the directors, a resolution was adopted by these directors, 



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ao fiUJE &rf;J jSgf?! ^MSa 'lecTcxo^qea no bsm ,00. 000. St lo mjs <^dt ,XseX 

.;^ a^:- S'OWOXX:. ed !iii.j?J.'j mid d^.«rfJ e^B'icr erf fl:oi;J-i:d9(T ai'ild- nl .^^,XiS8$ 

moil ■^&'$'iBi-al fr^iv: .tucd srf:^ lO ad'sassi.} &ri^ ;}-anlA^g3 mijaXo i>9iiole'ic[ 

(X'eoavT&B aaatf ovoii o* hs^ilB oa OO.OOO^eC- oiicf no ,xasx ,.f1«tM exoft 

,?•,:; ,S8§X tXiSR lecfiuorf-qQc;. fitoil ■M.XSiS-;;- lo iauosiB sdi no iQ&'iotat bna 

£jo-ia;a:;C \;cr fioX'/fotd-a s,:'?/ rloixir; ,XEC,'X ,i'fcfV eauZ .no fiXO-d ::iia.^d airft lo 



s 

by whioh it was agreed to oolleot a fund called a ''Directors Fund", of 
#50,000.00, with which to pay certain overdrafts of certain finas and 
corporations then standing on the books of the bank, in which OliTer P. 
Smith, the bank's president, was interested, and that on June 15th, 1921, 
Cameron contributed #3,000.00 by check to this fund. This cheek, dated 
June 14th, 1921, was drawn upon the Citizens Trust and Savings Bank, 
laaade payable to its order, and was marked paid on June 15th, 1921, as 
shown by the check which was introduced in evidance. The overdrafts 
were licLUidated and the accounts were closed. Vilille petitioner alleges 
that the amounts of these overdrafts were afterwards colOeeted, this 
is denied, and there is no showing that either the bank or its receiver 
ever collected a cent on these accounts. As to the item of 1831.44, 
the record shows the following: On May S4th, 19 2S, a note for the 
sum of |22,000.00 was drawn by Oliver I. Smith, president c£ the Citi- 
zens Trust and Savings Bank, payable four months after date to the 
Ghat ham- Phoenix National Bank of Hew York. This note was endorsed by 
five directors of the bank, including Cameron, the claimant. As we 
understand the record, and from the testimony of various uncontradicted 
witoesses, this not© was used for the purpose of borrowing money from 
the Chatham-Phoenix National Bank for Smith, and that it was his ob- 
ligation and not that of the bank; that as security for its payment, 
there was deposited with the Chatham- Phoenix National Bank of New York 
as collateral, 180 shares of the stock of the Citizens Trust and Savings 
Bank. This note was endorsed by Oliver F. Smith. Joseph P. Smyth, 
one of the directors of the bank, testified that certain of the di- 
rectors, including himself and Cameron, paid #3,000.00 on this not©, 
together with certain expenses, and that on November 15th, 1922, they 
signed a renewal note for the sum of #19,000.00. Joseph P. Smyth wrote 
Oliver F. Smith, the president of the bank, a letter which was pro- 
duced in evidence in the trial, without objection, in -Kbieh he states, 
among other things, that: 



a 

.biis mffiil ali<.i'£fis to a*tij'iI>iQV'0 trxs^iea y:'-4 ^'■J' rfoi'tl-s' lioiw .00«000,05t. 

.Ti •■X{,viIO iJ3i:£.Iw nl ^Miad arit lo aslooo' ©rfd" no -^Ibimis. aod:)- ancid-aioqior. 

,XaeX ^:iicl tsfun; rto J.:.i£j;5- £?rrc ,ij0crasisri-isj; sow , d-iieMasiiq G'::«itnd orf^t ^xWiajS 

l!S#u.& t7i03/ic -a.tiiT ,feai;;"i airi* os- sl&axii- ■v;<2 00* 000, S^ oQiudtt^sioo floiaacsO 

. j;:^iJBa BgjiiVKS biZii ^esriT anesi^xi) aad- riocr;:/ :m£i%h aB'/v ,IS§I ,.d5J'-l-I em;X 

as ^X^v^-'i: ^iivtil sfiir% xio M.Gg. fie^Ciaj^ s.ev/ tox; ^aolj'io cti oo sXefsT'S^I ©f^-CiJK 

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Tcf 5;esioMa ;iJ3w actoxc fiiil'I' ^aiioT ivo;! 'lo jTaBcf lisaoi^uH sxHsoxJ'i-^rjxf^fiilO 
©w f.;.;,. . itniiisu: ;iXc ©if:?- ;,a<.viQittoC 3xci:.DijXG:ii: ,:^iis.cf odd' lo a%oiOB%lb svxl: 

MO'S"! s-^sxroai .scJiY/oiiocf to s3oq;'Xjj"c, axit aol &eeju &sm eioa zldi jSoaaaatiw 
-do sM uim il cj-.iiio SiTc ^.d^ima 'lol :iri3S Xxifsoi d-s^i sii£ooi:i'?;-ia:3if?jsrf0 ^dJ: 

liol wsTI lo xfissa X.oxfoij-all 5;xii©otfi.-fiKix(c)-i3dO erit sMl?. &9tls,oq&b asw otoil* 
sgsiv.-na ^ay *ai:/'xT GirosicJ-iC- oa'd" 'io :ioo'^Y. orivJ io soiMa 06X jIjaiQ^-eXXoo 2B 

,stc£i sxri* no Oe.oOC^SC; Micg ^xxoiaa^O Mr. IXesxcirl 3X[i£>i;Xo«i .r.ao^ros'i 

^J9ri# sSSCX ,d^SI •.t«c[.'ngvoM .ao JBrlt Gxta .eaaaaqxa iii:Btiso xi^-jt^- ^orirf'ejjo;^ 

©^■oivf il^-^-sfo /I dg«g!oT» . 00,000 (;?X§ lo jaus odcf lol e^-oH Xbw9jk©i b Bsflgis 

•oicr Sii?/ iloi-rfw -isS-Jel r ,2tn.ec? srl-J- lo ^rtsMss^q ^ilc! ^d^j-iraa ,'» 'xoviXO 

^8@^iisJs D.d fiolrfe nl ,«oJ:.*Oisto'o ifaoilit^a ,Xbxi* eff;f ex ©Gxxg>f)iV9 stl booisb 



3 

"Note for §22,000, Oliver F. SSaith obligation due at 
Chatham-Phoenix National Bank, Ke^. York, on Septeaiber 25th, 
1922. He was unable to pay it; it devolved on four other 
directors, Hagamann, Zuber, Cameron and Smyth to take ©are 
of it. We paid #3,000.00 on principal plus interest, and 
revenue stamp, ajid got four months renewal of 01,900.00. 

Paid on principal — ~ — #3,000.00 

Interest 321.94 

Revenue Stamp 3.80 

4)3. 585. 7j 
Amount paid by each 8^1.43 

My check for |831.43 made payable to 0. F, Smith and given 
to Mr. Woodrow, Cashier," 

Cameron, the claimant, was alive at the time of the hearing of this 
cause, and admitted writing the following letter to Smith, 1±ie presi- 
dent of the bank: 

"Pursuant to conversation with you last evening, I am en- 
closing herewith a statement of the moneys advanced or ex- 
pended on your account and to accommodate you in connection 
v/ith certain of your notes to date. 

To amount as per cheek June 14, 1921 |3,000.00 

" interest on said amount from June 14, 

1921, to Sept. 14, 1922, @ 1% 262.50 

" interest on said amount from Sept. 

14, 1922, to Nov, 14, 1922, @ 6% 50,00 

" amount advanced on account of in- 
terest, principal and war tax, your N. 
Y. note of ^22,000 to Chatham-Phe- 
nix Nat. Bank of H.Y. Sept. 23, 1922 831.44 

Total ^,123.94 

It is understood that you will personally take care of any 
of your notes on which I appear as accommodation endorser as 
well as any guarantees collateral or otherwise which I may have 
given to aid and accommodate you in financing your affairs, 
I as I explained I am unable to meet any of these. I have pre- 
pared a note for this amount, payable on or before one year 
after date, which is herewith enclosed and which I will thank 
you to sign and return to me." 

The claimant insists that the fund of which the #3,000.00 

was a part, was a trust fund, and that, therefore, the bank and the 

receiver of the bank became trustees of a fund Ti^ieli belonged to the 

ocaatributors, and that there was some obligation on the part of the 

receiver to treat these contributions as preferred claims emd pay them. 

W© fail to see where there was any trust relation created, l^ile the 



.iltfoa 'iQdra^tqeZ no ,>:'XoT -:«II ,:^ii-5S SjiSost.'M xlmoitl-mmUadO 
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feu? .vaei&S-xti ewlq; iBqioirt'icr ao OQ.pOO^Sf Wacj sW ,t£ to . . - 

00,000,5;^;-"-—- ---•I>^qi:t;fti:irr £fo iiinf 

^9.iae —« — — -» ^^-^ — — j-as<is?«'-jiii 

isevls Ijc.o dTl'lacE .,1 .0 crJ- el£fB\'.aM e.&Bia <J!-KIS8v ^o'l ao©ilo xM 
aliicf *lo ar.x'i;>3!t ©tid- "xo aisixd- arid- i-/^ ovIXb e«t'/ .^rr/ja-ABlo sild' <*sdQfllBO 

::inF}<^ eiU to ^ast 
00, 000, St XS&X ,#X !-3£tf.fX ::*cc>ii$ laq as ;fn;;oj3a oT 

oci,sea l^v ^^ ,as9x ^m ,*q:68 o* ,i&^i 

rns lo eifto 0:ia* ■^XXf',noai®q XIJ:w i/OY cS srlS- t'OoS'aioIiiio- ®i: ;tX' 

evsxf ■^sffi I i^cidw aal-vi'itf^iitfQ to iBTatsXXoG ssetxia-XiSt^ t*^ 3a IXeis' " 

-e'sq; ®T.:jjEi[ I ..©ssM* to xs& tQ&si oi sXdsjisif ets X fe^filsX-sx® I a.@ '■ '■' 

3l££iiK3'- IXixr X doisivf Jto© JbeaoXorifj ritit?9'isf.{ si 'ioXxfrf ^sfta!) i&itB ^■■■ 

00,000^5^ &di- MoXilw te Mwt ©if* tciW aiTaiiaiii: tnaiSieXo ^SiH: ,^_ 

^-dl! od- JJoaiioXatf j^ii'ft'ir Miji'i jo to B&&i&imt siSLstoorf 2lixs<| ©xf»J- to teyXees'i 
^ni- to jfiaq &m ao aoiitu^lMQ ©ac-:: a.avf «^:«ri^ ^sd# l^ii^;* ,aio;J'ijtfi:"i*rxoo 



4 

signers of this agreement were directors of this bank, the fact is 
that they vol\mtarily contributed money to liquidate ovei-drafts in 
the bank of eertaln conoems in which the president of the bank was 
interested, in order to make a better showing to the auditor of pub- 
lic accotmts. Claimant volimteered to pay another's debt to the bank, 
and we ean see no reason why the bank, or the receiver thereof, should 
be made liable for the payment of these moneys. If collections hrd 
been made from the persons or concerns owing this money to the hmk, 
perhaps claimant would be entitled to have any amounts so paid, paid 
to hiia and to the other contributors, but, as stated, tl^re is no 
showing that any such colls otions were made. As to the item of 
$831.44, it is clearly demonstrated that this money was paid on ac- 
count of the president of the bank, and in so far as the record in- 
dicates, the hnnk had nothing whatever to do with it. Therefore, the 
judgment Xac^aCKSliiSffli^SC^: disallowing the claim, is affirmed. 

AFFimim 
HSBEL, J, and DMIS E. StJLLIVM, J, CONCUR. 



"•dx;q: to •ioo'-IIjw.'-j! ©del- oi ■saswod-t^ 'te-tifed .-:■ mimi ai 'mbio xtX ^j&aai-aoasiJ'ni 

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.jfffijc; e.a;i- Ow* ■\:c-;rro.!;i '-^icW gjxi'-wo axcx&orrcc io aEoaio-q; ©rfJ- moid eiseM xieod 

-2l i:'.'io»8i files' 2;j£ i&l o© j^j: Ijiis- ,:^a0d »riit lo i(!'iS:©ci:!59^(j ^xW lo *ii0oo 

©.si* ^oio'ie-x^xrr ,r'j: il^i'l-?? oP> o.t •i5?e^,»rl"-;- •v.nxrici'o.a f'.Rff sfrf^'cf ar/v* .aoo'sci:!) 

.Befflil'lls si ,icxsIo Slid- anivrollsaib xSJ«33E£s3CK3C«s!. iiu^m^.bvl 



/ 

38369 ^ / 



/ y 

APPEAL FROM 



MAUD HAHTLSY, 

Appellee, 
V. ) SUPERIOR OOURf 



METROPOLITAN LIFE INSDIUHCE 
COMPANY, a oorporation, ) COOK OOUHTY, 



Appellant* 



28 6I.A. 605' 



MR« JUSTI02 HSBEIi DSLIVEREO THl OPINION OF THE GOURT. 

This is an appeal by the defendant insurance company froa 
a judgment for |1735c entered in the Superior Oourt of Oook County 
in an action by the plaintiff aa beneficiary named in a life insurance 
policy issued by the defendant company. There was a trial before 
the court without a jury* 

Plaintiff alleges that the defendant issued a policy of 
insurance payable upon the death of Robert Hartley to Maud Hartley, 
the beneficiary named, upon the terms therein stated, and thit "the 
insured kept, performed, and complied with the provisions of the 
policy during his lifetime"* Plaintiff further alleges that she filed 
proof of death, with the defendant, as required by the policye 

The defendant filed a plea of not guilty, together with 
an affidavit of aierits wherein it is stated that the policy sued upoot 
lapsed for non-payment of the premium, which became due February 2, 
1932, and that on March 35, 1932, Robert Hartley executed an applic- 
ation for reinstatement in which he made false repreaentntions aa to 
his health and medical treatment since the date of the policy. The 
company reinstated the policy on the basis of these false representa- 
tions, and alleged that after the death of Hartley (sixteen days after 
the application for reinstatement was signed) the company learned of 
the fraud. It is also alleged by the defendant that the application 



. ...x 


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essss 

♦TTHUO0 1000 ( ^mttsxQqi&Q sr. «: 

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wot'i ■/rJncTEoo Boa'^-itstal ^rtsbn ©'!:$£> sad- \-a' I.?*»QqB itB 9i sidT 
iiiViWiiMsai slii ;■ .n:i .f)«(Tift,fi fi,Bi oil oris tJ 8^; i1;ii5xii.s»Iq srij- y?^ actios xib nJt 

^^n--^ BV^b ffaod-xxH) Ysi*'f*'H to di/^eb stf* •r&J'*:.^ :t';rrfrf- fcai'^aLXs bar- eeaul* 



3 

for reinstatement 'by its terms created no liability on the company 
under the circumstances and therefore the policy was never reinstated. 
Oefendamt admitted liability for the premixM paid which was tendered 
and refused* 

The facts are that the defendant issued its policy of life 
insurance to Hobert Hartley, dated February 3, 1936, wherein the 
plaintiff Maud Hartley was named beneficiary, and the auai of §1500 
was payable to her upon the death of the insured. The premiiBis were 
paid to February 2, 1933. There was a default in the payment of the 
premium due on February 3, 1933, nor was the premium paid within the 
grace period of 31 days thereafter. Under the terms of the policy of 
insurance here in litigation, a loan was made to the insured of 
.^5,45, Subsequently, on March 35, 1932, the insured executed an 
application for reinstatement and paid the paat due premium, which 
was received by the defendant company, and on April 10, 1933, the 
insured, Robert Hartley, died. 

In the application for reinstatement signed by the iaaured, 

the pertinent parts are as follows: In reply to question 4» "Are 

you now in sound health?" the answer is "Yes;" to 6» "Have you since 

date of issue of the above policy (a) had any illness or injtary? If 

yes, give date and particulars," the answer is «Hoj*' (b) Oonsulted 

any physician or physicians? If yes, give date, and name and address 

of physician or physicians, and state for what illness or ailment «« 

The answer to this question is «llo*« also as part of the application 

appears the following: 

"Application is hereby made for the reinatstement of the 
above stated policy which lapsed for non-payment of 
premitim due as stated above* I hereby certify that the 
foregoixig statements and answers are correct and wholly 
true and have been made by me to induce the Metropolitan 
Life Insurance Company to reinstate the above policy, and 
I agree that if said Company shall grant such reinstateaient 
the same shall be deemed to be based exclusively upon the 



* 



toTS&ffOy e:-^; rio.tnw bt^^q Kariffieif,';- sricJ- ioa Ytf-2I.co'.f:i:I hB^fhahB tasbnrslBG 

•.bseju'is'x biT.e 
elil 'to ifOiloq e*.J b^uTtCsi: rJ-j^sMslraiJ 9di^ .■j-?i~!.t s'tg e^oe't arfT 

0C<5X';' 1:<5 i?!«.;8 Sii.t I->Kt? ,yi-i:.toi:'teflS£f |)'MkGii aS'V \:©X-*Xi§ii i)0Bii'; i'i.£^aiS'S.q 
m.t^n s»Jri,^?*rq eri'f *f.:i'n;e.n:^ ^di to n&BBt ■■^fl^f noqy trad' ol*' ©XcfBY'S^: s»-f5^' 

gsiij .«i.fi.c1i-« Mj^q, iw.cKioxq ^i-f* SjPt/ toe tPiSei «£; v'l^jy'jff©'? «o 00*) B!uiiii9iq 

fifii ^SS^X ,01 ixiqA ac bits ^%ima:-iCii> cm.ettnali&b ad'# '^ fe©vi0Ofl"s: s.i?w 
,J&s'2i/»si aild- ■*;:<::;" Magis .tir*<r39J.e^&Ki:)T to'? nox-$Bt>lL^(iff. add- fxl 

?tI 'iv^ijc^i ao 3eR.r.li.t T£iU' feBff {^,) \tiloi.i ^^rod.^ Bii& to miBtii to »;J-.9i) 
batXweaoD (cf) ^;ag'' ssi ^9v.rcai« ©ri* ''^a-xBltroi^^csq ba& s*.fi£> avig ,s©y 

lo *jr£9mY?5q-~«ort io3: fcaeqisX rictlrir \-oi-Iocf fo©;??^® airocf« 
mBitic><iO'iti>>J& Si^iu s>OH.bfli- 0*1- ©a X'^f 9fi*-ffl n?j»jf ev-Bd ba.n 9ir.t| 



representations contained in this request and upon the 
express condition tli-t if the foregoing statsraents "be 
in any respect untrue si id Oompaxif aliall, for a period 
of two years from the date of such reinstatement, be 
under no liability by reason of the attempted reinstate- 
ment of the policy except th!^ the Company shall return 
to the instired or hi© personal represent ^5 tlve all preffliuaws 
paid since the dste of ssld reinstatement, 

Dated at Chicago, 111. this 35th day of lAaroh, 1933* 

Signature of 

Applicant: Robert Hartley," 

It appears that the insured wa.s treated by Or, 0, H. 
Steinfeldt from June 3, 1931, to July 16, 1931, for puliaonary tuber- 
ctdosis* The death certificate shows that he had pulmonary tuber- 
culosis for six months prior to his death, and that the doctor who 
made out the statement certified that Hartley admitted in a history 
given that he had pulmonary tuberculosis for three months prior to 
the date of his death. The Municipal Tuberculosis Sanitarium records 
show th^t he had received treataaent there in 1931, which was admitted 
by the attorney representing the plaintiff* 

Plaintiff objected to the admission of any of the evidence 
which showed misrepresentation by Hartley as to mtters of health ?.nd 
medical treatment, and further objected to the introduction in evi- 
dence of the reinstatement application. The trial court sustained 
plalntiff^s objection and entered judgment against the defendant 
company for the amount of the policy, plus intereart. 

On this appeal the plaintiff calls to our attention para- 
graphs 3 and 4 of the insurance policy* 

Paragraph 3 is headed, « Incontestability", and is as follows! 

"This policy shall be incontestable after it has been in 
force for a period of two years from its date of issue, ex- 
cept for non-payment of premiums, and except as to provisions 
and conditions relstiti^ to benefits in the event of total 
and permanent disability, and those granting- additional instjr- 
anoe specifically against death by accident, contained in any 
supplementary contract attaoled to, and made p&rt of, this 
Polioy,*" 

Paragraph 4 is headed, "Entire Oontraot," ajid is as folloisrsi 



edi floqtf btia -^B^vp&x &liS^ ai bf^nlyJuoo fit-to. t;t?i'icss®©'s:qs'r 

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masjlBx^iq lis ^'cic?F;j-i36«eTq9'x Xsfies'xSK eirf y.o b^^imai ©jrfit dJ 

«SS(iI ,.dMnfe to -^^-l) d^'dt siff* .XI.! ,C::|:-o£;iO Je l>«.tBa 

!Uj s*iju-(tilfl^i£i , , , , 

-■xtjtfxf* -^jBHCKlif'- TO'i tLS#I ,aj; -;XrfT, o* ^lt£'l ^S 9anX> aoit tbl^'iat^tH?. 

o£it'/ TOd"oofc exirf- d-.i-jcltf has ^il±sMi Bid ot rcl's.q arfjxsoffi xl© lol «5i«oXi/» 

X'XvT^tsiti a ai; fceiJ-^isiSs ■^J©X3■•i:.fH d-.-rif £iSiii:*"tso rJ-nam 9 fell's affif *wo eJbjsa 

oj*- •cojtq erf-J-iioffl 555>rrffrf tol tsi^olistyvidsj^- •^i.enocsX.uq fxsiJ »ii t.-jifi- nevl^ 

soiisfcivis eiii> to -^nr- lo iioieBXiufe?- suit <i& hn'^o^ldo lli#«ijsX<l 

#flj?l)n3l:9i) ^d^ ^bhIC'^ tst^mrihui SsTStita M« itbiJ"©®!;^© e'^^ltaJtjjXq 

-fs-req «oit«©;frf e -3:1/0 q# sXX«o tlU-sLnlq &sii I^&qq.s ei^.i' rtO 

•■^©IXoq ©oitMiferrX Mt lo :^ M.fi S sifqetg 

fix nsocf eiu^ #x tQ;^!^ Bids ^f^-sttttoonl ©d XXBde •?C>iXoq Bint" 

X.s#oiJ' 1-0 d-ft©'/** o/ii"- ffli tifiteaeC of ^i;t,cX9^ 80oitfife«€»o .hfi« 

. '»^\:oix©*i 



"This policy and the application therefor constitute 
the entire contract between the parties, and all state- 
ments made by the insured, shall, in the absenoe of fraud, 
be deemed representations and not warranties, and no atate- 
raent shall avoid this policy or be used in defense of a 
claim hereunder unless it be contained in the application 
therefor and s copy of such application is attached to 
this policy when issued. « 

In the consideration of the questions shioh neoesaarily follow, it 

is well to have in mind paragraph 10 of the policy, which is 

entitled, "Reinstatement" and is as follows: 

"If this policy shall lapse in consequence of default 
in payment of any premium, it may be reinstated at any time, 
unless the Oa^ Stirrender Value has been paid or the non- 
participating Paid-up Term Insurance period has expired, upon 
the production of evidence of insurability satisfactory to 
the company and the payment of all overdue premiims with 
interest at six per centum per annum to the date of reinstate- 
ment. Any loan which existed at date of default, together 
with interest at the same rate to the date of reinstatement, 
may be either repaid in oaah, or, if not in excess of the 
cash value at d^te of reinstatement, continued s.s an indebt- 
edness for which this policy shall be security," 

The defendant oonteads that the plaintiff must proceed 
both under the insurance policy and the reinstatement contract in 
order to recover, and where the tmdisputed evidence shows that 
defendant was induced to reinstate the policy throu^ fraud there 
can be no recovery. To this contention the plaintiff in this action 
replies by stating that the defendant by reinstating the polfejiy of 
March 25, 1933, waived forfeiture of the policy and the policy, 
including the incontestable clause, was revived in its entirety; 
that the policy was therefore incontestable* 

The iaportant question to be considered is whether the 
defendant was induced to reinstate the policy in question by the 
fraudulent act of the insured. The general rule upon this question, 
and It hardly needs citation of authorities, is that in order to 
establish fraudulent representations, the representations complained 
of must have been m«de with respect to a material matter, and must 
not only have been false, but must also have been known to be false 



# 







oi 4o.£iiw s'coiXcHj- qjU to OX dq^i^/rxsq i*niiB ni ©v.eii oi Xieiff si 

;^i^^elS)J.^ to «?OA'X9t(peai«eo d ©«'i£i*I XXsfJe Yr.iiLo0 nid^ IX * , .: 
^m-ii^ xnsi ■he l>9d-js«'-ani*>7 #d ykk ti ,fl!.yi:i';t>i.r i^-ifi-, to itisicxBq at 

Siit '^o BBfTOxs cti tea 't£ ftio tXie.!*o r?.i iji/^o-si -raif'^io ^ad Ya«a 
"*\-*ii.«c«i;i jjcf IX..«?j1e ^siolloq gldJ- tlcxrfisr tot ea«flJE>a 

d-ffi^ swoiis Qonai;iv«» iJeS-xfqexfJiiu &£>';t g'Xfsd"? one ,^j9?0O«t o# lebso 
^Yoxloq od;^ f>«.« YOJtio*? Sri- tc s-n/.tisi^ot ^evtaw ,£SeX ,cS jdoiifiM 

^ixolsrssx/p aid:.! eioq*; ^iar Xs^iaix&i ©j^^ ^#im»ai ♦4i<' S'© ^0,9 ia^laimsrl: 

■J50SK ^ns ,i9:^J,ois L{ati9#»a! b o;f <joOQ9ST jf*Xw 9%ffi flsatf sv-eri ;fBiriB lo 
eaX-rl: sd cJ fmoai: aoQd ^sMi oaXn tawas *0cf .aeXel: uesd ®nri>ri -(jXao *oa 



s 

by the person saaking them at the tiffl©, and have been relied tipoB 
hy the other party entering into the oontraot sought to t>e enforced. 

In the oase of Joseph v» Hew York Life Ins* OOi. 319 Ill« 
App. 453, the court in passing upon a similar question to the on® 
now before us, said: 

"Froa a consideration of the authorities to which we 
have referred and of many others which we have examined, 
we think the law is that where it ia sought to avoid a 
policy on the ground that the insxired made false answers ia 
his application, the question of the good faith of the 
applicant in making his answers (in the absence of an 
ekpress provision that they are warranties) is always a 
material one, and as Mr, Jtistice Harlan said in the Moxilor 
oase: 'If it be said that an individual could not be 
afflicted with the diseases specified in the application 
without being cognizant of the ffct, the answer is that the 
Jury, in that case, would have no serious difficulty in 
finding that he had failed to ooaaiunicate to the company 
i^hat he knew or should have known was material to the risk, 
* * * and the policy was, by its terms, null and void,' 

While there is some apparent conflict in the language 
used in the reported opinions, yet we think upon a careful 
analysis of each case it will be found that there is no 
real conflict; that the question in each case is whether the 
answers made by the appliosjit were knowingly false. Other 
authorities sustain this view, Donahue v. Mutual Life Ins* Oo»« 
37 N, 0ak, 303; Baer v. State Life Ins. Oo. . 356 Pa. 177; 
Oolinger v, Mew York Life Ins. Co.. 253 Pa. 328; gharrer v. 
Capital Life Ins. Oo,. . 102 Kan, 650; Reserve Loan Life ItiSm Gq . 
V. Is€MB. 173 i-ao. (Okla. ) 841; MutualLife Ins. QO n v. Morgan. 39 
01da« 205; Guarraia v. Metror?olitan Life Ins. Oo.. ^ I. J» L, 
683; Suravitz v. Prudential Ins. Oo. . 344 Pa, 58?!. " 

It must be admitted that the policy in the instajat o?^s€ had 

lapsed because of the non-payment of premium due February 3, 1938, 

and in order to revive hia interest in this policy it was necessary 

for the applicant to apply for reinstatement, as provided by Paragraph 

10 of the lapsed policy, and in Goaplying with the provisions of this 

paragraph it was necessary for the applicant to produce evidence of 

insurability satisfactory to the insurance company and to pay all 

overdue premiums* For this purpose the defendant coapany provided 

a form known as an "Application for Reins t at ement", which the insured 

signed, and in which he was required to answer certain Questions* In 



a 

till Cv'XF-: ^iJL„«^lu^3JLM..^Si-iX.J£ti!a *" ,^[!?.£M» ^<' O^i'i-O srf* «X 

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<^iU t'r^a-taxf?) ei ssjt,© iiois© &i £i0l^^&4ip M* j55iSit ;?J©i£i1:ao& Loot 







"to ©ost9i»xYS ©^i/lKJ-f/T OJJ- te.{^oiXQg.s @rf:? tot x^bbbsooc s^r^ ^i dqa^getfiq 
&5)i:iivo^q -^n-eqas^jo *ii6fcn?>l»£> 0i1.!i- seoq'll^T "xri* to'4 *8M/i:ai»'xtj Si/fi-iavo 



6 

suaswer to one of these queatlone the applicant stated that he was 
in sound health on March 25, 1933, at the time he signed the applic- 
ation for reins t«?tement, and that he was not afflicted with any 
illness or injury from the date of the issuance of the policry, nor 
w?'S it necessary for him to consult any physician regarding his 
condition of health. Therefore the question is: Did the applicant 
knowingly make fraudulent answers to induce the reinstatement of the 
policy toy the defendant company? 

In a farther discussion of this question, it is to be noted 
from the application for reinstatement signed by the applicant, that 
according to its provisions the defendant company shall not be under 
any liability by reason of any attempted reinststement for a period 
of two years from the date of reinstatement if founded upon fraudu- 
lent representations by the applicant. For this reason where fraudu- 
lent conduct is discovered such as would nuHify reinstatement of 
the policy, the ins\xrance company must return to the insured or his 
personal representative all prerai\ams paid since the date of the appli- 
cation. In other words, the insurance o^^apajiy, upon discovery of 
fraudulent representation within a period of two years from the date 
of the application, may offer that as a defense. 

As to the question whether there was fraudulent representa- 
tions knowingly made by this applicajat when he filed his application, 
there is evidence th-t he was afflicted with the disease of pulmonary 
fuberoulosis; that he was treated by a physician for a period of about 
45 days from June 3, 1931 to July 16, 1931, and it appears from the 
death certificate that the attending physician certified that the 
assured died of p\jlmona.ry tuberculosis and was suffering from the 
disease six months prior to his death, and in 1931, was treated at 
the Municipal Tuberculosis Sanitariua in Ohioago. 



a 

son ft-?.oiiQq sifd- lo ©on«u/8si; ??rft lo B^^-rb ed'cf xkoi^ v^xj-tff-i- ^■o se9j7XIi 
;^n.poiIc(QG eri^ IsxO :ei aoi.t3!».yc arid- ^XGif^xerlT *£f2hX.«*r{ to aol'^tlba<iO 

^.-.sixo««Xi/q ■ito aevissib ■3.d:f .cLtiw fo©*+QXX1:xP; ©-.^w 9// ^-..riS- so«:3lviv© si 9t:©jI# 

9rf^ jKS-zl Bxs©qq.6 aX bnsi ,XSeX ,SX ^Xwt, o;? XoSI «S »«0t. xsOTl c^s^ '2* 
^0^ ;:^x<x!S j&3ilirf-:.oo mtioi©Ti!:rfq Sffii)ns.U.tr ?>jfl;J ;^,6ifd- efe©X*i;jT:©o ri^asi) 
s4.3- myzt saxrsatlx'r- s.^^ i^os; eieoX/zo-sftdij;! x^junomiuq to l,>«ib Ji>©xtff.:Bi! 

,Q|j/;OiriC ai «ui"3:^tia^.6^ siaoXwoiotfijfT X^qisJlawM sxfd- 



f 

It is claimed from the f^cts as they appear im the record 
that applicant was afflicted with tuberculosis and died of this 
disease sixteen days after he filed hia appllOHtioB for reinst^jtetaent 
with the defendant company* le think this was an important question 
for the trial court, and that the court erroneotisly entered an 03?der 
striking out the evidence offered by the defendant upon the question 
as to whether there were fraudtilent representations knowingly made 
hy the applicant at the time he filed hia application for reinstate- 
ment. This was a proper issue in this ease and should have heen con- 
sidered by the court is passing upon the questions involved In this 

litigation. 

Plaintiff contends that the defendant waived forfeitxire of 

the policy by reinstating the ssiae on March 35, 1932, and by reason 

of such reinstatement the policy, by all of its terms, was in f\ill 

force, which included the incontestable clause. 

We are of the opinion that if the trial court, uoon further 
consideration of this question should conclude fro« the evidence there 
were fraudulent representations knowingly made by applicant and relied 
upon by the defendant company, then the court woTild also conclude that 
this application is not binding upon the defendant because of su<^ 
fraud, and no reinstatement of the policy was made* 

From the record as it appears in this case it will be neces- 
sary to reverse the judgment and remand the cause for another trial 
in order that the court may have before it the evidence relating to 
the questions raised by the defendant that was erroneoxisly stricken 
out by the court, and it is so ordered* 

JUDGMSMT HSVSRSED AMD GAUSS HSMMDED, 
H&LL, P.J, AH3 BMIS E. 30J*LX?AM,, J» OOIG0R* 



chl?aK©S.r JsiJlet tot flcid-".6ilqgB bM bdllJ. 06 te:nf ^X^b rq^&xXb Oesseifc 

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dssxm 1:> 0!ra;/B0©(f tfKrji>«els-^i)' ari^J' jBoqv gxu.tejtc' Jon: s:i jatoid^f^oilqqr. sxii* 

ift&tmbro Cffi ei iti .bxui ^ti'jjoo ©rid' \cf too 



/ /" T 



jf 



38471 

OOHMLIUS ROTflER, /) -^'^PPSAI, FROM //' / 



Appellant, 



SUPSRioa COURT i 



DOUGHNUT SqUIP%"SOT OORPOHATIOK, a ) 0001 OOUNTY. 

ooxporation, PSTSR KIHBAOH ajid 

W. D. PIERSOH, 

Appellees, J O Q 



MR. JUSTICE HEBSL DSLIVBRED THE OFINIOM OF THS OOUHT. 

The plaintiff instituted a proceeding for an accounting 

against the defendants, which action was referred to a Master in 
^ Chancery, who filed his report, uDon which a decree was entered 
P"/^ the ' (iytujii j Aiu Court of Cook County finding th?^.t the Doughnut 

Equipment Oompany, the defendant herein, 19 an Illinois oorpor^^tion, 
having its principal place of business in Chicago, Illinois, and 

is engaged in the business of mixing and selling doughnut flour to 
various restaurants, bakeries, business houses and doughnut shops 
throughout the State of Illinois and other states; that on September 
15, 1927, the plaintiff, Cornelius Hottier Tyas employed by the 
defendant oorporstion, as general sales majaager and agent in charge 
of the distribution of the products of this corporation; thst he 
remained in the employment of the defendant corporation frost 
September 15, 1937 until June 3, 1933, 

The decree ftirther finds thgt the plaintiff was employed 
by the defendant corporation during the period beginning September 
15, 1927, and ending January 1»; 19S0, upon a weekly salary, and that 
there w;>s no agTeement for the payment of commissions or any sum 
in addition thereto for said period^ that thereafter the plaintiff 
was employed by the defendant corporation during the period beginning 
January 1, 1930, and ending June 1, 1933, at a salary of #6,000 
per year and in addition thereto '^■^B to receive a sum eauel to 



THUOC BOm'iWB 






I? 






•b^ V 'U' ^.ti^I. ^J' O w» 



*'r«uoc SET %o mmim mi' u^^ijjiic js>ssh soiTscrt. ,<?m 

^cads-uoti siitf Jrrf? ^sxlhaiJ. tj^u/joO 3£ooC' 1g ^ft.uoO -•:*i-iossE3y? adit ^d \" ' 
^itoi^'^Toqioo siofiilxl a,r «i ^i-i^tatl *xiUjlfcK9l9l) one} ^-^i-^'^Ifflio^ ^iiQiaqiupSr 

o.t irfcI'J ti?.fTa'3iiOjb gnilisr? .L>«:s -gaxxiia lo aeeiilsija' s>rf.t /sJ: b&.^&^BB ei 

■gnzaai^&o' boits'i ad? ^^aiiub n:ol-&.Bioqtao tttMl>ai>Jf?jb sdS' X'^ b9Xo£qm9 esw 
OOOtat?^ lo TiP^ls-ie 6 *.fl %S?,eX jl ^auX* 'QnibnB .birr ^OSGX ,X rrsirCBl* 



one^^i^th of the net profits of the lousiness of said defendant 
corporation at the expiration of each business year* 

From the court's finding it further appears th??t the plain- 
tiff received the sum of #7,432»80, represent ixig one-eighth of the 
net profits for the year 1930, and that the defendant corporation 
admitted hy its answer herein thet the plaintiff was entitled to an 
accounting for the period beginning January 1, 1931, and ending 
June 1, 1933; and that this oauae was referred to one of the Masters 
la Chancery of said court to take an accounting "between the plaintiff 
anil the defendant corporation for a period beginning Js.nuary 1, 1930 
and ending Jvine 1, 1933, and it is from this decree, which was entered 
after the court overruled the exceptions filed to the Master's report, 
that the plaintiff is here on appeal. 

From the facts in this case it appears that on September 
15, 1937, plaintiff commenced working for the defendant corporation, 
and worked constantly until June 3, 1933# Plaintiff received #30 
a week from September, 1937 to March, 1938, when the aaiount was 
increased to ^50» In September of 1938 it was increased to #60, 
On November 1, 1928, it was increased to |75 and finally is September, 
1939 it was made |100« From January 1, 1930, the plaintiff was to 
receive a salary of |6,000 a yeir, and in addition, one-eighth of 
the annual net profits of the corporation. During this tiste the 
plaintiff was engaged in carrying on the business of the defendant 
company . He aa-de sales of flour produced by this defendant, sold 
and repaired equipment, and also installed equipraent tised in the 
business. He ws-s empowered to hire employees. 

the plaintiff contends that the proper determination of 
the appeal rests upon the decision as to whether the plaintiff and 
a witness named H. H. he@.Ty were telling the true account of the 
meeting between Peter Kirbach, president of the defendant company, 
Mr* Leary ftnd the plaintiff, held on July 27, 1937, at the Raddison 



flriir"!:® fC#£(Bi:«*-«.no ^uitu^e.^^-iq^i tCS»E,ti:^*V| to ir.ifa Si1;J',^©'ri0®ai' Hi* 
s-JS^s^M 3n.t Ic 'SKo ot baTislc*^ a.«=T^- ssuso exild- ■j-;.«3' lias jSSfcU ^I ©njuL 

G5| £tssris^mf« 1:i:f;t,:JX.cX'i ^St^X ,S? ®fli/L Xi*:i;/ YX'+«='>tBnoo Jfe^itow tms 

od' 8B1? Tilmks',lq Grid' t05@X ^I iiiiSi/neTi mcrA .00X1 9l>eia saw #£ es*si 

To i:fa-dj|i$-«'f.'o ,n-oJ[s:i'Xfc.b;f xix bms ,i.v'»\ b <}G0«0| Io i%elr^c. si avisoax 

arid- 9S:ir? t.l{if 'g'^iiuQ. ..rtoitM'Soqr&ti. Bdt 1& stiloiq tsfl X.a0iii2j5 -311* 

s/.fj- jfii l>9sx.r *n©ji«q;.t,yG0 t>©XX.!K>teisX O^is hmt ,toSfflqiiipB 62»iii4sq©a bKJB 
iiQHibhr.R 9ri^ #B ^?sex ^VS tX.u\, fio fcXari ^I'xi^frissXq arid- bn§ rtaeJ. .xH 



Hotel in Minneapolis* The plaintiff claims tfet it was at this 
meeting he was employed lay the defendant company upon a coaimisslon 
basis of $1,80 a barrel for flour sold by Mm and ten per cent on 
the price of all equipment sales made by him* He w^a also to be 
allowed a drawing account of i)>30 s week. 

On tlie other hand, the defendant contends that while the 
defendant offered to employ the plaintiff on a cofifunission basis 
upon the terms stated at the time the parties aet in Minneapolis, 
the plaintiff desired to consider the matter, and finally, on 
September 15, 1927, met the defendant Peter Klrbaoh, an officer of 
the corporation, at Kirbach's home in Crystal Lake, Illinois, and 
plaintiff was then employed at a fixed salary. 

Plaintiff in support of hie bill for an account ii^ intro- 
duced e*idenoe to the effect that at a meeting in July, 1927, at 
the Raddison Hotel in Minneapolis, between Mr. Kirbaeh, Mr, Leary 
and the plaintiff, the question of plaintiff's employment was con- 
sidered, and, after a discussion, he was employed by the defendant 
company on a comaission basis of |1.80 a barrel for flour of the 
company sold by him, and 10^ on the price of all doughnut eatiipment 
of the company sold by him; and that he w?s to be allowed a drawing 
account of |30 a week* It also appears th'^it Mr. Leary, who was 
employed on a oooraisaion basis for the sale of products handled 
by the defendant, testified th^t Mr* Kirbaoh stated to him that 
plaintiff was to devote his entire time to the sale of the defend- 
ant's products, for which he was to receive #35 a week and a 
commission of il»80 on all sales of flour made by the plaintiff, 
and 10^ on all equipment sold by him, such as cartons, doughnut boxes, 
and the like. 

On the other hand, the evidence of the defendant is that 
when the plaintiff in July, 19S7, met the defendant company's officer 
Kirbaeh at the meeting in Minneapolis, he stated he would take 



alas :tp 3r-v ^x\ ;t--xf.r affiicio Yx iifcii^'^La DdT «&^ioo:«®fi«iK ni I&joH 
/fo ^nso TSC; nv);!- &?.? mirf va Moj-; t«o11 ioI X-r'-r-rrf " G8»r- 1o sle^cf 

ac tVi.i.ivai:'': fix's;;- ^tcs#;J-Bffi sxi* leiUenoi- o;t listieafe fiitol^Xq mti 

Biit lo ■liifeX'i to't ISTf-cT /;t CS,X| "io sjin'-'o' isoiaeimsioo >^ nd xa«^K!0*> 
i^a&aqtops toadgwoi/ lis to f>ci'j:q »£fj- ko ^Cl bm^. ^^Xd y^ £>Xo8 X^sqaioo 

-oeXviira lutoixboiq :lo elfir. s/lS* •col ale.-'-ci acxaciKmos « iio i>3i[Ol<JS5e 

-bS'^'kBb OiSit lo aXee ^d& o? asri^f e^sXcfr;?* sin siomb 0* ©j:'.'.- l-lxtrtij5Xq 

^'rf.i&r:tplq mU -id ^bm taoll 1:o «®X>-e XX.r ao OS»Xf to ffcieeimiOO 
t-^^xod iijad-gisab ^.st/toS-mo ?!'..■ rfowi tsxc ytf fcicf-; Jixejsjcriirpe XX# no ^01 bas 

*03CiX f3.rtd- i3iis 



4 

tTae matte? of the ootamisslon offer under- advisement and see Klrlaacli 
later; that subsequently ^en Mr. Kirbaoh called on the plaintiff 
in Minneapolis he was informed toy plaintiff that he had a prospective 
bijyer for the doughnut stand that plaintiff was operating, and if he 
sold it he would get in touch with Mr» Kirhaoh. Mr. Kixtoach testi- 
fied that about 30 d|ty8 after the last mentioned meeting, the 
plaintiff oalled on him at hia home in Crystal Lake and told hi« 
that if the company would pay him a salary he would be glad to 
consider working for the Doughnut Equipment Corporation. Plaintiff 
then spent three or four days with Kirbach going over the matter 
of selling doughnut flour, and when tne plaintiff was ready to 
go out on the road selling flour, Kirbach told him he would send 
his wife a check for #30 every week as salary, until he had estab- 
lished his ability to sell the flour handled by the defendant 
company* 

As we have already stated in this opinion, the plaintiff 
vas engaged in the work of selling products handled by the defendant 
ewapany, and the amount paid to him was increased from time to 
time, as above stated, until finally he was engaged at a siilary of 
16,000 a year and one-eighth of the net profits of the business of 
the corporation at the expiration of eaoh business yesr for iiis 
services* 

It is a part of the record, too, that plaintiff at a 
subsequent period was in charge of the office of the company and 
empowered to employ such help sg was necessary, but thet he at no 
time directed the bookkeeper of the company to make up a statement 
of lis account showing the amount due. 

It does appear from the record th^^t the plaintiff desired 
to buy a house in Slgin, Illinois, and wished to obtain money to 
make the purchase. The evidence shows that Mr. Kirbach offered to 
loajft plaintiff #5,000 toward the payment of the home, but -s-anted a 



5rf ii fen?; 43ni*=j=rsqo 8t«v ?■:i;^al!^lq *Fxf^ ba^tu fann^ssQb ©lid- 10^ s-s^cT 

xs;|-^sfi^ ©fi«- -ie-^c anloj; /lOA'-oti^^ rf:y^w B\Bb ttfjot lu aS'iflif Ja©qs a^d& 
J3.rt0e .bX.uow ©ii mi!> Slot ffostf-Kil ^ttu-si'i 3BJ!;.j.iai< tso's «^# «i) a-yo og 

■^ii&haBJ.^b ^dt Ycr X!Slx;ived ©itoiffi^sq gfciilenB 'Xo Isow ©atj- isi. ^®^jEg«® em 
Mtis^b llcitaii'Lq a^.t ^rHi fetoo^-x »nt Kail i^daqs F.«ob jl 



5 

mortgage or trust deed executed to secure repayment of Ms money. 
This was not sat is factory, and sliortly tliereafter the plaintiff 
tendered Ms resignation. 

During the time plaintiff was employed by this company, 
he received 16,000 a year aslary, and one-eighth of the net profits 
of the corporation for the year 1930, and was given a check for 
the profits, amounting to |7, 433.80, which money the olnintiff 
applied to the payment of stock of the defendant company, and at 
that time jsade no complaint about cotiHBissiona being due him for the 
period in Question, nor did he dettsnd any commissions when he 
accepted the check and applied it toward the purchase of the stock. 

There is some evidence in the record that the plaintiff 
testified that before leaving the firm he did aek Mr. Kirbach, for 
an accounting, but not at any time while at the office. 

A.11 the facts in the record were for the Master to pass 
upon, and as the question of credibility of the witnesses is one of 
importance in this case, we must assume thst when the decree was 
entered from which this appeal is taken, the court believed the 
evidence justified the findings of the Master, and where, as in 
this oaae, there is a conflict in the evidence, the Master is in a 
better position than the trial court to judge of the credibility of 
the witnesses appearing before him, and from their manner to deter- 
ain« the truth of their several statements. 

This court in the case of lechaler v, Gidwitz^ 350 111. 

App* 136, upon a like question said: 

"The master both heard and saw the witnesses, privileges 
denied the ohsnoellor, and therefrom was the better enabled 
to judge of the credibility of the several witnesses than 
the chancellor or this court. The decision of the master 
under these circuiaetanoes would be disturbed with reluctance 
and not at all unless we are able to say th?t the master's 
findings of fact are manifestly oontra.ry to the probative 
force of the proofs found in the record. This we are unable 
to do after a careful examination of all the proofs. The 
findings of the master on controverted questions of fact 
are entitled to the same consideration as accorded to the 



e 

*noiii.'ofi;3i:sor3: aid Mist)!!©}' 

f>iI3- 'K)! Kiiii 3;jfc fiiioo srioiesirKiTioo teod> ;?cir^.t.cff!OD 00 a/JSK »ii6iS tsrit 
9il xiSiiw B0Oi:E8i;tJiiOo v/je kimtiisb s;^ .bit- ^ron ^HOxJeax/o at boltoq 

tol: iHtijsd'til .^M, i8.ff Sit ©ri mti't. ex; J 3i:i¥.seX suro'isd teiij? Jbsjtlitsad- 
«soxl-to oif* ;ff: ©lift'?? ■assixt Y«^-'5 "'">'' ■^''-''^^ ■''"'■'<■'' tS^iuxtwooo^ 0^ 

.fs rU si: t&^sbM aci't ^sons&iv© 9s^:t ai toiilnoo « si: a'r.sxi^ j^eso sixf* 

,&.t«?!iftt*;5-/Hd-S XSTQV-SK TXSffi?' lo c'JiTti- ©rid SfliiB 

..I'll C5S, ^,s5-|-ii'fcl') .7 lMj.~J2SiL "^^ ^'^■^'^^ ^^^''^ •"■^" ^'^"-■■'•"•^ ©-E^'tlT 

:fci:?0 jfliQX#i?3«p ai{i:.£ ,-s? fiosar ,3£X ^qqA 
eorjni.Ciyi'lu ^esassnctiar •acii «,bs Mr .bn.^^^d' rf*ocf t^.:fs.nt?. 3.dT" 

s'^»*s.!5is sxlt ^.fstfS- Y'«8 o* &ldS\H s^.f. 9w eseXflw Xle ** ^ac feita 



6 

verdict of a j^oy. Story v, De Armond* 179 111. 510*" 

In the case of Brooks v. Gretz . 333 Iil« 161, wiserein it 

was pointed out by appellants that at the time of the execution of 

the deed of Frank J, Gretz and s?ife of parcel 1, on July 34, 1908, 

it did not contain the name of a grantee, and th»t the name of 

Catherine L» Ernst was inserted after the delivery of the deed to 

Ignatz Gretz without the knowledge or consent of the grantors, and 

upon this question the coxirt said; 

" neither of these -vsritneases had any interest in the 
present litigation. The master in chancery sa-sr and heard 
the witnesses and in addition thereto had the benefit of a 
personal inspection of the deed, the ink with which it was 
written and the ohara^cter of the handwriting, from which 
he might be able to judge whether or not the writing in 
the instrument was all done at one time, with the same pen 
and Ink, or whether it was done at different times. Upon 
this record we would not be justified in disapproving the 
finding of the master upon this question of feet." 

In determining the question of fact in this case, we agree 
with the theory of the plaintiff that the Master's report is entitled 
to the same consideration as accorded to the verdict of a jury. The 
only ground upon which this court could disregard the finding would 
be if it was against the aanifest wei^t of the evidence heard before 
the Master. Such is the rule in the consideration of objections 
offered by the plaintiff. 

The plaintiff urges as a further ground that where a party 
alters, changes or destroys evidence, every presumption will be 
indiaged in that the evidence in its original form would have been 
detrimental to the destroyer, and points to certain evidence. 
Defendant's Exhibit 77, which it is claimed the defendant's own 
witnesses admit had been very materially altered and changed. Although 
it is admitted that soaie testimony had been offered for the purpose 
of explaining the change, yet it is contended the testimony failed 
to carry any weight, and our attention is called to the evidence of 
Frederick 0. Laittd, a witness for the plaintiff, who was a public 



oi UlfVlOihi ^IBl .XXI gB:e <MS12 ♦" MSaisL -^ &BBO 3iU £ll 

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lo Sffis/r ©fin'- d<-/:f? £«.e ,fi!e.tis.?:'i:g s lo S3ii30 ed3- jiisSn'Cy;> 3^o^ &ii; jM 

txfi'Mi .one Vf.?-'r- Y^^^Q^''"''""'"''^'* ^'-i 'xa.tp.-'-vK Sfi* .iro .t^-,..vji:i .tnai-stq 

.ax giii.S'XTw aclcf iU'xr r.0 'zxyritBtivs a-gfexft ^^'"^ sXdr, ^li Sd^im Qd 

Boq'U ,,enmlt '^ixe'xpj'i'i xh .t.r- 9xTo.fa e/^w ;!i- "r;-Sf!d-6'rfv.'- ■y.o ,.tv"«x birr, 
©if^ ;>|B.JxfO'S€:Ci'.f5Si:.b ai M i't jt^sufi 3cf JteiU M0OW :S^7 .fc-xooa-t «airf* 

•?>tto'tncf i)i.€«il S'0a®£>x-;r5 sifd- io -J-if.:,; xot^ tesiifi^isi aiitl- :h?pxii.«-ii.$ p,sm tt ti. Qd 

v;J's:sq « ■^i^m- #.f^0^ Myo^S ssritix/3: b b-? sf^^^rrx S;* i ^-i-; J: ?, Xc, srfT 

'*J IXj;v5 noi.tqKurRO'iXf x'-xfu'e^ ^sone-'iva e^o's^^B'''- ■'''• ss-jn-.ulo ,sie^Is 
ss9d svsrf fcXifOw mol X«xti:^5irT0 s*l nl s&swhlvB M:. f-^^cii xii bB-^-^Iubal 

.vi?fO is'to^fexjslei. 9x1* l3®ffiXf;io Ri ji xio.cii.? «?'? txdiiTxii a » ;?« ^bwal sQ 

s<?ocrS£rc' Bat xol fes-iSl;l.o xT9f?4' fer.xt XK«5fs'-**®®* <*^oa *.r:..fi,t .l)S:rf'fJ«a£i?? si *i 



? 

accountant and who testified tie frequently had oeoasion to note 
the possibility of erasures and irregularities of different kinds 
appearing in instruments, and that he exaAiiMd defendant's Doughnut 
Squipajent Corporation IxhiMts 75 and 76, and plaintiff's Exhibit 
1, and from such examination it appeared that the words, "Draw Accto" 
had been erased from eaoh of the exhibits. 

ij?hile it appe3rs from the heading of the books of aoeouBt 
of the defendant that in the account entitled, >'0, Rot tier. Sales- 
man," a line was draiwn through the words "Drawing Account" and after 
these words the word "Salary" written, still according to the evi- 
dence this was done at the request of the auditor of the defendant's 
books and without effort to conoeal by means of erfsure* 

The question here involved was a controverted question of 
fact to be passed upon by the Master, and the evidence having been 
submitted to him, it of course w-s hla diaty to determine from the 
witnesses whether the evidence heard by him would justify the con- 
clusion thst the purpose of the change -wf'B to alter, oonoeal or 
destroy, and the Master having passed upon this question and finding 
that the purpose was not as contended for by the plaintiff, we axe 
of the opinion that \mder all the facts and oircumstances appearing 
in the Master's report ajid included in the decree of the court, the 
decree was a proper one, and it is therefore affirmed, 

OEOHIE AFFIHMSD* 

HALL, P,J. MQ nmm E, SULLIVAI, J. OOiOUR,,. 



^' t&ook jv^tO'*' ^sbTO^? Fr[;]- a-.sffrf i:;S'!:. s^saqj^ iJ-i ixoijaftigtsxs rfoif* mor'l ba& ^l 
-i3!?I.r>2: ,'3:?=>i?-.'to.f? .0" ^.Dffi.ti^Jffi" ja.vooo.R: &ff,t rtx :i\p.ifj ta-4^£t®l&^ arid" to 

■xo Xi;30iyoo s'lfj^Xfi oJ' aiv? aaflt^ffo ©rid- lo ®soct.uq ?Hivt J:-ri;f aoli=sulQ 
■gakt.;:is.'x ban no£.;r!s;>i/p airfd" noqu I^ses^q g/jivEd lad-e-Sii; an-t biX'-? t\;oajS©i3 

•giii-irociGs 8riOa.if&muo'xlo bit£ aJ-o-at ^ift lis x^iirti! d^^^fIc^ woiriioo sri^ to 
Qili' ^i-xuoo ed;f 'lo ^^^ronb edi ax h&bjjloiu has ^tcqirs g'tcsd'saM M& ai 




f 



38481 

fHE PHUDSNTIAL IHSURAHGE OOMPAOT 
OF AMERICA, a Oorpoxation, 

(Plaintiff) Appellant, ) OlaGUIT OOURJ 

V, 






COOK, OOUHTY. 



28 6I.A. 60^' 



OARHIE JOHMSOS, 

(Defendant) Apj>ell«»a 



MR, JUSTICE HEBEL DELIVERED THE OPINIOI OF TIH COURT. 

this is an action by the plaintiff to cancel a lif© 
insurance policy iasued by the plaintiff in the axm of One Thousand 
Dollars on the life of Myrtle Vaffenaohmidtj in which policy Oarrle 
Johnson is named as the beneficiary* 

The defendant filed a cross-bill to recover on said policy, 
and a trial w&a had before the court and a jury, which resulted in 
a decree in favor of the defendant and against the plaintiff company 
in the sum of |843, from which the plaintiff has taJcen thia appeal* 

The plaintiff's bill of complaint alleges that it issued 
ita policy Ho. M-2336511, dated January 3, 1933, upon the life of 
Ifyrtle Waf f ensohmidt , in consideration of a written application and 
certain premiums to be paid, in which it agreed to pay upon receipt 
of due pr9of of the death of the insured, to Carrie Johnaon, her 
mother, |^e sum of 1^1,000* 

The policy contains a clause which provides that it shall 
be incontestable after one ye?ir trcm its date of issuance. The 
action in question was instituted on December 7, 1933* 

It appears from the bill of complaint that the policy was 
issued and delivered upon the appliostion of Myrtle Waffensohmidt, 
dated December 16, 1933, in which she declared all the statements 
and answers to the questions therein were complete and true; that 
certain of her answers enumerated with reference to her health. 






f 






,YTi4U00 :iiOOO 



'<*t_s V* v * xl e -^- '■~-' 



V 



&1li '^ Isoiiso qH' Yix&iiXBlij SilJ- \<^ Hoirf'O^ no ei; gicIT 

i3i I''5:^l.L-BS'.c .fioxm? <T^/;t .= isiic a-'x.c/oo arid- ©tro'iad b;;.d' s-:7 I^i'rd' « ibaa 

XCiiiiis&oa t'li&nlElq, sji.t J-g if i ;;■.£; ,r- has cj-rtBj.^ff ©t ©£> afirf- io -xo'csl al asToeii) js 

.r;^9qqs 8ir'^ ff^rlF-s- E-r-ff l-'iilaislq sad" rfoiriw ifio'il <,f:;.l^&|:. lo ama 3iii|- aX 

ed-risffierfv-j-f! 3rf;? XXk £)S!t.-;Xo9Jb ©rie rloiriw rtl ^^SSX ^OX •r;-)d.'aao»0 l)9t?>t! 



3 

attendance by physicians and treatments in any hospit?!! or sanita-rlua 
were false; that she had tuberculosis and had received treatment 
therefor at the Municipal Tuberculosis Sanitarium and had been treated 
by Dr« Samuel H» itosenblxia prior to the application signed by her* 

Further and other allegations are contained in the bill of 
complaint, but to the allegations above stated the defendant filed 
an answer denying that the application is the original application 
of Myrtle Waff ens chmidt, and stating that the answers contained 
therein are not her answers but the answers of plaintiff *e agent; 
that the agent of the plaintiff advised the insured to sign the 
application and have the policy issued in lieu of two other policies 
ishich she already had upon her life in the plaintiff company, being 
policies iios. 83714894 and 83714895; that the agent who solicited 
the insurance had known the defendant and her faaily for a, long 
period of time and induced the insured to convert the policies into 
a new polioy« 

The answer of the defendant further denies that the 
deceased. Myrtle Waffensohmidt, had been treated by Dr. fiosenblum, 
and alleges th-^t she w?s in good health for two and one-half years 
prior to her death* 

The defendant, Carrie Johnson, filed a orosQ-bill, which 
alleges among other things the issuance of the policy aou^t to be 
cancelled by the bill of complaint; that the insured had died; that 
during her lifetime she kept and performed all the conditions of the 
policy. In the cr6s8-bill the defendant prays that the plaintiff 
be ordered to pay the sua of |'1,000 with interest and in the 
alternative, aska thst she be paid the sum of #385 on each of the 
policies, iJos, 83714894 and 83714895, An order was thereafter 
entered allowing the bill of complaint to stand as the answer to 
the cross-bill of complaint of Oarrie Johnson. 



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Sfl/.9d 4\^n<'T;noo ltiiJ;\A-yx;} snj- i^l 9'kix iC'Sa ttoqu ©ail xbs^i'ilB Jim rioiiiw 

ajiS' rh'-j-tfa- a-aiasi) \-;?ffirri;yt »ti3,a&tt®'j: ©jd (^ii:^ to t^sv^fca'-, isa'f 

?xs8Y 'iX-Pil-.^no Ms o\vc;- icl i:(;M.s8il feaog sX s^>v? afifc^ .t-'dil' a^yelXn ism 

*ii;^^i^o %n& et xatsq 

;*'rs|f.t jXiSxib &.6i-i &97J/aax ^dt t&dv it£ilBlqm&9 %& Xilo 3,t1J' \irf i)®XX80fl«o 

-sdi- lo e.no.UX!^xi<?o Si:f;t XXs .bsiJiTolxai Mi! ^q&M »rfe efi.i.f&lit i«>ri ^ailirJb 

T%tir:lf:i.q ati^' #*-5j:vt sya^g. ifi5BM€?.i»l> »^*: XiX^~®EO:-:; :m.* bX ^Y'sXXa*? 

Sfld" rii bdJi !r6aTS»;fai li^x^f OGGiXii to mja erij \;,s^;- o-t JbaisfcTo sd" 

srfd- 'to .rfcr,© £CO oSS'l 'lo icir* srl# BXjsq ao ©rfa ted* e-^^i.~ ,8v'-iiJ'ijjtzT'?^X« 

'<:&na^'sedi ^^'<n 'xat^-o ffA .dOSl'XTSQ &C« ^eS^^XTSS ,*o>i .^aoXoiloq 

a^r aeweas add- 8?:; Mt^;??. oo- isii&liiitucno 1& XxM axJa- jifriv-QXlB i>«Tsta3 

*at)afiffeG etXt^i'O to ^rri^Xqisoo lo iXiJ~>«j»o*!j 0if# 



There is evidence in the reoord that Myrtle Waffenschmidt 
was the daiighter of the deceased, Oarrie Johnaon> and lived with 
her in 1932; that Myrtle ^^^affenschmidt was a patient in the 
Mimicipal Tuherculoaia Sanitarium from October 15, 1930 until 
July 3, 1931; thrt when she entered this sanitarium, and while a 
patient, Dr, Samuel H» Hosenhlum exaaiined her and made a diagnosis 
of pulmoxiary tuberculosis; thit he saw her after she left the 
s&?^itapiua on December 10, 1931, April 33, 1932, January 4, 1933, 
and on several other dates, including the d^^te of her de=ith, vfhich 
vas June 36, 1933« The doctor testified he examined the sputvae of 
this patient eacto time he saw her after she left the sanitarium 
ajid found that it was positive eaoh time, and that he told her she 
had tuberculosis. There ia also in the reoord evidence that 
Dr. Joseph J« Singer also examined Myrtle Waffensohmidt at the 
Municipal fubercxilosie Sanitarium on October 4, 1930; thst he fo\md 
she had a oough and that she liad lost twenty pounds during the 
preoeding six aaonths; that he diagnosed her oase as pulmonary tuber= 
oulosis; that when this patient left the aanitsrium in July, 1931, 
her condition was improved;that after le^^ving the aanltaritxm she 
returned to the home of her mother, the defendant, and on December 
16, 1933, Mr, O'Brien, who was substituting for Mr. Frltsoh as 
the agent of The Prudential Insurance Company of America, in that 
immediate vicinity, visited Mrs* Johnson's home and solicited the 
insurance policy sought to be cancelled; that previously two policies 
were issued by this plaintiff company on the life of Myrtle 
Waffensohmidt, which were dated September 15, 1930; that each of 
these policies provided for the payment of '^385 to the executors or 
administrators of the insured, and each of the policies required a 
weekly premium payment of twenty-five cents; and that the premiums 
were paid on these policies until July 4, 1933, on which date the 
last payment was made* This fact, however, is in dispute, for 



tUl-^ .oQvil bar, iSK^Biuict Qt-X't-^Z thmn'^i!>Bt tti:& "xo 't^iA-piMi& ®xi.* ^.m- 
B <sXiii-?? ti^s ^iSifx'xe^'Jirs.GS i?irf# ibs-sei-iss ^dn .(tf^il-i? t'-;jdiJ- jXsei ^S xSmX, 

©xls T9ri fdo^J- Bd :^Bdt te.i? ^aMXi" £*■!>«» avx^ieov; 8«« u*X JsiS^f ijax/ol X>fl<!j 
tMilt eoiseftivs .5t0o»« ■afCdi' uX osle si siexlT .aiaoXi/o-s^ciifJ ^^d 

bnssoJ Qd i'Mt jt'SeX jl- r&dx>'^t>0 iJe ffix.fl'r-.tiit*?8 eiaoXim-iiiKaif l-«<ji: oXfiwii 
»iJif ■,vji.u'TiJ-t« alifificq trd-flmiptf !i-R6X b&& BtlB t^^Ai bits xtjpaoa s bm &dB 

«isex t\:Xi;Ii cxx ifitfX^-^^^A/tKD Ofit tioX &aBlfm: eiii* aed-w *.<:.iU ^aiisoXifO 

'redfflsosC no buB ,?fir.i-jfisl9fc 9x4^ jterfd-oiu -rod lo eisori wi* o4^ b&^'iut&r 

.tsrut Gi t-eoitireft-iA I'o Y^.«.qasoO soafii-ir^nX X.«X*adfit«l e^T lo #n93/5 «il* 

soxoiXoq Oflft vXs.!joi;v9T'7 ^s,si:f ib^Ll^fya^^in so or? tirguea x^^-ttHj ©orti?Tirsai-~ 

io rfoaa -isdt ;Osex ^61 rt^^cfmsitcraia lidtt^i) «^6w xf?>Xrfw t^rXi^tftecaitisW 

to atolooifsxo @d,t Ovt 3SS^ 1:o rfci^rnx'^q ^^fi* «o^ ^QfcXtroag ^©XoiXoq 9a9xi* 

,r fe9'£i/ip9^ 8®.if>lXoq mt lo dOB® i'^^ tiaS-U/BfiX art* 1t6 B!£«,*a<tu»itxX«l>B 

s8u/i;/a©to- 9£i:^ ^f^;ri* bm.v {aa-iiso «■vXt'-^J^fl97•r^f Ito tfnoK^jas? miim^xq Yi3i©&'- 
xo'-t »?s:i'nQ8ii) xii Gi 4T-;v'3wori «*o.s't e.£ijT •stfjio s*-?; tosiiix-sq *e.«X 



4 

defeadant contends tliat she had made the payments to Mr. Frltsob 
and upon the Issuance of the new polioy Frltseh destroyed the 
receipt book whioh showed the payments, and that she thereafter 
continued to make payment of the premium on the polioy for one 
thousand dollajrs* However, upon this question the plaintiff 
offered its hooks in evidence that on Jxily 4, 1933 the policy hs.d 
lapsed for non-payment of prem.ium» 

The agent of thia company, Mr« O'Brien, talked with Mrs* 
Johnson about insurance and she told him, whioh apperirs from his 
evidence, that she owed so much on these policies on Myrtle's life 
she was not able to reinstate them* Mr. O'Brien suggested to her 
that Myrtle apply for a policy for |1,000 at a raonthly premium 
rate which would enable her to have a larger amount of insurance 
for slightly more than she had previously been paying on the two 
small policies, to whioh the defendant Oarrie Johnson agreed, fhe 
application was thereupon prepared and signed on December 16, 
1932, and sent to the E<me Office of the Company and the policy was 
issued dated Janua.ry 3, 1933. The plaintiff forwarded the polioy 
to the branch office of the Company in Ghioago and Mr, Fritsoh, 
who was the regular agent in that territory, delivered the polioy 
OB or ahfiout the 10th or 13th of January, 1933. The application 
signed by Myrtle vl/affenschmidt was in blank and the answers to 
various questions contained in the application were inserted by 
agent O'Brien, who took the three other applications at that time 
for |1,000 polieiea for members of this sbm& fajaily. 

There is also evidence in the record that Mr, Fritsoh 
collected premiums and had been acquainted with members of the 
fsmily for seven year®, and knew of the condition of Myrtle's 
health at the time she signed the applic'-tion for the #1,000 policy. 
But to offset the evidence offered upon this question, he testified 
he kner she had been in a hospital, and then the question was 



llia'rri:;'^!^ srf^ no x :' s 3^/0 gia* rtoq.a ^^rav^roH ^s'^sllo.b iaisajao#t 

tcpif o* ^sd-aaggjtis moi^S'O .-:?:M ^iserfj 3S'jfed-®«ii»'2: oi- (%£&3 icrn a.cw «^ 

onfi.'r-ursnx lo *£i.iroins *?0|;,t«I .?5 evcij: 0^ t?:{x> feXtf-^ne blsmw f>cld'^ ©t^tr 

9rf-r ,.fjr?;9T,5.B fLORadot, oi:T'.fiO .tf!3Sj[:>:i>"t9>& oa,? xfoiriw o* ,»9i£5.i:Xo\7 XIvSKi© 

\'olXo«f iJii'i' xj€i'in^^ 1 L^h ,j-^to.ti-yt©.t *«d# bx rf-.c'.-y-p tsXx'gSY ©ri;f- apw otfsr 
iioX^BOiXqqs e?Cf «KSfiX ^rt.!;^i/je.«'X. lo rf^^X 10 d*OX »jff;J two^a to ho 

fi fcej^.f'Kni; a^ts^rc aoid' f* XXcfg.fi '»^:";^ ni; y9i'.'X;;:ffloff BJKoX.te®un sx?oX1,<t- 

affiid' iM& ^p ©no i. t f--oi- 1::. -■■;> -,c©jj;j-e f»mtdt &iU iooi o,d# ,fl©^'Sfe£'0 tflsgjB 

♦ ^XxjH.e'i ®m.0s sXrf;S- 'fro a%3cfesofc 'tol a0i!>XX©*|- CO0,X''' 'tol 

e.*9XttYM to KCJiJ-Xlwoo ®i*f* lo 'Rftoi iwB ta^X-^'.9\' jrevae rot tXiatet 
^XtJiXoQ OG0,Xi 9IJJ- %ol aoii^-'^llqtfjsi 9£Lt bm'^iii siffe ««Xf ^iSf ft t<irLs6>A 



5 

finally put to liim. It developed that it ^as a maternity hospital. 

Facts of this kind are for "^he jury, and upon hearing and con- 
sidering the evidence it found the ieeueg for the defendant, on her 
cross-bill, for the amount f^xed by the two policies for |385 each, 
together with interest at five per cen': from June 26, 1933; where- 
upon the Judge entered a decree in which the court disjuiBBed the 
plaintifr's bill filed for oanoellation of the policy for wa^t of 
equity, and fitted the amount due from the plaintiff to the defen- 
dant in accordance with the verdict of the jury. 

The defend nt - the oross-coaiplainant, admits t'lat Myrtle 
Saffenschmidt had been a patient in the Municipal Tuberculoeie 
Sanitariua from September, 1930 to June, 1931, for tuberculosis, but 
that she had recovered and was discharged therefrom, and enjoyed 
good health for a period of two years until about a month Ijefore 
her death on Jxine 26, 1933; that she was in good health on December 
16, 1932, when the application was procured for the policy sought 
to be cancelled* 

The eviden e of '^r. ^^osenblum, which was before the jury, 
is ttet in December, 1931 her health wae good, and also in April, 
1932, that plaintiff's agent O'Brien and ite agent Pritsch testified 
Myrtle* s health appeared to be good in December, 1932, Several other 
witnesses called to the ^tand testified to the same effect j and the 
defendant points to an exhibit offered in evidence showing that Br, 
Singer charted a "negative" condition of the insured for each suc- 
cessive month for a period of five months before the insured left the 
sanitarluffl July 3, 1931. It was for the jury to determine whether the 
evidence disclosed that defendant was in good health, or whether 
at the time she signed the application her condition was such as 
would indicate that the replies to this application were false* Se 
must bear in mind however, that the answers in the apnlicatioB 
were the answers mads by Myrtle ipffeneohmidt but written in by 



a 

-riiedH i^SSI ,8S ©rii/l) lao'xi -..aac -xaq avi't J-a ;tasiroaVn:j: ri^txw •xsrfd'e.aod' 

to :fn,Rs T0± ^oil0'.f srf;!- io noit.i-XIsoarjO lol ibslx"! Hid c * illd-jilj^Iq 

-rfslsjb eii'.t Cvt llij-ax - Io- 3Ai,+ mo-tl Bvb j-ntrois*; an'J fosxll has ,x*iiip0 

,Yi;.r[; sfld" !;:o j'oxb'rs'* ©xi:? dj'lw soxiB&^ooo.s 0i ^ctRb 

©lolsdf dtiioai £ d-0o:U? Litins -na/u!^^ oi?;?' lo l)OJC'isq .« mol di ti^ed boo^i 
j-xfax)03 Yoiloo' Qrf.t Tol £i3T:irooiq a.sw aoJcd'SOxIqo'.Q Qiii xisrfw ,S£8X ,81 

-ox/a rio;-» to'i bs'Xjj^ci od.^ 'io noifthitor) "e^l^B^^ix" s bBi-tzdo i»'gaXB 
'idi' ^Msl SeixranX ad* o-i-G'i&d aiitiiois avii 1g Jboiisq e tol i:i.taox sviaaao 
S£i;f- is*.(:^&flw Qi3XiJSiT's5-96 o.i ■!ji«t 9j1* xoIc aiv« #1 ,IS9X ^S xX^^t" Biislt.Qiia«a 
xsd^^wuV IO ^ri-JX-e.e.ri .boog ai s.sw ^fafifjae'tsfe Jsii^ b9BGXoRX.b soxisblT© 

^-f ^dsXwl: ■itienr xiot^t-^'Ollorj^: sirf* 0* aoiXqai ttilrf' i-jaiiU sitsoifefri .bXuow 
aoisvsoxIV'Crs &di ai tvi^w-ixs sil# i-fiJJ* ,^«v»«0£f biiXffi xiX xgso' texra 



plaintiff *s witness O'Brien. Upon thiB question tbe plaintiff 
calls the attention of the court to the fact thtt as the insured 
had possession of the policy the presumption is that she was familiar 
with its contents; that it w-s her duty if anything untrue was 
included to advise the Oompajiy of the fact. The defendant seems 
to have had possession of this policy from the date it was deli-vered 
until the time of the death of Myrtle ,Waffenschffiidt, and there is 
no evidence indicating that the insured had possession of the policy 
so as to be ahle to examine it, hut if 3he w?9 in good health - 
and there is evidence that she was - at the time the application 
was signed, then there would be no need of making false answers and, 
as we have said before, this was entirely a question of fact for 
the Jury and they have found for this defendant. 

The plaintiff contends that the verdict of the jury t?as 
advisory, and therefore if the weight of the evidence sustains the 
hill of ooaiplaint the court shovild have entered a decree finding 
that fraudulent answers were made, and for that reason the defend- 
ant did not have a right of action and the policy should have been 
cancelled. It was for the trial court to determine whether from 
the facts presented the jury-, was justified in finding for the 
defendant. The trial court having passed upon it, the question 
before this court is: Was the decree entered against the manifest 
weight of the evidence? 

It does appear from the evidence that the defendant was 
in good health at the time she signed the application, and this 
was testified to by Dr. ^^senbliim. The evidence shows that when 
she left the sanitariuaa her ailment appeared to be "negative", so 
that there is evidence which would justify the jury in returning 
the verdict it did return, 

flm plaintiff contends that the evidence regarding the 
policies issued to several aerabers of defendant's family was 



s 

- ri;ti£3.ii i:'00,B iil &■■?? Sffs 11 tfM ^,tt '^nimiiXB ot aids s<f o^ ei '08 
fioi;;.:-'t:»i'ic-o;A5 sriJ emit add' .t>r? — &*?r sife 3'>?rid' SD/is.&iv© si sisri* fjns 

(tits s'J'^FBJa^ egls?: •i=i::»l3("-.a 'to b^'sa on b€ Mjc/ow ©TSrf* a-»).i^ ^b&isgXB asw 

,J^a..?5M<3?:Si) si.aj tot .&Hj!/0'ii: &rr>^ Y^rf* l)«s t^^j^f, Sri* 
est'' -^ixft ^''-'^^ "t'-' •+0-i:fc^'''v arut le-tf-t eljastfioo 'f^ritrJiisXq ^rfT 

~.f.--nexs.b arft af- isr-'s-j f^-di 2:0'?: M.f ^3b;?!i; aioyr Btce^^r&n'.-; JfiSlwJbxrstl: ;^..erf* 

jK«)9<:J ©•^.«jr{ Muonn t^oxlo-'r sfir}- l)ft^ nx:fx;tO0 ^0 M^M *•; 0v.)=;rl ^toii bib ins 

sjoil: 'xf'riiteiiT-- 0xxijJi'!:9:t?.o o.t .t^riroo Xsitif sif* -icol g.;-?- -Jl «bsiX«Ofljso 

i'B«>liiisrH 9ii* .Jerftiriiys Ssti-e.t«D ^i^'xcsl'! arf* a^s'^? jsi ^twoo eixfJ ©toIscT 

eixl:.*- hwi ^noltp.oth)q9. eat t&a-Qis ade dfifii* ^di f» dtlB^ci ibsos at 



T 

erroneous* From the record it appears that when the applioation 
WHS signed for the policy now in litigation, applications were 
also signed "by two brothers and a sister of the defendant for 
insurance in the same amovint, and it waa due to the conversation 
with the agent of the Oompany at thst tirae with respect to the 
seferal policies that the statements were made. We are unable to 
find in what way this plaintiff has been in;jured. His own agent 
testified to the occurrences at the time, and in view of the fgot 
that during the conversation other applications were signed, it 
would appear that no harm was suffered by the plaintiff, and we are 
of the opinion that the court did not err in refusing to strike from 
the record the evidence oofflplained of« 

Other objections are called to our attention by the plain- 
tiff, but in view of the conclusion w© have reached, we feel it is 

unneoe8sa3?y to pass upon them* 

fhe real question here ia as to the condition of Myrtle 

Waffensohfflidt'e health at the tia® of her appliogtion* It is a 
controverted question of fsct, but if she was in good health, then 
the question of false representations ia not a proper one to be con- 
sidered in this case, and we feel froas all the facts and cirouiastancea 
that the court should have entered a decree for the cross-coaplalnant 
for the amount due under the #1,000 policy* 

For the rsssons stated in tliis opinion, the decree here on 
appeal is modified and an order entered that the plaintiff r?ay to 
the defendant the sum of fl,000, together with interest at -five per 
oeat (5^) from June 36, 1933* The decree is affirmed as modified, 

DEORiS AFFIRMID AS MODIFIED, 
HALL, P«J* AHD mniB SJ, SULLI?Ai^, |, OOIOUE* 



iiijits^&'XQva.oo %dt oi Bssb &.cv ti: tan ^^mn'^ms ■%^;.o^: &£t nx »as'^.-?;.usxii 
mi^ o^ ;^t)9'^B':^':: d^im ^mxi ^9.di in XJ^Js^iaoC ©f.c'- lo tiim-i-' ad* xf*ivf 

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Sioi;! ssiii;'?. ow jjfijt&if'i'St «1 -s^ie .tv-a i'ila #'i-;:fo.'> '»d'^ ^^dt fioiixiqo ail* ^o 

si ;^£ laat a» t.bi^jlOBai ow;£l aw nciis/,/l0i3:t)C' §'4.t is w©.£v ai iJ-iicI 4llid' 

ssoiTt-sd-smjotio i'Ct.e 3«i?«1: sr;.t ii.R isoit lest aw fer(.:. ^ii^aso sirl* ai ftatcsxjjta 

,l>5?riii^t)fii 8.f5 2)9ai'xiM\£ ai; ^aio&h o^T *SSei ^SS €>/sx>'T;, mo-sl (1,3) Jfaso 




I I 



38507 / /I L^ 

WitLlAM B. UIHLEIH, ' '* ^ 

(Plaint iif) appellant, ) Al»?K,Al. FROM p?Hf 

T, ) MUNIOIPAL COURT 

M, FAITH MoAULiliY, ) Of GHIOr.GO 

(Defendant) Appellee. ) 



4 



286 I.A. 605 

MR, JUSTICE HSBEL DELIVERED THS OPINION OF TEE COURT: 

Thig is an appeal by the plaintiff from a judgment 
entered ags.inst him in the svua of 111, 990. 01 upon a state- 
ment of claiffl on set-off filed by the defendant in a suit 
instituted by the plaintiff to recover the balance of #11,942.70 
due upon a contract of purohase of real estate in Ohioago, 
Illinois. The ease was tried before a jtiry and the court entered 
Judgment on the verdict of the jury. 

On Sovembsr IS, 1932, plaintiff filed his statement 
Of claiffl in the iamicipal Court sett in- forth th-t on ugust 
22, 1927, defendant hnd entered into a written contract with 
the plaintiff for the puxch^ae by the defendant of csrtcin lots 
in Sdward G. Uihlein* s subdivision in the southerly part of 
Chicago, lyin^ south of ICSrd r^treet and west of Lake Oalumet 
for a total price.of |18,600, and setting forth that there wa.8 
E balance due upon the contract in the sum of 111^942,70, 

The defendant j&ined iBsue by filing her amended state- 
ment and affidavit of merits in which Bhe denied that she was 
ladebted to the plaintiff as set forth in his statement of claia, 
end in her eet-off alleged that the plaintiff fSilsely and fraudu- 
lently represented to the defendf?nt that Oalumet Harbor, lying 
east of said lots, was teeing improved at great public expense 



A. \ "foam 



!s A ^ 1^, T ^ :^:> ^ 



.esXIsrrrrA (Jfj.olbae'isO) 



Cj \J tj^ « iH a X •>^' '■*->'' 

&tuB n at ta-iba&lsb &i^t \d baXil !i'io-.t6a no mieJio to ttf&si 
OV.§:^0^XI$ 'Jo Qoa->,IM Bd^ te-sroos-2 o* lliitatslq Bit^ %€ b^/Sis&itnai, 

jjasffisiT^^e sixi Belli iii#rx.c^'.Xq ^SiiSi ,8X 'x^cfia^vcm rfO . , . 
lUx.v JO iT-tiJOQ ^jt&:ti'i;auv <. o*iiX &8':i3*as ^d *aiJl?jHS j.»fe ^T'S'^iX ,SS 

siw si'xadd- ?m^ xf^Iol .•ij;tXd'cf9i3 .&fl.3 ,00^,8li 'ip^©«?ix<^ XsJoJ- js tot 
,OV,ai>e^XX<ii to. fia^-y aiU iU ^ositaoo »Ai mciit '^'t aoa£X,S(J a 

-.ir&i; ■Tl bn.e y^XsfiXJl llid-nii^Xcj &cii ts,nt fceasXXs llo-#©." i-'-i ai £>flg 
eexjegxs oiXcLmrf JhBetjj *.p bero'xqmi '^xfidi m^ ^Btol .bi^a lo tnB9 



and that Lake Oaltuaet m:3 tben being, -dysdged Bud despane^d; 
that the CsltMet River w«8 'fceia^, wideasd anil deepened ?st 
grBst public ejrpeaee; audi tbat f&otorlec sad saille -sssTe 
thsn being erscted on tbe Gcluaet Rivsr and I,sk# c-aliaaet 
and in the genftrsl n Ichfcorbooj! thea kaoTjn ae the C?a^ua^'it 
district, ihe statement el©o alleged that t:.l*:,'iKtij-f 
reprtsented th?:-,t a grsat maabeT ©f people v;ere laterestsd 
who de-irsd to ourchapg lots upon ?.'blofe to build hosaos, aad 
that s^!l«s wer^ then being aiade and t,hat X'^saleg should toe 
wade of the I'ts in question; th«.t the defendant relied 
upon the st5Jtam©nt8, which vio-a ffelse and thet ao puTehasexg 
h«d teen produced tor s^^ id lot^, r:i©fandsnt during th# trl-^1 
of ths caea filad aa saended .«tatQment# in wliioh s-he alleged 
that she paid taxftf! on the lot?? for th® yn^:^.TB 1SIS7, 19^8, 
and 19S9, In the tot*! mae of #l,S0i.70, -md th t ?he hed 
estpended 111, 990, CI. 

Ob 'Mmmber 5, 1934, the plaintiff filed hia reply 
t© the aaendiid i?t teaaetAt .?md affidavit of cl-.-iv. on 
@©t-off, denying the &iIeg»-ti©B» of fs.I;^© and fr~u<Sul®nt 
etatementfi, and st-J'tiag; thst if any ?;uch lepreaeatattea;^ hzd 
b^ea msde, tbey «exe p^rt ox the nftgeti»ti.x« carried ok by 
the defiBd*Bt *ith r«al est:'Ht@ --gent^' ox tex-skers with ^imm 
the pla.i-.tiff h-sl liet#d the lot© for s:^:le and t&mt all euoh 
negotlatioris ?;er-^ merged in the ^rittsn eontya^t under seal, 

ITie def'^nd^nt a-dmits? tfe=-t the fact? ere eubstuntially 
ae set forth in pi?.4atiff • ?? bxief, froK whiCi it nppBaa^, that 
the plaintiff »?*« the o^ner of a muiber of lote in .t.d-¥r.sTd u, 
Uihlein's subdi-risiott, the Ig^el dsseriptioa ©f which ie 
set forth in the brief, and ta«t the property Ites ft'tst of 



®d ^*'>i.i.;«jvf< sisil;;,j^,?l t'-jrf^ fji^s; C=feasi ,;;aA-5ii iKd^" 'ii:a*, M^£m tiidi 
■ ■ .^Bi'i^X ^tMi ^^'iny ^M:^ %0t -aoX ^m kc nm^i hi^q &d^ t'lMf 



the right-of-way of the Illinois Central Railroad, and south 
of lOSxd Street, east of Cottage GroTe Avenue, and west of Lake 
Calumet* 

The defendant in this case has been a resident of 
Chicago for some years, and has been a teacher in the public 
schools and since the fall of 1918 she has been engaged as a 
teacher at the University of Chic go, teaching Institution 
economics. 

It also appears from the evidence that at the time 
in question there was some activity in the Greater Chicago 
Subdivision, a large subdivision of about 3,100 lots, extending 
from 95th Street to 108th Street and from Indiana Avenue to 
the Illinois Central tracks, which lie west of the property 
herein question, >- 

Mr. Hergtold,».asw«*«*w«SM^.called the defendant's atten- 
tion to Fred G, Hagstrom, a real estate broker who had been engaged 
in the business on the South Side of Ohicag;o for some twenty years, 
Mr, Hagstrom advised her of the property in question and told her 
that he was able to obtain ? price on the lots of either |900 or 
$1,000, but after some negotiation he obtained a price of $775 
per lot, and efter a discussion at the office they m^ent to view 
the property, and after giving the matter consideration, the 
defendant finally made a deposit of $300 to'fard the end of August, 
1927, and agreed to purchase the r^roperty, consisting of 24 lots, 
at a price of 018,600. Thereupon the contract was drawn on a 
form prepared in Milwaukee, and filled in on the typewriter in 
the office of Edgar J, Uihlein, and this contract was presented 

to the defendant by Mr. Bergtold. She executed it and it was 

-3- 



og^oxriO isd-j38T-D sric'' ax T^jxvxito.,? a.'s'ioa isi^iif s-ioiit noitaairo us. 

■galbaoir:vd ^n&oS. OOi^Z ti^od.s ^.o aoxeivibtfoa ©^x;^! ■« ^cxoiaivifiduP 

oi enzBMh nnslbal aioxl i>xiB J-ssi.tS fiuSOI o;)'' tss-x-tS ri*66 fflcx^: 

'^^d-'reqcTiq erf.-; xo i^aisw exl ilolrf?'; ,a;ro :-•£;!• Ifiid-05'0 sxonilll 9sit 

-V »rfox;i'3&x;p niisiori 

*;rx3eY Yd'^i-*^-'' CQ'"'- '-i^o'i QgJsoldO 'io ?'.bi5 rlcfi/ot; siid" «o p.aoaiajjtf ©xf* ri 

MO OOGiii. X'^/Itxs io ci!oX srfd- ao Q&xxq :■ nx.3;J-do ot sIJo s..ow art ^Bdi 

oVVc-i 10 soi'iq s bBaX'j^c-o od inoitaxioma: awioa rrsJis JwcT ,000, I| 

WL'iy cd- cj-HSis \Bd& sc-filo ©dcf -J-.? iioxBe-uosib b i:st'i.:-. fcas ^o'oi Tsq 

5;>exxfix,f.4 1o bnr> grfrf- JbX3//oc)- 00£*' "to iiaoqe-b s ab,Si« YlXsxii't tazbiiBlQb 

j-nd'ol ii-ii '±0 /^/xxd'ai^ncj'' ,Yt'i9r;o'xq sn;? sasxioix/q od" .basig.Q basi ^ViiQl 

.« no m!rjF;:>..5 yr.f ;fo"Xj!ioG odtt nocfX/a-rexiT ,008,8X1? 'io eoiiq s i-:8 

xix 'XB-^£i7iQo-x''^ odi no xix b'iXIxl bas ^oB^vs'/iliti nx ftetccrft^q miol 

£)wtrxcsf)'£q B.6W o•v0.f?1;^noo 3xd-j- Ms ,ixxoXrii;U ,1. TS^bS lo soxl'io sriJ 

_^ 



ret\iraed to the office of Sdgar J, Uihlela, who forwaxded 
It to Milwaukae for execution by Will am B, 0ihleia. Keither 
Edgar J, Uihlein nor any one in Mis office, nor 'iiilliaa B« 
Uihlein, had met the defendant at this time, 

I'he defendant examined the contract before exeetxting 
it and made some criticism. The contract s executed by her 
was forwarded to William B. Uihlein for execution, and con- 
tained the following paregraphj 

"The buyer expressly represents to the seller that 
no promises nor representations of fact other than 
contained herein have been ?nade to or relied upon by said 
buyer, and that no promise nor representation has been fflsde 
to the buyer by any person whosoever " s to the condition of 
building upon said preaiisea or as to the trnsferE bility 
of this contract, or as to any waiver or forfeiture that 
may heieaiter yccrue hereunder, or s to any other condi- 
tions of thlB sale or contract," 

Prom the evidence offered by the de.endnnt it appears 
that the property in question was in Kdward G. Dihlein* s eub- 
divisi@n, and ttiat tbe first eight lots numbered from 3 to 10, 
both inclusive, were in Block 1 of Uihlein' s - ddition, facing 
Corliss i^venue, and lay south of 103rd Street c Th© second 
block of 8 lots n\imbered 11 to 15, both inoluBive, in Block 
2 of the Bubdivision faced Uorliss i^venue also and i?;ere south 
of 103rd Place; the third block of 8 lots faced south on 
104th Street. The lots were 85 feet in width and 125 feet in 
depth, with the exception of two corner lots which were 
slightly larger, and one irregular shaped lot on 104th titreet. 
This latter lot lay next to the alley Imiaediately east of 
Cottage Grove ii venue. There was a large laxmdry facing Oottpge 

Grove Avenue immediately on the other side of the alley. The 

-4- 



»;■! asfi'-cIXx/ "soa t'iJt^.c'llo nld ul sac ^t^'--- '^'^'^ (UBliii^ .L S'^^fcS 
.Sfgi^ jsid;^ ;*■*: ^iji^iiJrEGlOiJ arf? ^sin fcv^if ^ni&XiliU 

•serf Y"^ bifiirj<^xQ s.;- tiOt^^^nQo erfT .<fl«!ic5i;tx2o s^iios aftssa Jjcs *i 

ws^di' 'xorllo :?o.3t to BaclS&^ii:ii:.sxq^Bi ito a0a,iia.o*):.i| ajti ■ 
Mb® -^d sioqw fc-siXs^ ICO 0* sbms tmt^d @v.ed eiSiM fesei-slsi©!} 

#?-d* $'Xu?jt©'!t','>;ol «'i '.rQTi ?r!Sf t^.s 0,t ;3.s to ,,j o;ftir,;taoo 8i^.t lo 

(Ji at g sicT'i ftsis.tissxm &io£ J^aiQ *8"xll :^n;t tTe^i* Ba^ ^fiQi^sxTife 

-dtooR ?iti&,v feas 0:- Xb ■ei/at»T-i saxl^oO Ast^?;! liolaxvX&cfifs Mf lo S 
00 ilteo© ,^00^1 «^-oI 8 'to iaoXcf bitidt »df jsorX*! &'sSOX t-o 

,+-3©T*ii, fl#l>OX iK> ^oX festj.'Hjrfa xBlir/ietStit «ho fettiS ^.x&^k'-X. ■\(X*risi:Xa 

&;y:3^4'#G 'gsiloMl tthiiM&X m^r--:.l .5 eiSW' BtsjUf ^iMmH^tA ^vo^& sgs^d-oO 



Illinois Central Railroad ran along; Cottage Grove Avenue; 
east of Corliss iivenue was low swaaipy marsh land, which th© 
City of Chicago was using, as a dujnp; west of Cottage Grove Ave- 
nue was the Greater Chicago i^bdivision, also known ag the 
Bartlett subdivision, goned for three flat buildings. 

It 3lso appears that Bergtold informed Hagstrom that 
the defendant had some money to invest, -and they succeeded 
in getting her in Hagetrom^s office at 40 £ast llSth Street, 
and from there they took her through the Bartlett Subdivision, 
then across Cottage Grove Avenue and along Corliss Avenue to 
the location of the lots in question; that Hagstroia at the 
time tol'3 the defendant Bartlett ♦ s ubdivision was gionedi 
only for three flat buildings, with the necessity for property 
suitable for small homes and indicated that the Uihlein sub- 
division could be handled in the same way. He told her of the 
widening and boulevarding of 103rd street and the advantages 
of this street. He told her &,1bo of the great trRffio that 
would come across 103rd ^Hrest ani the enhanced value to the 
lots in (Question; told her about Calumet Harbor being a world 
center for shipping, and that it was being deepened and lined 
with wharves and docks', factories and plants of all character; 
he told of Calumet River being improved and deepened and of the 
great Influx of workmen into that locality fxnd the scarcity 
of land suita.ble for small homes ^jnd cottages; that this work 
was all in progress at the time. 

The defendant objected to makii^ an investment in tin- 
improved property because it had to advajice at such extreme 
rates to keep from absorbing her interest therein. Hagstrom, 
however, persisted, met her at her home on the campus of the 

-5- 



ja-:?'u?v;- Dvc'cO f-y,ed-*oO ^iiOl?? 0'^i: If-o-rlx-vJ- I.-'xrf'fiB:..' BioaiXII 

s.ift £io.fri:w 4»/i,fci dstiSi^s ^<?U'.s-^»i? wcX R^^ emitv.. ■^^ii'roO xo ;*a*?© 

-^!V;, svotJ t^ijoi-JoC 'ic- t^^w jq«i:^£; S as -^^Ktsy taw osjp?:;ifc'^ io ^iti:^ 

arft s£' iXHCiiif ©els' ^itolf:^lvl'h>m<'' Q-g-'ioliHO %^^i^BxO ml^ asm ©im 

,?i%ii.'^IiiTd t-^It ;'::"r/,-''t ID'S b&iam. jaai<?i"y"j:i:d«a .t;;siil-i.sa 

75;fft moTif?i:MsH iamtolai &Xgj'.3'3:6H JB/ft a'i^>fe:-g<?o o^/'-. .tl 
&sfi-3C-»0Dsf8 '^eif* ia.G ,j:J"G©Ffci oi ij-esiofc sdos Baa ta^-xjiSEo^sfc slid' 

6,R;t .t-^ xflo-iS'si^s]-; J.-;u;;3' j!.-.oi;r-'?3iir ni sjoI <3!ii^- 'io ;icj:J.6O0X sxf;? 
fcsiio?, aire rroi5?i:vi;J)vti3 ■'■ B'^ft'zIt^fiU &U'B^&'&X^b m^ hXoJ- smli 

!3ij.j- 1o tz-d blent sK ,Vc'^ ajs.ea Oflt ai fceXMiwI 3g{ .bXyoo nci&ivtb 

^iSi 03' 3tjrl0¥ bi-«0«t:^rf«9 0£l,a- i?£t£ J^^S^Jft- 'fe'XSOI Sfci[0!£9ii 3!JK>5 tl^Oig 

bLic-' s ..■afii^STl «coc?i-cH t^imsiiiC ^sjqcIb Tsrf Wot jriCtXS-^^^.fjfo at a*oX 

J!^:9r^o.?!tMo XXb Io n&n'^ia ta,:? k&i'idoBl ^nt^i^t bt^s- ;re>v"iiaJlw iUiw 

Tj31ox£-03 add- .bns Y^rii sso^X tsd\t oiiicx u'^m^'t^v? lo xi/Xtni *S0*C3 
:i'iow ali'^t .tsif;^ j. ?©•§,«;;?■ too ba-,--, ^csjsorf XX£!i8® '£0l aX^'^-sii^Ti MbX lo 

.sasiJ' i>4* *s aastao'iXf iii: XX-s nsv 

i>siS'i;i-7.& jioxfs i?£ eoj;i^.v?)a o# fojsri i-i 0Btr.so®cr YJ^-J^^^QO'ier bmoiqmi 
©da' xo s.uo,tRBo &d^ ao sasoii -xsn' d-s trat^ S'»«t ,fc©*sis^xs«^ ^-ceVswori 



Uaiversity of Chicago and talked to her over the telephone, 
repeating hie statements regarding the property, and finally 
succeeded od August 19, 1927, in getting a payment of #200 
earnest money, and stated to her that she need not worry about 
the payments to become due under her contract, as it was a 
wonderful buy, and resales would be made mora than sufficient 
to take care of all interest and prepayments. The defendant 
finally raised the first down payment of |220- at the time 
of the execution of the contract by borrowing funds from Hag- 
strom, the agent* 

Foliowinf, the executioxi of the contract in 1927, the 
defendant repeatedly in 1928 and 1929 called upon Hagstrom 
for resales and pointed out to htm again the necessity of 
resales in order to meet the payments under the contract. 
Ho puroliasers were produced, so in 1930 ahe visited «.dgar 
J. Uihlein and pointed out to him the promise of resales 
and the necessity thereof in order to make payments under the 
contract. 

The evidence in the record on behalf of the defen- 
dant is that Oihlein's reply was they world do everything 
they could and that resales were hard to make, but probably 
things would Impuove and the thia£ to do was to see what the 
developments were* 

In June or July, 1932, defendant discovered for the 
first time that all he representations tmde were false and 
untrue. Defendant immedia.tely called upon Uihlein, reported 
her findings, tendered to him her abstract and contract and 
said the only fair thing for him to do was to return her 



xll&nXl aai:- tX^tsqotq «£f;J- ;y0X&i:s;ige's a Onsets <J.i-;|-a i3iil ,i,;ai..t;3«q?jX 

<s a.ar *i; 8.« ^tQn^isiQo red T®bat! &ssk ©raooscf Oj a ^asiux s^q 9-rfo 
.tas^oilxifg aadi eic® a'YiBiia se fjXijrcnv 3©X-/a9'r tun ^x^fd iir*ia©&£iow 

-^Rii fflOtc5: alHwl ^fiiwoisod "sgd ;tofir£tnoo Mi 5o aoi*i/09xs ©.d# "io 

sx!* ,Y':i??X ui a- o ■•:.'.?.+ no o «ii.t 'io .'.roiii'iraai-.r- sdr .^fliwoiXo*^' 

to Y*X9sso0a 9£fif alB,-ji£ mid oi *ao .b3Jt£ti©q fca'.» aeXisesT it^t 
,&o::-itaoo Sri* tQcxiiii sc!"H©fi3Tj ■?■<?, i^dt itascs oif wfea-o aX aoijEia^it 

©olBssst lo ssssiisfotq c-^rfj- mid oi too foetolGq feji-a ai^ldm *l» 
add- Tafcfix; s tixsaniXiq e±<'m oi "xebto iiJt. iOfdipH^ xiiQ&iioes. 55d# bajs 

■^R&l^b s/•i.^ io xlsdscj no bxoo&t ad-i at eisa^blvs sriT ;■,;;.. 

^<iiiftiij'i.i!ve 00 bX ow yed-t psw Tjl<rf»t s 'filsXfliU ?iBc{;f ex i&Bb 

.straw .3;>'a©-tKqoX6V9fe 
haS' eaXst st9-.t Qb.Mi ®aoilstep.8«tq©t «if-' ZXs taxis*- ©ffiicr #sx<l 

tiiii nij-ri-QT o* ssa ofc o-t coid xot said* ici?.!: yXno a>if* fcisa 



money, to whicli tlihlein replied that "his brother wanted the 
contract completed and did not want the lots back and did 
not want to make that type of adjustment,** He said further 
that no money would be returned and suggested that c-he make a 
counter proposition. 3he thereupon did make such a counter 
proposition, namely, the letter of October 8, 1938, to accept 
a deed for lots to the extent of the money paid to the 
pfeintiff by the defendant, i'his counter proposition was 
refused by Uihlein' e letter of October 11, 1932, and suit was 
instituted ia the Municipal Court of Chicago on lovember 
16, 193S« 

It also appears that during the period of the suc- 
ceeding five years, each of the payments, including the pay- 
ment due July 1, 1931, and a part of the payment due January 
1, 1933, was made by the defendant. She was delinquent at 
that time in making her payments and claimed t'lat this delin- 
quency was due to her inability to collect sums due her. She 
wrote numerous letters addressed to the plaintiff. It does 
not appear that in any of her written coauaunioations in 
evidence she charged the agents with having misrepresented the 
property to her or with having promised to make any resale. In 
her last letter of Ootober 8, 1938, in which she ^ae seeking 
settlement, she did not make any reference to any such matters. 
The letter in substance is that she was writing it in an effort 
to salvage somethinig from a contract which she felt was not 
going to be profitable, -^he started the letter by saying 
she was in arrears on the contract and anxious to make some 
adjustment of the matter, as it was impossible for her to meet 

"7- 



bib bnn :£oyin £,i-oI sdd- tarn fosi bib ba£- ?;sf^Xqc;iOtt it>e%iaoo 

^"3 *aBarH.ii'e.5 as© Sii? ^-^^a&^aQl^t »Cxi xd af'.^ta sjxv* ^sesi ,X 
©.#.' ♦'isri dub sa».uc ^ofXIco o^ ^ic.i'iixd.sxjx f-'d oi awt asw Y2*fl9i/p 

srf-t l>9tes8S'-xqe.tj^Xai .:_^aJ:v^Mi dJi:,? stiisg-K sxl'J ^egmcio avis soas-folva 

;3fti;Sass a.cw ©xi? a'oxcfvV ai ,,S£ei ,8 ^edo.tt>0 "io t:;Mc'o,C d-gaX T©rf 

.RTSitd-.efti iiox;.?, y^-' o^^ oomiT.i^'tBr jctiF, ©i.^s jfori biS &m ^tiKHifsXt^isB 

^J-TO'tto liB .ni ;jx :-^;J;;ti:avJ' ^.aw erfq sT^iJ- ni »o.ci.fi;t?)cJ"i.''3 rci tt'-^.+tsX aiff 

.ton as.^ ;}-X»l ©ife xfoirl^r S'o.sid-ano ^ ffioil iisXriSaaiOQ sgsvXi-a o* 

^nliaa xd X'j'-X + aX 'aiJ:}- bafrst^ ®rffi .sXcf^ifJtlotcr ad' c.t ^wloa 



the payments of principal, interest, taxes, and aseeesments. 

She then lists her arrearage, not counting payment dtxe Aiigust 

1, 1932, and also her total payments of #11,735.29, and 

Bays: 

"Since my income Is further reduced this coming 
year due to the non-payment of interest and prin- 
cipal due me, I am asking if you will be willing to 
deed me lots for the amount paid in and allow me to 
cancel the contract for the halence of the lots. This 
seems the only v^ay out for me and would involve no 
loss for you, only the deferred sale of the balance 
of the oroperty, 

I very much hope you will give this oroposal favor- 
able coneideraticn," 

The question in this litigation is largely one of 
fact and controlled by law in relation to fraudulent repre- 
sentations fiicde fet the time the defendant signed the real 
estate contract, and upon which contract plaintiff seeks to 
recover the balance of the purchase price on the lots therein 
described. As we have already stated in this ooinion, the 
defense is that fraudulent representations rere made by an 
agent of the plaintiff which Induced her to sign the contract, 
and she therefore is making a claim on set-off against the 
plaintiff for the ret\irn of the part payment price made by 
her. 

To deteralne the cueotion of the right of plaintiff 
to recover under the issues controlled by the law germane to 
the question now before us, it is ^ell to have in mind that 

In. order to establish fraudulent representations %hioh will avail 

I 
atllaw or in equity, the reprasentatious complained of must 

halre been made with resoect to a material matter. They must not 

only hsve been false but even if iaot known to be so by the person 

making them at the time of being untrue, still such affirmation 

of what one does not know to be true is not justifiable* The 

-8- 



&:sirzir^^ aist ^a^^jin^sQ -gixifmjrjo .ton (S^.stt^&^^B -xerf sJs-il a^di &dd 
&f?B ,8£:.??i:V,IIt "io si^aoiTiX'^Q' IsS-ocf is?^ «¥jXi» tan ^fsei ,1 

Bid's .,-i.toI »ri:}' Uo ^orr-X^tJ »rfj rro't i'o-'EitiXoo -^iSt Xasitso 

OCX si/XoviiX i5lfyow Mfi &:^ %&% iuQ ^.3-f ^^Jlato s4:!t aaJ3«e 

sojOsicQ" sdt 'so 9Xj5a b::r.ti5li>b ©rf^ \.tao ,ifCY "^ot saoX 

.Tja-iaqm::' fed* lo 
-TOv^l laccqexf; sx^i'd- avX:^ Xli-^ £/o^ a^od rioxfs ytsv I 

lo sino \rl9j;'r.^:I sX .aoX:tegX:t X I aXtftt fltx noid-seifp ©sSf 

»dt J-t/fiXsgs 1;lo-;te3 ixo sfi-pXo m §aiil";w ei a^ola-xsd;?- ©ila baa 

0^ imcm%o% wax 8£f j •^■if JbalXoacfaeo asi/aai a^^ -xs&n^ isvoo©* o* 

d-.suJ- feax« fli yvsa Ou^ XX9>^ sx Jt jSJ^ a'lalao' ■■aoi'i- aoxti-ejifp ©d* 

XXsvs XXXi'/ jdDliiw i?.noXd-;4-£t®a 31091 iHi-Sistu^rt fieXXfliStisS «# isfexo Jtl 

;^o^ if^vm \^AT .TriiiMm XslTe-tGrn « o;l taecjateT dtiw 8&j:-i-a «3<»i'i ©vaif 

rfoaTSi-fT x^d* x^"^ cif; scf o;t ir*oxiji .torf li ixeve rj-^icf ©aXsl aeaci evRrf \lao 

aoxt.«2'xirXi? ifcwcj XXi*« , aj/i.tfijy gaiBti to effiXJ- 9rf>t is «gs^l;t :§iti.laffi 

©4'!' ♦sXcf.sXiXtsx^t d<>i:f s?i sw^* sd oi^ :¥0<na£ &oa eeo.6 sho isriw Io 



repreeentatione must have been relied upon by the other 
party and induced him to enter into the contract sought to 
be set -9 side, Brennan v. Per e sell i. 353 111, 630* 

It is also the established rule of la* in this State 
that where p?rtiee are dealing with each other, and one makes 
a positive and material statement upon whioli the other, to 
his knowledge, sots, and such stateajent is known or should 
have been known to him who makes it to be false, his conduct 
is fraudulent and he can have no benefit therefroaj but the 
mere expression of an opinion as to a material fact ie not 
equivalent to positive affiraatioii, and this rule is followed 
in the cases considered by the court* 

It appears that mere expressions of opinion employed 
in urging ©r i~!portuning another to engage or invest in any 
Better are regarded as mere inducement, and form no grotind 
upon which to base fraud, and in the determination of the 
question of whether the plaintiff ia this case ie bound by 
reason of the fact that he did not participate in the 
fraudulent representations made by his agent, the rule is 
that one who has not participated in the perpetration of 
the original fraud becomes a prrty thereto by insisting upon 
availing himself of the fruits thereof, Brennan v, Persselli^ 
353 111. 630, 

Sow, what have we here in the way of facte such as would 
justify the entry of the judgment for the defendant upon her 
counterclaim? 

The defendant entered into the contract and con- 
tinued to make payments for the purchase of the lots described 

-9- 



•xsriifo *rf3- iv ixmsj buillQ^ ft«<o(f av.'-^d :»suffl 3i(oit.«*jKeai^tt.q»ii: 
*OCS ,Ii'X ?i8o tillM^v^^^g. ,v gg/xasa-J .,^M0e t5>«i 0<( 

9©2ii?£r> 9«o biis ^t^ci-ro .close .dd-iw g-fJil^JO^.^ sx'r. BsxtT-q '?t:9i1-i» t&dt 

.■j"x;j-o siij- Y<^ JiiiiTrsf.i^fi'oo ssaso s^l^ ill 

lo itottB'itf}q%&q iSidt a.t i')©tBOfioi;?-i.^c #0x1 -;-.d cviv,i=r ono t.$£i;lt 

♦ OSe ,X.il S3£ 
6Ii;o;y ae rfox/a atos'i is yj'-^ ®f<-i*' *ti 3i©,d »n s^&fl ^f^^ri ,?jnM 

?jiax.filorcs.ti!u/oo 



therein under its termB until June or July, 1932, when she 
tendered to plaintiff's representative in Chicago her abBtract 
and contract and stated to him that the only fair thing for 
the plaintiff to do was to return the money. However, thie 
representative of the plaint if x suggested that she make a 
counter proposition, which she did at that time, namely, by the 
letter of October 8, 1932, in which ehe agreed to accept a deed 
for the lots to the Extent of the money pai? to the plaintiff 
by the defendant under the terms of the re:l estate contract. 
This counter proposition, however, was refused on October 11, 
1932, 

It is well to remember that the oontrect here in 
ouestion was delivered to the defendant in August, 1927, and 
from that time she continued to m ke the payments required by 
the terms of the contract, although at times she was unable to 
pay promptly the amount due* 

It is further to be noted that in the dieouasion of 
the f"tcts no question is raised by the defendant as to the 
fairness of the price at which she contracted for the purchase 
of the lots. The whole auestion is as to whether the represen- 
tations made by these agents were false and made for the piirpose 
of inducing defendant to purchase the lots. The defendant com- 
plaint tl^t no resales have been made of any of the lots, not- 
withstanding she spoke to these ajgente, as well as to the agent 
of Uihlein, in regard to resales of the property, Although the 
defendant contracted for the lots in 1927, she took no steps 
whatsoever to learn whst was being done in the way of improve- 
ments, until, as she s-ys, in 193S, There is no evidence in the 

-10- 



Qfifj crenV ,Sf;S'I ^v^I-Vl. to ejo/T, lltmj stesTsif ?.ii 'Xi:>taiJ ak'S.t^iit 

'lol jiil-jit xx^l xlno silt tB&f mM u* fosts^e &fiffi #o':^^aoo bns 
sirit j-sex-RvroH ,^9uo0« s>xi;J- aruic-i et qhth ob ci 'ili;riti:.r-io arid" 

.asex 

^d^ bTrtlsjt-fit Q^w^i^-ui ©dd $:f ii! o;J- b-maiicioti ©i-l? »«W ^i^ii* ffiea'i 

"io a-ci;.-:!8J'jr?t';i£' ad:? f.x >i->r,f.f* .ba:toit scf oS' iBdttij'i si #1 

-nsse^qo'X Si/.t 'tsjiJd-sris Git rb rI .aoi^Soi/o eXoxl^ 9£lT ,b*o1 sifJ- lo 

38ogTuq Sfl.t tot ebms ba-i bhIs,'^ e-xsw BtaQ-^^z saaif* '^c/ s^e-c 8.aoid*'^* 

-iTsco *«£t'ni"is5 adT i."?;to.i arid" 'SHHrntuq ot fanba&lBb ;;pioifbni to 

-iJ-ofi ^fjitol orfi'- !to Y«J-' '^^ eftem «9?»cf svi,yi saXjiast oa ■•fs>d<i ^ai&S.q 

sqQi's Oil iooct- 9^3 ^S't'^ieX riJ: eciol ©rf* io1 fiotos'iJ-aoo *fi5i:jrjr5i3fe 

-OX- 



record that slie w^.s prevented from investigating and 
examining the property described in the contract before 
the signing thereof. Some objection was made to the 
form of the contract before it was signed, and at her 
siiggestion this was changed, and the contract according 
to its terms was approved by her. 

The defendant is an educatec woman, and it is not 
claimed that she did not understand tbe terms of the contract, 
or that any advantage wae taken of her because of lack of 
knowledge, except that it was suggested by her lawyer that 
she was not familiar with real estate deals. As to the fraud- 
ulent representations complained of by her, they are denied 
by the agentia who appeared as witnesses on the trial of the 
oase« The conflicting evidence was passed upon by the court 
and the jury and the question now is whether the judgment 
entered upon the verdict of the jury was against the raani- 
fest weight of the evidence. 

Assximing that the factual evidence of the defendant 
in support of her eet-off ie true, we find that the avtm paid 
for the lots, as well as the location, is not questioned. The 
purphase price of the lots was to be p; id by supplemental pay- 
ments, and the payments ae called for were made snd continued 
until June or July, 1932, a period of five years from the 
date of the contract. During all this time the defendant mc de no 
complaint regarding repreeentations that were not true. Her 
only complaint was that no resales of lots were made by the 
plaintiff during the time the defendp.nt was making payments, 

Purchase of the lots was made evidently with the 
-11- 



.^toQifnoo fifld- 'io 3;0ce;r oriJ- bny.in'iQbmj ion bib srio :tarit Ssmisl©' 

-bi'S^l ©lie ci s.: .gXBOft sd-eJ;-;© IseT: xicilw TA^ili^nBl: >t.'Uf n.sW orfa 

iiijoo ©rfd- ■^d aoqi/ l^&sa^q a,ew soaafciv© ^iuitoilliio..' srfT ,9a.'30 
-iii-K.;; 8£fd- fsGxs-gs asw ijTwi; add' xo jfoiljvov e-dt ;ioqw XisaataiS 

fcisq ffiwsi arf^f u-vxi^ ball svj ,^i;'.t;^ si: "ilo-d'ca mo to ti.oc{Cim ai 

odf .fcenGiJlTjSwp ten si ,A0i:,t?5O0X efS* »3 XXas? ss ,?3.toX sdJ- ic't 

"Xm: I-SitiisasaXqqja-s y^' ^<^-''«3 ®<3 <5* ®-sw sJ^jX 9if»t "to qoxxu 98i5dOT:wq 

l>aifni:;t£iCO f)xte ^bsm fn,©.^ ictat fcsXXao s-s ail'jxawif.eef ©rid- fea*; ,ffi;}-a©«B 

ori;^ sncxt ^ibsx ©vil lo fcoi;'J:9<) s ,SSex f^xXul, 'i.; sux/I. litms 

on 9l};;aT taBbaslah sa^ ssic»- alrf* XX n aajTj;;<2 ,*O.Kt:ra©t) scf i :to a*.?* 

TT^^H .Gjj'i^ d-oii s'XQw ..i ;il# aaoiiJ'-TitiioeS'xqiQX s>fli;j(i3;a,4ST[ tujslqatao 

add- YCi' s«-sca e-xaw s.#ai ^o aoX-<se®'i ofl j^isrit a^sr #rii;-iXqiflCisi -^Xao 

sdt d:^x■« ^XcfnQbive ©&Bffi a.®5j stoX erf^ 'io dSL^rio-rx/'i, 

-XX- 



sxpec-tatlon of the oosalble rsro.fit that raight be realised 
through resales. The only tlae the defendant ciuestionsd the 
honesty of t;t!e tr-^nsaction wes, as we hs,ve stated before, 
in June or July, 1932, when for ths flr«t time it wae claimed 
by ths defendant that all of the repreoentFticriS raade were 
false, ?uoli as tae dr';;dging of the lake, river and haroor, the 
building of docks and factory buildings, the iffiprcvement of 
103rd 'Street, ?iid the enheneeaent in value of the land by the 
influx, of workiaen in that locality. 

Having considered the fscxe and applying the irules con- 
tained in this opinion, we think it is neceseary that further trial 
be hs.d, as from the record it eppepre the ju'gaient entered is 
manifestly against the weight of the evidence; and, the issues 
having been tried before the court and a jury, we remand the 
case for further heEring, 

V'e cannot, however, agree with the plaintiff's con- 
tention that the alleged false representations made to the 
defendant which induced her to sign the contract cannot be 
urged as a defense for the reason that in thie contract there 
Is a provision, ?"hich is quoted in thie opinion, to the effect 
that the defendant did not rely upon any represent at ions that 
were not contained in the contract, fhis question ?;as naesed 
upon in the case of Ginsbur g v, Bartlett , 262 111. App. 14^ 
contrary to plaintiff* b contention, and we adhere to what 
we said in our opinion in that case, i^ee also Miller v, Mydiok , 
254 111. Apo. 584, 

For the res sons indicated in thie opinion, the ,iudg« 

■lent here for the defendant upon her set-ofi is reversed -nd the 

cause is remanded for retrial, 

HSVERSED m-D HSMAMDliD. 
HALL, P, J. AHB 
DEKI3 S, SULLIVAN, J, OONGUR. 

-12- 



c-£;ei:i;Io asvT ^x 6iQX^ itp'xii '^£1+ -iol ntid-^r ,SS€;.f t\rli;l, xo emsl nt 

^livJ- 'se/f^trri/'i u.r.-nd- Y~''^-f5933f^ si it -iatrit sw ,,j;ioi:rrXqo exrij- ai b'^alij-i 
Bi ?381;^^n9 d-Hsax-v .cri:; eif-t aTr-Sf-c-v^ ti fi'ioooi sil* moil s£ ,£>,?£f ©d" 

,'gfii:'x.s5xi a;3ii^Tx.-l ict as bo 

ad ton/ISO ^oaitaoo mi^ xt^l" o* tdil fe90Jib'?>ai rioicfr iasba^'tsb 

■:-:n©d:) to.?'xtaco sicfo'" ax i':^^i -ao.qf,a,rt god- lol ssxi^l^i) ,c s~, feagix; 

fostll:? 9iii o;t ^'lOXfiio-o sxd;J' iix bd&ou't st rfoidf'v jiroifuvoiq js ai 

feoaascf asw ffoi;f8».tfp »l,riT .tosTrtxtoa 9fi.t nx .bwctxs'jd-fToo J'oxi ©ifsw 
^^I ,crq^» ,1X1 a8=S ^it^^^^^iS *^^ AJjTix/dagXiJ lo 6->xO 'id^ ux Roqu 

^A^JllM. »'^ 'xalJXM o«il£ &®S »98B0 J I'd* xfx aciazro ix/o n: &ij?-3 aw 

,m?, .ooA ,1X1 *3S 
"•sou;; S£i;t ,r70iiTifT0 cxrit cri l)e*.ssi5xtl aaoaBax arf* -xo'iT 

♦ X-SIt:^*"! t«v1: aaita.SiK'r ax ©sxrso 
.fiUO^i'OO 4,1, ,M.aViJauy ,^f J^;i}isa 

-i;x~ 



38560 

LILLIAK M. MilHTII, 



Appellee, 



T" 




kPFEjd, FROM 

CIROUI!P COURT 

OOOK COUBTY. 



AMANDA K. STRUBIli, ET AL., 
Appellants, 



So lA. 606 



MR, JUUTICi; HEBSL DEL I VSR B THK OPISIOF OF THE COURT: 

Tbis is an appeal by hmpnda K, 3trubel and Clarence 
J. Gtrutiel, defendants, from a decree entered by the coiirt in 
a foreclostire proceeding filed by the plaintiff. In this 
decree of foreclosure the court finds thrt certain ,:romissory 
notes were signed by the defendants, which were on the d«te 
thereof, for value received, delivered to the plaintiff, i.^ho 
became the owner of the notes; that th^r© ie due the plaintiff 
upon the principal and interest notes the sum of |S, 1^.93, and 
adding to this amount |73 allov-ed to the Chicago Title and Trust 
Co, for minutee of title, |10.15 for gtenographer' s fee, and 
$600 for attorney's fees, makes a total sum of |8,85S,08, 

Ko questions are raised as to the pleadings, and only 
t«© errors have been called to our attention; namely, that 
the court erred in allo-s?lttg the sura of |73, -which -was paid to 
the Chicago Title and Truet Comps.ny for minutsp of title to the 
property in Question, and in ailoTsring the plaintiffs attorney 
the sum of ^600 for services renc-ered in the prepyratiou of 
the pleadings and in the trial of the litigation in this 
foreclosure proceeding. 





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a^.,.^i,^:A 


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T^-iUOC; T1UG> 


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YTHUOO JIOOO 




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i 






aj-lsca 






,.,!/< I?:. ^aaaUHTO .1 AGiiiiMA 



«#55.5 add- no aie^si' naixi?f <3j-Kax)as'!!:9b aj::{d" Tfrf mw^i^ jji^it sston 
IjriJ^ ,?C€'.8?X,5<3^i- 'to fi-Jijg ©.do' se.toa ;i-;:-t isci'Tii .bas. I^ctiofiiiq arfi' rioqw 

to ■loitsTyqsig ©do ai: tfsi:?^a<v'x aeoivies to% 008| "io aura add' 



The principal point made by these defendants in regard 
to the bill of |73 paid to the Chicago Title and Trust Company 
Is that the amount was paid for services rendered as attorney 
and that this Company was not Qualified to act in that capacity, 
citing in supoort of this proposition the case of People v» 
Motorists association . 354 111, 595, and The People v , Seal 
Estate Tax-payers in the saae volume, page 102, These authori- 
ties support the general rule that no corporation cs-n be 
licensed to practice law, whether the corporation '^^as organized 
for profit or not for profit. From an examination of the record 
we find the evidence is that the Chicago Title and Trust Com- 
pany furnished minutes showing the state of the title to this 
property, which were used for the purpose of preparing the bill 
to foreclose in this c=se. Counsel for the t)laintiff was not 
retained by this Company to appear for it in the foreclosure matter, 
and from the authoritiee cited by the defend-^nts it must 'ppear 
that the Ooa; any ^«'as orgaAiged for the purpose of furnishing 
lawyers to act for members of the asFOCiction in matters in which 
they were retained to carry 013, Such ie not the case in the 
matter now pending here on appeal. 

It is generally known that the Chicago Title and Trust 
Company furnishes minutes to practicing attorneys who prepare 
bills to foreclose, shoeing the conditioij of the title to the 
property involved in the litigation, but ne are unable to find 
from this record that the Chic ao Title snd Trust Company holds 
itself out ?s furnishing lawyers for the purpose of talcing care 
of litigation. 

The remaining question ie whether the solicitor's fees 
allowed by the court were excessive. It is to be noted that 



X-Sftg ,v alqos'j; sJl' i^Jjiu ,;::ec ,111 i^aj: .aold- ^xoona;; ad-3.tr;o»oM 
Si-roasi 3a;i- Ic aoi::t-3Xiiia.n2a ct,^;; «o'r'^ .Altera To'i j-cn :eo fllo^a 10I 

^f-sf'.q&tc on'« av;»n-ic.J-J.s Qiiiioltosi-.'xq oi- a "ii is aim esri.-Xii'Xiil xasqa^oO 

*iXOi*S:gXJ-.tX lo 



3 

the defendants did not offer any evidence, and the only 
evidence in the record upon T«hioh the court may determine the 
amount to be allowed is th t of the plaintiff in her fore- 
closure proceeding. The amount allowed and fixed in the 
decree was |600, so thst e are un ble to say from this record 
that the amount is exorbitant, when we consider the servicee 
rendered by plaintiff's attorney in thie foreclosure proceeding. 
We have had no assistance from the defend nts, as they offered 
no evidence as to what would be a reasonable amount, and view- 
ing the evidence as ^he trial court did, we are of the opinion 
that the amount allov^ed is not unreasonable. 

For the reasons stated the decres is affirmed, 

D^^OREl AFS'IRMBD, 

HALL, P. J. AND 

DEHIS i:. 3ULLIVAH, J, COiCUR. 



«-s-rol 'ssri i[«i Yl IS. air', la adj 'ic t rid- si bs^/oliis sd oS- tCjyoaiG 
~<7®iv ban ^tm/nme eli-lrsnosefe'S s 9d biuoM' j-e>ii« oJ- a.3 oo£i©l)iv© on. 



38485 

THE LIVE STOCK NAT I .ML BAM 
OF OHICAGO, a Corp., Administrator 
of the Estate of James J. Drymiller, 
dece-ised. 

Appellee, 







y1 



.^'^'f 



APPEAL S^OM 

gxjpsHioa COURT, 



ALBERT HILBEHG, et al,. On Appeal 
of ALBERT HILBEHG, 

Appellant ♦ 



OOOK COUNTY, 



O O 1 






U 



MR, JUSTICE DENIS £. 8ULLIVAK DELIVERED TEE OPIIIOH OF THS COURT. 

This is an appeal from a verdict and Judgment entered in 
the Superior Court of Cook; County for #10,000 against the defendant 
Albert Hilberg, because of an automobile colliaion which resulted 
in the death of James J, Drymiller, It is claimed that the accident 
occurred due to the negligence on the part of the defendant through 
hia agent James Paul Riohter, who was driving what was claimed to be 
defendant's automobile when it collided with the automobile driven 
by James J. Drymiller, The accident occurred on Jtdy 7, 1953, at 
the intersection of Milwaukee avenue »nd the River ro-'3d in Oook 
County, Illinois, 

It appears from the evidence that Drymiller, the deceased, 
was driving a Ford automobile north on the Pdver road and that his 
family was with him in the automobile; that when he approached 
Milwaukee avenue he stopped at the south side of the intersection, 
there being a stop light at thnt point; that whilst the Ford auto- 
mobile was at a standstill, another automobile, a LaSalle, ^ma being 
driven by Jomes i'aul Richter, claimed to be an agent of A. '/<• Hilberg, 
the defendant, in a eoutheaaterly direction on Milwaukee avenue; that 
said Riohter while so driving turned said automobile off Milwaukee 
avenue in a southerly direction and on to the right hand lane of 



X, 



( MAB .UK:IVAK soots mU 3!ET 



OHO .iri.X U O^J .toBlX^cqA 



itsuOT.il^ dfi«£)n3'i©l) edrf' 'to &r»x^ sdJ uo son«^glX§«E!: ai-iS- or)- Sirfc fesiT^ooo 

90' o3' bsmlslo s?„Kw ;t.af!T gfiiviai'j e.;?w oiSw t^tsWox.': iii/^'l esiiffiw, ^rt»§i? aiff 

a^vlib ©Ildoraoiti.' sriif if;?!.*- tBbiiXoo ii aeiU slidosaoi-iSP. B'ifisba^x^b 

jg-sscflHI .'*■ ,!\ 'io i'ue^r^ as ©cf o# .59iii.t«Xo ,•r©(^£f«ii'K Xjjs'I aQWBl, ^cf a&vixb 
lo sti:?'l l>«.5.f<. #ripX'i ^iii €>'^ £!o &flJ3 KoXifosiiife 'tlt'^d'^uo&. B ni. ajLrnsvs 



3 

traffic of tlie River read and collided with the automobile of Jamess 
J, Drymiller, as a result of whioh Orymiller vbs killed; that 
Jamea Paul Riohter, the drivvsr of defendant's car, 'ms also killed. 

The contention of Albert Hilberg, the defendant, is that 
lie was the business represent-'tive of the International Union of 
Operating Sngineerf, Local 150; tbt James Paul Hiohter was a subor- 
dinate e?jiployee of the same union; thpt the union is a voluntary 
asaooiation and is not liable for the torts of its agents. 

The evidence shoi^a that Hilberg was paid a salary and hn.d 
an oral agreement with t^-sis uninoorpor'^ted union to be their business 
representative; th3-t be acted se n. sort of arbitrator between oon- 
traotora and union members and if sny cf the men had grievances he 
uaa to settle their differences, - in ^ g:eneral way looicing out for 
the men and the union; th t he ir- s never told to hire a man or not to 
hire one; that if the men sent in their dues and wanted to send their 
due books to him he would pick tbem tip and take them to the office* 

Riohter, the driver of de f end.?,nt • 3 automobile, Mtad been a 
former aieaber of the union r..nd had beon in the habit of going with 
the defendant on buainesa trips. On the day of the aocident the 
defendant was in Lake Co^inty and had to go over to a village ia 
McHenry County; th t he instasueted Uchter to take the fcaSalle auto- 
mobile and drive to OhiG£,go and pick up some due books which m^ere at 
his home and to laeet him at hm-jwocd; th-'-t he gave Riohter i5»00 with 
which to buy ga.3 and oil and he g'i.ve him an extra dollar in case he 
had a puncture. The defendant st 'ted that he alTva,y8 gave Riohter 
soney to take Csre of whh.tever wasi needed for the autoaobile; that 
he oooasionally gave Aichter a dollar or 30 -^nd ^vhile on these tripe 
would pay for his meals and lodging,, Tne defendant said th?!.t he 
sent Richter to pick up the books on the ds-y of the seoident Ho 



s 

©if a-3oa.{-v3x:s:S i>.sr], a^i^. off,t ^;? -^ot.?, J:x fme zitdnf-'^s^, aoitw fea? B%ot9sxt 

og' ioc. ro jssjb .* ©ixri o;!' bioi r-'^r'^a b'i? Bii tr.rf* \rioism sri.t tmi? attc ed* 

'liati;!- feaea o^t i>sin,'-v-A- hrn?: ast/fc ti^tlt nx *iX9S mm mit li ^343 iBito Brid 

♦ soi'tiO si^J' oa'- fijefid- s^fofr .ten qi/ marlJ- 3f»i^' dXuow &ri mJ;d o# as[oocf Bifb 

?jil 9GS0 iJi t.?XIo.b i^T.^xa n.--, miri av,5su Sil iaajs lio bii.<i a 5'^ ijwiif o* doJUitr 

34 ^«.(J:J -bXfiB *c.fI>C9l'3.l) 9rf.T 4,^1-gbol im nlM»si sirf *r©S t«^' JbXyow 



3 

s^ve me a trip baclc to my house so I oould save time ooming down 
here to the loop*" The defendant further stated that aiohter was 
not on the \mion payroll; th-^t he, the defendant, had the privilege 
of hiring and discharging anybody that he wanted to» 

Plaintiff contends that Hilberg was not an employee of 
the union, but that he was an independent contraotor* The evidence 
shows no iiffltruotions were given to him and that he had no specific 
work except to look after the interests of the men, using his own 
judgment as to how he should perform his work, 

Ib the case of Be«ae v. Industrial Opamission. et ala 336 

Ill« 283, at page 285, the court said: 

"One who contracts to do a specif io piece of work and 
hires and controls his assistants and executes the irork 
entirely in accordance with his own ideas or with a plan 
previously given him by the person for whom the work is 
done, without being subject to the latter' s orders in respect 
to the details of the work, is not a servant or employee 
but is an independent contractor. * * * An independent con- 
tractor is one who renders service in the course of an 
occupation representing the will of the person for whom the 
work is done only as to the result of the work and not as 
to the means b/ s^rhioh it is accomplished, * » * The right 
to control the manner of doing the wrk is an important 
consideration in determining whether the worker is an 
employee or an independent contractor*" 

In Ferg:u8on & hB.nu:e Gpm v, Tfte Industrial Oommiesion. 346 

111, 633, at page 635, the court said: 

"It is impossible to lay down a rule by which the status 
of a person performing a service for another can be definitely 
fixed as an employee or as an independent contractor* Ordin- 
arily no single featvire of the relation is determinative but 
all must be considered together, ( Bristol & Gale Oo , v* 
Industrial Oom» 393 111. 16), In independent contractor has 
been defined as one who renders service in the course of aoi 
occupation and represents the will of the person for whom 
the work is done only with respect to the result and not 
the means by which that result is aooomplished, ( Hartley v, 
fled 3all Transit Oo*. 344 Ill» 534; Lutheran Hospital v. 
Industrial Qom* 343 id, 335*" 

In this case the defendant was not under the control of 

any one* He was the business representative of the defendant's 



.s 

to se-^clnfeis ni=: -tort gK;57 ^TSaXxH t-'.'ild- ai)n5;ffino 'r£l^cii.e,11 
cltio&qs on fed M tf:.sl'^ bn£ mid 0«t aovig ©tew aiiois-jsjaicfeni oxi ewofia 

;M,'5B iJitfOO »dt .458S s-gsq #s <SSS ,XII 

a.vfiq s d&in so eaa&i aN?o aid d-tiw ©tJCFi'Toooc ci ifis^itns 

a^xoXQES TO teevE^s « ^ws si t:?!!:^? arf;^ to nlL??t^b ^ti.^ o* 
*-ixo» taeMeqsMx «A * * « .^o;?-o.f.xrfrro9 i-«0&a«jq9fcnx ae »sx ^00 

^tfgX'x ©£(T * 'i" * *o$i![siXq;fi'iOS>o^ sx ^J^ rfoirf.'; \ii ©ajs-^ja exfi' o* 
'*»'x©*&«i*noo tasJbiiQga^KX n.« ^0 ir»»X6Xqffift 

ibLm ,t'xxr6« aifS t&KB Sa^q l>j ,gga ,111 

■■i?;Xed-iaX'5:©Jb ©d neo isrid-orrs lot aoivtaa s 3«i«tii:G'iiaq noftraq ?, lo 

"-flX.&'iO ,TOd*sextfieo #B®Jbn»q'«.b«x «» «« 10 e«^XgE;«> as &a b9xit 

Stsd 9vXrh'^0Xft5'f^cl-efo Bi aol&&lf^i &di to »3Xf*j80l ©XgaXa ©a xi^X'iJB 

*^ . 0^ 'SiXj?'0 -6 , |o^ £if g ) «T9d^^t^oJ l>*i«l)Xa«oo do r^si/fii XXs 

.rm ,1:o ^saiuoo ivsri^- «i S'^jivies e^*l>«^n ■ariw ««o ss X)S»iiX^!e& fisad 

!3orf«? TOl rtosTSc *(i# 'io XXiw Qilj}' aJfia^atqai fone isoXS-sqwaoo 

?ori sfTfj tfif/esi. Sjd* v# {^n^e^eaT ri^Xn ^Xao sx^ob ei ;&"So'?7 etiit 

*'^ Il^i5£M) »f>sri8XXi.TS)GO'M5,e sX tXi/8i:^T tMlt riol.o> i^xf aapesn M* 

*v Ijg;j-Xc; sofi tiB-£edlj>I ;«>«£ *XII ^^^S ,,oO # Xia^isi:T XX0H ^e^i 

»,cS>: .fci S^£ r xaoD X^?xi;t^tr&flX ,, 



4 

union, in control of his own tisae as to when, wher© and how the 
same was spent and apparently not reeponaible but for results* 
Hiltoerg had exclusive control of the automohile and the evidence 
does not show that the union in any way directed or controlled in 
what manner the automobile shovild be used; that in a legal sense he 
was an independent oontrsotor and his hiring of the driver was an 
individual responsibility of hie own ajid not that of the imion. 
Trust V, QhioagQ Motor Olub. 276 111. App. 389, 298 and 300; Burster 
V. National Refining Oq,> 274 111, App, 104, and oases oited» fe 
think under the evidence and the law applicable thereto th^>t Riohter, 
the driver of the LaSall© automobile, was the agent of Hilberg. 

It is contended by defendant thgt the manifest weight of 
the evidence shows that Drymiller drove into Milwaukee avenue without 
stopping at the atop sign and was guilty of negligence which proxi- 
mately caused the accident, and that the beneficiary, Drymiller' s 
widow* was also negligent at the time, and that Richter was free 
from fault* 

As usually happens in oases of this kind, witnesses 
testifying in relation to the accident gave varying statements with 
rega,rd to what took place. We think thst the statements of the 
witnesses who testified on behalf of plaintiff as to the physical 
condition of the autoaaobiles after the accident, both as to the 
position of the automobile in which Drymiller was riding and as to 
the side of the automobile which was damaged, tend to prove that 
Riehter who was driving the LaSalle automobile on Milwaukee avenue 
in a. southeasterly direction, suddenly swerved on to the Hiver road, 
striking the autoaobile in which Drymiller and his family were 
seated, while their automobile was standing still, and that the 
negligence of the said Riohter was the proximate cause of the accident 



««oiriir SiiJh l;o .:?i^'f!';f fc/i' .tm? m?o sirf lo ^^liMl&aoqSi^'^ Dmbivtlinl 

mtmMB l'^^-^' ^^' 3*^^ &^8S *qqA .HI a?};; ._^.dj;;£t> ,i,ag-oI .Q>i.ao.i4j;j ,v ^awxl 

3", «&etio g'^^e^'O 5at5 4^01 »,;q.-x *IiI l-TE «Oa> j^xg^l^^ji ^.nn<j x j.3 ji ,v 

gtetroi^ ;i-Br?.t otd'tdif^- sXd,?>slXqqa iwX ©nS Ijar.e sonair'iv© ©d.^ tBhau taMi 

**Xu«"i- tcoii 
».cf;3- t,*^.rit Ms ,XXitf-0 ^iXX>iTr*® 8^w aXicfopoJi/s ixadt sXidw t,h^itSiOB 



5 

wiiioh resulted in Drymiller's death. It is suoli a case of conflict- 
ing evidence that a jury is particularly ^rell fitted to determine 
wherein lies the truth of the testimony and the weight to be 
accorded the sa^ae* 

Defendant's claim that the Fife of Drymiller as a bene- 
ficiary of his estate was guilty of contributory negligence and 
consequently cannot recover in this action* The evidence is that 
she was sitting in the csr with the rest of her family when Siohterj 
driving the LaSalle o??r, suddenly swerved from Milwaukee avenue and 
struck the Ford car and killed her husbands She W8.s in the exercise 
tff due esre and certainly nothing she did or failed to do contributed 
to the death of her husband* 

We thl&k the jury was properly instructed and that no 
error was committed either in the giving or the refusal of instruc- 
tions. The cause was tried before a court and jury and we think 
the trial judge and the jury who saw the witnesses and heard theia 
testify, were in a lauoh better position to judge as to their credi- 
bility than is a court of review. 

There being no prejudicial error and for the reasons herein 
given, the judg-ment of the Superior Oourt is hereby affirmed, 

JUDGMSNf AFFIRMED, 

HALL, B,J. AMD HEBEL, J. GONOUH, 



I 



3 



38540 

ISABilLLE 3AKGER, 

Appellee, 

HATIOML PAIHT & WALL PAPEH 
OCaiPAHY, 6 corporations 

Appellant* 



PEAL FHi 

OOOK OOUHTY, 



s 




3 



MR* JUSTICE DENIS £, SULLIVAN DELIVMED THE OPIiaOK OF THE COURT, 

This is an appeal from tlie Circuit Court of Cook County, 

wherein a judgment for 432, 500 was entered in favor of plaintiff, 

claimed 
Isabelle Barger, for personal injuries sustained by her through th^ 

negligence of tlie defendant. Motional Paint & Wall Peper Company, 
Plaintiff's complaint alleges thet on May 18, 1933, she 
WB.8 struck by a truck owned and operated by the defendant at or near 
the southeB.st corner of Crawford and Armilragd avenuea in the City 
of Chicago, while she was in the exercise of due o^Te and caution 
for her own safety and was attempting to cross the street; that 
defendant's servant drove the truck past a standing street cer and 
that said truck was so constructed that the body of the truck pro- 
jected two feet; that the space between the standing street oar and 
the east curb of Crawford avenue did not exceed 13 feet; that 
defendant's servant in carelessly and negligently driving said truck 
between the standing street oar and said curb caused the projection 
®f the body of said tiruck to strike the plaintiff ♦ 

The sjiswer denied that plaintiff wss in the exercise of 
ordinary care for her own safety and the charges of negligence mad© 
by the plaintiff. 

Plaintiff's theory of the cage is th^t the driver of defend- 
ant's motor truck attested to pass a northbound Crawford avenue street 
car and struck plaintiff while she was on the south orosswall of 
Crawford avenue. 



i 



, "J. H U '-) r i t*£jS X '^.' 



\ ■■■'■■■' 

^ A a1 f. 'i «i "-? >v 



v U' ©11 

fesmisXo 

N^i- djjUCraS 'iQd Yd bBfXi^>^BiS^ B^lrMlCit li^'.nOB-X'BC TOl" ^'t^-^'-^t.- BlZ'ddi£i&l 

i'-At ji-5)©'r#s o£ij pncrro ot*' ■arixS'CB'ta.I'd'.s SBr; i)ii/-- Yt^-'^i^''^- -f^i^o tsrf lol 

;t6£[? •vtftSi 51 ii;?.s>o5rf) ton fexb Sivn^'V? bxol-n-^-rO 5.0 'J-itro j-ssa ©xfJ- 

tov'ii bt'-.p. ■fit^lvtzb \l^ts»-;^li:iQsx bar: Y*I*:<s®I®T.Ht) at ^nsvs9s. B*^astai)\®b 

ari tirc.&loxc>: ^lii E^3sir---c cHuo bls.e has 'xho i^a^rt-J-Q ^-ifsi-fe/f^ds srfj- dsiS7f*«d' 

^Ttlini:!ilq 9ii^ •jilX'vD-a ::)? Jlows^- inl^^G to 'i^oo sn* lo 

sb:-!:^ &O0,«'aiXS®r? 1:o ,9-'5':??Tij:j:io add- ta.'- 'itBlBe smo ^©ff 'ioi -^'.r,:-rj Y^f.'snx&to 

"bix'^iBb "^.o revt'sb sad' -t-'.-nt si: sej*o ©j:i# "tc vxoerl;?' B*J.'lit(ix.&£'-'L 
iB'?y'}-&E ©.aa€>7:7 it>i:o1:--j,*"iv) bni/ocfC'lToti ,o BS.aa: or'' j&9^rs|ai9•tc^« i^s^ifx;*- to&im a^itijfi 



Defendant's theory of the caae is that plaintiff was 
direotly and solely responsible for the accident; that at the time 
its truck started up the traffic light was green for north and south 
traffic; that no oars were parked at the east curb, permitting one 
to pass the street oar as there Tsras ample apace; that plaintiff was 
not on the crosswalk nor in the street; that plaintiff had just 
purchased a newspaper and was looking st it and proceeded westward, 
took a step off the cxirb into defendant's truck as it was passing, 
coming in contact with the truck just back of the cab on the right- 
hand aide, 

Uo error is assigned as to the pleadings* 
Byron G. Grealey, ?• witness caaied on behalf of the plain- 
tiff, testified that he was a surveyor and that he was faiailiar with 
Crawford avenue, now known as Pulaski ftoad, at its intersection ?fith 
Ansitage avenue; thot both streets are approximately 40 feet in 
width; th'^t the former street runs north and south and the latter runs 
east and west; that there 3re street car tracks for traffic in each 
street; that the distance from the east rail of the northbound street 
car track on Crawford avenue to the curbstone is 14 feet and there 
are stop and go lights on the four corners of this intersection; that 
the 9top light at the southeast corner is located approximately 
9 l/s feet west of the east building line of Crawford avenue and 6 
feet si inches south of the south building line of Armitage avenue; 
that the south crosswalk of Armitage avenue from Crawford avenue is 
7 feet north of the atop and go sign, and that it is indicated by a 
raised gutter ajtid the distance to the east edge is 6 inches; that the 
east curb is 12 inches high and 3 inohea above the surface of the 
crosswalk at the center; that the crosswalk rises from the street as 
it approaches the edge of the gutter; that it has b rise of about 9 
inches froa a point a foot south of the south curb of Armitage avenue 
to the center of the T?alk« 



s 

;?S.tfi; fe-i^fi ■fliitai.E.Xg ferii j-tsa^i's Siiif at 'son :?ilBW880T0 srfiJ- no *on 

"id-glt vyd-J- no d,fO Md- xo iOjrd ^se;(; .'sCOii-r^ jjS;!' ri.tx^ cl-j^^d-Koo ni gxiifsoo 

*ai>iB haM 

^&%:itlbeelq Bii& o'^ bb losxigliicja si 'xoata oil 

.do«:a iti oiTte'vo'- tol fj?;o.«;'cJ' ^so ;f9DTd"e st.c si-xsrid- tBdt j^ssw baa ta.39 

oirjii;t ban ts^'l >i as. ^noisotijo aat o-t ai/nsvs biQlvB'tO (to iof<it x&q 
If- if;? {ix<i.iioQs^i"i^al 8xd;f lo ai&ri'soo -lyot ssrfJ' no roS-i^il oy. &n-p qoiB 9i:b 

.9 \(J bis^ip.oibni eX ^i oBsi& bass «i53i3 o;g te.t^ qo#B sM* 'io iCi'-'Son *9a'i ? 

^di to ^OR't-xuE? s:ii j*voG -i ssrfoxxi S bnp^ A-§M estloni SX al 6'isso tsxiB 

G c^J:;ods 'io asi'i <=; ?.^^d ti. :^'^>dS itsttu-g Qdt lo es-b© dad- a3ffoj«o<xq:q.« d"! 
syflOTP! ©•ij,Ei-ltf;.i:A lo <^Ti/o rf^jyos a/I* lo tfi-i/<os *6ol .«. drrloq -a woft asxfoiii 



3 

Plaintiff testified that on the day of the accident she 
left her home at 1817 North Orawford avenue about 8 o*olook in the 
morning to go to her work at Mandel Brother® where she waa employed 
as a saleslady; that she wss 3S years old at the tiae of the accident 
and had been previously married; thst alie usually boarded a northbound 
Orawford avenue street oar at Bloomingdale road and rode two blooka 
north to Armitage avenue, where she would board an eastbound street 
car for downtown; that the intersection in question is b buainegs 
area; that on the morning of the accident she got off the Orawford 
avenue street oar and walked over to the newsstand located on the 
southeast corner of Orawfoird and Armitage avenues and bought a news- 
paper; that she intended to take the eastbound Armitage avenue street 
oar; that in order to get that street car she would have to cross 
Orawford avenue; th^t the newsstand faced south and while buying the 
paper she was facing north; that after she bought the newspa|)©r she 
started to cross tbe street and had one foot off the curb when she 
saw a truck swing from behind the street oar and that she stopped 
and cannot remember anything that happened after that until ten or 
twelve days after the accident ^en she regained consoiousness while 
in the West Subtirban Hospital where she had been taken; that her 
right arm was numb and that she could not xise it and her rig^t side 
was sore; that one eye was bandaged and that she could see faintly 
out of the other; that her teeth were all loose; and at the time- of 
the trial she was having a plate made; thcit the vision of her left 
aye is completely gone; that her rigjit leg was paralysed and that her 
left side is paralyzed; that she always has to have someone with her; 
th^at her shoulder comes out of the socket and she has difficulty ?9hen 
o«abing her hair, 

Paul Abrahaas, the motorman who was operating the northbound 
Orawford avenue street oar at the time of the accident, testified 
that he recalled the occurrence; that when he got the bell to go 



e:iooXcf 6'v# ©j;-;et M>? fcpc>i sjX&.b7^'HXA''iOoX':i <is -.v.^'^o ^estc^a &mas>v.e bro'i.w^.'SxO 

btKilr^rxQ ®4i;t "tlo .tKr.:-, S4s ij.aebi:5>tv#' &n^ 'to gitim^osi *9i-t^ a© d*«fl;J- .j^^^i?! 

Site a&if?? dxuD ^.d;^' tlo S'qo!'; eno i:.?-ff Iwis ;{'0©'x?i"iiJ ^d? s&aiso of J5Sd"ia;t'a 

x£.i>-tl^f2 e&s blvoo 'Me &.Kdi bap mg.mti.tid, a^w S'^o buo iaAt iQioa as* 

lo ftfiiiJ' 9d^ iif~ Jb.(x.« jeaool XX.*^ 9tB--i it^&&& i.?>-d ^-Oit j-xati^-o bM to *»«> 

#x^X isxs lo £iOi:sXv Sii'^ itf.xfjJ" jofc'-;.?; <»&Mlq. fi 30iV':d ev -; Siiis lsji%& 9rf# 

pXlm r&A gflicf»oo 



4 

ahead and started on the green light he got to the north aide of 
Armltage avenue when he got the stop signal from the conductor; that 
the front end of the street car was about fifty feet ox ao past the 
north curbstone of Armitafe* avenue; that between the time he gt^rted 
and received the signal to stop he s?.w the truck on his rigiht side, 

Che-rles £* Jelinekji a witness oalled on behalf of plaintiff, 
testified th^'t on the day of the accident he was seated on the east 
side of a northbound Ofawford avenue street oar and witnessed the 
accident; that the car was waiting for the green light and as it 
started up a truck flashed by hitting the plaintiff and knocking her 
into Armitage avenue and cutting the street oar off about in the 
middle of the intersection, stopping about 100 feet north of the 
corner; that when he first saw plaintiff »he was about a foot off the 
sidewalk; that the truck was an open stake truck and th'^t the side 
of the truck a',Tay frota him hit her; th-'t when the street oar caa© to 
a jar stop he got off and saw the body lying on the eastbound Armitage 
arenue oar track, right off the corner* 

Don Barger, a brother of the plaintiff, testified that after 
the accident he saw the truck that hit plaintiff and that there was 
blood on the truck right behind the driver* s cab on the side of the 

body. 

Joseph L« Hodgins, called as a witness in behalf of defend- 
ant, testified that he wss a chauffeur for the defendant and on the 
day of the accident was driving a Ford stake body tsffuok which had a 
wheel base of 131^ inches and that the widest part of the truck wag 
73 inches; that he had been following a northboimd Crawford avenue 
street car and that upon reaching Armitage snrenue the street car 
stopped and he stopped and he brought his toruok between the curb and 
the tracks on the east side of the tracks; that the rear end of the 
street oar was about eight to ten feet from the front end of the truck; 
that he stopped there for the lights to change from red to green; that 



iX sj?. M.fi ^rfrjil rr^^Tg si^tt 'tot •ariid'ifivf er-,^- ■tci'j edi'- J-^fl* ;fxr&.&ior>s 

ot sfeis© -rBC ;|-&«?»^3-B s.c?.^ iiBSki t.'-d'J j'-ced ?J-iii sfi.t"i m&tx '^.sw.!^ sfOirr^ sxj'i- to 
s-g-.^.ilmr.A hm>o6is!?<5 Qdf no 3«XYl t^<^'^^ ^'--^ ^fss fens l-'to toi} ^ci qp&B 'jifi^ s 

•'srea'ioo or?.t ^lo d-xfei-r tylosis' ibo »act®vj8 

BSii ac baa ;f«eJ5f»sl'3J5 srti^ to'-y. 'xu&l'XLrMo b ei;v? ©ri &.isxit bsmte^^ ,*«* 
ss« ;:IOi?xS- aa# lf> i-xjn'.-, tB®bli{ stM ^fsM ^& &mi&ai flEI 'i^ ©a.^cf Xaoriw 



5 

at the time the street car started up the light was green and that 
he started with his truck in first speed and was going along close 
to the street car; that he was only two or two and a half feet away 
from the street car; that as he passed over the croseiraJLlc he heard 
a bump some place behind the oab on the right aide; that he pulled 
over to the north side of Ariaitage avenue so as to clear the traffic 
and looked back and saw a woman lying in the street; that when he 
stopped his truck was ahead of the street car* Hodgins further 
testifying denied that he out over in front of the street car fro® 
the time he started up until he came to a stop after the accident, 

Leo Pasowioz, a witness called in behalf of defendant, 
stated that on the day of the acoident he was standing on the corner 
of Crawford and Armitage avenues near the newsstand; that plaintiff 
was biaying a newspaper and that she looked down at it and started 
to walk towards the west side of the street and walked into the side 
of the truck* 

Mlliam Steele, a witness called on behalf of defendant, 
testified that on the day of the accident he had a newsstand at 
the southeast corner of Armitage and Orawford avenues; that he ha.d 
been selling papers there for about a year or a year and a half; that 
plaintiff bought a paper from hia on the morning of the accident and 
that she started toward the eurb and the lights changed for "go" and 
3ust as she stepped off this truck was coming by and she walked right 
into the side of it« 

It is claimed that the evidence does not sustain the judg- 
tamt; that the court erred as to the instructions ^ivea and refused: 
that the conduct of the attorney for the plaintiff was highly im- 
proper and prejudicial to defendant; that the court erred in the 
exclusion of certain evidence offered by defendant* 

As to the first assignment of error; As usual in this type 
of case, the statements made by the witnesses are conflicting* The 



8 

seolo sKOl£. gaioj? as?.' .&aB b^rsrif. i>y£it at -J.oxi'xt Bid d^tvi bB&v.BtB &d 
v^-'^n i-Q&'^t ISi&d B hn^ cwt t!:o ovj-.i •\fXfi© H'W ^ri ^^^dt ;'£.sg t-siBT&B axis' ot^ 

SsIIyq Sil :l,e.f;:J- ^efc-ie J-ft^jXT *?:d« .ac a>o && bnidBCl -^o.f^.lq ®tmB qmsjd & 
HiO'xi ISO ;?«5T;i-e 8it\t 'to S-noil: ni lavo too srl .t,sfiJ .bQlnsfc 3a^Y^-^*6«# 

■tr. baztsBTi^n s hnd ^d ,-faZ'tioos stft lo tr-> arid- «c J'-rf;)- fiaili^fss- 
bat^ "og" 'lo"* £i9^asifo strf.j^iX adt M& cfypo Bdi i^sswol b^i'tJi^& »d8 tjsd* 

«^aj^i:;n?yl©£) xcf b9%fi^it9 a»o-a»^i:v» aia^-xeo lo floi««X©x« 
ail's' «w!£,tf?iX"txioo sxi? saaBsnrf-xi? sriJ ya" ©i-isas eJiraffis^-o^tg sj:it jSe.eo 'to 



evidence tends to ahow that the body of the truck in ouestion was 

more tban six feet wide and extended out on each side of the front 

of the cab; that it struck tlie plaintiff and injured her. While 

gome of the witnesses stated that plaintiff walked into the truck 

and was thereby guilty of contributory negligence, others testified 

that she had just stepped from the curb i?hen the lighta changed aad 

that before she could retrace her step to the sidewalk, the truck 

suddenly dashed from behind the street car and struck her before she 

could reach a zone of safety* In this case the jury ras in a position 

to weigh the evidence and judge as to the credibility of the witnesses 

and we believe there is suffieienb evidence to sustain their verdict* 

The question of contributory negligence is settled by the verdict 

of the jury. 

As Mr# Justice Wilson said in the case of Hill v« Richards op 

281 111. App, 75, in Quoting from the case of Cleveland Q» C. & St« L. 

Rv. Oo . V, Keenan. 190 111. 317} 

'^The question whether Kerr w^^.s guilty of contributory 
negligence wsa a question of fsct to be passed upon by the 
jury, and while the burden of proof was upon the" plaintiff 
to show that Kerr was in the exercise of due care for his 
own safety, it did not devolve upon hia to establish such 
due care by direct snd uositive testimony, but suei? due ears 
might be inferred from all the circumstances shown to exist 
iauaediately prior to and st the time of the injury, and in 
determining such question the jury might properly take into 
consideration the instincts prompting to the preservation 
of life ?.nd avoidance of danger, ( Terre Haute and Indianataolis 
Railroad Go. v. Voelker. 129 111. 540; Illinois Central 
^.ailroad Oo . v, Mowioki. 148 id* 29; Baltimore and Oaip 
Southwestern aeilwav 00. v. Then. 159 id. 535*" 

In the case of Gore v« O'geefe Bros. Qo . 380 111, App, 

163, the court at page 165, s^-ldi 

•♦It is urged th?t defendant was not negligent and 
that plaintiff wi.s guilty of contributory negligenoe^ 
Both these questions are settled by the verdict of the jury,*' 

It is claimed that error was cofflmltted by the court in 

the giving of the following instruction: 



fees x-ss«Mo Bi,kt^i:l ®.da nsff^? .t-xwo 's^ti? :aioi;1; .fef<r<ftvg il"®i?i &«rf »ife *BJi3- 

io.CiSj-. Bdt ,:^Xei?r'St>i:a o,d^ ojI- q®;;?© iSil sSit?td-a^ l?Iji.fa:> axis siolej^ tMdt 

eiiS SYci^re'l Tar: i.ot'^.t^; bit-a '■r-a& ifa&T;^© &.(.y- ^*a|4&ci piozi mdQBb xln&bfysjt^ 

o'-oii>^f>v add- '^d isftl^fsc ai s®«®'3i.X;B9iX -<n:o^i.'<i:it!:^rfo^ 'to rioi^ssi/p s^T 

j?XS .1X1 Oei tMS2^ ,tr «o2.jO[S 

.9fi;t ^cf iToqx; bs^em acf'oci- tori: I'o rtoid-ssx/p .i? asisr BoaHi^.Xl'g&a 
Blii. I'ex srao Bub 'to egicrsax® ^dt lii esw 119^ ;)'£fi;t s?orie o;?- 

noiitavi5;r'©'i:a 9dt Qt i0.1t^:^siQi.q *aO«i*®fix ^f.rld' noii'.'nobi.sttoo 

"im^mO 'BiofiiLxl ^0h<^ .III ^PJ K^MI^^ *^ .i&SLMmxUM 



,q0A »IXI OSS ,,^p , j.,soT» stsea.'g ,v ^loi:} te 98.ss ^jdrf «| 



«Tbe driver of an automobile is bound to anticipate 
that at iTublio street interseotione or crossings people 
may be crossing said streets and is bound to keep a proper 
lookout for them and to use ordinary cere to keep hie 
machine under such control as will enable him to avoid a 
collision with a pedestrian rightfully upon ssid street and 
in the exercise of due cs-re and caution for his safety, and, 
if necessary, he aust slow up znd even stop. In other words, 
he must use all the osxe and caption which an ordinarily 
careful and prudent driver would h?ve exercised under the 
same ciroutaatanoesj) and if you believe fro® the evidence 
in this cause that the driver of the automobile sa^r the 
plaintiff or by the exercise of due care could h^ve seen 
the plaintiff and had a full view of the situation before 
the accident, and by the exercise of reasonable and ordinary 
care could h?^ve avoided and prevented the injury; and if 
you further believe from the evidence th^^t he failed to 
exercise such care and in consequence of the isrant of such 
reasonable care, if you believe from the evidence there 
was any want of reasonable care on his part, the plaintiff 
received the injuries complained of, then you should find 
the defendant guilty provided you further believe from the 
evidence that the plaintiff was in the exercise of due care 
and caution for her own srfety at and just prior to the time 
of the accident in question*" 

W© cannot say that this instruction is subject to the criticism or to 

the construction insisted upon by the defendant* We do not believe 

this instruction could be construed as saying that the plaintiff 

was rightfully upon the street or that there was an obligation upon 

the defendant's driver to stop* Rather, we think it merely points 

out that if the driver of an automobile sees a person -^.t a street 

intersection, where people usually are when attempting to cross a 

street, it is the duty of the driver to use reasonable care to avoid 

hitting thst person* Ttie instruction complained of was on© of a 

series of instructions given and as the Supreme Oourt said in the 

case of fteivitz v» Ohioago RarAd Transit Jo * ■> 337 111* S07, at page 



213: 



"The office of instructions is to give information 
to the jury concerning the law of the case for immediate 
applio«tion to the subject matter before them. The test, 
then, is not iifeat meaning the ingenuity of counsel ca,n at 
leisure attribute to the instructions, but how and in 
what sense, under the evidence before them and the circum** 
stances of the trial, ordinary sen acting as jurors will 
understand the instructions* ( OhicaECO Union Traction Oo* 
V'» I^owenrosen, 333 111. 506; Funk v. Babbitt. 156 id* 40S,)« 



YliiBni&'co n/. cfoxm' noity'^o has «x«t) sjid- XIjs ser; (fatjia ©d 
a/ft tsfcficf t-a&tny.&rti' sv;---d bXe-tm' T®rltl> ^fi'sfewtq has. Icflcft^o 

s^clacf fi[5j;t£ja,-ti:s &iU to ■n9>Xv XXdI re bsad baB ttltais-dq »dj- 

Oj fesXi,?.*! s/i cl'>:rl;f ^onabXv® grit mct'c ©v^.clao. •tsnd'xu'i uoy 

lli#ni-^.Ic 9ef# ^t'im Bid no btm-o slfeitoe.sa's lo *i?m- '\fflB a^sw 

a,s.t.f 0ifj)' o;? 'jcoitcq :t8X?f, fsflii'. ti? Y^'^f® KtO *»jS tol «o.tteno £ifr,B 

"«Ptc-ji.ta3WG ax in?^biooB ad* 'io 

o;f 10 {aeiDld-XTO 9£i"i'- od- ,to-5^cfu8 ex coX.tOi/-:rrGiii; sxa^- .t; rf^ X5,!& iocmsf^ ew 

I>xoVB c>& 9ii'o yXfiaii'oa.eS!"!: sxuj o.t •i-9vit!:& ®ff# 1© •'f*ulj srsf ®i *x ^feasd-a 
f 'to ©so eew ^o fc9r/i©i4?xepo a^ltmntnal •snif *tio&'i.&q -j-nift? :a4ii:*#zri 

93-sCj- 1? jVoP *iXI ?^?; . .ei;; ^jgf^sy^ MaBF oaj?t>M> ^^ ^li?jg>| ^0 ss-bo 

- :SXS 

/5ox:-h;;Tito"i.r?i svXg oj ex yfloicfa^'^iJ-efiri; to ^fiill^ Jii-Ji"'* 

4,t8-3;f oiTT- .J{:.®Ji:? BV.c'tii(3 'x»**.Sffi S-e^t^i"^ *rf* "^^ ^•■Xif^ilqqff 

\fB miO isnavoo to %fi'ja-»-gai »rf# -gBxuMm &ism Smt si ,0-9,^ J 

jai fcjRJB wcrf *yd ^sviu-jiifcur'rtf-ss)-! sfflJ' 0'* ©tucflii-JP ©'si.'-sgiftX 



8 

Ccffliplaint is made to that part of the instruction in 

which the court explains to the jury the deol:^ ration and what it 

contains* we have held thia to he proper pr'^ctioe* As was said 

in the case of Central Ry^^ Go , v» aannister. 195 111* 48, at page 49; 

"Had the instructions copied the allegations no objection 
could have been urged to them." 

See also eat Ohicago H. ft. Qo» v» Lieserowitz * 197 111, 807, 610, 

The part of the instruction criticised by defendant, reads: 

••It is charged in tbe fourth count of plaintiff *8 complaint 
that on S3id dste both of said avenues, to-wit, Crawford 
aremxB and Armitage avenue, passed through a closely built 
up business portion of the said City of Chicago, and said 
defendant then and there carelessly and negligently drove 
and operated its 3?id automobile track northward along said 
Crawford avenue and over said intersection and through said 
closely built up business portion of tbe Oity of Chicago at 
a rate of speed ^hioh vr&a greater than w-is reasonable s'nd 
proper, having regard to the traffic and the use of the w^y, 
so as to endanger the life or limb or to injur© the property 
or any person on said public highi<'ay and at a rate of speed 
in excess of fifteen miles per hour, contrary to and in vio- 
lation of the statute of the State of Illinois in such case 
made and provided, and that as a direct and proximate result 
of the negligence of said defendant, said autoraobile trucis: 
struck the plaintiff violently throwing her into the air 
ajid causing her to fall violently to and upon the pa-vrement 
of Armitage avenue, « 

Defendant contends that this instruction is erroneous in 

that it tells the jury that a rate of speed in excess of 15 miles an 

hour is contrary to and in violation of the statute of the State of 

Illinois, We do not consbrue this instruction as telling the jury 

anything about the speed, The court was merely telling the jury 

what was contained in the fourth count of olaintiff^s complaint. 

If this statement was improperly in one of the counts of the complaint, 

it should have been eliminated on a motion by defendant to strike 

before the hearing. Defendant having seen fit to permit it to remain 

in the complaint, we do not think it was error for the trial judge 

to tell the jxiry, among other things, what the declaration oontaii»d« 



bzMs Sfn? S/!. ^Bi^tto ■-">:<:; ^:0€roTrq ■^cT oci- eifl-i- M^ii siv.«=frf s* ,pfi:i.Sit«o«) 

",£iSrf,t Of- Bsi$''<:.tf fiBBiS »Vi;£i foXwoo 
*OIc 4TOS *XXI TSI \.s£;«^1^8giji •'^^^ >.c>^. .«^ f,.n ea)?o idp .^;f; a ei.; osXb ©sS 

|ysot^.<*TO titivf-o* \e9x.i4tsT:f fci'F-ss lo ili^ea e';f<-.ui &i«B fto «*-G/rtf 

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^\G•^ ad J ^o 98W n-dt bits. ox'ix.Btv ®rii^ oj fe'ri'-'j^i^x -^i-^Bsi ^-jsqe-xq 
\:5''Tca;;i^0'i-q eifJ- 32x;tni o* to dmll so s^^il 3i;:r -leaj^^riB&ft's o# e- os 

-oiv fii i:ai o^ xi&'r^yico ^isjcd tf^q eoXia f{5©^'3:i'5: ^0 aaaoxs r;i 

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loutt !SXi:doiso#0/5 bii??* t^ii,el>a©t9l? :E>x-:q lo 9©il§'glX'.'§«n: siii to 

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nhmi^inoC' .ac}lt.&T.i'l0Qh 0ri* ;J-.&ifw ^sjjxilfi^ inMe gctOBJ? <X^i?f, ««"* XXsit o.i 



9 

Further objection is made to the instruct ion in that it 
usea the language of the pleader, vie do not think in that respect 
that error was oorninitted. 

Defendant further complains that the trial court erred in 
refusing certain inetruotions. Se d© not think error was oomasitted 
in this regard as the subject-matter of these instructions was fully 
covered by other instructions given and the defendants contention 
fairly presented to the jury* 

It is next contended by the defendant that the conduct of 
the attorney for the plaintiff was improper and prejudicial. We have 
examined the abstract in this regard and we are xmable to find that 
defendant's contention is sustained by anything contained therein* 
The court properly ruled on the objections that were made and the 
record is free from error in this regard* 

It is further olaiaed that error was committed in sustain- 
ing objeotioBS to the offer of proof by the witness Glene Steele; 
that it was stated she would testify as to what her son Willie 
Steele told her about the accident when he came home out of the 
presence of the plaintiff, m think the court rightfully sustained 
the objection to this evidence* 

No error was assi^ed as to the extent of the injuries 
sustained by plaintiff nor as to the amount of the verdict, so we 
vriil not refer to them except to state th?t from the injuries sus- 
tained, the amount ali^owed by the jury does not appear to be 
excessive* 

For the re?>8on8 herein given the judgment of the Circuit 
Court is affirmed^ 

JUQSMENf AFFIRMED* 
HALL, P.J. AND i-ISBSL, J. COKOUR* 



I 



6 

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vX.iift'Sify^ ttnOi&tmtSsni aearft 'ta T:sy#.sifi~to&|;<^we ©At se JNr.if?gsT siifi tti 

&di feffp/ ai).Bffi Qi^nr a.fiifit mwIttiB^do &kii no Jbolcrs Y''''^'®f'[Oitq **s:ifoo sriT 

b&al&'iBJj& ^llsjJtii^^i'x d-trtro© 9rl* ±aX6i »t ,'tliS-iiXBXef »iK# lo ©onssaiq 

..soitsbivs 3lD'.t ©* acitoe^tfo eiirJ- 
9-^sf OS td-oifc^rj;'.' 9;jj to tiwosio Btii ot !&& tOB lll^KXjiXq \d l!j»rti,s*«j;e 
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b6 Of tf;i5<?q.e .tort st&ofc t^wj; 9ff;t xa' J&»^7ei£I« ims^msi »M ^b^nt-Bf 



/ 



38628 y 



MARY SCHALLER, *" ) \_ 

APPEAL FROM 
Appellee, 



OIROUIT COURT, 

COOK COUIffY, 



METROPOLITAN LIFS INSORASOE 
COMPANY, 



Appellant. ) ^ \^ \j ±^j±^ O 



MR. JUSTICE DSIIS E. SOLLIVaH delivered the opinion 
of the court • 

This is an appeal froia the Circuit Court wherein a 
judgment for |2,000 was entered on the verdict of a jury in 
favornof the plaintiff Mary Schaller, named ae beneficiary, 
and a^inet the defendant Metropolitan Life Insurance Company, 
upon a group insturanoe policy issued by the defendant on the life 
of Abel Schaller, hxisband of the plaintiff. 

Plaintiff's theory of the case is that Abel Schaller 
was employed at the time of hie death and the defendant's claim 
Is that the insurance on the life of Abel Schaller was canceled 
almost three months prior to his death and that his certificate 
was not in forea when he died, No question is raised upon the 
pleadings* 

The proof shows that on or about May 1, 1931, the 
policy of insurance here sued x^on was issued by defendant to 
Abel Schaller, wherein his wife, who is the plaintiff here, was 
named as beneficiary and that the said Abel Schaller died on 
April 27, 1934. 

From the evidence it appears that Abel Schaller was 
a carpenter and for many years worked for the Becker«Ryan and 
Company store, a branch of Sears, Roebuck and Company. The 



Bsese 



i-^ r*. A ®^»' f^ T ^ Q Q ! 



4^n,*!qiMoO ooastTifairl ©liJ nad-JiXoqcyTtsM ^a:ii)J30Je& '-tdt .tairliBgjs fens 

mtjilo B^fn.^-bti&'t&h Bdi ba^ d-J-mob Bid to Bsfitt ©rfrt tM fee^olqass 8J5«' 

fe©Ie-oxi«D »/;» tiillBdo? iQcfA 'to 0l;i:I -nirf- no f^oiifnimai erli ij&di at 
B^tiOiiUtSio Bid. tf-.-s^uf bfxj', a\tiss.b siil oS totzq srfo'.ao.ii sisiriil' tBOmls 
erU iioqir fooais^ sx rtoxifssi/p oil ,b©ifc 9(1 coriw ®&toi rsi *on s^w 

9di tA'JIGX ^X Y-'3^? ^irods 10 no te'i* aiforfs 'ioo'xq ©/IT 
O'J" oHBl).a«;1'.6b i^d 6ay88i -3..ew noqxr Jb©t?a staiS 90£i.F.X!;;3;ii lo Y^lioq 
BJjw ^s'larf 'i5:i:i-ni.6iu end- lai o,a'w t?9liw sirf nis-isrf* ^tcolXr.ilDe XarfA 
no &ai6 '.eaXXsfioO XstfA M«« erf^ *biI3- ftflt? Y'^t-ioi'tsriscf as b9?«jsfl: 

.^oSX ^YlJ llrqA 



Beckex^Hyan and Ookpany store oloeed and as a result thereof 
Schaller, the instired, did no work ftom February 5, 1934 to 
March 20, 1934; that from March SO, 1934 to April 25, 1934, 
excepting the first week of April, 1934, he worked for Sears, 
Roebuck and Company at two of their several stores and worked 
for them on April 35, 1934, the day on which he received the 
fatal injury from which he died two days later^ 

Defendant contends that when Abel Schaller ceased 
working on February 5, 1934, and came back to work on March 80, 
1934, that he was a new employee and defendant further contends 
that the money he received between the dates when he was laid 
off was not regular compensation. 

There appears to be no question that Schaller, although 
osfteneibly employed by Becker^^yan s«id Company, was in reality 
an employee of Sears, Boebuok and Obmpany and thi^ they were 
one and the same employer, fhe certificate of insurance des« 
oribed Schaller as an employee of Sears, Roebuck and Company and 
it is admitted that Becker— Ryan and Company was operated by 
Sears, Roebuck and Company* 

It ie further contended by defendant that Abel Schaller 

was not eligible for insurance becaiise the insurance policy pro« 

iDides that in no ease shall any employee be eligible ixntil he 

has completed six months of service and is then actively at work 

on full time aoad for full pay* This contention is baeed on the 

clause of the policy which reads as follows: 

"Eligibility ^ All employees except those excluded 
below, who are actively at work on full time and for 
full pay on the effective date of the policy and those 
employees then absent upon their retxim to active work, 
and new employees shall be eligible for insurance here- 
under - except that in no case shall any 
" pgesent or futi a re aew^ 

future new ) Employee be eligible until 



he has completed six months of continuous service and Is 
then actively at work on full time and for full pay, ^ 



4->SGI ,aS Xli'?A o;? '^?!^I tOS iloteM svotI; Ji-jri# |Mei ^aS jsioisM 

6©aseo 7.©Xi^.<lo8 IscfA nsiis^ cf-orli- ab-as-^frifvo J-a^Df.t'U'reCl 
afmsiJnoo 'rerf-t^trl tiisAnslrib fcre» 3©Y<>-i-Ii'^s ^^^i"f ■f' ^-s^' ^'-^ tf&di tl'SSI 

,J3?5l*SaBO'Q:iE<:jO 'Xf-l£J?fi^Sr toil ej?i» t^o 

B'x^^ X^si:> Shisrfj- b^f^, YQ^sicJQ ftos :;^oj;fcv0oS »aijB«^ to 98i5oXqisi(& us 
•-865 ?^m.a'm?.iii. lo s#.a»JL'ii:?J'e»o ©jiT *^~®»roIq*s$ sissB ad* &jse sao 

9.(1 Ii.;tiio alcfigillB 9fi ©9Y0lqj-Ti9 >!£(« IlBrfa ^«?J!SO on cI -^mM 8sfe|«f 

afi* no bssM «i nol:;J-iia*.croD aXrfT .'bts*? IXirl: ^ot i&fis ©arJt# XXtft jKo 
jawoXXo^ SB afesaa riotriw Yc^iloq ©ii^ lo ©BfirjeXo 

s^aorid- iJif.g ■v:oxXoq s»f{;J to scf^fe avlfosTts s^ricf ft© y.s<^ iijr^ 
•-©^erl f^mmtjmai 'x.&\ ©XsJigXIo scf ILada e^sijoXasia won bus 

Itiaa iildistl!9 oaf SsgiYoXqma ( wea ©-orj^s-flt ) 

•1. i- ^^.'T» jvn t<vriv.n.> n>Fn>.<ta)r >'>ra<s<^ % xt. *trt^ttf\rlu r P *i t\m-¥e\ fi,'tNtr''n a rte( i\ri 



Another clause of the policy that hears upon the 

relation of Schaller and Seare, Roehuck and Oompany, reads an 

follows: 

*Lay-off or leave of aheence of three (3) months 
or lees shall not he considered, and retirement on pension 
shall not he considered a termination of employment 
within the meaning tff this policy unless notification 
to' the contM,ry shall have been given hy the :toployer 
to the Company within thirty-one (31) days after the 
date when such lay-off, leave of absence or retirement 
shall have commenced* " 

It is further contended hy the defendajat that the 
report of Sears, Roebuck and Company to the defendant insurance 
company shows that Abel Sohaller was dropped from the roll of 
employees. It does not appear from the evidence, however, that 
the defendant received any notice that Seare, Hoebuok and Company 
had finally discharged Schaller from their employ. The records 
of Sears, Fbehuok and Company on the question of notice to the 
insurance oomj^uay were excluded by the court and the defendant 
has not assigned error because of this exclusion* 

It is contended here that the pr^osiun was not paid on 
the policy in question.. No such defense was set up in the 
an«wer of the defendant and, as this is an afflimatlva defense, 
evidence concerning the same could not be presented unless it 
was affirmatively alleged in the pleadings* Smlth*>Hurd *s Rev« 
Stat«, Chapter 110, Par, 157; Benes v* Bankers Life Ins. Co, a 
282 111, 236; Onion Trust Co . v, OhioagOi etc., Ins. Co. 267 
111. App. 470, 

In this case it appears that the main issue to be 
decided is as to whether or not the evidence shows that the ^oaploy* 
ment of the deceased permanently terminated on February 5, 1934, 
and that notice thereof was given by the company as provided by 



woiansq no ^XEssc^etii'SJ'i: bns tbaiefiiaitoo so' 3-o« Xleilia s«9l to 
TS>'S:oXqt'£5:. s>du ^S asvlg /j^ti^cf ©ViSiS jMBfie Y.tjBtia^o m=St>it't 

#fl»j;v9*£iS'0'X "SO «&J3Sa<1"« tC €>VB»I jliO-'^^X iiOjV® S©iilT Sits& 

lo IXots: *-rtJf mo'il li®C!.qc«:i? -^!s«? i«iXaffoS Xsq'A t^i* gwode t^ajqisoo 

af)totJ©s «t«Sf ^^©Xq»ii9 li^ii'* sotl: i@XX«;Sc>a i5f^||X8fiOiSi:o tXX^Oit £>,»fC 
©iJi- o;i' aoX«oii io nol^a^jap sd# «o ■^xisjqwoD bm=i ^jSoMsoH ««ts®B lo 

ti ■oaeX.fii!' l>S5.i-a«as*iq »o ioix &Xu"©d ©rasa ^srW gHixixeoixoo ©i>£idJbX»« 

«Y®H s* &xx»H*^^iit!@ *si/iXi>«eXq 02^* Kt fiegaXXs xX«v-|^««ii'il« ajair 

tjs^_-sJELjli.lJlM52i -^ 3aSS§. t'^-f *'^^'5 tOXi «s*<J-sdO t,*.«*8 

V8S ,oO ,QvfI ,«Dt«?, ^<i^i^^Mk *'*^ »<:>.0 ;i-ayiT Jiolisp (a^S .XXX S$S 

M^-. v-/-: ^..Otl* ,cjq^ .XXI 

i»c[ o^ «i«<fe3X aXiigr «iid- o«rf?» a^«a..ci!fi d-i aajs© eX4* jkI ■ 

ji^oXcffi© sd^ tfad* s^oda so^soaxva aifd" si" on lo rtsrf*©^ o* «« ai feeftXoeJb 



_4- 

th© policy, WhateTeT the company's intentioa was, it finally 
developed that plaintiff's leave was but temporary because he 
later resxmad his duties with them. The policy provides that 
a "layoff or leave of absence of three (3) Months or less shall 
not be considered, and retirement on pension shall not be considered 
a termination of eaployaent within the meaning of this poliey unless 
notification to the contrary shall have been given by the ®aployer**** 
As heretofore stated^ no notification was given and the defendant 
produced no notice which had been received by it. 

We think the Jury properly found from the evidence that 
the deceased was an employee of Seare, Roebuck and Oompany at the 
time of his death and, therefore, hie rights were not forfeited 
xmder the terms of the policy. 

Complaint is further made that the court committed error 
in refusing the instructions offered by the defendant, the effect 
of which would have been to instruct the jury to find for the 
defendant. The instructions that were given on behalf of defend** 
ant presented the law fairly to the jury and we do not think that 
In refusing the instraotione complained of the court committed 
error. The remaining assignment of ©rrori not having been argued 
will sot be considered here. 

We are of the opinion that the evidence clearly shows 

that at the time of his death the defendant was an employee of 

Sears, Roebuck and Company and, although his work had been inters 

rupted on account of the Becker-Ryan and Oompany store having been 

closed) yet he could not have been considered as a new employee as 

no application was required of him for the purpose of obtaining 

the insurance oompany 
work and he was still insured xmder the policy inasmuch as "^ had 

received no notice to the contrary. 

For the reasons above set forth the judgment of the 

Circuit Court Is hereby affirmed, 

JUDGMENT AFFIFMED, 
HALLs P.J. AHD HEBEL, J. COKCUiU 



*^**xstoXqffiS 5iii* Y<^ asvli?. iSE&sci' 9-?.«if llmis T'X.eud-fror> s?ii.t o* Goi*fiOi:li^o« 

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^.;3.d'* ■Stdcli fori oh sw bjis 'Cim;, ^tl^ oi ^lilr^t JTxsI 9iU be^a&BBtq ^im 
bi^ii lriim.00 ^-Ttfoo 9d& 'to 59iti,E?X^JS«:n3 axiox3-o.trj:#siii sxf-iJ' 'galats'ie'i at 

>.o SQXoXqK^© as ssw i^riefcn^lsfe ad* iCd-aefe siri lo smi* ail* i-.s if-Bd* 

^tBiffXl a&^d hsd ito^ Bid d-gisodtlA <.&«« Y£^.aqmcO basa iofjcfeoH <st«98 

■fiaiisJ.H'frSo to saoq'^nq 9rf* tro'i mid lo l)©tiirpsx a^'sr xioI-i-.«!OiXqq« oxi 



38729 

ALEX and PEABL IiEYIWSOK, PlainUfff=#- 

Appellees, *" 



HARRY L. TIRSWAY, 



Defendants, 



HARRY L, TIRSWAY, 



Plaintiff, 
For tlie use of ALEX AND PEARL LSVIKSON, 

Appellees, 

OOHSOER TOWHSSND & qUIMLAN, INO,, a 
corporation. Garnishee below. 

Appellant* 



APPEAL FROM I 



MUKiaiPAL lOURT 



OF CHICAGO. 



T 



MR. JUSTICE DENIS S. SUIXlVAIf DELITSRSD THE OPINION OF THE COURT. 

Tliis is an appeal from tlie Municipal Court wherein a 
judgment was entered in an attachment and garnishment suit against 
a nonreaident defendant and a resident garnishee. Judgment by 
default was entered against the defendant and later, after a tris-l 
without a jury, a j^jKigment was entered against the garnishee* 

One of the grounds of the appeal involves the pleadings. 
The attachment affidavit ws.s filed June 17, 1935. An . at taohment bond 
was filed on the same day. The oblige® in the bond was the defendant. 
A condition of the bond erroneously stated that the plaintiffs woixld 
indemnify themselves and not the defendajit and other persons inter- 
estedy The attachment writ shows on its face th--t it was issued 
June 15th, tw© days before the affidavit or bond were filed» As to 
the defendant Tirsway the writ was returnable three days later, 
June 30th, and as to the garnishee Oonsoer Townsend & t^uinlan, Ino,, 
on June 38th. An attachment notice was posted by the bailiff and 
he mailed a copy to the defendant in oare of his employer in OhisBago 
Instead of mailing sajae to him at his address in Indianapolis as 



-^e:l':t^t^lB£''.. til05KXVi:4 J>lAa'? ban X3UIA 



■vj»i 



^^. II CI ^li.,. 1 1.^ c 



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( 
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mB^^altjmlq ^iit BSvXtmii Xf!-9i|q£ &4if to ^buiso'X'^ oAt 'So anO 

,'j:ed-.il BXitb t'js^ri^' sXdvEiirici/Jsi 8'.'v? skills »4* ^^weiiT Jfl,Fi)a6lo6 »il;J 
He eiXoq,Sxii5ii[>nI kX 8i?si:Xj&3 eXx£ *u j||4 ©f ,|im?;8 3*UX4SSi lo JbBSiTsni 



3 

disclosed by the affidavit in attaoluiient. It is miit© evident from 
an inspection of the abstract that many errors were oommitted in 
auing out this writ of attachment* In order that a writ of attach- 
ment be valid, the provisions of the statute concerning its issuance 
must be strictly complied with, otherwise the attachment is subject 
to be quashed on proper motion. The defendant was not personally 
served and did not at any time appear. He was defaulted July S4th, 
and judgment entered for |180#00 and a conditional judgment against 
the garnishee. A writ of scire facias was served on the garnishee 
who filed an answer on August 4, 1935, setting up the facts and 
claiming the wage earner's exemption and also claiming that nothing 
was due and owing from the garnishee to the defendant and stating 
that they had already paid him all his salary. To this answer of 
the garnishee no t ravers* was filed* 

The trial court denied the motion to dismiss for want of 
jurisdiction and entered a judgment against the garnishee for 
|138«45 and coats* 

W« are not aided in our consideration of this cause by any 
briefs filed in this court on behalf of plaintiffs. 

The answer filed by the garnishee in the trial court dis- 
closed that the defendant was s. resident of Indiana, living with his 
wife and fajaily in Indianapolis and was working for Oonsoer, Townsend 
& Quinlan, Inc., which corporation was engaged in supervising the 
construction of a waterworks system at Savanna, Illinois, being 
employed by the city and being paid out of Federal PWA funds; that for 
the purpose of insuring the prompt payment of the employees of the 
garnishee at Savanna when s??Jka.riea were due, checks for salaries were 
mailed in advance of the due date so *hat the government would have 
time to check the amounts* 

The answer of the garnishee further shows that during the 



s 

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feotB Steal: ®!it qu giii;?^tss^ ,t3SS.L 4> tmrgn^ tt€> t^^aas^ as l^tiJ. od-^: 

:ga.i^-?:4B -bss, .tn..sfems1:©l) ^sxid- oi B&dBiirxn-g sif* )S!oi1 ^x^ivro ba^, 'sut srjr 
to le-fi'-efi.''^ Sri;!:;? of ^x-^sls^p. ©M He mtd i^hso; y;bs9ViL'*. bM- veffd- *e^J 

"^ib i-njoo If^^lr^x stTi'' n.t -BBd&iasjri::- ^dt \tJ .belli I'Sfifajitia «iflf 
elii fid-xw ^aivil tf?ftJEi&n'I ?c .ttSfiisZefyi- jr as-?? .tn.f-tjiS^lrsfe erf* d''--;ri'* l>»6©Io 
iiftesmfoT ^'x'iO8«o0 lox •^X:5f'S:o* 8-^?? fen;?? ftiX©o>">.«>si:.fcaX .at xXxsiisl M.fe ©liw 



3 

month of June, 1935, three checks were mailed to Tireway at 400 
Main street. Savanna, 111., one on June ISth for |46«15, one on 
June 21at for a like amount and one of June 39th, covering services 
from June 37th to June 29th, at which time Ms services were dis- 
pensed with, the excess pay "being considered as a bonus in lieu of 
notice. 

The answer of the garnishee further states that on Jiine 
19th, it was not indebted to the said Harry L» i'irsway at the time 
the wiit was served on it; that though it had been indebted to him, 
said funds would not in any event be subject to garnishments under 
the laws pertaining to the Public ^/»orks Administration* 

As we have already stated no traverse was filed to this 
answer and no appearance entered in this court by plaintiffs* 

In the case of I'jabash R. R. Qo. v. jdotigan. 143 111. 348, 

it was said: 

"there the answer of a garnishee is not traversed it 
must be taken as true, and on appeal by the garnishee the 
only question will be whether the plaintiff will be entitled 
to a judgment on the facta disclosed by the answer**' 

fTom the answer of the gjarnishee it appears there is nothing 
due and owing snd, secondly, that tmder the law the money being the 
property of the United States Government, it could not be garnisheSd* 
fhis was admitted by the plaintiffs in failing to traverse the answer. 
The trial court should have found for the garnishee instead of find- 
ing for plaintiffs. 

There being nothing due from the garnishee, there is no 

necessity for remanding the cause. For the reasons given in this 

opinion the judgment of the Municipal Oourt is reversed with costs 

to be taxed against plaintiffs* 

JODGMEKT REVERSED ^TH COSTS TAXED 
AGAIKST PLAIITIFFS. 

HALL, P.J. AND HEBEL, J. OQNOUa. 



s 

fiOA *<s x^>^'^^'-^ '^^ b^XlBtt !?'C;2"?f fS5i034ri 3t>'^.rf.t ,3261" ^&msl, to sititiom 
-ai.fc S'la-Jsr asot^'x^je. bIcI 3ife.i.? i^x-x.dw J-j? ^sHQS. ^mjl, o5 ri;}-?S'.: a/iuL Morl 

^fisi:^ sni fs %n^9S%i'i *.l t^'ir-H bt;?.'^ bc*J oi b«i#iis,C;nX .-ton bew Ji: ,ii^€X 

t.Goi:l^".'^;l•BXi1;-XKI>-. ewt^'io- siXtlcf-i s.x'i;^ o%t gxiiiiij^txeq St?.fiX oxi^ 
8Mi^ -oiJ 5®Xil saw ©sistsi^ Cii l>«j.t-a-8 x^-e-iXs &vj><xi sw fsi, 

:&X.5-.a syw ti 
©xi* ssifeiOTsg. Sif,t -^^ Xf53qqF 5:0 Xiiicc <9,aTu a^. a:&i,«# sci itattK 

edit gaxocf '^snoE isifjj- -wl siit "s-^-btiu ;t--ri;j- j^XfciiOoee ^bus. qgxwo .bn.s owfc 

-.bail'l Ic- rn'rid'erri s©rfeXnT.?;c^ ^rfit lot ioa.iio^ s^rM i)Xjyo.a'e al"?;i/oo Xialtd- mfT 

*!El,j;iJui/>.iq ^ol gai 

ad-aos li'iJX® bBB's^v^r &l JtwoG X.poxc'XX3;«*J sii* 'to Ixi »»;§&];; j at{;t uoiaico 

»!8t'txtaijft|o; tBsilB^ boxat 9Ci o* 



38737 



^: 



Appellant Sf 



iORETTA DRYMILLER, JAMES DRyMlb>Kl )/ 
AND DELBERT DRYMILLER, minors by 
LOREfTA DRYMILLER, their mother 
and next friend, 



APPEAL FROM * 
CIRCUIT COURT, 
COOK OOUHfY. 



ALBERT W» HILBSRG, 



Appellee. 



T 



i^^- 



MR, JUSTICE DEIIS S* StJLLlVAN delivered the opinion 
of the court. 

This is an appeal from an order and judgment entered 
In the Circuit Court directing a verdict for the defendant, 
Albert W. Hilberg,aiid against the plaintiffs, Loretta Drymiller, 
James Drymiller and Delbert Drymiller, 

This action is one to recover for personal injuries 
sustained as the result of two automobiles colliding. The 
plaintiffs, a mother and her two children, were sitting in a 
northbound automobile on River road at its intersection with 
Milwaukee avenue. While the Ford automobile in which they were 
seated was standing still at that intersection, a LaSalle auto- 
mobile traveling in an easterly direction on Milwaukee avenu© 
suddenly pulled out of the line of traffic and mads a sharp turn 
Into the River road, striking the automobile in which the plain- 
tiffs were passengers. Both automobiles tipped over and the 
drivers of both automobiles were killed and the plaintiffs 
injured. 

Plaintiffs contend the evidence shews that defendant 
was an independent contractor aad therefore liable for the wrongs 



'\ 



TC'^Bt 



s 









?0S .A.T 9 8 






ritivr nci:>-os8'is.lni s^i 3-^ feoA isvXfi no »iid"ome*ue baxsodlAf*soa 
a-xui qiBdn .fi -hBin bxtB ^lY'l&Ti 'to euxl Qdt to t.ifo b'&llnq xXanhhu®- 



of Ms eervant. 

Defendant contends that the driver wae a suT>*agent of 
an imincorpo rated labor union and that defendant is not llahle. 

The trial 3udge held as a matter of law that the 
defendant wae not an independent contractor aB the plaintiffs 
contend, but was an agent of the owner of the automobile which 
Caused the injuries to plaintiffs. 

We have this day failed an opinion in caee lo, S8485, 
entitled. The Live Stock Uatlonal Bank of Chicago, a Corp., 
Administrator of the Estate of James J. Drymiller, deceased, 
appellee, ▼. Albert Hilberg, appellant, which was a cause of 
action growing out of the same accident, wherein the driver 
of the Ford automobile was killed, he being the hiisband and 
father of the plaintiffs herein. In that case we held that 
the driver of the LaSalle automobile, Riohter, was the agent 
""oT«»fH*3A«P and was performing services for him at his request, 
mxd fhe facts in that case and the law applicable thereto are 
identical to those involved here* Therefore, what we have 
already said in oase No. 38485 is controlling here and there 
would bt BO need of writing another extended opinion covering 
the same subject-matter* 

We are of the opinion that the trial court should 
not have directed a verdict but should have submitted the issues 
to the jury, 

For the reasons herein stated the judgment of tl» 
Oireait Court should be and the same hereby is reversed and 
the cause remanded for a new trial , 

jm)(^ENT RSVERSSD AND CAUSE REIANDED. 
HALL, P.J. AHD HSBia,, J. OOHOUR* 



»5rce.Ta:3a ^M to 
3S[# S'.^ii* sr^X lo ^x&ttiiM & s.fc Rla/J &$his(, isx'xd' ?5iif 

©1X4 o.i-.^=x»iidl' aXi.60lXqq^ »bX Mi bsm as-sw #j;jaD- .fii aa-ssl sMf sjh:^, 
»T©ii sar '^^■sd'w ^sicls^sd'i *qi8x1 09VXOW.U sssrl* o^ Xii^Ua&fit 

.^fli'ievoo litolKiqo tmlmBtz^ Tail*©n.e sH^Jiitg lo f,>®&a &n dcf &X,ff<jw 
©if* 1o iia&m^fiisl -sdt b^tB^n iSietsad e0oa«6ic ©if* lol ^ 

.asaMKH S8ITA0 Tu Q^m%Tm 'smmwx* 



386S4 

Plaintiff in Error, C-'"^ | /—*---*- 

) / ..^ 

BAHEARA 0'K~SILL, Individually ar^C^H^^ ) / 

Tru.'tse an i i^xecutrix of the Estate X )^"' 

of Terence J. O'Eeill, Deceased, " ) SRHCR TO SUF^'RIOT? COURT 

(Cross oomnlairiant) , ) 

Defendant in Error, ) 05 COOK COUITTY. 



and 



! 



^'^ ^^ ft ^ rf-k ww'^ 



(Cro33 Def f^nclant) , p O- ^ J. oii.© Kj^ U § 



defendant in Error, 



^0^1^ 



IK. (JUSTICE lATCESTT DELIVSRSD THS OPIKlOfi OF THE COURT. 

Je'bruary 7, 19 24, Allen W. Selty, "being indebted to the 
amount of ^75,000, made his principal promissory note of tiiat date 
for that amount, due axid payable i'elDraary 7, 1929, iie also exe- 
cuted ten interest coupons for |2250 each, representing the inter- 
est which wouli become due and payable upon this note u/itil ina- 
turity. On the eanie day ha executed a trust deed, in and by whida 
he conveyed certain preitises in Cook county, Iliiuois, to secure 
the payment of the note and coupons. The trust deed was duly ac- 
knowledged and recorded, Henry Friedu^an thereafter became the 
owner of a second mortgage on the caae preiiises, v^hicii, default 
having been made, he foreclosed, beeaae the purchaser at the 
master's sale August 12, 19 36, and on Fovea,ber 14, 1927, the 
period of redenjption having e3<i:iired, he, by a master's deed, becs^e 
the owner of the prercises subject t© the lien of the trust deed 
first described, December 20, 1S32, complainant, Hattie Ctreenberger, 
a niece of Henry i'riedman, filed her bill in the Superior court of 
Cook county against Barbara 0'I>ieill and others* She allowed in her 
bill that she was the owner of intf^rest coupons iios, 4 to S , repre- 
senting interest which had matured on the #75,000 loan; that tlxese 
coupons were payable to bearer, were past due and unpaid; that 



, { ' • .-xoi-x^i ax. 'i'lJijnssSM 

( , ( J ; u< /.ii j-3 i ifsno - 8 a o 'x ) 

( 



-rM S-iii^-iJ aioa sXili aoqju ©Xtle-^i?-?) 'ra.:- sisf- »ii!taa»>d' bXiiovr llaidw cfs* 
siiiiOGs c-2- ,ai.oulilI ,-({;; :friiio© 7io«0 nx a^^sxirifii-t^ fila*^&S» feS'^svnoa "jxi 

&dJ ,V::&X ,M li^d'a^roiS no Isas ,c)Ryi ,ni .tsssjg^iA ©lea a' I3^v'»43in 
fes9i> JBii'ij 9f{* '£0 iUfil Oils ©J *0£J|;cfu$ 3t»a.tai<3iq *j;l;J- 'io i^xwo cri* 

isri ni bsj^oLfc siici .eii^rfa-o feitft Xi:i»^*'0 jsttw-d'^-ftiL ^sfajsjii-; ^jj^nwoo .iooO 
•Si-xu^'j: ,2 UvJ f- ^RO'i. aaoqi-'oo ^s»it!>>tj.ii 'io t!SM«?o iiicf s«w ftifs i&M Hid 



Eartara 'I i ill vas the LolSer of coupon Ivo. IC of the sasie series 
for a like araount Bnd also the owner of the-; principal note for 
t75,0O0, interest upon v;hicn was represented by these GoupoiiS; that 
pa^iTient of the principal note and coupons ws.s secured ty a trust 
deed., as above describecl, and t.iat xienry SriecU-Jian J.eld title to 
the premises. She prr;.yed forecloaure and Uiat uxe. coupons and 
costs, expenses, etc., of forecioeuie mi^t be 'ieciared a J irst 
lien on the real estat?, jmd that in default of naycient the same 
should te sold. 

Barhara O'Keill, individually and as tnistee and executrix 
of the estate of Terence J. O'fieill, deceased, answered arid filed 
a crosB 'bill , in vrhich she averred that she Vfas the owner of the 
nots for 775,000 and coupon No. IC representing the last instalment 
of interest due and payable thereon; that cou-oons i«os, 4 to 9 had 
been paid by Heiir'y ^Ti'^&msn, and that the interest of comrlainant, 
Hattie Grecnberger, was subordinate to the interest of cross- 
cocinlain-ont. Croep coL-ply,inant also alleged defaults in payment of 
prirci-oal, irit-rest and taxes, find prayed foreclosure, etc* 

Hattie Greenb^rger arjswered the cross bill, denying that 
the coupons helfi by rer ■R'ere paid or that her rients t^ere subordi- 
nate to t'.ose of cross coE.plainant. She alletied that the #76,Q00 
principal note 5-nd cjunons iioe, 4 to 9 , inclusive, had been deposited 
in an escrow with the Lake Vi ev Trust ^. Savings Bank, as escrowee; 
that said escrow vas a subterfuge to cover & deal In which cross 
complainant t'as to sell the ?*7 5,000 Ciortgage to ticnry 5'riednaan for 
#72,000; that $15,000 of the amount was received by Barbara O'Jieill 
and ou,5;ht to be credited against the indebtedness due and owing on 
the |75,000 note. She deiied that cross co&mlainarit was entitled to 
relief as prayed, 

Iho cause was put at issue and referred to a master, who 
reported in favor of cross complainant, finding that she was the 



S!t!i.af>e *::.-i;s i^tii- 'to Jl .o.-: nooksao 'to ti>tlQu> -aii-t rSc- IIJ: ■ .iVO >t;i£d'isl 

eawsa n:,:J J'at^.dViAKT "io :?Xyr<'l«f^ ;ii :Jv:fr-.' ha^ ^nrsj';*; last ^i';^ 'io n^il 

&il>t 'io 'tsavo a/i;] 8.?ivf ^sfe ■:^..!j fc^sa-x-^vs 3ri3 Jioi.-T' ax , Ilid" anoio b 
^itsialiiisai tsij^I 2xJ;t gax.ia^s^icp'i JI .o'i aoqwoo fri.^ 000, cV^ "to't sdon 

10't rDM-fbex-il x.-'^nsK od' i>>!,iJ3cf*rOi'3 CK>0,?Vt '5>«? XI^c-* o,t a^sv? ;fftsaXBj:q2i.oo 
XXi-:M«»0 iJx«.fT.«d ^<l i)t>vi:'39ivi sj.w JriuoiaB edj 'io OQQ,dl% t&dt jOOO^SV^ 

9r*d^ afi'.v ?irie cli^Ai anifeiri'i ,itiie.ai«Xqiiioo B80'lo 't.o low't nl i>©;t'iocr9l 



9 

owner of the #75,000 note and coupon lo. 10, and that she had a 

valid lien on the mortgaged pretaises I'or #104,205,89, The master 

also found that on August 7, 1923, F, J, Eiauck, as the owner and 

holder of the principal note and interest coupons, executed an 

order on the Lake View Trust & Savings Bank then in possession 

thereof to deliver to Henry Iriediaan interest coupons i'los. 8 and 9 

due February 7, 1928, upon payjaient of interest; that on Mofemtier 

21, 1927, Henry Friedsian executed his receipt to the Lake View 

Trust &- Savings Bank for interest coupons ivos. 4, 5, 6 and 7, and 

on August 30, 1928, executed his receipt for interest coupons Ijos, 

8 and 9; that on the respective dates Henry Friediaan received these 

interest coupons, they were not cancelled or marked paid, and that 

at said dates Friedman was the owner of the premises described in 

the bill of complaint; that shortly after receiving the interest 

coupons Henry ffriedman delivered them to complainant, Hattie 

Greenberger as collateral security for a loan; that the coupons 

were then long past due; that there was no evidence that coiciplain- 

amt purchased the interest coupons from Frank J, Klauck or the 

Lake View frust & Savings Bank; nor evidence that there was any 

agreement between the owners of the interest coupons and Hattie 

Greenberger. The report said: 

•I therefore find that the said interest coupons four (4) 
to nine (9), both inclusive, were paid to the owner and holder 
thereof by iOLSKy J"RIBmiAS, the owner of said premises, after their 
maturity, and were not purchased by the Coaplainant, liATTIS 
GREUJBBRGBR. I therefore find that said interest coupons have 
been paid and are no longer secured by said I'rust Deeds " 

Complainant filed objections to the report of the master, 

which were overruled and the cause was heard by the chancellor 

upon exceptions to the report. These exeeptiona were overruled 

and a decree of foreclosure entered in favor of cross complainant 

as recoBmended by the master. This decree also found that interest 

coupons ijos. 4 to 9, inclusive, held by complainant had been paid 



B hyi!>ti-9tiB 3.Biii: bar-. ,01 .ci aoQWOo f>£ts ^ioa 0'JO,SV|: arfcf 'to i^vi-xo 

'■X0*R.i3i3 sfiT ,{>B .<50H««kOX'4- lo'x aS'axvuaxq £isai?;.,JT:oa 9411- no etsll Mlsv 

nis .b©;ff;a.«jxs .siioqjaoo i'Hiiits^ai. &aa 9d"oa Ajg.qis«iicr ©li^' 'io i^bl^d 

.,;30>/i sinaqfioo jfi^ia^nx -xo't jQi?>09t ex.a ij^iiifoaxe ,3S(?X ,Q£ rfatj^iiA no 

3-i*'s-f3.i»'*:i ©-ilj gaxtiQ9'>i I'S-i'ta -^^IS-xorig .t.^xial' jtuJ;.BXqi5Jo& to lltd t^Hi 

•■nl,s-jl«i'a©& cfai-ii- ©saalslvsk oxx saw .^lo.sio ;}-^3;iI;J' ;s«/> d-ai^qr gaol smtiS siaw 
vaES Sissf sjiua^ J'^ari:?" ay>a©F>ivs "10X2 ;:!£xiBa sjijaxvsQ :«i> ^a«^'I' w»xV qjLbJl 

'i^tloii bm^. 'I'.cmo Bixi oi bi£,q a-i^s-' ,0yiei>Xa:ii aJifod' ((e) o»^xrt o* 

•lic'^^J 'Xffid-'t*? ,3$exinsiq bias '1© ■£&.«•»» a/fd ,HAa0£iHU YHiiSis Tc«f "SosieriJ 

gIIl"i'AH ,^rtaai&XqiHoO snJ ^of fosa^^iio'irjq ion y'isw has ^x^tiisi^m. 

»ViiLi tinmni^o ^aa^sstni f>i«a dsjeW feai't ©^o'ia-i^iiji' I ,M.OHlSilKiaaH«) 

TioIXsottssiiji siiJ •v;<f fciissii aiisw ssju^y 9rf;t {>njB LeXirxioro 5:t^w rioirlw 

d-asm y. Ig.iioo aaoio 'to ^co^i;!: ax t&tfiiai^ aiuaoXos'io't 'to ftsiosB « finjs 

i?^?>"X9^aJ: J-.«3iicf /nxuo'i oaXjB »©'itj'35 siiXiT »to-i a^es 9rf* ^^o' bBbassmoo^i »« 
i.1., n«.a Jb..a ;^a.aUXq,.oo ^^ Med ,«.i«x;Xoni ,6 o* ^ ,ao^ enocruoo 



and were therefore no longer secured ty tiia lien of tiie trust deed. 
The decree further (inconsistently) found that by filing her "bill 
eoBtplainant elected to subordinate her lien to that of cross com- 
plainant. Complainant sued out this writ of error for the pur- 
pose of having these interest coupons declared to be on a parity 
with the principal note and interest coupon of cross coKiplainant 
and to have the proceeds of he foreclosure sale distributed ac- 
cordingly. 

Complainant cites authorities to the effect that where 
the owner of a greater estate purchases a lesser estate to the 
esaae preiriises, the question of i^hether the lesser estate mergea 
in the greater depends upon the intention of the parties to the 
transaction, Robertson v. Wheeler . 162 111, 566, and similar 
eases are cited. She contends that in tiie instant case the inten- 
tion of the parties was that there siiould be no mf;rger and says, 
therefore the interest coupons held by her because of their earlier 
maturity may be entitled to priority over the principal note and 
coupon held by cross coiuplainai'it, as to the priority of the 
coupons maturing at the earlier dates she cites Gardner Vy 
Diedericlce . 41 111. 153, and contends that in any event rier 
coupons were entitled to parity with the principal note and coupon. 
She also contends upon the authority of Peoples iiational Baiik y,, 
Johnson^ 371 111, App, 507, tiiat the proceeds of the foreclosure 
sale ought to have been distributed £ro xaia "O oompiainjuit and 
cross complainant in proportion to their respective holdings, 

There is a preliiuinary question which seems to us to be 
controlling. That question is whether Henry yriediiian at the time 
he received the coupons which were afterward delivered to kra, 
Creenberger, in fact paid the saine. If he did in fact pay them, 
all questions concerning merger of estates beoome wholly isunaterial, 
as complainant in her reply brief admits. The master found as a 



.hs?rsb Siiii'ti p>ds 'to as 11 oiii'x^ beiao^a 'ia-^,aul o« &to'iSty.^slS S'f«w brt^ 
Hid If?!! liaili't ■^d .J'iciir; fenwol {■viX.'inf'.t'Sisric.'jnx ) isiljtii'*: nfltoal) srfT 
-I5C0 t^sDiu 'i.y ^iiiU oi ;j?iil laxi sJo^niriodue oS b^io^l<^ ia&aiplqtiioii 

■^ct-i'i^q fs ."ic sd .J J o3-ii:X»i->fc aaoQiJOo j'atiie-^.ij: 5»89rl;t 5;axv-.8ff 'to ssotj 
;tri0nii'>Icf^.AOc; Bscno lo xioqcfoo ta-j'i* J'cii bOi' «i:loa lagioniiq ^iif iii tir 
-QS £)£ jijdiijaii: ©Iii;g stijaoioo'i'/.l ©ri; 'io ebr^sooiq 9ri* svflxi o* ferte 

Qo:,^i9iu ^d'.sjae 'i^aasl s -JiJ .-isrij-t>iiw 'io aQiia^up sdi .a'^siuTS'tq saisa 
xsll-iixs .&ito <:-da .ill SdX , I?)!. B gul v?^ ,. y^ aoa j- g:-g tf jG >fl ,nol^ii»jfesasl* 

bft-3 9doa liniloiiinq sill i«5yc 'ijiiaiaq oJ h&l':^^^ 9d \':JB«f •^?i'Xt?.?«m 

15)11 d'^iS^a Y.-;5£-, i^i i'.cxLt ati-i&iiioo .fcfJr; ,&'3I .III !*■ ,g>fQx;x ?t.& alg 
.aociJoo baa sjoii itsqioaiic^ ^cj lUl^^^ ■^i'lif^q ot feal^'idrns st:©* anr^quos 

9'ii;!;;oia»io'i sxCj io aJtss^oo'xq 9i:i- J-B>ji ,"rO€j .agA ^Xii XVS ^ gositrf ot. 

, \s»j:i^ Y,if-q *o*'t ft-t ^»i.& «-"i '^-^ ,»i3£S sxii Isi.}^ is^.t ai .lejeiacfnssiO 

,L3li'zi.s.ml xlLadvf omoo^tf ael^iTaa lo isaisiia -^jfiifaBoxioo acsolcreawp I.U 



8 

fact that Henry S'riednan paid txisee coupoias at tae time he re- 
ceived then froiii the "bank on the order of the then o^«ier. The 
chancellor approved that finding, CoBipl<iinaif*t did not in her 
original hrief argae that the finding oT the decree in this 
respect was agaixist the weight o±' the evidence, althougiri the 
argument in her reply brief ta biiscd upon the contention that 
it is* We carmot at,ree with her contention, henry i'riedtian ai 
the time he received the coupons was the owner of the premieee 
upon which the mortgage securing the coupons was a I'irat and 
valid lien. It wa.s, so far as the evxief^ee ehows, the only out- 
stsmding lien. The coupona were due and paystXile, he gave money 
for them; how i uch, the eviasnde doss not disclose, ihe fair 
inference is tiiat he paid Uie coupons, aithougu the saike were 
not formally canealled, ihere is soii^e evidence to the contrary, 
tut the waster saw and heard the witnesses, and his finding is 
prima facie correct. It has heen approved lay the chancellor. 

Complainant, in her reply brief, cites Chicap;c 'I'itle & 
Trust Co. V. Eiddermanp '275 ill, App, 457, which ie clearly 
distinguiehahle, einoe the "bonds tnere received and reissued by 
the owner were not yet due at the ti^ae of their receipt and re- 
Issuance. Walker v. C. h, & I\. E. R. Co. . 277 111, 451, cited 
in the reply "brief is also listinguiahaule. in tnat case a 
surety purchased a note secured "by iaortgafee after maturity, and it 
was held that the note t^j.u the mortiafee were not extinguished "by 
reason of the purcliase* Jpnes v, Taylor . 261 ill. App. 403, is 
likewise dietinguishable. It was tliere held tnat the possession 
of uncancelled mortgage notes "by one who itas a co-iaaker and also a 
part rwncr of the pr erases was prima facie evidence that he ras the 
owner thereof. 

there were in all taese cases equitable reasons requiring 
the notes to he kept alive, i'here are no such reasons here^ The 



8 



%ltii3io Hi jVoxasf ,Vgi^ «qaii. ,Ll'l 'i'i'^i ^oaaiaMj j^ >y^ ^oQ Savt^ 

si «S01^ ,qaA ,Hi Idt' , iaXaM..-«X-Siii^i!i *-'*aej:IoiJjq i?il^ 'to ao«a«s 

aolcg&agocr 9riJ i^xi.J bLf;r. &'u>xij- 3<3'» ,ti ,s.ila,;i:jxuiiaiJ-5iS aniwsjIiX 
f; 33l* i!«^; i93iBai-oo j;; fl«s«E airy ^vitc \;d' ao^GH «>s«i:yiio^i i>sXI«oacan0 lo 



6 

master held ffriednan paid the notes at tl'.e time he tooi: theffi up. 
The chancellor approved the finr^ing. We held that the firtding is 
sustained by the evidence, and this finding: is contrcJling, 
The decree is therefore affirmed, 

MoSurely, P. J,, and C'Corinor, J,, concur. 



<"' 






33679 



JTHA&li. C. lOJHii and Axii\lU EaRTBLS, 
Appellees, 

V9, ) APPEAlT'^OM MUNICIPAL 

) 

SPIEGEL *S HOUSiS JfUIffilSHISG QOUFAJAY , ) GOuHT OF OlilGJiaO. 

( ror;;.srly known as opie^el i.iay 3tern ) 

CoinT)aJiy) an Illinois Corporation, ) 

SriEGiiiL i.AY srsric, GOIaP.Al,Y, ll.C. , a ) 

Delaware Corporation, and BUKLEY & ) 

CUilPvU<y, an Illinois Corporation, )^ ,- - -a 



Appellants. )^0 U ± 



A.Q07f 



¥R, FEEBlDma JUSTICE MATCHETT 

DIKI.IV:aiiii]j Tilli 0PILI01-: OP I'KS CCUi-X. 

In tinci nrior to the yaar 19 23 pl:iintiffs were ihe owners 
of preriiifjes in tiie city of Chicago described as ios, 2023-2035 
Milwaukee avenue, which -were iiuprovod ana were unler lease to 
Spiegel liay Stern Co., an Illinois corporation, (after^ari^ known 
as Spiegel's House Furnishing Co.), whieii conducted on the premises 
a tuBiness of selling houeehold furniture. 

In S'ebraary of that year plaintiffs executed an .indenture 
in writing under seal, wherety they deruised these premises to this 
Illinois eoroorntion, then in possession, for a ten. of ten years, 
beginning May 1, 1939, ending Deeester 31, 1939, for a total 
rental of |151,000, payable in 128 monthly inetalments, the first 

sixty of the amount of IllOO each and the remaining sixty-eight 

a 
11250 each. The lease -was/lengthy, partly written and partly print- 
ed document, containing provisions which, so far eis they are 
material, we will later discuss. May 14, 1938, the Illinois 
corooration, lessee, assigned its interests in tlie lease to 
Spiegel May Stem Co. , Inc. , a corporation orgaxiized under the 
laws of the state of Delaware, with the consent in writing of the 
lessors, \'/hich was endorsed upon the lease, The Delaware cor- 
poration went into possession amd afterward assigned all its 
right, title and interest (with the consent of the lessors) to 
Burley & Co., another Illinois corporation, - in fact a subsidiary 



^ A ^Y A T t'^- : ^'0 '^ ,nui;j.v:i--cr--roD aioai-III ;ie , 'jfiU'lMOO 



XTiifKOTiik aoi'i'oUX tJ>ilCil4i;aH*S »fic^i. 

3^0S~£S;0S ,soi ai; i5»dj'ioBs:. oi^xso^riO Ic Y^'J^o s<i:<i at BSHJifflsTq 'io 
awoftsL bxsTt-.'^'ii ) , 'ioi jr 'IOC ioo {^iooilXl at- , .oO ai'^ib x^I Xsss-it^ 

JUiioi -ii 'ic't ^9?;9X , X£ TJ»d>;i;^&«C" auiijiip ,^:(?I ,X y-s*^ gnlfiala^cf 
tsiil fixii <(!ta^jaXs^?ikiI TiXi^f^noffi 8SX ni 5>Xcl's^-;Ktr ^OOC^XSI^ 'io lB;rn©T 

.;Jax-xcj -tXi-ijcq hem asd-JX's^^- i4I;>-x«£t ,'jfU,gnf^X\a«iv S3i5'>l 9f(T ,iio*59 0391^ 

sTijE i£sr{;t tiJi 'i<«1t OR ,jcioaiw ecjoisXToig S'"*:-'i'''-^-''^*''o» f^ciBsAiiaob fed 

sio'ixIXl oiW ,i-26X ^l>i' ^jHiM ^aBiJoalfe :i#*.eX Lll\v 'iw ^l&lipijsm 

oJ 98i:;3i oiU nj 3Ja»'i*J-nX s^-i L-sfljiXrase ,S9ss9X , nold'^rscoqioo 

©lij^ io ;i,,fiiJl'JEW xii. .txi^'Siios srii ru-iw ,©i£;weX»(I 'to s:Jx;.t-' silj 'to swsX 
-100 n)i«waXa(I aiiX ,aacs:''X .oii;^ noqu .&3>Bi©fjn9 ofiw rf-. iriw ,«ioaasX 

OS (a'xo33sI ©iiJ to iaeamo cmi dj iw ) ;fB^-ss^ni bxia &£ili ^id-^st 
,r.ro:-(-rr,f,-ija ^-: Jai.'t nl - . mU&'io<riaQ aXoaiXXl l#£(,tonf^ , .oO :*S ■^©Xtua 



of the Delaware company, 

June 1, 1933, upis{jel's House i^iSirnishing Co., an Illinois 

corporation, Spiegel lUi-ay Jtern Co. , a Delawaxa corporation, Buriey 

& Co., and plain ^iri" lessors, entered into an aereeaent iin?Jer seal 

ty wliicla the rent l"or t^^e ele-veii month oerlod Iseginning June 1, 

1933, jxxA ending April 3v, , 1934, was reduced to #900 a raontn, all 

tae parties I'urthQX ay,reeing tuat: 

"Except as herein expressly amended and modil'ied, all of 
the tenr.s, covenants and conditions of said indenture oT lease 
shall rej-Lain in lull To roe, virtue tjad effect txxA the parties 
of the first, second i-ncl tiiird parts respectively severally 
covenant and sigree tiiat except as "by this ^:reeuent expreBsiy 
modified their ^lability under srld Inase EJiall in no wise be 
affected, altered or al>rufe,at6d by virtue of tx^e ejcecution of 
thi 6 agr eewen t , * 

Soverober 29, 19 33, plaintiff lecnors ^e^,aji ir. the ikunicipal 
court a. suit to recover from defr^ndant? unpaid rent for i\cveE;fcer, 
1933, Thereafter suit ^as bej:;un also to recover unpaid rent for 
Decenh^^r, 1933. The stat?re?nts of claim in each case were indenti- 
eal except aa to the mont i for which rent was claii-.ed to oe due, 
and the affidavits of merits filed in hoth cases Tiere liAewise 
aimilar. The cases were consolir^ated and tried in the i^unicipal 
court "before the same jury, which in each case returixed a verdict 
for plaintiffs to the amount of their claim, and the court over- 
ruling in each case motions for a new trial and in arrest, entered 
;ju!^jj^ent for plaintiffs and against def<?jidajits upon each of the 
verdicts. From both Judgaients defendants appealed ;.ind, the issues 
"belne identical as heretofore explaired, the causes in this court 
also have been eoBSolidated for hLoring, 

The defendant Delaware corporation undertakes to internose 
a defence apnlicable to it alone. It jaade a motion for an in- 
structed verdict in itn favor at the close of all the evidence, 
upon the theory that by rrason of the language of the assignment 
froTi it to Buriey & Co., and particularly by the language of the 
consent of the lessors thereto, it Tias released from its obliga- 



.■B;rifeiCpt«o 9X*^vs-f.X©C &.di 'to 
IS to nix. ii at> , ,oJ |5aiilSAn's«iii sujjo^'. eM&-i&i,q.c. ,i;tiC>X ,1 tuu'l. 

■^aixiifc- ^aoiia'sua'xuo SfX-i^WijIscI &; ,.00 iA'io;!'^ '^^ii Is ^ sierra ^noiii&'ioq'ioo 

^I suirT. ^axiicii^^sd Jeoi'i^ic i2yac;i?t ri9-\rf.>Xe 9».:;' 'io'i in'rt m-l^ lioiilvf ^d" 

:«visii4: ^iiis&tjfc asiii'iij'l arjiiii-q tii^i 

'to LI& ,h'^i xlbOi-ii ban .b9bCiSii^ ■\j-'^'^»'-^ -trjce nxfiisii »3 J-qaoxE*' 

9e.&^iL 'io •'XA-'Jaefcux ?;ii?J5 'io fiaoij xtnco .bat: ri3"!:u".at-ivoi> ^saifiact aii* 
a!9i;d"xs:Q,' aiiJ .baa ^s'-t't^ ^iiij i!^h■)•x.■k<r tQQ-xo't JLls^i nl iiia^jisi II«iiB 

to uoxo-os Aiir- s-ag io ijiij-iiv ^J biiiti^^iCili:^ aO Jbu'iajlw ,i)©3 oi'Ttfl 
laqj-o i lUi-'i &xii 1)1 .;i.:.;;.sd aio-:?:::<sX t'i^jax*:Xf;- ,SjS9X » f$! TcerfaxKro^i -, 

'xo't ^aoT; .&x*>a:ii;- 'xsriosn o-t. oali- i-ii.%sd' «j?w ■j'^ye t'^i'tB^t^tTt. ,55eX 
-i^^iiobax 9'iaw $«.r;o iiei:vs ni iifi^xs 'to s;tn«!SKs t/.>T^ BtSSl .i'-K^Si , ^* cDit9{j ^(I 

s{iri^:>»s.fai *>'xi»vr tesa^jo xut-ocf sxi hols't. 6#lit?fi;. 'to e^i^je&i't'ljB ssild- fc«e 

Xaqx&X:Ufi-r. ©rfiJ- nx be-iti f.aa ^e-t^iMIosaoo st?v''» e«'^<i»3 f'.ti'j'. ,,'S/»XJt«Tie 

i^oi.X!-X'vv ij &Qa'i*j**"T. 03,?o iioae nX. fioxxln tXi-t^'t st*^© 9i"i+ <»io'i;scf J"'i«oo 

.&»x::>ti"» , ja"''.ia.t a,i bxii'. Xfiii^"" won & 'xcl f;noii3"a.ti ©a^o ;fo^i9 ni jjniXiii 
&ii:^ '.to iio<s9 iio'.isj siiKi^ha^t'tah icaua^ii,. &n& a"t'iX;^RifiXq lo't ^Tfisa^jMjt 

^■^itlt^iid To'i J}SjiBbiX«Bsa«» aeacf 6v«ri ORJJB 

^ixi .a.« lo'i: .r.oJ:J-o.3fi ^ 9.fcj>.,u il ,frfHoX?3 iX o* aiofsoiXgg.s *«ni9l9,.f) 6 

,>oa»Biv3 '^.'l^t II,« 'to SffoXo *jxi;t ^b lavs't (jJi oi lolMyv feoJoorr** 

d-tisumaisa,© ;5rW 'io i-JS^ii^.-i^sX rsxi* 'to ixea^oi Y<f .^A/i* 'SJ'^o^is'* 9M;t ntocru 

SIX'* to »is-XJ?,iOiflX i^^i;i '<£tf Y.-i'3c^-l-'i'3^*^^^<T ^fi^a ,,«Q * t^Xlu3 oi :^x ..-Foi't 



tion to pay rent under the lease. 

April 2G, 1930, tiie Delaware corporation assigned thie 
lease to Burley & Co., ty a writing under seal, as i'oHowb: 

"The Undersigned, * * a Delaware corporation, *- * does 
here"by sell, assign arid transfer ui.to iiurley k Coiiipany, an Ilii- 
nrie corporation, all of said Dela^'are corporation's ritjiit, title 
and interest in sr.-i to the follo?jing desoribed leases: 
♦ * * 

Said sale, as3i,e-n,-nent and transfer is made subject in ail 
respects to tJae terBi* and. ccnditiono of said lease. 

Said Illinois cor-5oration does hereby assume and sigree to 
perform all of the terms and conditions of said lease tiaerein pr©*- 
vided to be performed by the lessee taereunder to t.he same extent 
and under the same conditions as if said Illinois corporation had, 
been the original lessee thereunder, **f" 

The consent of plaintiffs is as follows: 

"The undersigned hereby consents to the assigi'uixent oi the 
within lease to Burley & Company, an Illinois co3T>oration, on the 
express condition, horever, that the assignor ( the, lessee .and er th e 
terme o f said l ease) shall remain liable for the prompt payment of 
the rent and perfcraiax.ea of the coveuaxits on uie part of the Second 
Party therein mentioned, and that no further assignment of said 
lease sh-^^ll bp itade without the vuiderslgned's •written c-onsent first 
had thereto," 

This consent is also under seal. The Delaware corporation contends 

that the plain eonstruction of the words of the writing, which it 

iBsists is not asibiguous and must therel'ore be taken as found, 

following the rule laid down in Green t. Ashland State Bank . 346 

111, 174; Decatur Lumber Co. v. Crail ^ 350 111, 319, shows that th# 

lessors retained only the liability of the Illinois corporation and 

not the liability of the Delaware corporation. Defendants say: 

"There were two assignors of the lease, the Illinois and t]ae 
Delaware corporations. The lessors, by inserting the words in the 
parentheses. Indicated and described which of the two assignors they 
meant, namely, that assignor which was the lessee under the lease. 
It is undeniable that only the Illinois corooration was the lessee 
under said lease," 

We have not be®Q able to bring ourselves to accept this con- 
struction. There were, as a matter of fact, several lessees: the 
original or first lessee; the second lessee, which became such wh©Q 
by a prior agreement the Delaware corporation proiaised to pay the 
rent and perform all the other covenants of the original lessee of 
the lease; and a third lessee when Burley & Co., with consent of the 



* -Sv » / 

;-3woXX0'i: 8i3 si 8'i'.ri: jnij^Xq 'to trt^aaoo ^riff 

9.ri^ '!:e ias^af^^iya*! arid oa' ®stn»aa;:'C) ^cf«)'XOf;. £t«ir£iXfi't«|vpr0 erfT* ^ 

©rii- Tag ,.i&x j^anetjioo eXojiiXXI ius ^-^nsQ.'soO 36 ir^X'rfcii ©;$■ ©aj6?9X iiixftlw 

feaooso ariJ- lo c^i^^r s^ii' tie ntiiU'.imroo Sfli 'to 6o;ta5isTc;*l"t.»*q: Su'ia j-;f«-i s/ld" 

^bn-ciSaoo ciciiim'toQ'ioo s'is.^aX&ii axfl .Xscjs t^bau oaiu aX v>i3»snao ai/TT 

j-X iibx-iA'T ,:;,iiid-X-iv,' ©xid" lo ab'iow .grid 'to i"ioii-o.^'TCd'i6reo3 aijaXq isif i&di 

^huac'l a-ii £i&zLzi 9d ii-xol-i-^sii iemn bae aaougicfjEaa ^oxx aX s;JisXon,t 

^^£ t '^M-jS., ^,jiSJl^„ fii^.^J^A^.gT -^si^£> aX rxwoi' oXsX &£ui ®jS^ ^i^lwoXXol 

©,ri* iiijxU' aWQd& «t?X5 .IXX jfl5 .Xi:.a?p_. .yV. .. p.^. t^dmul tgjt-gaeg, jl^TX .XXl 

&n« CioiiJitoqnoo siociiXXi s.rid' 'io ■^d'XXXdAXX adi vJLao b9aiji^9t aioaaeX 

:'\{jBa sirtiifuTid'teU; .nci^BiOifioa »isw«XsCr ©fit to -y;*iXXcfjsiX sdi ton 

&&.i bill.;: eiouXXXX ofU ,?>c;i3X gsjH 't© aionaXasA ow^ siaw ©ueriT* 

9fi^ riX afctow «iiS^ ^^■i^"J->«--^"^'i "^^ ^^imjc&X »ifx ,aac'i.i-Jsio<rxoo »tsw»i«<I 

osse&X Siia- «*;•» ayXt*J'xoaioo aXotuXXI ssxW -^Xijo t.®ri* «Xcr«X«»fcnw bX il 

•jj®a£s>X f.iX^a lo&ru; 

-noa xiidi J-qsoos o;^ ^©vXaeiwo vaX-icr oi ©XcIjb a9S>cf J-oa ^vjsrf «'»- 

©rfi redsea-HX Xais'^/sfi ,;*Df>'i 'to I'^S-^^jsm e sj.; .eiaew ©"Xdxi'i ,noiioiiii-e 

nyrf*' doi/a ©ctEfflscf xhXs'M .fiioeaRX feaow** ©xlcf ;»^s8aX *6-si"t -so XaaXsino 

«iij x^^- G'i- .^eaiaotq; a^XJ^^ioqioo 9^/?.wXeCC ©fid jj-asr^eflisa rtoiriq « "v^ef 

'to »&7,BsX Uiii'^ito etU -to ii*i:ifiasvoo rteiiio siicT XXs aitio'laeg bm ia»-x 

..,Ai -tn •>«^Hiioo ditti .,i^^ ;i Yi-^XtJja. flsiiw 9aa«©X f>tW^ *? bn« ;©3«cX ©xa 



lessors, also assumed these obligations. The taking possession 
of the premises, tJie consent of ttie lessors and the acceptance by 
them of the rent, was sufficient to create the relationship ©1' 
landlord find tenfjTit ^ind lessor and lessee. The plain language of 
the written consent leaves no doubt as to which of tnese three is 
meant. It says; "* * the assignor ( the lessee under the terms of 
said lease) shall remain liable, •• eto« Ihe assignor referred to 
is, of course, the assignor, «feo by that very writing is making ^i 
»8si0iment. This is not only the reasonable construction of the 
language as we read it but also the construction which, the evi*- 
denee snows, up to the time of tne beginning of this litigation was 
put upon the writing by tne defendant Delaware corporation* This 
is shown by recitations in an agreement made for the reduction ©f 
rent on June 1, 19i3, to which tne Delaware ooiporation voluntarily 
tecaEie a party. It is also shown by the fact that the Delaware 
corporation, subsequent to the making of the assignment and after 
the assignee, isurley & Co., ceased to pay rent for more than fiT« 
montlis, paid the rent of these premises according to the terms of 
tii« lease, thus g;Lving to the writing a construction which it now 
repudiates. We hold that by becoming a party to the agreement for 
the reduction ©l rent and by paying the rent after the assignee 
ceased to do so, tne Delaware corporation has put a construction 
upon the writing which it cannot now be permitted to deny. More- 
over, the siere assignment by the Delaware corporation of its lease, 
with the consent of the lessors, would not, as a matter of fact or 
of law, release the Delaware corporation from the olaligation, which 
it assumed, to pay the rent. The assignment terminated the privity 
of estate between the lessors and the Delaware eostporation but did 
net destroy the privity of contract. Springer v. DeWolf^ 194 m, 
218, It is still liable on the contract. Xhis special defense 



isii: es'xxiJ- esss^xt^r I'd riC'ii'*' o>t 8.s d'd'ix'uf^ -ja s&vj*;;-! iitsanos i.ia'J'Ti':!'* »i# 
to sMTStf &fj<? 'jt&fMii.r ;9»i=j»&i ©iii ) loii^iiiia/i inM* *** :u\.&3 it .^aesjat 

■^ivfi ^'ii.7 ,rioirfw ijoi ito.ua j-a«03 aiicr osIj Juif ii b*ifii ©w 8« d'gJsifgriBX 
ajsw ml^Mfjifll ^Isf.i to isXiiaaiajf&cf sfJi to. siaij ©4^ o- g^ ,«wpAia s^aad^ 

"io ;MX,trjif5OT. 9,£ii Wt sfefiiK .3-«e0fi9»Tra« £«i .':U aaQi,*-e^io9T '^4' ««iSdfe tJ^'- 
*>yJ:"^ mv,rfj ©loffi to'i ixiftT "Visq a^ IjsBvKOO *.oO m ^ijal-twil ^dftfiaxao* sxii* 
WOK *J: j?X5Jti£w a«i^atf'x;f3«oa m ■^X^i^tr &iii o>t j^a^rla «ij4ij^ ,ft2u&«X _eii#, 
9aj:%i;s8i3 sxij •x.*iJ''.i*; in©'s orii ^t'tiXi'^ti: • "^irf ibxii.* jfj^i to na.vtpX!l)®T ©ii* 

,Bejsi&l eii 'to rxaii&icqj^L^a stawsl'^ .»m %cf tmi&m^.'Sixiai a-ssayB, ©xi*.' ,'B»V'«. 

riolrf*' ^rtold-BS't-trfo 's)^* moi't isoiJeiocftoa »«aw«l9C sxi^ ss^siei ^wbI 'to 

Tj-j-ivi-xg. 9x1* iMft^x^axcaaJ- Inamnsiaee oxiT ,inin: axil v^q o^ .Jbeiawaaja il 

hlb -Sucf aoi^tjetoG-xoo aiAWsIoCl ari^ &«« e-soKasX sxU n9»w;r»cr •*«^a9 to 

,.CII ,'i-ei /iloWsO: .r -xp^zii'igja ,;tojBi«tno© 1© ijj'iviic sx£i i!:o^*«»^ *o« 

©aaa'isl? Xisio^qs aixti' ,i-OBii-noo ©rid" ao aXa-sil J.i'xj6 si il .8 IS 



Interpose* "by the Delaware corporation oannot be allowed, and the 
court properly deniftd its motion for an instructed verdict on tiiat 
ground. 

All the del'endaTits, by their aJ'fidavit of :aerit8, inter- 
posed the defens-:^© of conetructive eviction, upon the tliaory that 
plaintiffs failed to repair tae prei-ises ajad failed tc keep them 
in repair as proT?i'?ed by the terais of a rider attached to the l€as«i 
This rider provided: 

•The lessors shall proceed at occe, st ti-eir ovm expense, 
to repair the roof upon the premises, rmd put it in reasonably 
good condition and repair; and they -rill during the term of thia 
lease keep r^nd. maintain the saici roof in reasonably good condition 
and repair, at tiieir owii expense, 

Tlae iepsors furthr>r agree that they ^ill at once, at their 
own expense, make whatever repairs are necesaary to the heating 
plant to put it in reascnatly good operating condition; and that 
they will, at their own expense, during the terr: of this lease, 
ms'^e all neeeBsary repair? to the h«atin.i^i plarit on the preasisaB 
whioh may be required to keep it in reasonably good condition for 
proT^er operation; -orovided, however, that in case repairs tc the 
heating plant are required which are occasioned by the freezing 
of the pir')'--.e or radiators, duc: to the negli-^ence of the lessee, 
suoh repairs in suoii case shall be made at ttie lessee's expense. 
The leRsee shall use rriasonabl© car-^ to avoid grates being burned 
out through negligent operation by its smployeeSo" 

Defendaiits offered evi leiice tending to ahow that plaintiffs 
did not coiaply wita th.^se agreeii.ent8; that they permitted the roof 
to leak to such an extent as to laake the premises untenantable for 
the purpose for which they were rented; that the heating plant was 
also allowed to come into sue.a a state of disrepair that it was iia- 
possible to eoeure heat necessary to conduct on the prezaises the 
bustaess in which they were engaged and for whicn the preBolses were 
leased. Defendants rely on the doctrine of constructive evietion, 
as stated in Gibbons v. lioefeld . 399 111, 45b; Kinaey v, Zi ^mnxmsn. 
329 111, 75; Auto Supply Co. v. Soene^ etc. Co ,. 340 111, 196. 
Dsfendants say that these cases iiold that upon constructive evic- 
tion of the tenant by his landlord the tenant is exonerated from 
paying rent under the lease, and that he m.ay abandon th® property; 
that a clear case of constructive eviction was made out by the 



a 

m.&xiS cs^»ai o* bail.?'! £;.«.;; g^al.;.:?^q ••.iij ■jl^c-s's o^ ftfiliis't e^T:it^'ai'j»lq 

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8ssi::.ipic e^:Ui- ao ifisjq :\al&K''^ Dill ca" i''.tl.'^<j9'X ^jrt.'?e.<390s^n fls sjl^-sia 

jOesai'I Siicy "ia .«io.ct9:;:ii.v-'SJ''i ^•■'i'^ Oi' ■• «£^ ,a"ro*«.ifci«'i 10 »^c:ia *»ri.t 'it© 
,&*rfi},Tcf p.jKi-s^u ?s«*i's-i3 Siov-o oi OTU;o 8XG".fi.ai3s.^:-=t m:sj xL^Aiis od&^sl arfT 

a'.tTJ:a'Ki«Xci *i;il* iro.iii o.> "i^al^^vm^ 96a©i-J:vsi (5S-^«>'J:'to ea"iT[«Mt«tts€ ' '' 

ffi-jw S-ra;^Xcr .gaijiS^ii art j&ii^ ;i)»Jafl-i si^vv -^Rfii- ji»i.siy '%o'l ^vd'^xtKi -ftf^* 
-feii E*;?? ;i-.t ijuiS iiiiq&%alb 'to e^i&tB u t'oiie oivd fmms oJ fe*T^©XX*.- oeXfi 

'^'iy?/ 8ssl,a4r>;<5f axitl' 4:ioii:Iw "io't £>tift MgEjjei^ sir?/ i^'Dii* lifiiiJaw «1 Bssm^iJd' 
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6 

testimony ©fferftd in "behalf of defendantis, and that the rig;iit of 
plaintiflB to recover rsnt as clsiwed in their pleading ie there- 
fore defeated, 

Tne original leeses was in possession of tue premises 
under a prior lease at the tirae of tae execution of the prssect 
lease and at tiie beginning of the term, Tliat lessee expressly 
aclario3fl edged in t:htf lease taat it had reeeived the preiaises in good 
condition. Plaintiffs contend that def eadtw-ts are precluded from 
interposing tula defense 'based on failure to repair becauss the 
covenant of the lessees to pay rent and the covenant of plaintiffi 
to repair are "independent not. dependent" covenants; that the 
lesseeg covenanted to pay rent in consideration of the de^^ise alone 
and not in consideration of both the de^aise and the agreement to 
repair, and they cite Pwubeng v^ >IiXl f 213 111. 533, and Belg , v. 
Staff or a , 334 111. Gio, whicii seaa to sustain the contention of 
plaintiffs that if there was a breach of any covenant on the part 
©f leBsors, the lessees ncre limited to their rights to sue the 
lessors for damages in a 93para.te suit, or in a suit "brougiit 137 
lessorf; for rant to r -soup taeir dswaa^es, not exceeding the aaiount 
of the r®nt claimedo In this case defendarits rnc^Q no claim hy Way 
ef r«^>coupraent and therefore cannot defeat plaintiffs' claim for 
rent on that theory, Ihe eases cited rre think accurately state 'Uie 
law applicahle in this coKinonwealtli. Defendants cite a line of 
caser, such as Llovd v. Mesell . IOC III. 214; i^" el son v^ Eit^off . 
168 Pac. 370, wiiicn. are, we think, clearly distinguishahie tifpon tht 
facts, the holding in these cases being that where the lesB«e has 
not yet gone into poaseasion and the landlord covenants to o-afce re- 
pairs hefore the beginning of the tersi and faila t© make such re- 
pairs, the lessee may then refuse to enter into possession and when 
sued for rent defend upon the ground that he was justified in not 
taking possession. As already pointed out, that is not the case 



d 

'i© #fv^i'i QiLt Ssis^^ bass ,ad-f3t«l>nfl!'.ts,& 1© 'tjLsi.de^ ■ai tfit^'i'zo xsioml^s^^i 

a^aL.3.©iq oiiJ 'to noxaseasoC' iii e^w ■:-^(i'&;i,-i9J'. £»nl:^tto 9(fi! 
^iK0»*3:j;)-^». !&«giJS9X isi.S .'yss'^ oxicf 'to j-fiiiii..t.;--jr,u ©rij ;tj3 feivi ee.B©X 
isoi''t Jboijiiloaio; sii- a:^;;i.'^.fv: 'isf. +«a,'+ i-n<?^nco g'tti^nx^EXH. .aal^iJbaao 

A^^J^M^ ^^'^^ .S-'*^^ *XiI liXS «IXl|LjEl»J&a^j^ »**«> '^s-i'^ ijiwj. ^-^Xsi^tTC 
'Icj rioi:iui»;i^aoo sxic^ wi^^i^iBi^a o:? .a^'«>s iioJtriw ,<^iXd .XXl j^SS . fe^t.p'-i.'lfctfa 

Y^f ^fi^jWo'i'i ^lus is at TO «»tiys i^vt^-aaqtos « ai a9'^*yE«i:< ap'l e-iohs©! 
arojoafi tDiJJ" ai*-t^-'*ao*^' ^oa j-e#'^i«*^'*.b -fxaa:)' qifoori oit ijmt tot ^xosaoX 

lo'l iui&uo • aTtidriJiitXc, JJi;sl8rl) cj-curuiso ^lo'ti^-i^nM bus ^af^fctqwooRf le 

sM^ &t*.3'8 ••^Iaj>;'ii;4>0£ jfitlilJ- .'iiw |»04io £;?.djt,<o sill: ^^losi'U ^^rf# oo tH©« 

'to mxlS. &. mit-j r. j -^i&hust'wQ. .iU /xs^fwocuaoa alsxd ai. ■gX'iaoiXQ.-ga wal 

«IlsiiiLMLj8uL>li£S-iJii t^-^'-* .xil osx « Mg.g^j ■■•^fe „^,y,^„:.lty34-tj- s.*^ rf3i/-» ^«9«wi» 

Hrij- a©ci"A; &Xcri>.riEi-wsal#3ii> x£iits'3lt> ^.%alui ©v? .fi'Xii. ii^law ^C'Vf; ,©«1i S8X 

aa.!i ©eassX Qft'd- «-a;»atr **iri* ^'•^■"5'^ 3*3*0 p;a9fi3 iii a^X,^U©rl t^M ,a:toBl 

nsrJhF fcna noisaaaaaq oJ-nl. i&in»* oJ- ®e.u't«« ti»di x^i^ ?>:»3»S3»X «x{* .etie? 



here, sirice th.e lessee was in poesessioB wken tiae lease was mad« 
and covenanted In tiie lease that it had received the premises in 
a good stste of repair* 

Without undertaicing to discuss all Me cases in detail, we 
think it if sufl'icient to say tuat the ger^sral doctrine aruTiOunced 
in 9ll of them is to the effect t/iat a tenant oanr.ot take and re- 
main in possession of pre-aieea and at the sanie tiiae refuse to pay 
rent upon the ground that the premises have not "been repaired a@ 
agreed. In other words, if the tenant wisiies to plead construc- 
tive eviction, he muat ahandon the premises within a reasonable 
time and must pay rent for the time in which he has occupied* 
Patters o n v. Graham j ^ 140 111, 531; Keating v, Sprinj^er . 14o 111,481, 

Ihe isBues of fact in this case, as to -araether niaintiffs 
did in fjot repair as agreed and as to whether defendants in fact 
ahaadoned the praiaiees, were submitted to the jury wiiich found for 
plaintiffs on these issues* Defendauats contend that the verdict of 
the jury iis against the manifest weigut of the '-.vidence, and. that a 
new trial should nave been granted for tnat reason. We have given 
careful attention to the evi leno© as presented in defendants* ab- 
stract of the record and are uni,fcle to agree with their contentions, 
ei ther uiat plaintiffs failed to repair or taat defendants in 
possession abandoned the premises as untenantable, Burley & Co, 
vacated the premises in the latter part of tieptember, 1931, but 
there vTsre sigiis in tiie window reading, "Liquidation bale" soiae 
time before the uusinees was Cxoeed out, j.»o claiat v?ae made to 
plaintiffs at aiat time nor until just before this suit was brought 
that the removal was due to the fact that tiie building on the premi- 
ses had becoBie untenantable, Burley & Co, subleased the premises t© 
Deueuhoia Bros,, who remained in possession and conducted their 
business there Uiitil they were closed out by bankruptcy, proceedings* 
It is clear from the evidence that the reasons defeiJdant Burley & Co. 



n;i 39si;.as'3;(T srit !/:st1.&.i)<?'£ hn^i tx t.s.'i- ^ihc-.j; sad i-ri beici^n^mo &«» 

X^^H «?* 93f/t?'*i i53ii::> SiST.g ark*- iJ*5 isiui ©©oiGiSJ-icj to iioiej^sisaoif ai ciiiai 
B« fcecijfj'-rTi ;vjf.i-rf .ton f)vji:ti aaiaiiii&'xg a'iiiJ ^0il.t towoajji Bdi'ma^u ^aet 

».S>6icfi;ooo SBX' t>ri rbJliir ni se:ij arid- 'lo't in^'z v;j?^ Jajfra jfccwj »mli 
. ^£ !> * X i I d l» I , M liiiX^i- -'.I-iiSlMi?:! * -'^^ '"^ .III 0* X ^ afc-;,jiji-.ip. .^y ngsifii J-jag L 

'to Joifc'^sT *)*!;»■ S'.^uicr baafaoo ^.■ir.iShim'i'&Ki. «,e9/j'3*3i ssaii* no sTliJ-nijsXq 

ax acrrfPiais-t^j) j-eni -ig lijGte'i C"? fjsXijst et'licf-KijaXq djsiii- isiiJ i* 

^o'J -c Y»i'i"^ ,«lai?5!.tjii«4>ir£ix/ s*; as«xm3i(j QXi;J £>*aofci:iKdr. woisaaaiBoq; 

.t0fi ,L5Q1 j-xaditceiq-aa 'to ;^'X*q laliiiX £>riJ- ai asaiusaQ; laxi* fc*»lfi9«v 

;}-itj.'Joici 3KW .tiue- Siil:i aiolad cfsfit Ix^au ion i)!^idS *»&■ *Ji eVix^aiflXq 

,aaaift'>»ooi<?|%ocr^o-i^tt£-d ^<i' 5oo f<9aoXo o-ss* t^iii' i^^^iXt »it®xfi «o«alai;cr 

.oO A x9-f'^*J^ d-aefcfig'tse »ao8|»«>t 9fl# item <»hmhir6 sttlA ffi«*t 't^^lo «i '#1 



8 

ceased to occupy were eeonomie ia their nature, -^v, Clatssert, secre- 
tary of the Delaware corporation, negotiated for release of defend- 
ants from tlj.eir olsligations under the lease and asked the assistance 
of plaintiffs, as the correspondence shows, in endeaTore to find 
other tenants, and we think he stated the key to the solution of 
this whole controversy -^hexi he said, "When no agreeiiient "was reached 
■between us subsequent to that reduction of <|200, we began to look 
around to see if there was a way out," He testifies that in the 
latter part of October, 19 '53, in a telephone conversation he told 
one of -plaintiffs that no more rent would be paid, and that they 
had not kept the agreements made in the lease as to repairs, but 
this conversation is denied, as already stated, the jury has ren- 
dered a verdict for plaintiffs, which we do not think should be dis- 
turbed* As a matter of fact, long after that time the agents and 
servants of defeniants looked after the premises, and even now de- 
fendants retain the key, waioh has never been surrendered out whicdi 
the lease exoressly provided should be surrendered upon the tereii- 
nation of the lease* We cannot overlook that upon these issues ©f 
fact a jury has found in favor of jlaintiff lessors* We must hold 
therefore on this record that the evidence does not disclose suds. 
failure to raoair as would make the building untenantable nor any 
abandonment of the premises by these defendants such as is neoeesary 
to enable th.@m to defend upon the theory of a constructive eviction» 
Befendant* contend, however, tnat the court erred in giving, 
over tli-dr objection, certain instructions requested by plaintiffs. 
One of tnese is as follows: 

"The court further instructs you, Gentieanen of the Jury, 
that as to the defense of constructive eviction, the burden of 
proof is upon tae defendants to sho'^ the followin^;; t ingt by a 
pre^ponderance or greater weight of the evidence, (l) That on or 
before December 1, 1933, the premises were unfit for use for the 
purposes for which they were rented; (2) that the cause of such 
unfitness was a lack of repair of the roof or heating plant; (.3) 
that the landlords had notice or knowledge of the unfitness of the 



fciiifj: cxi a^ov^i^fiusi ai ,Bv:o-kis eoaafeaociasTi^os »fi;r a^ ,«l't IJrilsIq 'to 
'to aoiiislea sxiii o-j X'=^^ ®^^^ iic'i-sjs &/! :iJ^ti.til^ sw fcnja jB^ttsfto* isifJo 

aa^ ni; J-eiLI s^lixjasif «*i "^jiio v:*''? & exxr aisri^ '11 «e3 oi femjo>yji? 
^i»»ii^ j^iij bit^^ ,l;l*er sd' hXXfow J iisi Dieai «a t^rid" 8't'!'.i.t»Ti:*<£f lo sfio 

^flti* M^'n^ij.e, «xj3: isaii iisflci: a«;^li? gaol ,<t9'-''i- 'io 'iei.tiem £ aA .fi^dtoj 
-»b vroa n^rs* bm- ^n^'^akm^'io: &£i$ i6<r'ls k'i-i AooJi e^-iiisfo'^ia't^f to s^oeviss 

-h^%tiS <id4- Roqa bei'X&bea-yztiJfi ad felwone fcaAxvoaq TjXsia®>t;q3!f© s«fl*I »^d' 

5ioji ,^aiJ^}© :?'« t'i^oe^'iil Vik;imis?,£.: to 'Xtvsti at foajjo'i ajeri ^i^t •» *se't 

,aiti?i;:i Hj- fe«^i!9 a-iuo.j Silt 5i3iiJ (i^r-^TOxi .aii^-Jut.o «d'«fc,f;.a*i'3Ps€ ■''^^-■' 

jtiweZ-Xo't sjs-si 9a^i4;^ to snO 

"to n©!**^^,!^ »iij ^aQliQiy-B 3viJsiia*aafo t© asflataii ©rW o^ a<K JjoxiJ 

js x^ ^-^nhri ;:,isirt>i:iet »i'u'^ vi^oMw 0^ n^wwl-nitef) ©n* tt<!ft;rxr al tooiq 

"XO no" J»iii (I) ,«DiJOi)Xvs ©fl.) to Jil^isw 'i&i.ta'as ^o •otmiQisnocr^iq^ 

-5iid- lu'i ©ei/ lot ^rttiu i9T&w 80sii«?»iq «rt* ,eSQX ,1 tsxfcsosa siotetf 

-dssjja to «aiJ4P0 sxio" Ji»x:.cJ (S ) ;|?©*iis>-3; fx»w x^f^i'* risjMw ^ot asaoqiwQ 

(£) ;^!:s«-Jtc[ 'jniJasii io toot ©rt^ to 'ii^imS)^ to afoigl « Sisw aaaxi^^itay 

©££;r to 36i>ii;Sitnti- adit to »3fc-sXwoiK£ -ro saitea b&d s&%<sUiml ©xtf *«ri:)" 



premisoB for the use for which they were rented; (4) that the de- 
fendarits abajridoiied tlie premises before the first of DecemlDer, 
1933; and { 5) that such alDanlonment was on aooount of the unfit- 
ness of the premises (if there was sucn unfionesa, ) 

"If the defendants have failed to prove any one of these 
things hy a preponderance or greatar weigat of the evidence, 
your verdict must "be in favor of the plaintiffs* 

"^ven if yeu find from the evidence tJiat all of thes« 
things enmnerated above have been proven, yet if you further 
find froiTt the evidence thau the dei'€;i:-laiits by their conduct 
waived any right to abandon the preiuises on account of said con- 
dition, you ©ust find the issues in favor of the plaixitiff e« * 

The criticism of thie instruction is that while the evi- 
dence for defendants tended to sxaow that the preuisea were unfit 
for use during October, 1933, and tuat the lease was cancelled aai 
terminated by defendants on notice ta plaintiffs prior to October 
31, 1933, the instruction was misleading because it stated that 
defendarxts must sho^s the abandonment of the preruises before the 
first of December, 19 33, as we have already stated, these two suits 
were tried together. In one of theni plaintiffs claimed rent for 
Uovesiber, 1933, the other for DeoeBiber, 1933. We do not think th^ 
jury would have been confused through a state^uent that the premises 
should have been in fact abandoned prior to December 1, 1933, Any 
other Etatexuent would nave been inaccurate, ¥e laust presume that the 
jury ras intelligent. 

Defendants also comolain of tnis instruction because, thisy 
say, there is no evidence in the record upon which to predicate 
any claim of waiver. We have already indicated our opinion that 
there was such evidence, im6 the jury has so found, The instruc- 
tion was not inaccurate in vi ?:-'»»■ of the pleadir^^s in tiiis case 
which di^ not cla-iir. by way of recoupment, 

Othfcr objectione are made to souie of the instruetione whidi 
we think it quite unnecessary to discuss in detail, ihe issues 
In this ca&e are cQisparatlvely sixupie^ The instructions tiiven 
were tfebstantially accurate, and those given cover fully the 
propositions of law that it was necessary for the Jury to knew in 
order to decide the case. We think there was no substantial error 




( .aasixj x'irtu jfoijs saw ©naii'o' 'ti ) e9slcK>*i^ 3rij 'to ipoen 

,,«!l'£j;;?nLi-.aIi2. i&iU 'io iav;©"t til. -^cf inma ipi.bi>e>r ISJOX 
9Sfli'i.t 'to il& SM.vii souoijivs odd iy-Otl f^xii.'i jjOY "iX asivia*' 
tar-J-'Ci/i: jjo^ '-ii i^^^S ^£(»vo'i^ uaa-i 9T*v4 *Tod;« Jb^Jjjis^xijaa a^niif* 

■sot 3-«s»'i is-ssu-toXo a't*tl j-niA'-Io ni.'jxW to sfi© t'll .t^iii&'A^^ fn^ii* »1©W 

ariJ iitirii i-on o* &5V ,S£^X jiecfweftaCL te'i •zsifiito ^iit^Sf'.^X ^i^d&^fdll 

Sj^SfimsTCi »rij^^iiu(J ^n».f>s>dr*B a i%ifoti"«* Msij'fiioo ttssiuf 9T^»ii tlao^ f^^l 

Yifia .■f.tS«?X <X ladiiisooQ. O'J' "lei's <| &«Jitobft£,d.M: {>obS ni aftd'i 9T.«ff IjXwexia ■ 

3.di- :y«iid- «i'Kre<rrQ &t.:ijki sW .?>.1*JisjOCBiti ft^S-d »V«ii &Xiis:-w ^n®;fi93-ife4-a '£»xi*(> 

»*a*alXX9*aX ajBW t^irt ' 
^xiil' ,9sai50i>fi miiit-a'Jtn:#«ni: ©XiicT 'to oi»iX«;*iM<is3 oaX^i 8*iWB,»iss*l:»Q; ■■ • '^'■''' 

#,«jf}i noi.riiqo 'xwo b^&Moltnl xi>&^'^^ f^vsii*^^ ,'s^rim 'to biIbIo 'tn«^ 

,:#.;.T»0i<^woo«9T: "to \:s*f x^ ,'sicaXo *oiii 3igi iJolif*^' 
£fei.fli? «noJ'.d-3i.^'i,1u ii ^iii 'to 9.'5.-c5; o:f ^bcw saa Brjoi*s«''ocro -^itiif*© = f-v 

nsvx.i eit».t3 3iiid'a£ii: ^dT .sXtjiHla -^XaviJjttT^^cjj-fio® ©-^.s •»j6^ .^ixftf fil' 
Bdi xlliJ't -isvoa «i*'riii ftsocLi- has , 9l«*coj&»JBf X'iCXfi-'^^««*«*'^ •t*W^ 

■sen's© Xis.tlHJ'-SeeriJs on aM^r fm&rJ ^alsit *W .d8»o •Hi s&is»^ o* «*lto 



19 

either in the givirit, or of the refusing to ^ive infetructione, 

Defendants also contend tnat & certain letter written by 
tlie attorney for plaintiffs to defendant Spiegel k&y Stem Go, on 
OctoToer "^.4, 1933, was erroneously excluded froci the evidence* The 
letter stated that the lesaors had given consideration to certain 
letters of the defendant company and had reached tne conclusion 
that a cash settlement of ^90,0u0, while it would represent a Bub- 
staxttial loss to the lessors, would he accepted by theisa. The let- 
ter Was written after the controversy had arisen and by way of 
trying to reach a comprocdEe settlement* The court, however, per- 
mitted it to go in evidence with the amoxint "$90,000" deleted. 
The curt did not err in tnis ruling, 

Defendants also contend tnat plaintiffs under the terms of 
the lease -lid not have aiiy reaedy against defendants ty reason of 
a provleion in the lease to the effect, "if said party of the see- 
on -^ part shall ahandon or va.eate said premises, the sarie shall be 
re-let "by the arty of the first iDart for such rent, and upon such 
ter-is as said first party shall see fit; sjud if a Bafficient sum 
shall not be thu3 r';alized, after paying the expenses of such re- 
letting cnl ooliecting, to satisfy tae rent aerehy reserved, the 
party of the second -^art agre-s to satisfy and pay all deficiency.*' 
Befendants contend that the lease iVAving thus dfifin.3d the rsaedy 
that the lesnors should have m .ainst the lessees in case the 
preiaiseB should become vacated, the lessors ;.re r^etricted to 
such remedy, and ulaintiffs therefore have no rif^it to elpct 
anotber rer«dy. Befendante cite no authorities. The Supreme court 
and this court hare held directly to tho contrary, al though at one 
time 'livergwt views i»ere entertained on that cjueRfion, Hum! st on . 
Ms1Mm^A.S^^. ■▼«■ M\eel,e,x , 175 111. 514; Rau .v> Baker p 118 111. App. 
"••SO; HlTB^, y, iiome Appliances . ?.42 111, App* 4ia, 

In a fair trial before a jury, which could not have been 



01 

1J3 is-»*J-jii-3r T®jfd-B'£ ni:«ii-ic®o « .taajr hmt&exo oel^ a^fwJbne'^sCf .''-S- ■■- 

fh-^iif^i^h "000, OSl** tfUxoiJiffi ndi sii'r?} 9&na.ti.vs nl 03 o-t 2M, .59i-j Ira 

,;^aiXfi-i 3i,iij al iid i-oa £i/:.b ttl;.:o 9rfT 

stW8 i-aoiax'-'-'iLa b 'tJ: fcticv. ;ii'i 8<9«, iXaiis \;-1^^« v-sii'l JM^s a.n sjiitst 

jjil; ,i;.®vi6as'i ■^jfoi'SiK lixxi^i ©ii;r Ti'tsi^*© o*J .aaii&SilXoo hat. yiat:i&9£ 
'• .••p;-JoJ;cJ:'t®f> X.[jR v^,q biix:- v:'tss$p.e o^i G^»T:as i%£!t bnooeB &sii "to ■sjd'iBcr 

«f)e I-/? .f{:ji<oii«/X* ,v.i<4S'S-t'Cioo «?jckJ- ©J x^-^^^i-'^i^- ^Jjft^* nvad i%^&o shii hna 

.qvta axx 8IX .irjjt^i^ ^Y„ JM^a .;*xe *xxi «3^x «32X2^iiS_^£_,A£^i;.£.Kii.aal 

n»s«d »y«A *©n fciuoo ftoiifif ,Tiwt s ©'io'lsn^. XjbIt* tX«l.iB sxl .,-.,, ,.,.3; ,,, 



1% 

prejudice**! agp.liiat defendants' cause, verdicts ?rere retumefl f©r 
islaintiff B , ."^nd the Judge, ??ho ea^r and h.ea.rd the witnessea, 
ertterM judg^-.ents on these verdicts. »-^e think the .judcmente ^ust, 
pinfl they are affirmed* 

O'Connor ana AicSurely, JJ, , concur. 



33680 



V&AiAK 0, mm and AWiaS BABIEL3, / ) 

Appellees, fy^L.^ 

vs. ) 

SPIEGEL'S HOUSE iURi'^ieHIilG COkPAJiY , ) 

(J'ornierly known as Bpiegel May ^tem ) 

Company), an Illinois torrjoration, ) 

SPIEGEL MAY STSm CQiaPAbY, li.C. , a ) 

Delaware Corporation, and BURLBY & ) 

COMPASY, an Illlnoie Corporation, ) 

Appellants, ) 



/ 

APPKALs MiQU tfUiJlciPAL 
GOUHl OS' GEIGAfiO, 



\J \> 



iiS, PHBSlDIilO JU STICK MAXCHSTT 

DELIVERED Thlfl OPIKIOli Oi' THiii COURT. 

The issues of fact arid, lairi' ol' this oase are identical 
with those presented in ease i<o, 33679 between the same parties, 
in which an opinion has heen this day i'iled. Jpr the reasons 
stated in that opinion, in this oase also the jud^iiaent ol' the 
trial court is affirmed, 

AFflRMSB, 

MeSur«ly and O'Connor, JJ. , concur* 



y 



\ \ ■ ^ 

( ,v ■ ,afr9i.isoqje». 



*irii *to ^iiea^feiif, sn;,t oal.s £»s,:so 0lx:(o ai ,«oiaiqo d-^snJ- wl fce^c^-a 

^tiaoaco , .T.T/ ,'.:oa;ioO'u ferao vJ[©iij8oM 



\ 



38759 ^i / '^"y^ 

GQHDOIJI A, RAMSAY, aa Receiver for the ) ^^-"'' ^^1* 

ALBAiiY PaRK kKilVBAL BawK AL\D TBXiiiT^t^Z.^^ /J 

COLi»iU>iy, ) '"' "^-^ 

Appellant, ) 

) APPEitf^ FROM CIRCUIT COURT 
▼«• ) 

) Oy COOK COULTY. 

JACOB J. PRIGS, ) 

Appellee, ^ o> ^-^ /? 




0^ 

MR, I JUSTICE MATCHSTT EELIVSRSD THE OPIKIOIT OJ" TflB COURT. 

In an action of assumpsit upon a written guaranty and ur.on 
trial by the court, there '■•as a f Inking for defendant with judfiment. 
The defers se interposed was that after the #xecutioii and delivery of 
the written guaranty on Larch 10, 19 30, defendant on Octoher 1 of 
that year served a notice on plaintiff revoking the guat;anty, and 
that the notes lor which it was claimed defendant n&B liable hy 
reason of the guaranty were executed after the revocation. 

Plaintiff contends for reversal, first, that the finding 
tliat notice of revocation was served on plaintiff is against the 
manifest weight of the evi^le-fxce, and, second, asautiing that notice 
Wfts actually served as alleged under the terF'.s of the written 
guaranty, such notice v^as wholly ineffectual as a matter of law. 

Plaintiff is the receiver of the AllDany Park JSational 
bank, ?or some years prior to the transaction in question tli* 
Price Realty Securities Co., a corporation, engaged in dealing in 
real estate securiv,ies, v/a.; a cuEtofli.er of the hank and on or ahout 
March 10, 1930, had become indebted upon two promissory notes for 
several thousand dollars* One of these notes by its terms would 
■become due March 31, 1930, and the other Jiiay 5, 1930, Tae Securi- 
ties Co. was a faiaily corxDoration, Howard Hurwith, nephew of de- 
fendant, was secretary of the corporation axid owned, as he says, 
from 10 to 15 per cent of its capital stoclj» The rest of the 
stocic was o'.TOed by defendant and his wife. l>efendant was president 



( .EV 



,YfA\JOO M>00 UO 



( ,soxii<i ,t a:oDAX. 



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«iij i^grtx.ri'jj;; 8X 'i'ii3-;fXFlq ac bBVL^ie s/iv? noxj^ooTSa 'to soicSon i£.Ai 

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ai gaiLsaft r.l b^r/s^n^* ,aolis'/ton'iQo b ,.oO s^iixii/oaE -^ j- .£/:!•> H eoX'xl 

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s 

cf the eorooratioK, xhe notes taicen by the barik for the indebted- 
ness of the cor ooration were collateral notes and, spparexitly, a 
number of second mortgages upon real estate heA been delivered to 
secure the in-'Sbtediiess* The depression was under way, and the 
banJc requpsted further security. In compliabce witn xhis deaiand 
Aefendant on Mar eh 10, 19 30, executed and delivered to tJae bank a 
guaranty in substance as follos^s; 

"For ani in consideration of the euui of #1,00 the receipt 
whereof is hereby acioiowledf^ed, the advancey-ent of laoneys, the 
gl-^ing and exterding of credit by The Albany Park Iiational B&rxk 
and Trust Gonpsny of Chicago to Price Eealty See, Co., and of 
other valuable considerations, or det.arid 1 pro/ iae to pay The 
Albany Park Ivational Bank and i'rust Gorcpany suiy sind all sums of 
money irhich the said Albany Park National hank and Trust Conpany 
may at any time loan or advance to Price Fvealty iiec, Co., or on..., 
accouTit iiiclutiinf: oblif;aticns now e:asting to the amount of i'orty- 
Five liunclred dollars, together with interest on such o-oans and 
advances from the time the eaoie are made, or have been made res- 
pectively, at tne rate of 6 per cent per annuia until paid. 

This agreejjifnt and guarantee applies to the paytiant of all 
notes ana obligations to be made by said Price Kealty Seo, Co. , to 
the paid Albany Park i\ational Barik and frust Coinpany, and any re- 
newals tnereof or coitinuances of sar^e, whetiier in full or in 
part for the amount not to exceed is'orty-l^'ive jiundred Dollars," 

The notes held by the b3nk, as the sacie thereal'ter Eiatured, 
were at the request of the Securities Co. from time to time renewed 
for the balances respectively rearlning due thereon, and plaintiff 
now holds ur^paid two of tneEe renewal notes, one for the sum of 
|1132,68, dated December P9 , 1930, end due March SO, 1931, gnd 
another for the suie of #1132,60, dated November 3, 193<:j, and due 
february 2, 1931. 

The burd*B of proving his affiri-mtive defense was assumed 
by def enilant . On the trial he served notice upon plaintiff to 
produce a letter alleged to nave been delivered Iby him to the banlr 
en October 1, 1930, notifying the bank that he was cancelling 
and terminating his guaranty as of that date. The letter was not 
produced, Defen^-^ant then produced a copy of this supposed letter 
and testified that he dictated it to his stenographer, -who was 
still employed by him; that she wrote it, and he signed it and 



s 

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9 

took it over to the back and gave it "to the man at the desk; the 
Ban waB sitting at the desk at the bank on the main Tloor. ** De- 
fendant said that he walked into the bank with tiie letter and asked 
for Mr, fiagel, a vice-president of the bank, who was not there. 
He does not r^riember exactly with who» he talked, Mr. Kagel was 
the only officer of the bank he Imew, Se gave the letter to a 
man who was back of the c unter and never heard frm the bank after 
he delivered it, He said that the carbon copy in evidence was a 
true and correct copy of the letter. Defendant furtiier said that 
he did not have knowledge of any loan or note sip^ned by the Price 
Realty Securitiee Co, in ariy transaction with the bank after October 
1, 1930, On cross exaiuination he testified that he drove alone to 
the bank in his autoruobile. He says tliat as he walked in, the 
cages were on the right* 

"I could not tell you whether there were cages on the right 
and left side of the bank, I believe there were cages on both 
•ides, I Was in the bank fifteen or twenty minutes. I had a con- 
versation with the laaun I gave the paper to, I asked him where 
is.r, isagel was, and he told me he was either out to lunch— i don't 
remember wh^re he told me at that time. 1 told aim I was going to 
leave this witxi niio and he said he would see that the oroper -oarty 
got it." 

He aaye he did not ask the msui his nfune and the man didn't tell him 
his nante; that he has never seen hia- since, has never looked for 
hia and has never heard from him. He did not know Mr* Masterson, 
the discount teller. He never wrote any letter to the barik in 
connection with this visit of October 1, 193Q, never received any 
acknowledgment froiu the bank and never asked for nor got a receipt 
for the letter. 

Defendant also produced as a witness Mr, Pancoe, a real 
eetate man, who said he knew Mr, Camp of the bank, and that he 
used to do business there; that in the early part of October he 
went to the bank with lir, Hurwith, "rho called him that morning, 
and that in the bank they met ir. OaiTip, another vice-president; 



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".Si ^os 

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.idJt&X Oilj 'Xo*i 

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tliat there was talk ty ir* GaiJDp al)out tlie drawing of the guaranty; 
that ii^r. Gamp took a letter from his desk drawer and showed it to 
¥r, Hurwith, who said that Ar« Price was withdrawing the guaranty 
hut that he, Mr. Cainp, did not particularly care as long as the 
notes were ccllateralized ai-d no collateral would be reduced and 
as long; as the notes were being paid off. He did not reuember the 
wording of the letter, but the substance of it was that Mr, Price 
was withdrawing his guaranty and he didn't want anything further 
to do with it* lir. Pancoe further testifies, "iiotliing else was 
said. We Just h'./l a. friendly chat, were kidding along about busi- 
ness and about the stock market, and we left;" tixat they drove out 
to the bank in llurwith's car; that he didn't talk to atiyone in the 
bank besides ur. Camp, and he has not seen kr. Camp since that 
tirae, and he did not know where tr . Camp lived but used to see hiiai 
and knew him well. 

Howard Hurwith (who was secretary of irrice i^ealty iiecurities 
Co.) for defendant testified that prior to the date of the guaranty, 
the ResLlty corporation had a line of credit with the bank for about 
$15,000, which was secured by mortgages on loans made and owned by 
the Price Realty Securities Co.; that the company collected on the 
second mortgage notes up as collateral aad paid the proceeds to the 
bank, and that this was the praetiee also after the guaranty was 
given; that Mr. Camp asii-ed him in October, 193u, to coree to the 
bank and he Wf^t there with Ar, Pancoe; that ux, Caagp showed him a 
letter he had received from defeiidant and that he sbw it in i;r, 
CoiBp's possession; that the carbon copy is a true and correct copy* 
He says kr. Camp asked, "IShat do you tnink of Mr, Prie« withdrawing 
his guaranty?" to which he replied he thougnt it was a dil?ty trick, 
"when we were in trouble, when the real estate mari^et all vvent to 
pieces," etc.; that i^r, Gaaip said he didn't care very rauch, that 
they had confidence in the judgQient ox the witness and he aope-d that 



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5 

the collateriJl would work; that l^r, CaB?) did not asK the witness 

to bring in any other guaranty in place of that one» 

The carbon copy or the supposed letter was introduced 

in evideiice and is as loilows: 

"October 1, 19 30, 
Albany Park Maticnal Bank & Trust Co., 
3424 Lawreiice Ayenue, 
Chicago, Illinois. 

Gentleuien: In connection with xny -written guaratxtee dated 
March 10th, 1930, delivered to your bank in coimection with loan 
to be made by the irrice Healty Secui'itiea oo., please be infonaed 
that I wisa to terisinate and cancel said guaraiitse» 

X v?iil not consent to the renewal or extexisioii ol' any oi" 
the existing indebtedness owing by the Price lisalty Securities 
Co«, and insist tnat you deuiand payment on all obligations owing 
by said company. 

Yours very truly, 

JJP:itfi« 

kr, xiurwith I'urtner said xhat thereafter ne went to the bank and 

signed various notes for the cieourities conipany and signed the 

two notes which were plaintiff's exhibits 2 and 3, on I*'ebraary 

2, 1931, and M.arch 30, 1931; tn.at for three years iie did not speak 

to Mr, Price, 

The evidence shovvs that kr, Caap died prior to the begin- 
ning of this suit, 

itr. Sagel, who was cashier and also vice-president of the 
bank, testified he had occasion to see Mr, Causp almost daily 
while he was in the bank and saw him daily in October, 1930, but 
that i4r. Camp never said anytnin^ to him about an attempted revo- 
cation of ijir. Price's guaranty; that he did not know anything 
about the letter of Pric* atteiapting to revoke the guaranty and 
did not remember that he ever saw any letter froB Price to that 
effect; that he handled renewals of loans and lines of credit with 
the Price Realty Securities Go, but was not the only one in the 
bank who did so; that he had access to the file at any time hs had 
waything to do with the account; that he had a conversation with 
Mr, Price in Mr. Price's office in the spring of 1931, with 



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reference to the inde^tedneBB owed to the "bank, Mr, Price at 
that time said he waB unahle t© pay the notes and did not say 
anything about any revocation in the previous QctoTE)er, 

The evidence also tends to show that April 14, 19 31, Mr, 
Kagel, as cashier of the bank, wrote defendant telling him, in 
Bubstance that he was a guarantor on notes of the Securities Cos to 
the amount of |2365.28; that the directors insisted that unless 
payment was made the matter would be turned over to attorneys for 
collection: that the writer had tried to avoid litigation and that 
it was up to defendant to make some sort of reduction and avoid 
further costs, which the writer trusted woul'?, be convenient for 
hioi to do in a day or two, iJo answer was received to this letter. 

On cross examination Mr, Nagel said kr. Camp and he did 
the same kind of work, at times consulted each other and at other 
times did tnings independefttly; that it was posBi"ble that when he 
was out 3dUt» Iir» Hurwith saw Hiir. Caoip; that possibly he migiit have 
been mistaken when he testified that Iir, Gamp had never told him 
about the letter of October lst« He said he had always before 
found every paper around the bank he had to find and never aiesed 
any papers; that he had heard of papers being miefiled there but 
not lost, i-r, Sa.gel had no knowledge of any letter written by 
Mr» Price revoking hie guaranty. 

Dorothy Murphy testified that she ■'■as in cJiarge of the 
files iix the hands of the receiver of the Albany Park baiik; that 
she had made a search for the letter from Lr. Price dated October 
1, 1930, and had not found any such letter; that in searching for 
it she we-nt througli the regular receivership and the old bank 
files several times carefully but did not come across the letter, 
aie said that prior to the receivership t?/o girls did the filing 
in the bank; that in her ejwerience letters may occasionally be 
misfiled tut she did not recall any oocasion of one being lost. 



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iiov*; «>m-; .ioi^Ojo/>5':(: 'to iioB siiiics s3ii*->x-:i «■.+ i-aalxts'lofr od qi; sij'^v *i 

,TS^J-«X sido o.f fs&vi:<i03i 5«w 'xswsn*? 0*^1 ,oWst 10 Y^f- & nl o& oJ /aid 

t^ifjo .ts biK t--5;Iio r?o.99 rjs^J-Xjjanoo 5->ii£;f ^i-^ ,:^iow 'te fcnil f»;a«a arid' 
s>il K9xfw J-ailJ- eI;fi.i3Bog e.i?^v ti: Jsd.t •^•'i^xiA'^haeq^bnl a^ati'i bib Q&mli 

.bS'ssla'XfJv^n fxir. fcnx't oJ- h&d i'-d jlrjjscj' Sf{.t .r-iu?oi« tt^q^scf Y'^evs) fcauo'i 

i'-ifci o'X9Ai5 b^il'lsL-A iifiiscf 8'i«c if' lo .t'-xs-^^rl ,b.exl 9ri J-^jtW ;8i®gB<f x**» 

^Q" ,aeJ\t.ti'W •Xftvt.-JfflX Y.-^'«' "^^ 93l)&X'.^oxif2i o-fi lV-;,xi X»s«^ -"^^^ .d-aoX ;^o« 

,^ra-iie('Xi'ij3 aiii ajMi-iovei doJticf ,rtM 

mis 'to ©s'lAulo nl 6J3>.' ©ris 7«.dd- doi'ti^ss* \?;riqtuM vi^JotoO: 

+,?fli jixiscf jI-x*;^! \-,afsdXA ei0 to -lOv-xeos'X 9x1^ 'co e&nsiS ©fi# nx asXll 

■xsjcfoooO b9d-fii> ©0x1^ .'x.vi t;ioi't 'XBii^l Bii^ -io't iioiji^'se i* oLi-jm tsii 9rf« 

lol ]4ni;iu'r.09G aJt ;Jarf^ ii^J^cff^I rfoiia -^fw ftaxio't ^en bMti biw ^OSSX ,1 

:^w,<S fcXo Qiij -fjne cjxiiJJisvlsoii'i tslxja®"^ »^ r'aiJoiiiJ- icraw axla il 

.t-?>mii iidi 33oac>« e/iieo J on bib isjd \';XXw1«ijso a»nii;r Xjsidvse sdXl't 

^aiX-i't ©riJ- oiL aXii;.; owj- qlilaTSvi-dost «w£o 0* -xoxiq isili ties arfe 

sd" Y,XX-:^noi:aRooO vara aiaJ^dl 9onf)ii-Ci2Ci«> isxi: al i&rii jjlas'.d oft* al 

i ■"■■ 



Letters were kept in the filing caTainets, wkieh contained four 
drawers and were of standard steel, 3he ooulri not say how many 
cabinets were in the "bank. Letters were I'iled alphabetically 
except in some special cases, ahe said, "I have looked through 
every sini^ile i'ile in an effort to fini tiiis supposed letter, both 
the receiver's files and the bank files, I have not found any 
trace of it," further: "I made the search through these files 
almost a year ago, again last fall, and I believe last December I 
made a very thorough search. It was a search for this particular 
letter," 

We find it quite diifieult to accept tiie testisiony of de- 
fendant and his two witnesses on tnis point. The burden oJ proof 
was on him to establish his affirmative defense, ihere is an 
atmosphere of improbability and unreality about this testimony 
which precludes its acceptance. In view of the fincMicial situation 
and the ownership of the corporation it is extremely unlikely > in 
the lirst place, that Price would ask to be relieved of his lia- 
bility under the ^tuaranty; and, in the seeonid place, that the bank 
would consent that he be reliefed or would continue to extend 
credit al'ter the guaranty was withdrawn. It is quite iKiprobatle 
that on October 1, 19 30, defendant would drive to the bank, several 
miles away, having, as he says, no qUibt business there, to deliver 
this letter and return iaimediately to his office, when the desired 
result could have been obtained much more effectively by use of the 
mails. Use ©f the registered mail would have given aim absolute 
proof. His alleged conduct while at the bank is extremely im- 
probable, iie says that Mr. JSagel was out and he gave this i;r.portant 
document to someone at the bank •fl'hose name he did not take sjid about 
whom he ra^ieixibera little, if anything. Mr, Bagel's testimony is to 
the effect that he called upon defendant at his office downtown in 
the spring of 1931 and demanded paj'ment under the guaranty and that 
at that time defendant made no claim to have given notice of revo- 



■^jiSSifi woil \r«a Son /Jltf^o sxiti .Xssis |;xa;tia£-#ri le §t?:>w t'Oiii et^vninb 

'i:ooaci 'to afh-xud gd'i' ,*aioq siiia' no a®s'aeii(;ti"^ owj siii jbns d-oe&nsl 

cm ai S'^siiW ».-=53U3'i;9.f; ?)\rj:ijeani:'Xl.i', aici xfe iXcijsjs© o4- uun no aaw 

noia'swia Xisi oj it; xii'!: OaU 'Lo ^S'Iy nX ,90iis.tc;£ao« ad"! aelsxjlastcq' xloiriw 

•■si , v;;Xs.c.i: XaJwf ■^Ieni'5i.i-x» ssi J'X xioij^exoctsoo ^xiiJ- lo qlfi»'j?JtJWo 9ri;t .bn« 

-rxX «i-". 'to J: «■?•■-- iXst -^sf o<t zissi bluo^ ©ol-i^ l#xt;J ,»o.eXq tttrlt ^di^ 

•fjaisi'xe o« »wi:jlv>'«ioo .foXjafow *s:o &s'9:si,X3i ^<S sxl tsx!;^ ^tasaisoo ,fcXi;ow 

X£;"XSF»3 ,iai«d wu;f o;!- ©-/ia.!) fclyow tiw?; fuse lis I> .oeex «X TiacfoioQ ho ;t«jEf* 

.bsaie^fs iSil.}' fis'rf'w ,«>oi*ti:o alii o;}- y;XeJ.fcii>9iaaal etjfijiax Jbofi i^Ji^sX sid* 

9ii.t 'io tijsu Y<^ ■\j,X©TX;^oai'.t'|iS> STOiR xbufti &t'J«i.aiJtfo as.9cf sv-kUj iXwoo *Xt.'a©i 

SvtJJioao'K miri ERivxi, $v.6il fiXuow Xi*;«i Iis-isJ-siaea *.cl^ "io siaU .sXis;a 

imii%o<i'>^i eiii^ 'wa^ '.sxi hxic *ifo s«"- Xaji^a .tM d-#j-;J- 3^c«s ©-S .»IrfAtfoiQ 
,tuocfJ8 £-1X3 *2li3J- .ton bii? ©xi ©stscc seoiiv? :»nji£o' *rfd- *« siiosfsos oJ J-aaEUJoeft 

0:^ «i i:«o.«i*r8P* 8'Is3i3ii .-iJa" .aoi.i.Jv'J5 'ti ,»XJ-*xX ef.9«iiB»£a9x »^ aioilir 
fix xsTOJnwci: eoil'io aixl ^* jS-xwljcffilai^ xieqw f>9XXi«o »xi .tail^ ^osrt.a »^ 

jisx^^r 5iie ■^*0JB"£jsi.yis 9^^ isftctxf fm^&q hBbmmab bii£. lilQl to sflxi^fs «x£* 



cation. The evidence snows that a letter was sent to defendant on 
April 14, 1931, deKanding that he meet his liability 3,s a guaran- 
tor, lie ciade no response. It is only fair to suppose that he 
would have done so if the notice of revocation had been in fact 
given. The discount teller, Kr. Aiaeterson, slso wrote hia August 
12, 1921, with reference to hie liability, and again there was no 
response — » most improbable if he had revoked. It is singular 
indeed that the entire conversations of defenriant 's Ti'itnesBes on 
this most irr.portant matter were with a man, who is now dead. It 
is impossible to believe that fer, iiagel ^nd li-r, jinasterson , in view 
of all the circumstanceB, would have been ignorant of this revoca- 
tion if it had in ffict been given, koreover, fcr. IJagel had handled 
practically all the other details in respect tc the guaranty, and 
it is quite signifiear.t that this particular transaction should 
have been held with the man now dead, kr, Gasip, It is -5iiso quite 
improbable that if a notice of revocation was in fa.ct served on 
October let the banit on the same day would have renewed note i«o. 
27549 by note j.>io. 28339 for H!*13i4,4d, extending the indebtednesB 
for ninety days without further security. 

A stenographer, who is said to have written the supposed 
letter, was still in the employ of Price lut '.-as not called as a 
witness. In view of the fact that the burden of proof was upon 
defendant, (notwitnstanding the finding of the trial court, which 
is entitled to the same weight as the verdict of a jury) we find it 
quite impossible to exercise that degree of credulity that v/ould 
l«ad us to accept this iiiprobable teatiiiony, i'he first point., 
namely, tiiat the finding that the not ice was served is against the 
manifest preponderance of the evidence, must be sustained* 

If, ho'^ever, we asaoGie that the notios of revocation was in 
fact given, there would regain for consideration the question of 
its effect; in other words, whether the graaranty was in fact re- 



fjil i&i'J ^aocxq;ja o^t -xiB'!: vino ni $'x .Qsaongfrx on 9^£!Sf «E ,to* 
d^ox-'t ai naaa hi.\h no ii jiocv^i to sojijcn ©xi3 'it oes ®no& ©vsrf Mifo^' 

ore s^?w 5'ieiW nijBSi? oa^; ,-^.+i:iicfBl: I ssiri o:t «ori8-X'^"tsii ~.txw ,1591 ,SI 

SI ^tGob won ai o-dw , nuts :i rU xw 9i^w '3:?iJ-t.Gra J-n.fj.t-ioq>uJ: d-soJi Dirii" 

-«orn/t>'.T. RXiU 'to vtiis'ioa:.^! ns5':f r-'Vaii bluov^ , aeooijiHano-iio 9ji;t lis 'to 

.fen-i .^Ji-xeicit^ &il;J O-J :}oa;;-Eif>i hi; slUiiah i9x£^o 9-lc^ IIjs ^Ileoito.^'cof 

Q;^iiyi3 00 Jj? el ol tijifteJ^ ,'iAi ,&fcs^ vv:.ii asua «ii3' ii>Jiw fclsxl n«®<f sveri 
ao ^?)vi&a J'o.o't ni 3«?^ iitax^.-fioovaa 'to eaxJon a 'ii. S£^.Ai elcfxsdTo'iBpnJt 

B 3^; Jb9lJ[£0 d-ofi a*;-.-:' -jud aaii'-I 'io YOJttjtaB ©/i;t ai lliisi bbw .ns^^aX 

noqxf ajs-v 'tooiq 't..) a^-ft'iud oii;]- jerii i-£)*.'i: sMl 'to w«iT al .aaeac)-xr 

ildxii'w ,d"iwc'0 I.gJ;i"v» SiiJ '.to Bnilmil orftJ- aai:.f!a.r;.-fs.'-.J-iw:^on) , fsmbti^tsh 

is. L'iit'i 9V'.- (Y"^iJt « to cToifeiev Olid SB jri^xew s^n^s oAt oi h»Lfi&ti9 si 

blijov iiiiii- \^i J. luKufito 'io B9ig9i> ii\di saloitexs o;t alJisaoqoii n&isjp 

^■Jaioq. j'Bii'i 3x1'^ »\;aoiii3'8&J' Plcf^doiqiiiX eXiicJ- ;)'epoo«3 o* efc" b«sX 

Sild- J.^,ali3iii3 ai bavTTvS e£w atiia-ou ©flJ saxiif jjaifcxii't arW *j6ri;> ,°^Xett«a 

,i)yrui^d'^ii8 »o' iBiii:i: ,9om^blv*s msit io aoxiEBaeJbnoqsiq ie^'iinjum 

"to noiJas.up prU aolS£,r^'.' i&aoo 'loI al^uusT fcXcow s-isxiJ- ,fl6vis^*o«l 
-^1 do.:"t ni: ass7 x^^'^^'^^^ ^^ i©rlc^®riw ,br'iow isxiio sxl i#««'i'ti» «*J: 



9 

▼ocable* Defendant says that this guaranty was a unilateral, con- 
tinuing and revocable olTer, wiiioli vraB witixdrtiwn by the iictice oi' 
October ist; that it vas prospective in its operacion, indefinite 
in its duration and under its terms ii:idicated ari iiitentiori to pro- 
vide the bank ■'vith security in its future tra»ibuetions with the 
real eetate corporation up to tue limit of ^4500 ixi principal* 
Defendant cites caaes, such «i,8 TausBJg-, v. Heid . 145 111, 488; 
I famerow v. national Lead Uo . , 2G6 111, 626; iaiatioxial J^agl^ £>&nk v^ 
Hunt, 16 R. I, 14b; Lloyd's v. harper . L« H. 16 Cn. I>iv. 29U; 
Ainr:rlcar ._ ChaJ K Co. y. A rrow u rip i-l' ) p; , ^i yo ,, £35 i--,x,o, 22o, arid 
numerous other cases, to these prcpoeitions. 

It may be Tell to exaraine vita eone care the language of 
thP fjusranty end recall the coiiGi deration lor its execution, for 
after a31 , in contracts of guaranty, as in other contracts, the 
purpose of construction is to ascertain the intention of the 
parties^ Weger v« fiobinsori Sash jtiotor Co .. 34w 111, 61^ Xhe aiaount 
guaranteed is by the contract expressly liiuited to s?45uu, ihe 
guaranty is epecial, not general, in that it riuas to the bank &.ion^, 
and the obligation to pay is absolute in its nature, in that it is 
net made to rest upon any contingency. It is unique, ir: that it 
setii-s, in part, to create a tea^oorary guaranty sjid, in part, a, 
guaranty whic'a is continuing in its nature. £y its t?ri?is it in- 
cludes stims of money which the bank "may at any tise loan or ad- 
vance to Price Healty Sec^ Co*" ishile in the same paragraph this 
©bligatioB is expressly described as ''including obligations now 
exis tini^c to the amount of Ji'orty- i)'ive .Hundred dojLlars, .t ogether , ;?7ith 
intere_3.t . 9n . such loans , and ad vaii c^s from the bii ke tiie same are iflade, 
or have b een made respect ively . " xhe evider.ce also shows tiiat the 
Otligations of the corporation to the bank at this particular tiix^e 
exceeded mere than |45C0, sj tJiat in effsct ihe pajt-i^s L^Uot have 
contemplated the guaranty of these elating obligations to that -. 



jBSi^ .ill 5i-J. tM^il>,.-iZ-_M^i^:^t-V *^ i/awi! ,<ji)a«9o e&;tio .tiiefcuB'tsd 

;0§£ »vxG ,ri.j al .K , ... ,2ll£iMii._vX-jiMilli!l t^"^^ ♦•'^ »-'^ 9-^ «..i£LyS 
has, fii^U *o,Y,si ?2iv:» t ».guJ_^^^l.:i^ qi:X';^.. tvo'txA. .^v . .aO a -UiiD /tao2^'oi:-;A 

1© ag^jj^jxiGil S-CiJ 9"i^a ^.ijxo'.^ xJlw B^ilp-.jiXf^ oi XX*)*? scf '^.PfR *I 

•Sot t«cxi'i.ois.xa Bil -sol rioi:jr4si?>ii.lsiioo SJi^ IXj^oqt: .tas '^tautaa:? «rft 

©jict 'to ao.lji:-3d.ii ■sxv.r 0ijs;ti«>o3,s o-/ ei (io's.itok''iiaM<iO 't® oaoqTiig 

ei ^i j'siij .u ^a-iuJ-jrn ?di ai s^ttXcs-f .<••-, ax ^£/iq, p«^ tiiai4'^'^i:I'':ro sxli- baa 
ii j-eiiJ- .ii jS^j-iiiiij- gi Jl ,-^;iJi.a;3ai Jaoa -i;n« noc[Xf d*8!&i o^ S-baju: Jofi 

-KX ii si^'^'i* six Y^i ,3'Xt-;;J-,sn 8#i «x .^laxwi-a^faoo sx i'axxr^T xiaaieu-g 

"bB •to imol i=iiV.i;f v;iis ;f3 x^^i*' ^rs&iJ @xi^ iioxa'^r ^saoai "to eaixrc saisuXo 

aixi^ xlcfcttiixiirsq OiTyE?.a ©iij ai aXXxlw ''.o^ .osa ■y;d-Xe:*H «oii<=i ot sonis? 

^SJL.SiVli^xJ:Ai^^& iluxbJjXcii-i" s^i l^s^wiaos®/? YXasaigxs .ex. sfgiif^sjiXcfo 

SEXJ i«X.-jOiJ-x*q &idi iii ilascf sii;* oj noiitnoc.noo ^li^ 'to sncU^sisiXcro 
• *^ imU oi anoxi-fc-alXtfo -gaivtsix"© ©a^iii- 'is xismt^HQ 9iii- fc»ft;3-eX<j;iffl6#noo 



10 



amountj Eot until euch otligations were made would the guaranty 

as 
by its terns "become applicable/to other and future transactions. 

The consideration named was one dollar, whien, bo far as the 

evidence shows, -aB not paid. Other considerations 'A'ere the ad- 

rancemento of moneys, which had already been made by the bank^ 

and the extension of credit, which was executed and performed 

when the notes then about to mature ^ffere renewed by the bank. 

These notes, the evidence shows, were never in fjict paid in full, 

although partial paymerits were i^ade thereoD from tine to time, and 

there was an indefinite amount of collateral up with the batik to 

secure their payment. The guaraj:ty being absolute in its nature, 

defendant remains liable for tiae balance of the indebtedness rep«" 

resented by these notes. In oth-r words, tae contingency uoon 

which the guaranty would have becorae a continuing one did not at 

any time arise. The renewal notes did not represent new, but old, 

liabiliti<=s, and the consideration for trie old indebtedness, 

namely, the extension of credit, had been fully executed tind ■voer- 

formed by the bank when the notes about to become due at the time 

the guaranty was signed were extend«d* The guaranty on the first 

of October was therefore absolute in form and teiijporary in its 

nature, and the notice of revocation was ineffectual to end it. 

Defendant ig therefore liable, 

While the cases are in raany respects distinguishable, the 
conclusion at whicn we have arrived is consistent with the reasoning 
thereof* Estate pf Hapjj v» Phoenix Ins. COy^ . 113 111. 390; I^lpyd.,,'j. 
▼ . Harper^ L, H,'l6 Ch, Civ. 290; Wise T.Jliller, 45 Ohio St, 388; 
Zimetbauia y. iierenson . 267 iiass, 250, '166 i'..'"'s, 719; lU_elsen , v . 
Davidson^ 226 Pete. 835. Defendant, therefore, as a matter of fact 
and law is liable for the principal amount of the notes sued on, 
namely, |1132,60 and |1132.68, with interest thereon at six per 
cent per anrium froi^ the maturity of the saiiie , iiiaking a total ewr of 
|2989.41 , I'or which jud^fient will be entered here, 

REVERSED WIM JlfDakiivT llz.EE, AQAl^bT JACOB J, PRiCE 
MD IJS J'AVOR OF GOHDOI A. RAfeSAJT, AS KSCEIVEK 01 THB 
ALBiU!«T P^vRK fiATlOMAL BamK MD TRUBT GOMPAKY SOR 
f 2989. 41. 

McSurely, P. J., and O'Connor, J., concur. 



01 



,:^fav:cr ssfr/ \;'/ y?>a:a fisacf '^li^-ji.fj-x .Lii S-biI rbiriv- ,.a\;9.aoa 'to sti-:!<siimoimr 

is vtoa fci.£^ aao iuixijai: J'aoa f? '.♦iifoosd' av^xi islifow Tjcfiistam^ erf* aaidir 
,a8»xi&eJi.iti.brii iXo oxiJ 13'x aos.iei&bieaQO ^xii iims ^asxJiXxdjail 

.;rx f>;i<t; oj X,(Sii;f0a;i'ii3fil 'sow aoiJjsoovsT 'lo -^olioct »££;}• ftne ,«Tu3-«a' 

jnxnoasai eifJ' dvtlw jj-no^laxaiioo ai .b&vlit.a sv.f,.xi aw xioixlw i& noiai/Ionoo 

;S6g .tQ oXiiO Hi- ,-.t9XXiM "TVaFw logS .via .xiO dX .E .-I ,-g&c-tjgK ,.y 
.\^,„n©8X.ft.J.VI ;9XV ,£ ",.!*' 5dX,'0(5S .sfi<isM VdS , ut.'eJ[g,'^g^S,,,..J,. ii^0it.^^J^^ 

,flo bQiJn a-sJ-oa t*ii;^ to iJ-nuocie icqionl^q aiid' -xo't aX^'x-'iX si 'wnl bcut 

isg jGXSj .J« ciosj'ieiij- Ja9T:cj,Jiii ijJiw .ad,Scr;XX«. -bae Od.aexx.; .AjX^rfLan 

'to i-sxis Xjic^oJ M gax.;La.x , si.Uie ori* 'to \,il'ii!ii&a. eisii idoicl ffitijxxa© -xsg Jji»o 



* ■ * X*'.e86Sf 



38770 

3ARMi riOLD» ) 

Appellant, ) 

) 

vs. ) 

) 

RIVERVi:£W PARK COiiiPADY, ) 

a Corporation, ) 

Appellee, ) 




MB. IJU alias imTCHETT BELIVBHKD 'fHl OPnaOH Off SHE COURT. 

!S^is appeal is ty plaintil'f from an order entered Octo^ber 
11, 1935, vacating a judjitaent by del'aalt in favor of i^laintiff 
for :#1|000 esitered 3eptember 5, 1935. Tlae motion to set aside tlie 
judgment v/as first maiie by defendant before Judge tireen of tiie 
Municipal court Bepteinber 17th, twelve days after the jad-^ient was 
entered. On the s^ae day defendant filed a typ3written stataaent 
of reasons, for wiiich it was claiiaed the judgment suould be set 
aeide, but this statement was not verifiedi The raotion Tras con- 
tinued from time to ticie until October Iwth vaeu it came up for 
hearing before Judge Green, 'i'a? proceedings at that tiirie nave not 
been preserved, but it appeao's frou the record tuat an order was 
entered on that day, as fellows: "It i& ordered by the court that 
the motion of the defendant heretofore siitered herein to vacate 
Jud£3ED.ent and default be and the eaiue is hereby ordered vathdratma " 
On the same day defendant tsave notice to plaintiff that on the 
following day a petition to vacate the jad^^ent would be preserited. 
Ob the next day, October lltn, tue petition tras presented to Judge 
0*Connell of the i..-unicipal court and the order froja rnich this 
appeal hiS been perfected, was enttired. The order entered gr&iited 
the prayer of the petition to vacate the Judgraent, deiiied a motion 
of plaintiff for 1 ;ave to file counter affidavit to the petition, 
and ordered the petition to stand as an affidavit of liisrits, 

Plaintiff contend^f, citing aataorities such as uilQ.hrQst 
Tramsoortatiop Co. v« i'iorthern grain Goj _.. 204 111, Slo, that the 



XKUi;^ JAfacii.lie^ -^lUiTiJ ,^.;i*a<iA ( 



oTves 



«8V 






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Ja«is> jftjsi nfJJti'X^/^qxii- fs b?r>ixl d'fts?jba«>'t©i3 -y^&b siaae arid" aO .fSorteJn© 

-nc-o sjisf/ iioxJ-oia &itx ,bf>ii.tiBV ion «*-v c^uej/.^JAi^J-a elicit ;ivd ^&blee 

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J-on 'avr-ii ^iExj cf^iivi iz: a;»,£ixiuv0oo';ie f'i:^'^' . itsivics) ostJjT> ^^o't'Sd -i^niiiM^ii 

s.t.eo^:-^ o-i n.xo-i.:ii ftsi^jjiitr ht-io'ioi^'&iL .JTiefuiHlj&f) sii^f 'to ani;?oia 9Sii 
*' ,nvr,;/x,&ii3'X'i? ba-x^i 10 via®"!::' -t'l sl ;>iij«8 fliAJ" .fuxB ."-fd" ;^Xtis't»fe fytUi ^narjafiiit 

B^hsfi' p'>: te^iiif^FtBitr e*:v/ naxJi^^&a, »ao ,ftJ-Xl ■sst-fo.toO «\;s£' ^^=!:»« s*'''* '^^ 
feii-fiv! xioxrtv' nioi'.i laMo aiid' hna il'ii*'oa X^axo4-«w?i «Xi? 'to X.X^«rtoU^O 

noitora ,£:. .boxudb ,^a?3i.^',j,ji!t MJ" oiiiQi.-v oJ- aox-^xJ-^Cf »il^ 'to ^»Y«'rg^©ri* 

,aJ-i'xaa 'io Ji v*sibxi't.s ob bb .brmd^a »&' aoXtxcfaq &iii b^i&bio bm 
^•af:>'ii>oXx£ 5f-^ aox;& eaiJ iioi. .J-j.;*^ Sjnx^lo ,")bI>u9*«oo 't't.td-iij:.pX^l j 
iHii ~U^L^ ,^lo .1X1 f'OS ,»oO flxax D uto.l^ioa ,y .i^0_ noxigJ'^o.-easTT 



court erred in denying her Juotion for leave to I'ils a counter al- 
fidavit, which, s.ie saye, was not to tne merits cat concorned UiS 
iesue of diligence. '-tiiere is no certificate of proceedings or "bill 
of exceptions in the record, not does any coui-ter affidavit apoeax 
therein. The procsedinga have not been preserved "by certificate, 
or other'.visa; we are therefore uxaalsle to deter^iiine -what were the 
oiroumstances under which leave to present the counter affidavit 
was denied. All tlie presuiaptiona, however, are in favor of tne 
order. It is for the pitrty appealing to siow error, which doea 
not appear in Uiis resr^ect froia the record presented to us. 

The order appealed froii was entered October 11 th, 'fhe 
judgment set aside was entered Bepteaaher 5th, laoro thari thirty 
days prior thereto. Plaintiff therefore coi. tends that the pro- 
ceeding TiTas necessarily under Section 21 of the ikunicipal court 
act, and that the petition was insufficient whaij considered as a 
"bill in equity, or its equivalent, under the rule stated in 
Igibrie v^ ,£e3j ir.t 220 111. App, 15;), and sirailar cases. 

As already stated, the raotion to vacate tiie jU'l{,iaent was 
first iuade aspteiTiber 17th, cJTid v;as iicrefore Yrithin the thirty-day 
period, after vhich by virtue of Uie provisions ol' section 21 of 
the Municipal court act, the judgment woula become finai^ The 
order- of October ICth by uudge (ireen directs the withdrtiV/al of 
that motion, The proceedings before Judge vireen are not preserved. 
Plaintiff argues that uhe motion v-as denied, but the record does 
not justify that inference. Ihe lan^uai^e of the cider doss not 
seem to have been chosen witii care. Xiie court ht.d no power to 
direct the ?/ithdr6Jral of the iiiotion. Ihat power was with the at- 
torney for defendant alone. The court might aave dexiied the 
action, but the court ii^as without power to cauBe an order xi^i Ihdraw- 
ing the motion to be entered. It seeeis altogether probable that the 
intention was to give defendant leave to withdraw its omi unverified 



?!)r,(>,V |>s«'£ej;acu #Jja' s;!tl's&&i £s.ilt «>}■ .ton a^r--- ,3\r,ss er;.(3 ,, ffo xiUiEf jJ^iy-sftil 

■:c«fv.>ci!.;a d-ivfi&Xi'ts I® J" ;;ooi: ■^ct* sf'ob lea ,bioo9'x -^jdi nl sn'^.liq^ox® to 
, ^>j,.:;;i:"i;i:,/'j?5o \';'i bi-yTr^asic; need" J'en oTtiii esjnii'.'-^®oo':i<5; sxiT .ttx^isr'* 

Sivsbi't'tM -X'F.'SiiL'oo s'^iii ^aes^tq o;f ■^vb-^L siioi.u'^f leAmj esoixccfsrecuoiio 

Tgt-xixit fieii;)- cs-iosii ,iije ii»d'i»»i":q©«j. fes's^tna esi? e.bia« J-ips ;JiT9fJSJ&iJt 
-o'Aii; siL" J.sii^' ai>j;it«.t.ioo s'ldifrijSjLtj 'iiicriUi.-iu ,Qi&x:iLU loitq e^®^ 

^ as /)<tif?l)Xa0ofj ?jeiiw d'.iaio.rt'Uiaai o-.kv/* neij x;!?>tf 'id;*- i'Bi'} bm\ ,.to« 

nl fiei^jp.-re 9£-sj-i ^lii I'jbt'v (^'•a^.vi.ijviups s^i^i to ^^^''J-J-'P'^ ni Xlicf 

«aftRs& xslicixc hiv^ ,.,ax .qcjA *III OSS .'X &sS.. .,7 «?x ; iJfgI 

'to XS; iioi3'x-^9o 'to rjiioielroiCf Oxia- io ©u^'-i.cv \ja' rli>xji's.- 19;^'t,^■ ^feoxteg 

s»jriT .Xanx'i ©jiioo^xf I^XU'^w j*9ifiti,i5W(;, ©iU" ,.to.ij ^-suoo X^qioiauti^ «dd' 

'to X*j'.7.4il>ad'xa? axi.! acfasixi. asaife y.^buw ^cf v.i^jl iflci'a*&0 lo .^9Sto 

.^^sY-nsteu-XQ Jo-x yx-; iiiiO'ii) iJsl'Ai'u fflio'tfjd a^Hi *j(.> »iiO'.i ft sJ^'i' ,aoi:*02i ^«aJ 

ioa aaeb tsthio ©li^ 'io «3^.-'iUiJ5i axil' ,»uasta".tal JBiiJ' Y'^id-attt '^.£>" 

<«jii ©xii iiixw a*»>/ 'Xj?*u->q i'^iiii .ati>i*oui &di- to Xs^as'ifciitfx?'.- erij- ;^09iif> 
: ' sxij- xisiaoL^ &v.«,ui J-ii^sX^it J^jjOo &£ii „i>>aoiJi> ^kmba^'tiib to'x ij^tno^ 

»itf te*lit sXdBcfoiq issiicf^soJ-Xa ■a^^&'n il .69*o-ii'fi» »«'' O'^ aoltoa. ^Ai a«x 



petition. If we so regard tJiis order, the r.ction to eet aside 
the prior .ludf^ert was still pending ej\A made in apt time, and the 
order graritiut: it would not "be an rrppralatle order, rxd this ap- 
peal should be disBiiseed, As there is no report of proceedings or 
hill of exceptions, we do not know the reasons iphich aoved the 
trial court to set aside the ,ju'i_.iiient. However, the petition 
filed October 11th \ia.s :^uly verified. It slletied facts irhich if 
true justified the inference that the jul(i,ment ty default ras 
procured under eirciorastances a/noiintlng to fraud. These allggyi- 
tlons are not der.ied on this record, and the argument that the 
petition on its face shows negligence on the part of defendant 
and its attorney is not a (sufficient reply to an averment 
charging fraud. 

All presumptions are in f-xvor of the order entered hy 
the trial Judge, .and it is af finned, 

AF^IiaTBD, 

IScSurely, P, J., and O'Connor, J., concur^ 



«>r:« t'^/o.u rlsA^-'f axic.'^i^jyrj sr-y wou^ ion cio ©w <saoxj^q9oxs 'to Ilxcf 

f.flj vtrij #i!ftSxjJi''Xf5 ©i/1 i:'fip. ,f>'.cs>o©'i Rir'.t ac ftaireJ-- .ton '^i^j sraoi:* 

omjjuife'iaf, 'to ;'-i.pq r^sii- no ©oaf)Sii;Is.*^n «^y©rfs! seal &ii no nol^i^^r 

V* as rri ?-¥■£■ itc: o.t ^Xcir--! j-r.sioi'ili-'p j:^ io.a 9i. xfunci^s Bit bu. 

yJ hB'X'^i"i:i:' lobio -^xii 'to 'X.ovf'X. ni bt-b snol tqxvusioiq ISA 

^h&jmtVli: si il bae. ,&gt!jl' l»ln$ ©rid" 

,iAif; aoo , .1 .■xon.toO'O .boi? , J. ,1 .Tj;XftT«aoM 



R. G, LYDY, li^C, a Corporation, ) / ^/^ 

Appellee, ) /^ 




),/^ APPKAlb..^bH SUPBRIOR COURI 
! 0? C( 

Appellant, ) 2 8 () 



vs. J 

j 0? COOK COUSTY. 

PAJLIKB PORfSH WHIIB, ) ^ ,- ^-% — ^ r% ^ ^'^ 



) 



JL » 



MR J JUSTICE mATCHBTT laBLI^rSBED TilE OPIMOE OP THE COURT. 

June 21, 1929, plaintil'l" corporation entered into a writiiag 
wliere^)y defendant , Pauline Porter White, de ised to it Tor a term 
or five years begixaiing July 1, 1929, certaiii prei^iises in Gaieago 
known as 11 Sast Waoker drive, to be used for open air parking and 
an automobile filling and greasing station, witii uses incident 
tiiereto* Kie lease was on form x^o. 42, "printed and for aale by 
the Chicago Legal iiews Co." atid contained the uauax proTiBXorjs for 
what is known as a ground lease, io this printed forsa a typewrittea 
rider was attached containing special matters agreed upon 'by the 
parties. The rent reserved was #325 per month. The lease was 
suljject to caricellation upon conditions naaied. Plaintiff agreed 
to pay the expeases of wrecking an old tiilding standing on the 
premises whicii had been oondeianed by the city, ■'•n the printed 
portion of the lease was a clause by whicu the lessee agreed to 
pay all taxes and asaeseiaents laid, charged or assessed pending 
the existence of the lease. 

Plaintiff entered into possession and thereafter paid the 
monthly rental as agreed and complied with all other covenatite 
except as to the payiaent of taxes and assessxiients. Defendant 
having deiuanded such taxas and assessm^its, amounting to between 
$3000 and ^#7000 annually, plaintiff filed its bilx in equity in 
Which it averred tnat the printed paragraph obligating it to pay 
taxes and assessBients was left in the lease by mistake and that 
any such agreement was contrary to the actual intention of tne 



[GOO SOISE^IUS aOi^...,..kS«i<IA ^U 
.YTliUOO JiOOO 10 ( 

( ,siKW iis-raoq. aaidUA^ 



rl I; T rl ;^?\ ( ,ici^u.0qk 



yuo ai.i o o- 



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.THUoo SET to mmmo SHT ersswajira: tts^idtam soitbui Uhm 

ai'i,^3 *i lu'x vi o.t c:-»..";X sij ^^SiiW ■xe$'xo^i Bi-il£i.>»% , J imwiis'ls^b ^c/aisxir 
iaobs.ous st^eu ri;ii?.' ^aox^l'aijs ;giiX ajj.i?iii Ijos gaiXXi'i eIxdo»ao^A/.i3 aa 

Sssiisa 'i ii JaibX'-i .iiftiiitea aiioi Jiljiioo ayqw ixoiasxi^oriso oj- 3'ost^^® 

O't &ye'ij.!*-; ass.. ^''JX r^au iiaxu'^" tjC pefJiJ.o .s sajw sgjt;sX SfX;^ 'to aoijl"ioG 

jaeii^ait'isiX ,si'.i-jiu.QiJ3est« ]'i%B ®a.x«ct to ;^usi»iv;*>q ©xiJ' cw as Jq»oxs 
«i Ti4xup& ru xXiJ cii'x f;9Xx'l 'niJalaXq ,\:XX&ii»liijg OOOVi i5Xifl OUOd^ 



partips. The Mil prayed that tke lease might "be reformed by tlie 
elimination from it of this paragraph; that an injunction migiit 
iesue restraining interf er^rjce with plaintiff's por>BesBion of the 
premises, and for other relief. Defendant answered denying that 
the paragraph became a part of the lease through loi stake; averred 
that it was the Intention of the parties that plaintiff should 
pay the taxes, and dei.ied that plaintiff was entitled to relief. 
She also filed a cross bill averring facta similar to txiose giet 
up in her answer, particularly with reference to the intention of 
the parties, and prayed that an accounting might be taken end. a 
decree entered in her favor, requiring plaintiff to ptiy the amount 
found to be due tinder this paragraph of the lease. iPlaintiff 
answered, denying the material allegations of the cross hill. 
Defendant filed a supplemental cross bill which plaintiff also 
answered, denying its material aTerruents, 

The cause was put at issut and referred to a master who 
reported in favor of plaintiff and recoisraended a decree as prayed 
in the bill, 'Xlie cause was hoard by the chancellor upon exceptioBj 
to the report of the master. The report was in all respects ap- 
proved and a decree entered reforming tiie lease by the eliiainatloa 
of the paragraph in question, and frosi that decree defendant ap- 
peals to this courts 

In the last analysis the case seems to turn on an issue of 
fact. The last lease by plaintiff of the preciises made befq^re the 
old building had been oondeEined by t.ae City was for a term of 
three years at a rental of |7 50 a luonth. This prior lease by its 
terms ended April 30, 1927, and under its terms the l^essor paid 
the taxes, Bt>eeial assessj&ents, etc. If we assume the lease here 
to exoress the intention of the parties with regard to the payment 
of the taxes by the lessee, it would require the paysaeat of rental 
exceeding $1000 a month, exclusive of the cost of the deruolition 



ij/iiilm aol>to0i;to(X tie i.^ni ; i1g&-is>s"2><"-T sXii:} to ;Ji: Ao'tt jTCoi-Jeniialls 
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,'t.--t.Xi5'i 0.; bsl^ijaa a.Bv;' t'ti^nialq d-*4ii;t .b.'/l .aft biOs ,s^xsri sxJ.^ -/jsq 

^:^a f»*jond OS ■t^'■ll■iii.B e>to^t XjalxiGV^ Ilirf asoio jb ^sXil oali; 9i18 

1© Hoitiiod^ni *^Jiij o5 @oaen:9''ip/'x dslr- ijIi.£;.Ci oxJ-TBq ^'saw^oe -xisri ni: qu 

j-auoKi® 9iit yjiq os 'i'tlJaislq saiiijjpsi ,xcT'?.'i led ni b^iBias 9«-co»Jb 
'■fiiJ-fiisI'i ,<?>8.s-3l Olio' "xo rfq«-TSA?i,s>c-: aiiU t^htttj asjk acf o^ feauot 
.i'lxd !?80io «dd- '-to ;-!noxj,s3s5.£I.e XaxT5Kt>;a'. yxfj a«iY«sfc .Jbsio^oxxa 

,!£,tnsrrx3Tfi Xsii'X^'.j'j.si'f! sJ"i; ^aii^rtah ,l>6's»waa» 

b^X-i/.-xq a.s5 f^stos-E. jb hs^nsia: host's: f>rie I'ri joi^Xcr lo 'iOTj^:'t ax l>*J"loq©tC 

sfioi-qsGX© .toqJi T:o-i: tsOi-V^iio -^rii ^cf fti.ft':ii sjsw «)ajj«c sxtT .Hid' 9di ai 

-qn aioaqss-j ISm r.x s«j? j-'SOijQi sriT .fiin/i:^ fnii 'to ^log&T; sri.t o* 

aolS.^iCih-dl^ '»dij- \Ecf saiiHi s>.:'i gfit^r^xo't^i: ^^ifi^as asioaS fi fens feevonq; 

~r,s JfiyJba^Tt^l) ga'iosJb i&ri^ soil ?>m? .s-aicfasup al dq,$iTSiiixeq 9di 'to 

«^ixroo siiiJ' o;:^ slAsq 

'to isiift;}' £J 'xo't e/t" Y^^--' ^'^^'^ Y^ |>9rir;^©fcnoo ae&d baxf gniMliicf bio 

.&x.sq 30881'! &ai ssirsi: ^ii. ^9btiu b>iv. ,7SeX «0^; IlicrA tdl^nr. atsrt»t 

9-xsii ss,'ia.C si'i-:? asii/ae-s evr 'tl .o:f6 .sdiis.^iaasas*!. Xj-^iosce ,e©xsJ^ arii" 

,tns<iif'>{;£5q: siii od- 6-xj33©i atxw a9i:^'!C«q siJld- 'to noii'mias. mii «eei<TX9 o# 

XtjJ:^o-x 'io :Jii9;ini*(/ Oiicr s-xlwpfs^ ijXwow ,t i ,a0eS9l ar^i ^^.d 8»x.oi srfj' To 

cjoldiloiHofj sxfj' 'io J'soo »iii to ©rxaolox'* ,riJ«Ojff « 000X4 snil>990X® 



ol' til© "building. Jxegotiations i'or the leasing oT this ground by 
plaintiff had teen under vB.y for some tin-e, and trie evidence ehows 
without contradiction th&t at n© time during such negotiations, 
either in the verbal convereations or in letters irhich passed 
"between the parties, was anything said about tne lesBee paying 
taxes or specisQ. assessments* The ©onthly rental first suggested 
"by plaintiff was #900 a month; later the offer was increased to 
#250 a month. 

Mr, Teiapleton, -who acted as attorney for both the lejisor 
and the lessee in the preparation of the rider of the lease, eays 
in 3i.i"bst-\nce that olaintiff had boen auoh interested in ^"."tting 
a lease of this piece of ground and two similar adjoining pieces; 
that negotiations were begun by the ov'mer to get a customer for a 
long-term lease of the siime as early as 1926 and these were con- 
tinued lip to 19 29, Each time the witness thought the negotiation 
would result In the execution of 3uch lease, ar^d he discouraged 
plaintiff for the reason tViat the execution of any such long-term 
lease (wiiich the own-jr, of course, preferred) would necessarily 
result in the cancellation of ai^y open-air-parking leas© plaintiff 
might have obtained. However, eacii negotiation for a long-term 
lease fell throujjh, 

l.r, Templeton held conversations about the matter with Dr. 
White, husband of defendant, and she (anxious to have the property 
bring in some income) through her accents entered into negotiations 
with a man named Rosseau, looking toward the execution of a short- 
term lease of this kind; in fact, Eosseaa made a verbal agreement 
through Mr. Rubloff of Robert '^ite & Co., real estate agents for 
defendaitt, for a five-year lease of the premises for parting pur- 
poses. It was agreed that the rental aliould be |325 a month, ,and 
that the verbal at^reement should be .afterwsjrd reduced to writing. 



3\Yoria oa^'^blvs jjii.t has .©.jiij' siaoa 'to':!: ^rjvv 'lajsau noscf 6«ri *t't f^rjisXq 
£s-=ja^tl iioiiiw a'is53'« i- sti 'xo enoiil*&Tf^Tnoo ijecf-jev artvt ' ni twrfjl'j 

'lose 9 1 Sifcr laJT';; -lo't \9-vto^is •'3 a bsJ-o;^: oriw , accfslffmst ,tM 

at.'''3 ,08j2fli, !9j:tc|- 'to 'ir?M'i *-'li 'bo no i:J'.'ri>;;c!-^iC' srU*- ai. s^sseX ftrlJ' SihLs 

bd'^iiiuooiiib ed bit- ^i)Bs&L h.ti:j'rj lo iiox^ijosxs' ©dv ax d'Xija'si bXiJow 

src-:)S*'P,aol riouR Viu'. 'i.:^ uoxctfooax© szli i^aiU' cioBj5«)-.f; ©xiJ' lo't ViiinzBlq 

ij:.ti:i^Bfl306n ibXuow (|t*r-j:T:-''i&'it!; ,©a'twoo to j-xdhwo oiicT iioijivr) »b^9X 

'.ttXcr.ti/'.Xq 9SBfil ^niixaq-iLp-nr^oo ^ob to noid'/jXXooru^o -^sii ni :iliiz^-x 

tsa&i-^iaol B "aio'i; flei;h«ii'os«'n rloi»9 .(isrsiwoE ,&ffir?i:s;tcfo 557-jfcxi ixiaJtffi 

,^js^oirfi XXfll QSfssX 

'\jJi9qotq axi;t ?v*;!*- o;)- r^xj-oxxrij; ) gxie £-.n*- , Jnsbrtp'to/' 'to bnadstiii ^eiiiTfl 

«;'-3:ox{s s lo noi*i<o9xa 'Jri^ fjiswoi- jaitlitooX ,j;;««aaoH Jfes^taEn rusat * /f*iw 

lo't ei^/mis 'j>>t*^^u9 X^'-JT ,.ou i-. ©j-iiiW ifcirfcH 'to rtoXdTxjfi \iZ tt:gut>-xxii 

ha.-. ,i::J'aoi>x a SSSI 9cf iiXijoxia Ijaitiet ^iii 3Biii bf^&r^ii B£W *I .adaoq 



It is un-^isouted that in the arrangement ^between Mr, Rubloff and 
Kr, Rosseau no mention ol' taxes or ageessments ras made, kr. 
Lyfly of plaintiff company, having heard of this verbal arrangement 
with Rosseau, took the matter up with Dr. Mark White, ^ho told him 
he was interested only in the best offer lan^l would "be willing to 
lease to him instead of to Rosseau. A^r, Lydy thereafter paid 
RoEseau :}6Q0 for an assignment and withdrawal of his rights or any 
claim he might have on the lease. 

The rider to the ground lease had already heen prepared 
by Mr« Terapleton, who, as before said, represented both partiee. 
The rider was changed hy inserting the name of plaintiff as lessee, 
instead of Rosseau, and it was taken by one of the real estate 
agents and affixed by hiiu to the printed foriii of ground lease, Mr. 
Teiapleton did not see the printed oortion of it until after this 
controversy arose. Plaintiff's real estate agent testiiied that 
the lease was made up in Wlaite's office, and the name "itobert *h,ite 
& Company, Real Setate and Renting, Ciriicago," appears thereon, 
Rubloff , who represented that firm in the execution of thia lease, 
was not ealled as a witness in the case. 

The lease was executed by the parties June 21, 192^. !rhe 
transaction was closed without any ororating of the taxes, as would 
have been necessary had it been understood by xhe parties that th© 
lessee was agreeing to pay the same, I'here is no provision in the 
lease requiririg the lessee to deposit funds to ueet tssessiaents 
whi<^ were then behind schedule, auch provision is usual under 
such eircuiustances if the lessee is to pay the taxes, i'he real 
estate agents billed defendant for their coi&aiission and v/ere paid 
by defendant. The bill was rendered on the basis of a "gross 
lease* as distinguished from a "net lease'', terms w.'iich, ulq evi- 
dence shows, defendant understood perfectly. In a ^^roas lease the 
lessor pays taxes and asseasuents; in a net lease taxes and 



,T;:i ,»S^i3 rui^ &i~{xsn&s.'SnaBi^ to a^Sii;* "to noiia»-u on ua^eson ,11 

, ases^I a£ ■f.tiJ'ai.vV.ici io f>i2Leu sui;J gnLtiseril ■y.tf t&iii:iero asw t:s.61i aril' 
.9J.;:io(js X^,st aiU "to ©xTo "\iri K<?»^ixi 3,«%'^' ii i^afi , iwijnso-f? 'to 6«5^*cni 

. tM t^s&QX .bajjo-x^ "to -.uto'l; f>9Jfii's-':i s*U? cj jjin <^cf &©xi; '5:1.6 bfu. sd';'s$a« 
aiiii 'xaJ'jt.a IXjitiJ ji to noi&"ioa b^itaitp^ ^di s*^ ion bib no-:5'e>Icrci©X 
if.3jij" .bai'ixiaas' .tnej:iB ©«bcIg9 Iaso*!: a ' ft J.jni-.Bl"i ,0Boxs Y«'2'?ro'2cJ'no3 

,i:iOOl9iii a'l>-!so;rvi3 *%osfiD.LiiO , -..lUiti-isH fcrfa $*]-£T«-£' I«-3S ^x^U'V:ilcO A 

.^saiei) arid- iii aasri«ti:%' s ■3*; fceiilijo ion a&w 

®fi4 j-,t-.iii BfiijtiJi^q s3ii.j v:a' .bi?oJ'i3'i3.t:r-TD- im^d ifJL had Y'J^'Ssasoan a©j?>d" 9rGtl 
a.tii0uuujs«£:sii^ o--)ai;i o.t 3!>ii.u'l «i:eofffj|) oi- ^o.-issx Sii.? jjjnX^ifc'pSM: se£;«>X 

bxsq 9-xov/ K-iu; uoiaai.iif.ioo xlfthi lo'i dTta.bu&'taf) fcalXicf ©;?'«»;>/'. --^iainQ 
aeo'i^i'' «J '^o bXaijO Btlt /to &«fct©ibas»i SB'S? XXi<i sxf? .d-JteJbas'tab Y<f 

©xiv! •sas'^'X QP013 -f^ al .x-i-^"'^'*"-''*^' baoi^.'i&knu ismbm'Ub ^nvfOiiu ttoa^b 
.^tu: Gs,XBi $!3A?f>X u^ii .a Iii ; ©.tcJOusftsaB*; hriF. asxiJt c^acr -xoRaaX 



R 

assesT-ments rire paid "by the lessee, Dr. Mark Wliite mid his wife, 

defendant, nade out a joint ixicocie tax return for the year 1939 , on 

which, appears as to smother piece ol' reai estat?^ the term ''net 

lease," c^Kd on cross exaif.ination Dr. White sr^id he unrlerstood that 

phrase to raean "he pcid the taxes, meBiiing that the lessee paid the 

taxes,** Also on cross Qxg,.;)irj.atxcn, ■?'hen asked coriceriiing aiiother 

piece of propf^rty, in reply to the question, "Is that a net leasef* 

defendant answered, "They paid the taxes or it«" The incoiae tax 

returns of the tThitsc for 19^9 and iy:'>0 were uad.e on an accnaal 

basis , pixid sho"wed incocie froia tiiis property of only #1950 and ;#3900 

respectively* This was the amount of the rental without taxes or 

asaessruenta. If it had "been supposed that the lessee was to pay 

the taxes, the aciount of sucli taxes rould necessarily have been 

included in the inco:i.Le, It was not included. A revenur? agent, Miss 

H. Austin, examined tlie lease 'wid told Dr. IRfhite that the lessee 

the 
was liable for/taxea. Up to that time neither defendant nor any of 

her agexits had suggested that plaintiff was so liahxe. Thereafter, 

on June 13, 19 31, Dr. White wrote plaintiff that the t^ixes for 19^ 

Were $5016,31, wit/i interest, aiid de-raxided payiaent of one-half 

thereof, 

June 23, 1931, liobert iSfhite of Rob-'irt White v Co., sent 

plaintiff a bill for general taxes of 1929 amounting to |5117el6, 

and special assp'ssaents of |5241«33, making a total of $8358,54, 

and demanded that plaint iJ'f should pay hi^lf. Upon receipt of 

these letters the secretary of plaintiff corporation, according t© 

his testimony, called up Cr, iVhite and told him he had received the 

letters, cut did not understand theia since nothing had ever been 

brought to his attention by anyone indicating that plaintiff was 

to pay taxes or assessments. Dr. White replied, "If you had rea4 

your lease through you would see that." 'She testiif.ony of the 

secretary is furtaer to ihe effect: 



imii booS'^.t&baiJ srf 5iX;f;s ^jLo^' ."xS aolJ-«niaiJ3xo aisoio no baa. ".ssssl 

liitnijo^^ it« no sbijm ftT0w Of;c:?I fjnr, t^(>J'. to't s-^j-lri??- ©rfcf "to eniJjJ-s'x 

rtss^cT ^V4:-ji:{ '^Xi:i«es»ftfeX5 .^.u/oh' esx*.;;/ lioLs 'to Smfowe ocCJ- ,t,oxj:t ©rid- 
aaxia ..tarasis •■itrrifjrea A .b&lsjLani: ion a^w tl ,9fuooiU -:>i1d- iti: fiafiUXoai 

t'l'^i'tuQitf^tHS ,&'.:o"i>i.X on sew TtiiiUBlq .i^dJ hsies'^c^uie ijBXi e^iis^BJa lori 

C?sgX ic't 8?37:r^ iSfiJ :ri:r!\J- 't'iicJ-;..c«Xq oic-iW sd-ij.!"'* .-tCi ,X£«X ^&X fiOiil. no 

*t?Cj5xi"-®n<) ic itii9-;tv-5<^ bfthim-BB him ^is&'x&inl rtiivf ,X«;«<3lOc«< sisw 

inB'i ,.oC -■ ii^ix^li' d'T'icio)^. 'tc »j-^ifW *-i9doH «j.ef:X ,S2 'imfT* • '-■--' 

,5X*VXXa^- o^t gfiiSatiOiaB «sex 'to afjxc^d- X«i©m>3 tto'i; XXid <j Tli;ffii;sXg 

,l^?,iiaCB^ 1o -tsio^ ^ 2^''-^'-*^'^" ,6f^,X^K5^ 'i p ad «*►««»««?«/?. X«i.osqs baa 

K99d tevs biiH aalrii-on w^ais i-i©ii.J njtsd-hisbuii d-oa cJ:!- 3-ird .eis.ttsX 

bB-vi haa uoY, 'il** ,J:.eiXc?.©i •»>3'lil'W .iCC .airtSfiteaS^cfi i6 sexa* x*<I ©* 
©liJ 'to ■7;nojji^'?.;-'i 9rtt ".dsrf* 9se ftXiJOW jjonsj; xi^jtrcioi- ©easX ti.'OY 



"I said, •! don't know about tliat. Where do you J'ind it 
in the lease?' rie (Dr. White) said, 'Uncle Sam sent a pretty smalt 
girl here to look over our income tsoc return, iihe showed it to me 
in the printed oart of the lease, I had not Jaiowii it thyself, that 
it was there, and find that I had soffietiiing now I did not know 1 
had tefore^ krs. White and I have considerable property. I am 
pretty hard up and having a hard tirue to pay our taxes, and here 
we rind aoa:eone to pay our taxes for us. ' I said, 'Tnat is 
purely a technicality. Are you going ahead on a technicality?' 
He said, 'We have something here we did r;ot know we nad, and we 
need it very aiuch. Pernaps if we had plenty of itioney to pay our 
taxes we would not take advar<t8;ie of it, but I dor. 't see anything 
for us to do tiut take advantage of it. I have deducted the amount 
of these taxes from our return, now we are going to have to pay 
income tax for the amount of these taxes, and I think we should 
have our taxes paid as we are going to have that additional ex- 
pense,' and that was the sum and suhstaiiee of it." 

Dr. '^ite adiiiits the conversation "by 'phone and that he 
said the government inspector had ruled that plaintiff siiould pay 
the 19 29 tajces and led hifii to so xinderstand, but denies having 
made other speoifio statements. 

The evidence shows that later in the same year this lease 
was taken, plaintiff acquired three adjoining tracts of land for 
similar purposes; tnat the four leases contained similar riders 
attached to a sixuilar printed form of ground lease, and that the 
ground lease in each case contained a printed coveuant that the 
lessee should pay taxes and assessffients. Prior to making those 
leases, iilr. Lydy handed to the lessors of these other tracts of 
land an original or copy of the lease entered into between plain- 
tiff and defendant, and the le&sora substantially copied the rider 
and attached it to this printed form of ground lease. Of the four 
lessors, defendant was tae only one who made a de^.and for the pay- 
cent of taxes or special aseessments. Plaintiff conducts a number 
of these parking nlaces in the city of Chicago and holds leases of 
the same but does not pay the taxes or asaessmenta upon any of them. 

Defendant says that there is no evidence in the record that 
any of the suoposed agents for her ever agreed with plaintiff that 
the lessor, and not the lessee, should pay the taxes; that if any of 
them had so verbally agreed, such agent had no authority to bind 



ik bal't iio'c ob flail's' .ia^ij crsjodx woax :>'nob 1* ,i)Jc*..-3 1** 
vas X .^^Tsqc'iej. s)X.:iais^,ieaoo STKii. I lui^s ©(fxriW j,S[iii4 ,oao'tsicf barf 

i;jo Y-«^Q ©'^ '\c9aoai "io yjanlq h^nd. ^n- "ti 8c«rii"»S£ ..aoiiifi -^lay J-i fe$9ii' 

d-ejjjos* sii^ .B«:rot,fca5 sv.eii I .i'i 'to >M.a.jiite7,^jpi saLei ii-cf dfe o^ atr io"t 
■^.sty oi"" ^vjexi cia :^i't.tQ>i «iXB «Ty woii , n*«Mf9i 'Luo iaoi'l s^jKa;?- «S9itd' 'io 
itXiJoii8 s«s' iialiiJ I fefUH ^s^xiii ©aaiiJ- "lo cfmioaiK- ani lo'i" ffis? ©aoofll 

".^fi to <90iSii*3Cirj(j8 t-ni? kM!!& -Sifii sarr ijBd* .btxs ',»5n»f' 

jjflivaii e^jusfe c^i;ff ..fofisjsifeir.mj oa oi iosii £•«! .bix-i-. s^xs-* ^■'^I ai^r^- 

aScSOl aMd- ls'5-,; MiiiB ©ric}- ni i--^;J-,r, I J\ftj';i- B^'ons sioa^fyiv^ sfiU' 
■xoT: CiasI 'io Bio&i:i ■^^nlalolhs so'iflj- Jbc'ilupo* 'tltSnlsiLq: , ne^yFx^' a«w 

0x£i ;?«jiJ- Las jsa^^fsl Snwo'i^ 'to ittio'i ted-.ai'i<f xaXlala £ od- fc^rfOiCd-Jje- 

'to B^o«5-i"j •x.-.uiJo 9as.dJ 'to 8T:oaa^X ?tU ai babm.-d y^^^'J^ ."^-i ,e«isi»9l 
"nislq n'jswjocr ©.tui bets^a© ©a/j^X ^£i3 'to xcori io Laniaiio nm basX 

«^fiq 9iii io1 &;ia.i«).& e ^racin or!'/? aao ijlao ftjcii 8.ew ii:mb -i-^'lsfh ,3i08Q»f 

'io aage^X alvXoil baa. o'^aox:^^ 'to v.iio «»ii[J al ft&o?X(; giui^jsg aesrfi lo' 
.EHSili 'io Tjitij aoqii eJosmss^aais, ^co sesejs;? «rf# X^cr #oh essh .tod' eiaais »rfi^ 

Ic viuj 1x Jsii;!- ;8©x:sd- »xl^ i£jf5<i fcXifoxiB .asaaaX 9i.it Son biin .uoaa^X Si« 
bnid o«^ -Tiiitoi-ii/a on Bisi^ J-nsiji- fiow« ,fe9®TC2i« AjXX^efasv ee bud inKidi 



her for a term of five ye.are» because such autLority ?-as not in 
writing, and, furtlier, that there is no evidence taat she gave 
any such authority, irrespectiT© of the proviaions of the statute 
which v7ould require it to te in writing, ohe calie attention to 
the rulQ of law th8.t in a case of this nature tiie proof aust Bot 
be doubtful; t . at a mere preponderance of the evidence ie not 
sufficient. It is bo held in many Bases, of which Lines r^ 
Willey . 253 111. 440; Christ ?. aake. 287 ill. 619; jaansell v. 
Lord Lumber _& . Fuel Co, ^ 348 111, lA'^, are illustrative, i'he evi- 
dence in this case -lid not leave axiy doubt in the mind of the 
EtaBtr'r, who saw and heard the witneBses, or ii. tna sind of the 
chancellor, who gave consideration to the evidence. It leaves no 
doubt in our minds. The circumstaiices are such as to compel the 
conclueion that it was not the intention of the parties to this 
lease that the lessee should, in adiition to the rental specified 
in the lease, pay the taxes and aseessiuentB, and that the insertion 
of thie paragraph wae the result of a mutual aiistake. 'She evidence 
ie uiicontradicted to the effect that in negotiations leading up to 
the lease, no such matter was ever mentioned by eny of the parties, 
and the conduct of defendant and her nuaband alter the making of the 
leaee is such ae to demoastrate conclueively tiiat they did not 
understand or believe that ai.y sucn provision was in the lea^fts 
Whatever may have been the requirernent of the snatute, or the 
authority of -efendant'e agents, the contract was made ^hen de- 
fendant, ratifying the actions of her husband and other agents, 
affixed her sigiiature to the lease, ^t is perfectly clear that 
when she so signed it was with the understanding that she, not the 
lessee, would pay the taxes and special assessiLentB, 

The decree of the Superior court is right an<? is affirmed. 

MeSurely, P, J., and O'Connor, J,, concur. 



9V3e^, Siia i«-iii :;^oa.-3j...iY9 on si aiv-a^ i^^iii ,'5-?r^:i;L'",t ,£aB ,^xt.cJ-l-iw 

od' i^Lol^asiia alJUio ^rli. ,,;jaivi-:.' w uJ: ad oi #y^ 591 ii:!.?®^ ,SXi>0"a £oldvf 

J'yn al ao.'iB;.' ;.V9 Sii.; 'io 90*iK'5©i>iio.;;*rtci: ftts^i £ ;J',si^.'t ;li/tiiSiiOf) gtf 

-Iro axil ,©»/14'£;t4'siiiI,i O'liS ,ji'-i .1X1 y*^-;. ( .^flj. Xe^if, Jj>_^T,§diiRisa. , b%<f^ 

g»£lj io .fcjKJia ..•»iur :x 'xo ,s^?>a«ieui!■I■'»• »*;jr bxe^u .f,>.a« Wijs orfw ^T-riiB^m 

oj.1 «3>vsc*X ^a ♦ 90 a^/j it/ft ©iij eJ- iiioi:)-i5U9^1.aao.o -av-aa ^iia ,*j:<?ii(90£i,s43 

9ii;r isq.r-.oo o.t e.« riowa vj-i.^ esiou.H.j-Sii^ii^a'xiD a£U' ^wvaim tuo rii ^tfwaJb 

eiiiJ oj et»i:;J"£i>a ad.r 'lo iiaiia&.i-.o;l ©.0d' itoiJ sajw j-i. i^iij- noiajjXonoo 

naJ:'^''5a®iJ.X &di n'srii ii-ivsj .siJiWiJseas'aa-iS i>ais a^ji£Mi aB.? '^«f ,9s<r aX sjI;^ ni 

mi 'io ■;ini:!XssJ a.ra i^<^is .&rts.'isi.i.a •j-.-j.ii ^iji JrtSQij'j'i^i^j "io ioisbaoo s>iii ocuB 

i-OfT fci:& -iS-ii^i j.®i'4 xX3\'-i,«iMX»fiao «di-'xi"3ao<:ftal) «;>■ s£ riOiJK «x sa«i>X 

««)g««»X '-idi at saw aoi^iirotq iioa« ■«;*'-•* ti^iii* ©roXXacT te ^neiaTLnbasj 

-9.«? n»x{w ©g>,«iii aBW io-£»'S;ln0!& aui ^a^asajB a' jLi;.';:Sv»&'tsr, 'io ■^i^i-i<«i;i'if« 

.&9siiX'rxfi si bw» w^-is-ti ai ?'iij'ou ioia©«3X'a axfi lo ft9'3:os5 aril 
,Ui2jifii'iiA. 



38790 



MABEL WIFZSJIBURG, ) 

Appellee, ) 




vg^ I AP^-aiAL pDfe _p'P,iHlQR COUBT 



COAiMPjia^Y, a Corporation, ) ^ 

Appellant, ) - ~ - — - 



286 



.«' 



%j' 



itR. PHSSIDIITG JUSTICE MAfCIfflT'i' 
DSLIVi^RED Tiffi OPIKIOl, OF 1H3 C0U:RT. 

In an action on a fire insurar.ce t^olicy covering a cottaga 
and personal property therein, and upon trial by the court there 
was a linking for plaintiff and ^ssessEient of dauiages of ^1250 
for loBs of the cottage knd $350 for loss of personal property, 
with interest on hotn iteme amounting to #344.44, making a total 
of #1944.44, for which the eourt entered judgment. 

The cottage in question was located on Lot 7 of Wy-iio-Co's 
Shore Acres in Allegari County. ^ichi,:an. .he insurance policy was 
issued by deferuiant through, its agent, John W.Hardt Agency, Inc., 
of South Haven, Mioiiigau, on September 1, 1930. Plaintiff was then 
and is now a resident of Chicago, Illinois, and the parties concede 
that the contract of insurance is an Illinois contract. The cottage 
and its contents were dentroyed by fire i^ril 82, 1931, while the 
]?olicy was in force. lUe T^olioy contained the follolng pro.i.ion: 

▼ided Vv'^i" ®''*J'"^ ''°^!°y ^'^^ ^® ''^i^i. unleBB otherwise pro- 
Tided by aar«erent xn vritinsi added hereto: 

ti«r,.i it^ ^^ ^* interest ©f the insured be other than uncondi- 
tional and sole o^.^nership ..hen less or d* .age occarsj ^°°<'«'li-' 

defendant contends that plaintiff Y.as not t^e unconditional 
•nd sole ovner witnin the raea:ung of tais clause ar.d that the policy 
Is therefoie void. The evidence shows tnat orit:inally Frances ^. 
Wyatt, the daughter of plaintiff, was the owner of the premises 
upon wniah the cottage was situated. On l.ay 6, 1930, Jrances k. 
and her husband, by warranty deed, conveyed these premi.es ^ith 
ether pa^perty to plaintiff, Mabel Win.enburg, raother of Frances M. 



oeTSC 

. ""••■■v. ( , s)EUit&ui:i iiiw sIssam; 

( iJO^ilU^vil SKI HAM GKA apau OHAiilO 



-ji^iia- o'lucc eiiv? ';;-.i .usxij aoq'i/ foii,e ,ni«-aafij Yii'xsqoTCor I«noa*i9<? bits 
OQSIf 'vfi as?;=ii>iju.'!fr 'to .tns.:;*«!esaaf} i)ii*; 'ftlitUi'lQ 'lo't grjxfifii'i *? rjjgvr 

e'.sono:-; .^.5/:J-iiK. K»^^•t on; traiofiixXI ,ojjsoiilC> "lo jfi'v5ifj!9i ^, woo si ^-ojp 

aioiaivotc,; „iai "ollo'i sri^ j>€jni.r*.riio» ■/oiXoc &dS .»sto'l; nx 8»w yoiXoa 

"»sztooo oii*.-i J.J& -ifi 38oX iaft-iv;.' (^•ijX3'iea'¥o 4?Xoa itnjri Xaaax- 

I*5ii')Xa i;r'.:soofU; itixi ion 3i3W Ttid-.ui^'Xq; vJ.<£iiy aJbus jaou ia&hBu'tsQ. . 
Xotioq .'jiU iAji:) bos ssii^vXa sixii lo ixiji-4i»fi; sfiJ ttXyyi' i.^ ti^nh-o sLan has. 

. y BOocMji'i <05iX jd -^a.A iiO .faod-jsuiia a«5^' 3^«ii}'oc> 9x1* ooifiw noqu 
Lily SHttiiiiiB-iq ea'^Ai h;?v;9Vcioo ^l)?*©^ x^i a.&-xiii'>x x^ ,bitsi<Seud isd btiM 



The deed delivered recited a ccnr,i:'eratiori ol* |57OO0 axxd was duly 
executed and flelivered, '1*^0 days later, luay Bth, IL rs, ^?rii,i?erj- 
turg executed and delivered a mortgage conveyint: thft preKiises to 
her <?a.ughter, Ji:.rs. wyatt, to secure aii indet.xedLness oi' $3500, 
The exsuaination. of plaiatii'f by defendant's attorney rilscloEed 
that iire, Wyatt had I'or ten years ijrior to tnis trJATiSaction oeea 
Indebted to plaiiitiiT in the aiuouut of ^'^SSOO, and tn&t the daugh- 
ter suggested to hex mother tiiat 8ii,e, the motijer, oay tiiis cot- 
tage and take a deed tuerel'or, fe^iving baeis: a mortgage i'or the 
diiTerence between the attiouut oi' the consideration cjad the in- 
dehtedaese of the daughter to her mother, iTrie testi^icnj of ^^'^xb» 
WinzenlDurg upoti the trial was cl'^^ar and positive tc taat efl'ict. 
Defendant, however, undertooK to lapeach her hy etatesients ruade 
by her upon cxapination 'before a notary patlic on beptemher S8, 
19 34, a year prior to the trial « This evidence ■??as introduced 
by defendant I'or xhe purpose of impeaehing plaintifl' ' s testimony 
given on. direct exac.ination, Ihe transaction was tetween L^other 
and daughter and, no re or less, a faadly affair. There are ex- 
presBione made by plaintiff in her anti-wers to leadin^i £<nd sugges- 
tive questions put to her hy def en'^.ant ' 3 counsel to the effect ohat 
the deed was given to her as security. Hex- whole exaiiji nation ii> 
dicates, however, that wniie tiie attorney for def endan i. Bucceeded 
in confusing her, nothing was said by her whicii eould overcomfe the 
deed and otiier wricten iu&truiueritu, whicu disclose the intention 
©f the parties that plain tiif snould taict; tide in fee six^ple to 
the preiuiees. 

It is next contended that plaintiff failed to eoj^ply with 
the condition precedent contained in the policy to the effect 
that she should within sixty days after cny loss ih?ike a sxalement 
6f proof thereof, signed and aworn to by her, llftlntiif iaade 
proofs of loss within sixty days, but these proofs vere executed 



g 

-.ctr^xiiiV?' ,.s'i. ■■■i .jIc^o x^y''^' ,'^^^>^-^ <^Y>^^ a'w^j: ^jt^'-'ieyil*}?^ fens Jbf5jJf;o*^X9 

j-ve.v.oXu-::.t h vs^iiir.j-.rs a * ,^f .'iS:'- H." 1*./.; v;a 'i'tx^i2i.aiq "to iiol.o.i.>i.ii.o*tr.f» e»riT 
as&o (}0:.;iOiv:!iv;ici' ^xaJ o;j' Toi'xq ais?'"^ rie.t -xol £"#^1 :ttA5ii« ,S'iM J-.r?j-{j- 

..to Vt;.-! cisi'lri- oj '3Yij.?.r,0v[ ibfi^ ixvil;; saw i&l^i teiii iiaqii ijifftrns-ssii^' 

-iu a.&li.^ah:..!:,>.ii aXaris -si^'H .'ijjiiija^ja kjk "loil ©.t carxs Sjsw &»g& ©rid- 

.toaVi's adJ ocJ 'ioxX.'xi orfiif ai Jjoalii^ifoo ^mi^&osTf aoiJiBaoo 'srf* 

^ifc?^.vj;sy<3 « t93ii;ii3 eaof- 1*^"' 'ii'*t-G si:^^ "^^xia alii^lt^ bluodB »d!t *Bxi* 

«>l3i>. TliJiur-il ^-s-^r; vJ c:^ ate was i>a« ^t?aj4l« /iosi^il;? "toortor to 



"by iir, Wyatt, who acted as her agent in that ra&tter. Defendant 
cites Gerrgaji .ffj r e Ins. Co „ v «_ G run e r t . 112 111, 68, sjirl Lumber- 
gen's itutual Insj Coj, y_. jell, 1G6 111. 400, tc the point that 
proofs Toy am ag«nt are aot adraBEitl® under cirGu.;:.st&i...ce8 ap- 
pearing herein, BXici that if the insured does not :-.alce proof, a 
Talid reason therefor, as t'lat the inaureci is dead, a non- 
reeident, atsent or insane at tiie tiiue of the loss, must he 
8ho'»''n . 

Plaintiff gave pyiience tending to show that Mr, Wyatt , 
as her agant, exscutec^ these proofs of loss at the reouest of 
defendant's representative, John W, ilar-'t. Defent'sr.t contends 
that evidence as to any eonvsr sat ions -erlth Hardt was inad. is- 
eitle, as he was deceased at the tiroe of the trial; but irrei9nee- 
tive of this testitiony, it appears without contradiction that de- 
fendaait received these proofs of lose as axade by *.r. Wyatt -^/ithout 
oTDJection and retained them. We hold thi;.t upon tae cleare^^t 
principles, defendant is now estopped to urge that the proofs 
should hare been executsd hy plaintiff personally, Kr» Wyatt was 
penaittPd to testify over objection iiade that John '^1 , Hardt, de- 
ceased agent of defendant, requested hir?: to execute the proofs in 
plaintiff's baualf. It is urged this evidence was not adiiEsible 
by reason of section 4 of the iSvidence act, Illinois State Bar 
Stats. 1935, chap. 51, p. 1616. Defendstnt citas Helbig y, 
Clil^gP-S- Jj.g.t.JJa.« « P^^'t 111. S51, and Bouse V. Tom«*.sek. 279 111 
App, 557. Section 4, disqualifies a party to the cause from 
testifying to a conversation with the decej^sed a£;ent of the other 
parfiy. The question is ishethnr this disqualification ext^^nds also 
to an agent of the party - a question raised Vut not decided in 
Buchanan v, Scottish Union & ISat'l Ins-_J!r^. , 510 in. Ap-). 533. 
We held in ElJ:O±.0o^^j^ Ru^glej^&^aOjw 283 111. 

App. 447, that the disqualification did not extend to convers?itions 



►"ffri «3ua.,. :U;.i.,£>-xia -I'SiiU. sIo'i9s.'i;:;.fx';. (to'i ^i'l^ in?;4n iXsi y<J B'iooici 

shni^^J'iioo JrifeS^ne't^vC ,^h%v.xi_.'^ adoZ ,©•?•]: Jet i^oaytciRi p \ta«f;it©'t©fe 
-&©•-.« 91;^ x ^u(i ilx-i'iJ «-■.!.) 'lO «;-vi;l edi vjs l:':ja«'?oo.& saw orf, a« .'sI'.fiB 

,>;3'9i*;«X3 •a.fi.t Kocu i'<.?.ii,J- bXO'i «»'f' ..iisilt teiilacf^i .bos? noiJo^t^o 

s'loo'lq .p>x^:j tmii^ 9.^11.! o;t '■".■.;qoJ'»® won ei Jijisijas'l-sb .eaXqloax^f 

e«jw ^j.vi'^jW ^'£.M ^ ■(;; X Is nos'i ?)<;?. 'i"J".l jiil>i.:iq -v;<^ b-s'i'.i.'S'ax© ftaad ovsii fjXwoiSa 

~o.^ ,ofc*r«lA ,-V iiilo'C feu.IJ- 9f>v';i£'i fIoi;^Det,C)'o isy© ^liJ-s©! o;J foej-^lfliisi? 

t&M ©d'Kij-e aieaiXII ,^04- sioaft.'::lT&I '.^.fl* 'to i- a&lSr/fs It© aosjjoT: ic«r 

^^.liiMMM:. Q'^^i-Q ^yUihu's^t^fl ,aX9X .'-j ^lli *qfAiv ,<7C;ei ^8^.c*a 

.XXI SVP- ,:^^ao>!iap'4'. ^.y. ^gj/^H ^;.ae . ISS ,ill li'^ . .pq ,^?nX ^.TgsiJ-JO 

tfx bwriosf. d-on v-y;; |)9fil:^-x floi*e9>op «. »■ y*'*a^ «il3' to -Jflea* fla 0* 

.'f.iV:' ,goA »XXI QIV; c .« gp._ji gjjjyi.^ .-^ j'■>■i ./^ ^ffl / '^^ f^? ■'^ -^ '^ ^ r 'P , • 7 .^ , ff^^ ^^ 

'•jtif>>^4-;3i©^aao 0^ HiiiDJ-x* ion bib mi-i&ol'lil»v^si.k •rtt cTaxf;^ ^Vt^h *(mk 



©f one agpnt with another, Wyatt had no fin:uricial interest in 
tills controverpy. In Pelt l t, ^C9ii_c.afio City Hy^ «^Oj . ^ 211 ill, 
279, tlie Supreiiie court hel-^. that disqualii'i cation oi a priBcipai 
on the ground of interest did not extend to the agent of the 
principal, unlesa the agent liiiiLself h-'ui a legal interest in the 
outcome of the suit. To the same effect is 70 C, J, 26b, pax. 
333. We hold the evidence was properly adfiiitted. 

Defendant argues t/iat the daufiages are esicessive and at- 
tacks two of plaintiff's -witnesses, who teB\ified as t.o the value 
of the premises, claiming tnat znesQ wi^aiessea were not qualified* 
The witnesses might have been better qualified, but tiieir evi- 
dence was not incosi^etent. Plain liff luaJtes siiiiilar o'beerv9tion6 
S8 to def^indant's expert, and her ohservations are not sitiiout 
merit. The eviience aff irjuatively shows that defendant caused an 
appraisement of the cottage to te made prior to th« issuasnee of the 
policy of insurance and agreed that trie insurance upori it siaould be 
raised to the sura of #2500, Defendant had written a prior policy 
UT5on the saice t>ropert;' for a lesser .suiiount. Al'ter the :!ire olain- 
tiff offered to let defendant replace the cottage, but tiie offer 
was not accepted. The court saw and heard the witnesses, end we 
think the amount allowed for the loss caiinot be held so excessive 
as to require a r?versal hy tax a courts 

inhere is a t)rovi3ion iij the insurance policy ta the effact 

that as to the perscaial property a Ciiettel mortgage would render 

the policy void. The provision of the policy is: 

"unless otherwise provided "by acireement in writing added 
hereto this company shall not he liable for loss or damage to auy 
property insured hereunder while encuirbered by a chattel mortgage, 
and during the tiiue of such eaicurab ranee this co^upany shall be 
liable only I'or loss or daisage to any other property insured 
hereunder, " 

The deed by which Mrs. Wyatt conveyed this and other property to 

her mother by its terflia included ^furniture and fittings on the 

premises." The real estate mortgage executed by plaintiff 



li-qioax'ifi; 45 'Ui iiai3^^.ox'.U.lsi;i)?-:- il.- ;tx;«.t tXssM J-iKoo *jQ:i0tc{Ji*3 ®r(;}- , 9VS 

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,%^a: ,uSiK ♦!, ,.; OV si ./pt?''?:'/:* j?;;'^;..'^ nxii' oX t^-itis '-^i^d" 'io "^fsicotwo 

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Si3 l.Iiio/ia jX hoc;,'.; ffotss-i^ani ®.,>3 cJ'^s.'.i ibsa'X.-j^ EuXr? eoixeitt^ai; 'tsa voi;X©<j; 

■^raiXoo loiiq & nnsjj-XT'-? ij,?..ii v^fit ta.'-'i-'ie. ,v-v;SS| tc ir-VS "sxl? Oj fiSiaijBl 

S3'- bos ,B&ee&Aidi'»i' 9ij.t b'lisaii w£Vv »"A<e ii'inoc ©xil' .l)«3id'e«oos J' 00 a-sw 

ifoslls &xi;jr ci* ^coxioc: ao-ix'ii^aai: siiw ux aoxsivo'xq: £ si eri5x£5.V ,, 

\ni.?, oj ^'a.pass..;- to sr-cX io"i eXd/^IX ecf ton XX>f{5 ^itiimiio;' RXiii- o*»i*x( 

"srf XX?\ii--. ^rr-oi-'ios) sidr^ S::.';-!.';-'idi.iwoxsr' ilowe io ^ai.:} o^J j?,aiiub baa 
fcs'x.usi-.u ii'iyqciq lexif -^'jas o.J 9Sr-.'>^i> '.ro aeoX ■so'i -^ciao sXd'.RxX 

oJ v.J-isqotq t^rl?© ha*. alxU' h'>^9vxioo J-^fiAjW .e'jM- xioiriw x<' ic^ofe aril 



9 

reconveying to iirs, Wyatt recites taat it includes '•furaisxiiuge 
on said lots'*. Xiie court, as alreaily stated, aixo.-ed piaiatiff 
#350 for l038 of cIiattelB •which wtre in the insured co it^ee. Does 
the Asford "furnisaings" include furniture? Was the persoxiai pa'op- 
erty conveyed by itrs, Wyritt to iirs, :'<'inzenDi«rg by the deed the 
ohattelB ■wiiich were destroyed toy fire, and for which proofs of 
loss 7fere uade and allowed by the court? i'here is cau abaenue of 
proof on this point. The defense is an affir^i^ative on©, Ihe 
"burden of proof vfas oii defendant. Xhe iiisurai.oe policy is to be 
construed uoat scron^^ly against the xnsuratice company „ in ere was, 
strictly apeai'ing, no chattel mortgage executed conveying this 
property. The mortgage -^aa a real estate .uortscige, ^Uid we mixik it 
doubtful whether, even as between the paxties.it could be held to 
Tse a chattel mortgage upon these ohatvels. The deacription of xiie 
chattels ia too indefii-iite. A chattel mortgage is not a real es- 
tate mortgage, and the provision ol' the inaurance policy covering 
the diattels was not void for tiiis reason. It follows the ,iudg- 
ment of the trial court should be and it is affiruTadr* 

AiTlBMl^D, 

O'Connor and • courely, J.T» , concur. 



5 

lo soi:i*aciJj Ui- ax v^-i-Vit'^ vj'ijuoo !>i2;f ^a £-9?reiXi. biate afci^iU els'?? ssol 

©ill ,^ito ■5vi.r.i-.-'£J:'t1^- -aj yi sauel-sfc »i{'i .^nj;cig lii/ij- no "iooiq 

su oj ii \i,l.LoQ Bo--s,%ij^uii siii.- . j-cuiLnfj'isI) no ®^-w 'tcoicj 'fo .n*!fei!jcf 

isiii« ;.,iii-^,&vaou fe»d'i;o»x9 ^g^tv^s^'-^osi XsvJau-o o.a ^^ex^teeqa \^ia£ii:'xJ"?j 

<>:■ ii'^'ii 50' i.ii^o-' ii .aoi.i'-XiJ.C:: 9..'i n;>CK-:t£}J 3S iH-rr© ,iS!n;?9/i'W La'tiduob 
sn~ 'Lo aoi^rqii't^/eaj;.- sxi'l .eii>:j i^^AiO litm^'i kioyu ©e;:;S«'iC'-' IflS'jA^fio ^ 9'^ 

-^)_Gi,jt o^-j' e'^yiXe'i cfl .ao«jt3S'i alr;„' •r.o'i .Mov Jon ?*•,»? 8.£«vt?,i.rfc sri* 



38808 ' ^««<^ <.,.^^ 

'"1 / 

SAMUSL H, aiLBHRT.. ) / X" 

Appellant. ) / C^ 

] ^FKAL- moU ^HCUIT COTJHT 

vs. ) ^ 

) OF COOK COimTY. 
JAtfi&S ZAJIQM. and AluBXiS ZAJIC&K, ) 

MH. ■ JtJSTICJl MATCHBfT DSLIVIRIT) THS OPIEIOIvf QB THS COUHT. 

flaia aptjeal is "by plaintiff I'rom a decree entered \)j the 
Circuit court oT Uook county October 17, 1935, dismissing hie Taill 
for want of equity. Plaintiff is the assignee of a jud^aent en- 
tered October 20, 19 33, in the Circuit court of Cook county against 
James ^ajioei, in favor of Kobert i., i'loyd and Andrew iiS^itchell for 
$400 in an action begun June 7, 1932, i'he judgment not having be«K 
paid, execution issued to the Bhf riff of Cook county, demand wae 
made and the execution returned no part satisfied. 

May 4, 19 34, plaintiff filed his bill In equity ^ setting 
up the foregoing facte and alleging that Jasaes Zajicek and Tillie, 
his wife, on or about October 5, 1909, acquired title in fee simple 
and in joint tenancy to certain real estate situated in Cook Coonty; 
that J^rillS, 19 32, the owners conveyed this real estate by quit- 
claim deed to their daughter, Albie Sajicek; that the conveyance 
was made without eonai deration and with the intentiori to oheat the 
creditors of Jsaaea Zajicek - Ployd and Mitchell - and was therefore 
void, Ihe bill prayed the conveyance might be set aside and the 
interest of the judgment debtor sold to satisfy plaintiff's claim. 

Defendants answered, admitting the rendition of the judg- 
ment, the acquisition of title to the real estate, the recording of 
aaoie, and the conveyance of the premises to Albie Zajicek on April 
18, 19 32. The answer also stated defendants had no knowledge of 
the alleged assigcment and d®aanded strict proof. It daiied that 
the conveyance to Albie was made without consideration or with 
intention to defraud, but avorredtiiat the conveyance was made for 



■....„., 60685 

"^-C^ \ 1 ,.tfiusX.£9qQA 

{ ,av 

i ,12iDiti.A.S S-iSoA ban :aLSX;XT.Aii e^LSys-k. 

sXq>si?i -iis'l: '.si »X;i'i'3' Da-^iiipoii , *^0&'X ,£ -ladci'oO isiod'i-i -lo iio , 0liw aid 
-JiLvp \f'X s>J'«4a& X*-)?*: siri.t l)s-<;ov-0:oo aisrwo ail;}' ,SfiQX ,dXXiiqA ^jiiilcf 

Siig &?,ii; *i.tai> ies ^d iii^xsx :3DiiB^(,»vaoo »£i.t /5s</«it XXxa ^>rll ».blor 

'to S'''iijf''iC>03i »d^ ..ft^i'Cl'aa Xi3r:)i sifJ oJ- »X;tljr 'to nolJieli/po* Sifit ,*«»« 

li-xaA no ■:i^'^lliCd &hilA Ou assifiiis-icf Sii-i "to ^Qomxeraoi-^ -srij fcos ^ac'LiiK 

'to 9-Qb&lvocaL Oil fci'iri a*n.c..ba~)'t»Jb h^'i^Ss obXb ■sawBtus sjiX ,S5ex ,8X 



good and valuable consideration moving from Allsie iiajieek to 
James Zajioek and. was iri all respects valid, 'Xiie eause was 
heard in ot>en court, lixiiicits suowing the rendition and tiie as- 
signment ol the jufl(5iaent were offered and received in evidence, 
and plaintiff also sul}mltted depositions of defendants Ai'ble 
and Jaffles Zajicak. 

The testiitiony of Alfcie Za.jioek was to the effect that in 
1915 sfee lent to her father, Jaisies .:;ajicek, .^3o00 to fiiiish pay- 
ing for the 'builfJing erected on the premises in which they live-S; 
that he did not make any payixiexits to her froja that time to April 
IS, 1932; that the matter of her father ^iiving her a deed was 
discussed a couple of months before the deed wag gi^en; txiat 
she collected rent ever after the Duiiding was erected; she hs,s 
never paid a penny for rent of the flat she occupied; the tensr/ts 
never paid rent to her father but always to her, She also testi- 
fied tiiat the fact that her father ■was in litigation or thsit 
suits were threatened did not enter her mind in connection ^ith 
the deed, and that she was never told anything of the sort, She 
testified that besides the 4Z>00Q she gave her father e?eryc:'-.ing 
she had after 1930: |3000 in 1915 ar.vd about #1000 after 19 30. 
She said that the contractor's "bill for constructing the building 
on the x5roT)erty was $5093; that she put about ^4000 cash iiito the 
building in 1932; the taxes each year a-iouated to ;J143, #184, - 
"different amounts," and mat she paid them; after she got the 
deed she kept the rents and she paid the e-XQensB of making the 
deed of the preraiaes to her, 

James Zajicek testified that he -was engaged in fishing 
and hunting; that he lived with his daughter; that he turned the 
property over to his daugiiter in 1932 and owned no other property, 
except personalty in the way of a couple of tables, drawers, two 
stoves and a wardrobe; tiiat he got #3000 fro^si his daugiiter and 
with It paid the balance for the building, whicn cost $5098; that 



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a^ri 4xls ;as,?p.^:'£» 8i:Tt •^.niftil-j.-l s'yifj 'laJt;* Tevs Jar*-! i.«.to9£loo d/i« 
3;jT;,c-,:y;f4 'btH ;£)^-i:Qi(ooo -tSiAS j«i'£ tii:.,.- le i^nex 'xo't y^ni-^jCi- iS bis a teren 

i>ijd4' -xii £ioxj|-i2;yj;JJ:X ax axw^ 'indSi/i "ssis J^iij d'oal Sjfid jsiii t»il 

9i1'K ,cio?i ^ffj" 'io ,i,iaiaJ",ta,! iilo;;' '£S"?'9a sjsv/ ©Mb ijai'.i bfm tk^&h &di 

.v>c;;i ■x^ru OoOX# S-i^ocfi! J^rm ai^X xxi 000g|: :O^0X i«:t'i« fe«ff srfa 

gjTl;? .icy ^'iie; I'-f-vt'tj!: ;iii»fu+ &if;fT sifla iisr-.i*- J>na **,«:^«jjOL':jir cfftoi?'!:! ifc* 

,i*?ri o^ Qfusbymtq ©rf;t 'to b-^'Sft 

,vlT:s<Io-iq X9«Jo ©fi .b»m«fcj fcofi SSSl ni ^@drr%ijj»f) alii ot isve xi"j:eq:o'xq 



the buildijag was started in 1914 ani lir.isned in 1915; txiat iiis 
daughter lived ou the property, toois care of it, oaid tii® taxes, 
and if tuere wae ariytiiin^i left, turned it over to liim; fc^at lie gst 
some ineoiae frojj. it every year; tliat Jais daa^uter nad 'been sup-* 
porting aim since October, 1934; tliat prior to tha^, time he aup= 
ported jiiiiseii, living oxi txiB iai^e. He said taat the tenants 
nev-^r paid SiiBi any rent, his daugiiter did all the coiiectinij, 
paid the taxes » "''ater rent, repairs, etc, do oaid, "iahe lately was 
asking me for tiioxiey, I said, 'I aiu't got arj.y jiiore raoj;i ey» ' She 
said, 'The only thing you ami ;-.;ive ae is the property,' tiii ' I said, 
'All rit4it, ' Tlaat, I think, was in 1933; I ain't quite certain. * 

This is the material e-videiice subiuitted, axid it tended te 
show the conveyance was made for a valuable consideration before 
the rendition of the judfinent, l?^'hile the effttct of the conveyaiioe 
of the premises by JaBies Sajicek was to ^i'^s to his daughter a 
preference over other creditors, this is not ecu traxy to law, as a 
debtor has a right to prefer one creditor over others in the absenee 
of fraud. Third ■National -p.ank v. iiiorris^ 351 111* 23<-; Hurt x*- 
Ohlman . 349 111. 153; l>oty v, O'i'.eillf 272 ill, App. 218. Plaintifi" 
having called tiiese adversaries as witnesses has vouched for thejhf 
credibility, Luthy & Co. v. Par ad is. ^ S9v; 111, 380, i^^o contrary 
evidence was offered. 

The caseg -witii practical unaniiiity sho^<^ that a decree dis- 
missing the bill for want of equity was the only one that could 
have been properly eaatered under the evidence, ji^'or thie reason it 
is affirmed, 

McSurely, P. J,, and O'Connor, J,, concur* 



E 



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,1X10X100 , .V .loruioO'O J&«e , .T, ,% «x^»iw8o* 



38822 

LIPPEL & Mil, IFC, , ) 

a Corporation, ) 




APPEAL iHOM M¥MClFAL COURT 



vs. 



ALBERT J, HCRAK, Bailiff ol' ) 
the municipal Court oi' Caicago, 
Appellant, 



1 

) OS CHICAGO. 






MB. PHISIDIKG JUSTICB MA^CHEtT 

DSLIVSR^D lEBl OPIiSIOJS Oi? Tili COURT . 

Tiiis is an appeal "by dftfendant trovu a judgtuent in th« 
sun. of 1435.50 in favor of plaintiff entered upon the finding of 
the court. Defendant is tailiff of tiie Aturiicipal court of Giaieago. 
The action of plaintiff was for alleged negligence "by Ts?h.ieh, goods, 
upon 'S^hica the "b&iliff had levied under an execution issued in favor 
of plaintiff againet one Julius Siegel, were lont hy turglary. The 
defense interposed was that defendant was not negligent. 

The facts appear to he that Julius Siegel, the jude^nent 
dehtor of plaintiff, owned a suit and dress store located at 3254 
W, Roosevelt Road in Chicago, On Decetiher 18, 1934, plaintiff 
ohtained a judgr^ent against him. for |>409,24, execution taereon 
issued to the hailiff, and on Beceiiiher 26th plaintiff's attorney- 
requested the bailiff to lery this execution on tiie fixtures and 
goods in the store. Plaintiff gave the usual "tond of indesTiity to 
the bailiff on that day. The arrangement for tne levy was ir.ade 
with Kr, Orr, a deputy bailiff in def ex.dant 's office, in charge of 
such aatters, Mr, Lipman, the attorney of record for plaintiff in 
the suit against Siegel, iisae in i'lorida at this tirae, tuad his asso- 
ciate, another attorney, Stephen T. Ronan, represented plaintiff. 
OH' the m©rnin£, of the following day, December ^th, Deputy Froehlich 
of defendant's office, made the levy, taking vsith hici 3qm oiaion, who 
was made custodian, Earry Kayraan and Walter Erietzberg, An inven- 
tory of the property, conBisting of fixtures and 207 dressee, was 
made, Siegel turned over the key to the front door of the building. 



'"■^ ■■■■■> ( ,5.->Xi&q<?A 



§£38 « 

(__. , ,o&i Jims, jm.iiJi 



!?T 



^ V ^^ ©^aX i>^' O v^> 

.TiHGoo Saul: to mi^iim mit aoimi'msi "' 

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'io sa-isdD ni ,soi.'r.to g' j-iii.-i^iiss'taij al TtllLa.^ x'^aq&tt b ^t-tO ,id di iv 
ni 'tliifiiiiXq -lol bioosi 'to x^axoiim &d^ , iifiaqXJ: .tM .a-xdi^jwa xfoija 

/i'J:J:d-aiijX!i b&ia&&fiiq9-i ^ai.■■i■io}^ .T m^xiqaia ^^jsnio^ti? x^iiiocm ,9i&lo 



2 

which was one story in height. The deputy ohtaiced an additional 
lock, -yrhicii was put on the front door. The back door was made 
ol' metal and had no lock but was barricaded with a 2 hy 4 plank 
placed crooswise and fastened at the end© with iron hooka. 
Siegel, the owner, testified that the "barricade of the "back door 
was in very good condition. The custodian proceeded to make it 
more secure 'by another barrieade made by using a ladder, one end 
of which he placed against the door and the otiier against a 
table. The owrier had for some months been sleeping every night 
in the store, and he told the deputies that the place had been 
robbed during the previous year, 

Froehlich testifies that hs told the attorney for plain- 
tiff that a day and night watchinan would be needed, iiir. Orr, 
■who was in charge of the levy, testifi«?s that the deputy made a 
suggestion to him for a day and niglit custodian; that he took the 
matter up with attorney Bonan, then acting as plaintiff's at- 
torney, who ?aid that inasiauoh as a day man was in possession 
and would lock nr> the store at ni^t, he would not want a night 
custodism, Ronan denies that he used this precise language but 
says that he was told a custodian had to be appointed and the 
hours he had to be there, and he says, "I just authorized them t© 
put in a custodian, nigiit or day. I supposed they did their 
duty there," 

Siegel had purchased the dresses, in part, froii. the firm 
of Jaek Camac and, in part, froiii Bennett Munves, '£he goods and 
chattels had been advertised to be sold January 9, 1935, and on 
January 7th Camae took out a suaiuions in a proceeding demsmding 
the trial right of pjjBperty as to the goods sold by him. The 
records of the bailiff's ofiice tshow that this writ was filed 
in the office of the bailiff January 8, 1935, and was delivered 

to Mr. Lane, a deputy bailiff head of the assignment department 



:jtitf-Iq ■^ x^ ^' ^ i's^^fl^'i h^jbi^'t: i':'.u^:d sjbw iai s'soX on l)«iii .tffiR Is^jsia 'to 
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s ^zcilii^^s. "fs^TiJo oKcJ- .*)}."«* -loot ©ds" -J-e«Ai:?>ii* r-so^Xq, 9ri .ciaiti'w 'to 

-d^*s s' tlljax^ilq Ha ji-JX-to^ i:!?3ri^ ^asrioH '%o^-no:Sfi46 diX^ cos xatism. 

ualans^anQq ni sj&w acm \:.sJ6> J5 cu-. 4loij::i8.^5ai ;tjB-;i;f Ixu^r; oxi^ ^x^anoi 

iix£,li:i !d ciiii-.vv .Ton' bLy}0':f ^d ,#/.iTjxn .ti-. ftio^a axl^ gw 3fooX fcXx/ow firus 

^rio*- 5iis l)«j-j.:uoge^3 ocf o- .&«.cJ atex.fco*''!i-;t> .'.=« X>Io* ss^ 9x1 J's.iii' aij^s 

|}(xa e,boo>j 'sxiT .s&vnjju ;}-5«tfiii9S Aiiot'J: ,jT«q aX ,i>aj« ojbimsO sioal '£©■ 
l)3Xi'i aa\»:' Jx-sw aiucr i'.aijj^ :ToxiK sox'no s'lTtiXX^cf sjti* 'lo s.fT:oa«''x 



whose duty It was to take care of service of ^vrits in the trial 

rlfi^it or property. He t^BLiiied tiat iie served that wi-ii, ob 
the attorney representing delen'^ant on Jatiusxy Stn, and ciie writ 
was returned to the clerk January 9tri. In tne ca?e broutjjit ty 
Munves the writ waa I'iled in the ijailiiT 's office January 8, 1935, 
delivered to Lane f©r service on the aajne date und retumeij served 
to the clerk's office on Jaa'.u&ry 9th. 'She return on the BUiimone 
shews that it was served upon plaintiff by service on 3. 'x\ itonan, 
attorney and agent. Lane testified that w.^en a «rit of tiiis kind 
would first oome to tiie office it was served on fcne bailiff by 
the cleric, and t/i&t the man in the filing department isktiediately 
tfeiephoned the attorney representing the defendant in the ease, 
telling of tiie no tie© for trial ol ri^^iit of property so that he 
could offer to accept service. The writs are not jiiven to persons 
to take out and serve, but the bailiffs call up the attoiTieys rep-- 
resenting the judgsi-ent creditors. Lane testified that Ronan was 
invited to the bailiff's office and that he case and stated he was 
attorney for plaintiff in the case in which jud^ent was obtained 
anrl asked to be served *ith suauiions. Lsne is positiTe that Konan 
presented hli^eelf on the 8th, and the return on the summons and 
files of the bailiff's office so indicate. Honaxi deaias Lane's 
testimony with respect to his acting as agent aud attorney for 
plaintiff, and says he had nothing to do with trial right of 
property cases except as interested as being with kr, Lipman, He 
was in court, however, witii iir. Lipman when the cases were tried. 

Ovx testified that J.anaary dth i^r. Lipman, plaintiff's 
attorney, caaie to his office ma stated that he wished to keep down 
the coats and expressed the wish that a custodian should not be 
kept longer in possession of the store. Orr tnen haiuded to Lipman 
a written request co that effect, ^hicii is in evidence. It is ad- 
dressed to the bailiff, is dated Chicago, January 8, 1935, requests 



ai'iOi.v;i/ja 9.fij rto '.vTi.;v:;?'i .'.iw' .lU-i v.x<j)j.:i<?,I, .ao eoxTio H'ili^io exiLJ' od' 
jtxwaor'i .W »••- ac s5oi:y-x'J8 v;cf ■i'iiafji.!..«jX(:i itOiJfi-' fjsvisa oisw d'i i^.art^' aworia 

^d 'i"tAXlj:ic/ OxLS i\o h&rtea et/s oi ?!ji-l'Lc> i-u:!,? o4' ssoo Jeii'l bXwosr 
»d i&iu- OS xj^-ssqoic;, lo H^^ri to XaJ;*!;^ 'lo i aoi-jian ©iU 'to ^niXXs;!- 

e*9iia-X asinab xL;,noH .fjiss^iisaj: a ooLx'to a' 't'illi^,<3f odJ ta a»I.!:'t 

•lo't -cranio ;}":!•*-» fiaE- jaS'g** a& ^tiijus siii 3^ Joviqaei M in \aomiin9^ 

to ■Ixi'xjii L&iti r:.Ji'.v of; oJ iuii.j oii b&A f>ii e^^s fjns jTliJnxfiXq; 

acictgxa, oj l)Si:iieii iiait? 'tuO .ancJ'i* ©i*^' "io nais«jyK®o£j ai i»3«oX J'cj9-i< 
-i.*j ai ^x ,so£i$r)Xv^' ul &i xi.©x4w ,dO£-'n» J^iiJ- o5 ^Jboup^tc asj'crx^w .c 



that one Darey tie appointed custodian without eomiperisatioii aad agrees 
to indeainify the hailil'l' oxiA his deputies from all daiuagea "by 
reason of auoii appointnient. This writiH;^ is signed, "David Lipmaa, 
attorney for Lijjpel &. i'eit, Inc." 

On the i:orning of Jariuary 9th SiEion, txie custodian for 
the "bailiff, telephoned uo the office of the bailiff Uiat the 
store had "been rotted during tlie ni^.i.t. Crr went th-are iiffi^iediately, 
found that the r>jof ventilator h."iCl teen toiTi away, apparently with 
crowtars, ana that the ^?l£.3ter fastaied unrleriieath the ventilator 
■^as ripped do"OTi, part of it lying on the floor, a ladder ^vas hang- 
ing underueatli the \erjtil iter, loii a rope -.cross the ventilator 
was hanging down fron- the top. All tut 10 of the 207 dresses 
shown ty the inventory had teen stolen. Under date of •Tsaiua.ry 3, 
1935, the tailiff -wrot? s. letter to Lipman, iivinj., fori'sJ. uotice 
of the suits tegun ty Jack Caiaac, Inc., .md iieruiett .";uaves 
against the tailiff and Lippel & i"eit. Inc., plaintiff* The i?rits 
were retumatle in court on January 14, 1S35. Sie letter asi:ad 
Lipman to confer wita the attorriey for t;-3.ilirf, Ben.jsoain S.Gohen, 

Lipinan testified tliat he v.-ent to the tailiff '3 office not 
on January 3th tut on January/ 9th, in response to tais letter4 
tetween 11 and 12 o'clock £ind talked t^ith Orr; that, he aBked him 
what coul'i te done to stop custodiaii ' s costs in view of 'the pro- 
ceedings for triaO. right of property; that Orr said taey v/ould 
settle the custodian costs for ^AO, althou^i #44 was tben due at 
the rate of $4 a day. He says tJaat Mr, Orr said that this could 
te done ty dating the written renueat tack to Januery 8th., and tiaat 
the costs would th.^rety appear to te only #40; that Crr agreed with 
him on the payment of ^40 and that he ai^-ned the release in evi** 
dence there on January 9th, it teing dated tack to Juauary -Sth* The 
attorney was permitted to corrotorate this teatii.^ony ty resting 
into the record personal memoranda made ty him to that effect. He 
also tes-iified that he first heard that the goods had teen stolen 



iiJ-iv ■vXo-a---i4.ci(f^ «'(,•£•''-'■ ii'co;/ wj^atf 1/^;*1 'iQiu-xiii'^av 'XqmX aii^ ;tftxf3' fcxfjjol 

,<? \':'ri;.u.ci£L 'i.o fii.r&h a.'n-,au ♦K'sXc-^3 u'ssd' bs^.ii 'j^cs.tastvai .i>;iJ yrf ciwq^s 
&ol30'-i X«j-'ioi' .^.aivi,.; ^.u^iiKK-Li o>*' 'XSi'J-'aX .« «sr;fO'a:w 'riiXiisd' arft ,S?OX 

«aeaoO».>I riX-i&c,xi-^)£ /l; xXi... i 'lo'l x;9rn;oJJa aii* ..,ut- ixv tf^'tjioo c^ ae,m<ii,d 

ion- soi'flc a'Txi.XJisd" .?>.iJ- oJ' ia©v.' .9/1 .j-xijio' .beL'll^sS'i asio-qil . . ,,,. 

.•xyJ-v'SX aliiJ QJ ©ans^i-Jdx xu ^J.i''i \:'isiti'^'^ '^^ ^*'4 xl-^ft v.ix'iimrt rto 

isiu ioaA«*i axf c^iiiio ;itO iu:U?r ,fca:^X«* fcoe itsolo' o SI &raj XI n»3W;|©tf 

bxuo'? -iioiij ciisa -i'iO i'.f^i'?;^ ,-ij;;5-isqo'iR to i%'i'ji'r X^tti ro'i af^rtib&QCi 

}s>. f^iib a-3aJ j^fivv tfi| riawaxijiU- ^OiH "so;. .■:J-aoo nf*x?ioJa;.ia 9x1^ ^Xo'^sa 

bluc,o, 3i;.d,! jjTiXid" i?li>a iiO .x-i 4':«uiT >i-i£*)a i?>:. ,;ii:<«.h « i^t' "to o^t^T 9i$i 

;J.3iU .5a£; «xij>i ^i.RXxapiX. oJ 'AoLid ^-aa^jpa-c a«i:;'-i:TCW axi* 3.«i.**ft x^' ^^^^ ®'^ 

ii;rx.¥/ r'^sai^e t-xO 3-sxii ;v»H "C-to^o «-"'^ <>-'' ^^s<lfi>« x;^®'^*'*^^^ folxfow qj-»go miS 

--Iro tu 9aa;j.vi la-x i>xi«r b^.tn^i^ ojt djixit f-a» O^^,^ 'to icx©.;i'^«q »M* iJO iifixi 

sxD: .ii:r8 sj-x.-x;ii.iX, ocf .ia.stf b'^^ah ijXiiad cTx «x:se i^rs^xHist sxo --t^ii^ »ofio6 

Aid .io^'c'ta ;)x5Jii OJ ^i^i y.-'^ yiifixa, ^i'-nartoiiii-at iiino«'xo.!a fe^oso-x dxi* otttl 



wh.?n the attorney for plaintli'f ii.. the tria?. of the pxop'ii-ty right 
canf^s telephoned hli on Jar u; ry 9t3i; lUut in cor-p=5rjy vlth Ron&n he 
•rent over tc see Crr Skhout I'our o'clock and .■^old hii'.. of cLe infor- 
mation given hiru, and he says that Orr said he hs.d found it out only 
five minutes ■before, and told him, "Don't ■p-orry, i TonH let you 
hold the bf--%. ^ 

Over obji^ction oJ' def en/-ant , pl&intiff \?as pf-rriltted to put 
in evidence a letter of ^Taiiuary 9, 1935, £;iviiig fartiier corrolDcra- 
t-lon. Hie letter, i,»;ritten by Lipman to defendexit bailiff, dlrectad 
to the attentior. of Orr, states that Lipiian had siyieci the reie&se 
dp.ted hack to Jnnuc.ry 7th, &s agreed, ahci. that he had heard of the 
theft of the goods from Mr» Reader, -attorney for plaintiffs iii uhe ■ 
property right cases. It ^ati clearly a se-lf-Bervir..g dociUuerit and 
Qhoul'?. not have been adJ-ittecl in evidence, i'ive other letters, also 
written 'by plaintiffs' s.ttorney to the hailiff after the controversy 
arose and not in reply to any letter froi- the h&iliff, were iaiprop- 
erly adn-itted in evidenee, Ihey should ha.ve "been excluded oecause 
self- serving doeujuents. 

Grr testifies positively th;it the request lor the appoint" 
ment of Davey as custodian was not predated and deifies in ^otg, the 
evidence given by attorneys for plaintiff to that effect. The 
testimony ©f Orr Is corroborated tj that of Lane and fcy the 
recoris and fil#s of the "bailiff's office. Hie burden of proof s& 
far as the predating of t^lfi ciocu-sent was cenesrned w*s upon 
plaintiff, and we a.re of the opinion that the contention of ;^lain- 
tiff vith respect to it is contrary to the evidence, 

•Drere is so&e coritrovsrey between the parties %s to the 
rule of law applicable to sheriffs and bailiffs and similar offi- 
cial* "Who come into the possess3.oa of goods as the result of levy 
by final process. The briefs would incUcate a dearth of casss 
froip the courts of Illinois on this subject. 3oth parties cite 



-lo":nI *:).!;; •o >..l.d blot .oni-s .:-ooX;^*o ^i/o"i iknjda iiO 'Sisr; «;?• tt«Yo ^it'3%' 

^io^'ili. ^'iilLi^d -J-aftkLie'ts/) oi .li^isCiii/; x^^ nH^jf-sw ,at*d';}'r>X 9i'(T . .aoiJ- 
08L-I ,ais./;J->.I ioi.L,-o o/i^ .•.'Di'.a.feiYft ex l30.1i-j:i-.ts a^so' ovi^'rC Jon bli.-<sfie 

.(icqw a^ew iN*>cuf;oi-£oo saw ^'aSiiAwor. aide)- 'to i-niirbatq anf^ «ss xcl 

^Bo^x^bivst ©iid oJ- 'i^t^-iiuoo el ;3i :;* J-o^^gm^i iltiir Til* 

».rrtu 'sali.iia £0*;; sTiiXi^^Er bm ^'nLtt>s:'i^ ot ijXjfx^aiXvq* waX to elvt 

asajBO io iio'4;*j&fc « »J-«iJXci:ii-. Hum el^itc^ ^rfi' .ns»oo'.cq[ X*uti't ycf 



■ j^,-,i>rfT •"! X. rj+'^-f«rt»\ «rr.+ '.V^'r'i 



Jongs T , t MoGuirlc . 51 111, 382, where the defecdajit , a united 
States maraiial, levied upon a boat under a v^^^rit oi" attaohment. 
The rule there stated ie that "due diligence" must be exereised* 
In M pore y^ yVestervelt . 27 k, Y, S34, the court said that a 
Bheriff in such case was otliged to use ordinary diligence in 
taking care of property seized. A few cases, such as Hartlieb 
V. iitcL&ne's Adminiatratora . 44 i'a, 510, impose a jauch jaore 
stringent rule holding the officer liable for the loss ol 
property in his custody unless due to tiie act of O^d, the public 
enei^des or some irresistible accident. J'reeman in his work on 
Sxecutions, vol, 2, sec, 270, seans to approve of the saiiie rule, 
altliough adfiiitting that the tendency of modej^ decisions is to 
place levies under attachment upon the same footing with levies r 
under execution and to exaot of officers in both cases that de- 
gree of care "which in owner of ordinary prudence axid sagacity 
Would exercise in preseihring liJce property," We think this to be 
the true rule, Kie bailiff having the custody of the property, 
proof of his failure to produce it made a priix)& facif case, but 
when the evidence wa© produced affirExatively showing that the 
property had been stolen without negligence by the bailiff or his 
deputies, it tiaen was necessary for plaintiff to produce further 
proof tending to shew that the sheriff wae negligent and that his 
negligence caused the lose of the goods, 

I'he evidence in this record coffies short of establisning 
these necessary facte. This levy x^as made under the direction of 
plaintiff's attorney, i'here is no proof tending to show that any 
reasonable request made by hiaj was disregarded by the bailifi , snd 
the clear inference from all the evidence is that he requested 
enly one custodian should be employed. Much was made upon the 
trial of the faet that no look was obtained for the hack door, 
Bie door was of metal, and it was practically impossible to use a 



^i*- rtx 3aoi3/o?»b tn^ho.'j to v^DU&feiiaJ ©rid- l.i^xiJ' j^aXJJxai)^ xfc?i;oi-id-Xs 
; ©jvi-sTsI -i^j:^v ,-2nxcJ-s>ol f>!»s»?; siicf ixoqw iu»ii:sk>^.i;iM. f^bnu aei^/sl aoisXg 

-ijjxois-aiis cae i?oi.ie.6iJ^q; fSiSviiii'io 'to •-S'^mvo toA tici..4w" g-igo 'to d»its 

ad ot ai^.:j- ■:L:i.i'i< ^W '* ,^r;i-^&qa-x<j: ^si-tJ. .^iuximaas'xq nx »sx&is!K9 i>i«ow 

,Y^"3.'*t|P'^'i --'i^' '^f-J ^JI'Jo4«xiO 3x/i'>.iA.?:v-iUi "i'ii;.Ix.Bd axff ^sXta s»xiT;t axft 

;?-j;ju .dsjio oi.3;8'i a..J:;xjg- * of>ii« cfx ooi.*OiU oi mwXis't sixi 'to 'to*s*i^ 

tuit^i./t aox!t-o'xq Q;t 'J'ticfal^slo-. rza'i Ti,"s^«ado&a s.*jw aexii Ji: ,8<i)X^j/g»|> 

,s.f.voiOij !?ilj 'io ecjoX, aii* feasu^s soa«^;iJtIaoa 
sitsi:.f{8xxd*J8S 'to J'ioxifi aajipa ,&Toof*'i sifii ni ^ijaabirf sxiT 
'to iiox:>tie'ixi> &iii: x&b^iij 3i&eai e.6W v^vsX sxriT ,?iio^-.'t ■^XBeasoafl dosii^ 
vcB iiixLi wojia o* jjiiXiom'* 'if ••10 on si siftii'*: .>i;«>fn[G^^« s*'itJt*ai:.aXq[ 

Ij^d-saupsju ?)il J-i?iic^ Ki a!:>x'';a«>i73 ^ni XXjs wo-iI' ftoxw^falai TieeXo 9.(it 
9x1^ .■.Joqw ^f/.s-ii: s^v, iijssjik ^fj^jMoX^fiJ 9d {..'XiiOiis XBii.&o^auo »ao y;Xao 
.•too,6 3Loi;cr eixlc^ "lo't i)sriijfj*do sisw itooX ofi ■^esii ias't oiU to X«l'x.t 
i' a«x/ o-t aXdi:E;3 0(iiai -i-IXisoi^o^iiq 3«w o"l tm^; , Xsd-sia: "to aev -rool^ »x(iC , 



lock on it. Moreover, tiie evidence clearly shQ-ws tliat tiie roTabert 
Oame tJxrougn tne roof and not by way ol' the bacic door, so tuat the 
absence oi" a loc^ ou uie back door did jaot in .isxty ^vay cause the 
loss of the goods, There was, o3' course, no reason vay the 
Tualliff should not have been entirely willinti to appoint any 
num'ber oT custodians requested, inere appears in tiie record a 
gitat«ment which purports to be by the trial Judge as to his 
reasons for his i'incling, ihe docu.'uex^t w&b apparei.tiy dravvn by 
attorneys in the case and partakes very ifluen oi* the nature of 
findings formerly required to au^iain a decree in equity. Such 
etateaent does not comply witn either tne rules of '-he imnicipal 
court or the provisions of the Pr?Actice act. liie controlling 
Ipsue in this case - one oi f>*ct - mibt b«; deter, ined o-j the 
credence given to tae teatiiuony of Orr ana x.ane as corroborated 
by tiae records ai:.d files of the court, saiid the testi..ony of attor- 
neys! for pla,intiff , 'Which is quite i.^probable axu% corroborated only 
by self-serving aieaoranda aiid letters, if iseaes of fact could be 
determined throu^ the a4uassion in evider-ce of letters ^^-ritten 
by the attorneys xor one of tae parties, it would not be difi'icult 
for a plaintiif to prove any kind of a case. Such evidence is by 
rule of law inad....issibie. it, ap!>arently, was pert.itted to de- 
termine the issue of fact in this caB©. 

For this reason the jude!;iaent of the trial court ib reversed 
with a finding ©i' fact here that defendaiit bailiff was not negli- 
gent as alleged in 'iihe statesiient of ciaii.*, a/i.;. tx;.at as a matter of 
lav he is not liable to plaintiff, 

0*Connor and kcSurely, JJ. , concur. 



V 



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,©ai;!o aifi.?- ill .tojs'i 'io sussi »s-I«t ^nicrts^ 
&sev:-::-vo-x ax .t'lxjo'j I.si'x;]' axiJ 'xo vj;i''3fi%,bi.'^ ai/J" noaet)! sMi 'fo'i ... ^ 

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'ro xoJ^i^cf c an Jife^io ,,iV; ^iiiXjcXo 'io iiif$'m;}i«i» :?xict £ti £>»ji«XXfj aa >rn®3 

,."x'li#ai£>I<<i ©«» snXd^lX toit ^.t ©rf "ff^X 



38844 

ROSS MMASISR, 



Appellant, 



HARRY'S Sm YORK. CABaHST, 
Inc., a worooration, 




APPEAL SRQg M"^,CIPAL COURT 
of CHI^tjAGO. 



Appellte. ) ^ ^ ^ 1 



^'^ -L»ri® \3 %^ '^ 

2tB. PRBSmil^'G JUSTICE MATGKEIT 
DSLIVERSB THE OPIMOH Off THS COURT. 

HoT^atier 8, 1935, plaintii'l" filed in the Municipal court 
ft statement of claim in which siie averred that defendant Cataret 
conducted a restaurant in Chicago; that on or about August 3, 
19 35, she purchased ice cream from defendant for iffimediate con- 
sumption in the restaurant; that the ice cream was not, in fact, 
wholesose as warranted hut dangerous and unfit to he eaten, and 
without knowledge or notice as to the condition of the ice creaai 
and relying on defendant's warranty that it >yas wholesome, she 
ate it, and that several fragciejita of glass in the ice creaEi 
beeajKe imbedded in her throat, causing her to become violently 
sick, etc. The statement of clai» also averred that the ice 
cream served was manufactured by the Goodman-American Ics Cream 
Co., a corporation of Chicago, and said coHipany was joined as 
defendant to the suit. A sui.'uiions issued returnable liovmber 21, 
1935, and was served upen both defendants. Upon the return day 
the default oi the Cabaret for wsint of ati appeararice ^vas entered, 
and on the following day, November 22nd, tne court, as the record 
shows, found from plaintifl'e statei-ent oi claiu that there was 
due plaintiff |ieoo and entered judgnent by default against the 
Cabaret Co. for that amount, December 2nd the Ice Cresoa Co. Riade 
ft motion that the states! ent of claim be striciien, and December 
27, 19 35, plaintiff disaissed her suit as to the Ice Creaai Co, 
January 3, 1936, which was more than 30 days al'ter the judejaent 
was rendered, the Cabaret cou.pany fUed a motion to vacate the 



( 5 -J :xB lis goA 



.OOAtao TO 



^ y* *L^ ^ii* J„ U^ o w^ 

riSaiuTA:£ ciOlT<;;UT. DAiaiS'lHI .Jii 
/firaO;) SHT \0 tOlM^iO SET &SWfIJM(S. . " ". ,: . 

• ao3 ?•*(•« i>^-!saT!ii ^o'i a'Otofc^sliiJfc i^otl afjsa-xs soil i;6i3*irACi«jq sii« ,d£6X 

•aria ,stBi^T^3*iIorfw as?/ Ji ixids ^tfaa'iii??.' s ' •tf5!®.tfl(?>'i'3J& no gJii.\rX9i; ha» 
im'^to 'ii>t BSU ni aaaXs 'to =3^ai»«:gi:jn*t Xaiavas f46xi;j fervs ,J-J: o*« 

SJ8 l!«»ai:ot SiM^f ^rt£g;fioo .bijse l-rte , crg^o IxfO 'to Bol*»iO(;fioo « , ♦oO 

,XS5 'X9iaevo?i sXd^niu^J-s'j; &«jif??isi »ec5.n:ce*r8 -A .Hue srii- o^ ^rsefcotsteA 

'!(;«(]> iViu&B'^t Siij rtoCi'J ,a3'ft«ibfte't«,f! iiJo<! aoritf feovifta e^** fcm: ,98i?X 

a&n i^tBiU -Juris i-il-aXo 'to^«s-..;».-ts3's s^'i'tXlislaXfr uiot't isauo't «awoiiB 

s^rii ;ta.'ii^s5iij3 *Xmf'i«»& '^oT ^as.^iiiJ'f, foais^na fejie OOOX:;'; ltXiai«X<? ©JJl) 

ox)5:ij .oO rajta-xO ^asi aaJ fciJS isdrndaeCI .^auoffla cfarf- t.g'1 .oO iBiadsO 

-xs(IiESo»<I bOfj ,rx0jioxij3 3d" islalo 'io ^iiOijiei^Bds ?>xl^ J'jaxi^ aol:fo:"n a 

litsi^iwt ®i"W i^^^'ij^^ &Y'»* Oc. n«r{it stlou: eav not^iv ,6«(?X ,£ Y'lsuoeX 



default and judgment entered against it, and on January 8tli 
filed its affidavit and petition in support of the motion. 

In this petition the Cabaret aompany stated that it wae 
served with suiTimona iJovember 12, 1935; that the iaoodman-Araerican 
loe Creara Co. was impleaded with it, hoth defendaurats heing sued 
Jointly; that isxaadiately thereafter it coxamunicated witti the 
lee Creaxa Co, and imparted to it the inforMtation that defendant 
Cabaret Co, had "been served with suinraons returnable Movember 21, 
1935; that a representative of the Ice Cream Go. personally 
visited the premises of defendant and stated to Mr, Hepp of the 
Cabaret Go, that it would not he neeeseary for the Caharet Go,;, 
to file any appearance or answer to the suit, hut that the Ice 
Cream Co« would oauBe an appearance for hoth defendants to he 
filed; that the lo© Creaaa Co. had already employed coBipetent at"" 
torneys to defend the action hoth for the Ice Cresaa Co» and the 
Cabaret Co., and that the action was baaeless. The petition 
averred that the Cabaret Go, relied on these representations, todc 
no further steps in the matter, fully believing that the represen- 
tations and statejuents nade to it hy the rettresentative of the Ice 
Cream oorooration were true and the interests of the Caharet Co, 
fully nrotected; that the Cabaret had no knowledge of any jud.^.ent 
entered against it in the case until Becemher 31 ^ 1935, when it 
was BfTved with fin execution and a l^^vy upon its goods? upon the 
judgment entered i«ovember 22, 19 35; that as a luatter ol" fact the 
attorneys for the Ice Cream Co. took no steps whatever in behg^lf 
of defendant Caharet, failed and neglected to file an appearBance ©r 
affidavit of merits, iri disregard and violation of the promises 
of the Ice Cream Co.; that the Ice Cream Co* in its own behalf 
caused a motion to be entered on Bovemher 2l8t asking for ten 
days to file an affidavit of merits and at the same time allowed 
a default to be entered against defeiidant Cabaret; that on 
fiovraiber S2nd daoiages were assessed hy the court on the affidavit 



iltci x-xsiunsiZ no biva (.'3: imni^r^. tatBins ^a/ies^^bul him ^ itsslsk 
.noiioii *iii 'to ^^oecjuni ai nazi iSaq bim i ir&bs.'t'lii sii. fesli'x 
-SB'S" a JailJ" .b<;>«tjBd'S ■^rii2-^.;iOS if'OX/icffiO inL^ aoijlisq a 1x1 J nl 

ariJ- li'ii-r fe>®^fio xfiiii'-iiMos jI 'i -si '!:*&'£;> rut ^le.Ji^jx.^^Siani: Ji?x{j ;'<:IJ-Hitft 

sol axij ij-jsric}- d-iirf ,;!-.ii;e ©ili' Ovt Tf)wsri.® 10 0osm%eaqqii \lUi alJt't «* 

-^jtj *«©3-s-ei.iOo |)9'^oXtuvj.S' •^^ssil.sr. bsti t&Q iiis»'x0 3oI «d^ jjaxii ;fcaint 
aii,t &53K »cD sKiiOTtU ;^t»X '^i5^ -to't iido^i «i;u\ts>« ©rii" ftai^tai) o<? aTcenTO^f 

.oD .ti^TCsdsu eii5- '-to s^eaasS-ai .'*di i}a>v «>yT:| j»t9'5? .Roi*«io<ri0o mu8S»'xO; 

^iriit nocfw af-.noa 3*x ctoqw ^/nX :.' bits rscX^'i.^Si&xfl a.'5 ilii» foi^vx'va &&w 
'.oiij oQ^'t to t»a'Jij;u & aiis j-jsxW ^c;S«?X .US XQ^mtvoii ks'i^iJ^ in^ixs^bu^^ 
"xxjsiisd ni 'i^^&jijifi? a^3Ss! on stoov^ .0O m&rftO aaX "^i?!^ "lo'i a'^ftnio^^^*- 

nsi 10't ^alTksa ^eXS icdmoTeTl a© &9i9#a» 0^ Oi^J«aX*•fK .» . jbanfl^tt- . 

fcssroiX* aisis- ■•'iase 9xi.i i£> bit* a^Jiia/s lo SiY^&xTtfi am »llt,oi 8%«fe;; 

ao ^srfj :ifs-rfi(i.r>C- imbn&'^&h ^Jeoi^a* |>»*is*n9 ed p* *Xja.3*l9fe «- 



of claim without hearing evidence, i'or $1000, when, as a matter 

affidavit of 
of fact, th_e/claini was incomplete, in that it stated no aaiount of 

noney to he due in the action, which was for the recovery of an 
unliquidated sum, ?i.nd that on Deceraher S7, 1935, upon motion of 
plaintiff, the suit was di ami seed as to the Ice Greaci Go» and 
thereupon an execution ^as levied upon the Cahaijet company^ The 
petition avers that "by theee acts and doinge of the parties 
fraud was perpetrated upon the court, and that the court would 
not have entered a judfipent against the Cabaret coi;paxiy had it 
heen advised of the facts, and further that it was a fraud upon 
the court to cause a judgii^ent to be entered pro confeseo and 
damages to he assessed against def e^idant Cabaret co' pany upon an 
incoaplete and imperfect affidavit of claim in an niotion for un- 
liquidated daKiages without the court hearing proof or evidence 
to sustain the judgment. 

The affidavit goes on to state that the Cabaret coiapanjs 
has a good and raeritorious defense to the whole of the demand, 
in that the ice cream sold and delivered to plaintiff was good 
and wholesome, contained no dangerous foreign substances, and 
was safe for human consumption; speoifieaJLiy denies that defendant 
Cabaret by its agents and servants was careless or wrongfully served 
and sold the ice cream to plaintiff; denied that by reason of eat- 
ing suoh iee cream, fragments of glass were imbedded in plain- 
tiff's throat, and denies that she beearae violently iicls, etc.; 
further avers that the iee cream served was a product manufactured 
by tlie otner defendant, &ood|&M)t<>i>A{uerieaa Ice Creajs Co., a corpora- 
tion. 

Upon the filing of this petition, leave was given plaintiff 
to file an answer on the questioi. of diligence within five days, 
and the hearing was set for January 10, IS 36, Ko answer was liied, 
and on January 10th the court sustained the motion, vacated the 



'SiBiiii'XL a sm ,neiSw ,0001$ tot .oonsfcivs \ini:ijesri iuodiirr gsljsXo to 

'to divefcil'tfi 
'to rj-Huoa?'^ oa &!5<d*.BJK .ti ^fixti r;.i; , 9d<ji(|ii!oo al asa' ■ylf5lo\«_rfi' , ;/'0<?.t to 

aa iC v7'3t9Vo39'x sii* Tc'i ns'^ rio-iitff .iioiJt'ofl axit ni" stt^ !»cf ©;> v:f»'f3oxffl 

sxi'i ^linaqruoo i'9±jSiUTQ ^ii's lioqi/ bsirel ajstvc noiJL'osxs as? nogusiarii' 

*i b&ii -\jK.f>?r:>roa u^^iiJaU sjid 3aai*!:ga SaBia^bui i£ liSissjas sraxi Jon 

-ujj tot aoi-of! ai; ui iiiialo to d-iviiBxTlje J-aetri^qfl-Jt kOB. »i^9lqmetoal 
»ofxefciv9 'xo tooiq ^iilxBaxi *'ii;oi) srlj» ^XfoxlJ'i'vs" B«s3ff:fi6 bs&ehlu^tX 

,|>a«;;ii3& Sil:}" to 9Xaiiw Siicf oi' ssost^t) «iJoiao*Ji«in fe«fi 6o©s 43 amd 

,bf«5 ,a»oa««sd'ija ngi&'iot E3Bo'i93i-i«l> on l>eaxf,5 aoo ,©«iiOseXojri':w feos 

*.a«!i)as>t'9ij i-^iiit sclnsi) ■^XlfisltxostjS ;nox5-q.uf.i3«aoo nsBUjrl tot st«» asw 

ftwios -i^XXtftaaotw 10 aBsXa-iaJo i3*w a;f'.ii£r-iSG fct'ia aJnes-s siJt ■%€ *»ijscf.60 

-#iss to 0os!fi6t -pjcT J-fiil;t Bslasfe ;ttx.lalaXq cJ' i^dio aoi sii-:! fcXoa i»aB 

'"00)1:^ ai ii!*Jf>fc.'sfiial ©isw a«j«I,3 to eimtav^ait ^mta&zvt ffioi liows gsiJt 

j,oJ9 ,2ioxi \;Xi- r)eXoi"y ftiS^ssfiT <id^ i&di afiiaab ba£> ,;^Je<01iit s'ttW 

-as'xoq'ioo a ,.oO issJsst'rC soX ii«ox-i«Ji'tAi*iwi«Bfceovi ,ix'usfcu«t«j& iftfiio ari* -(Grf 

ttiinJ^^Xg asTX-^ as*' tevasX .aoli-x^sQ eliij' to gnXXlt ^di £ioi5[U 

.s'isiJ ®vit nliiiiv aaaej^XiX) to neX^asop ©ilJ «o iowsn» rw diit o# 
,i»aXxt 8isw 'xftveae oA *dEyX ,(>X xissUiVB^ tot jt«9 a^sw .>mti«*xl »ri* &a« 



judgment, quashed the execution and levy, arid released l^orthooming 
bond which had been given. iVom that judguient plaintiil' has ap- 
pealed to this court* 

Plaintiff contends that since jiiore taari thirty days had 
elapsed after the entry of the original judgoient, the court was 
without jurisdiction to v^.cnte the judgirient, e:^.cept ty motion in 
the nature of a writ of error coram nobis, or by filing a petition 
wnich would be sufficient to cause tha judgiuent to be vacated or 
set aside by a bill in equity. Sucu is tae law as stated in sec- 
tion 21 of the Municipal Court act and construed in iS^hxiB^j^^Be^ 
230 111. App. 155, upon which plaintiff relies. In the absence of 
denial, the avements of the petition must be taiiera to be true, 
and froa these aver;i.eDts. taken togetner with other facts disclosed 
by the record, it clearly appears taat an unjust jud^aexit was ren- 
dered, and the circ-uuatanees of its sntry aiuounted to the perpe- 
tration of a fraud upon the court. Whether we regard this petition 
&s in the nature of a toil! in equity, or as ari affidavit in sup- 
port of a -lotion in the nature of a writ of error ,coraiu n^is, it 
was sufficient. l.ibs.j;-iuan y. aouth Side ii'arni turejisusg., stcp^ 
281 111. App. 104; HeinaJus v. Paehlciajaxi, 282 111. App, 472; 
5^MILX._Cuamer, 283 111. App. 220. l-he facts set up in the 
petition, which are undenied. render oomaent unnecesBary. 

The order vacating the judgment is just and it is affimed, 

AI'l'IRaED, 
O'Connor and KcSurely, JJ. , cojicur^ 



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lo m)af'B.'im mii' al .esiX^ri TtivnxjBlq jt>.oJ:iiw aoqy ,CcJ: .JtqA ,XII Of.S 

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a» fe'<t « 



36852 

WILLI Ali E, liJUiBR, ) *^} 

App 611=^6, ) 



VS. 

TH3 ESW YORK, CfllOAGK.) & ST. LCUIS 
RAILROAD GOi.J>i^"Y» a Corporation, 

Appellant. 



) APPSiiJL^ROI Sot€rI0R court 

) -^ J^ 

OF -CCOK C0U2;i'Y. 






!,'R. PREaiDING JlJbTICS I'ATGHITT 
EBLIVfilKSD THE OPIKICA OJb' THE COURT. 

I, In an action on trie case based upon the Employers 
Liability act and upon trial by jury, there was a verdict i'or 
plaintil'l* for #50,000, Upon a remittitur of .:;^lU,uOO tiie court 
overruled motions for a new trial rmd in arrest of judgiuent and. 
entered judgiuent in favor of plaintiff for ttxe suxii of #40,0o0. 
The same case was before this court on a former a; peal, 280 Hi. 
App, 223, ■Thprf a jud^;jnent in favor of plaintiff for #24,600, 
entered also upon a verdict of a jury, was reversed on account of 
procedural errors. 

She facts are stated in the opinion rendered on the foraer 
appeal and need not be repeated here, fLirti..er thari to state tiiat 
November 12, 1931, plaintiff {then 29 years of age) while employed 
■fay def Kidant in interstate coxuiaerce and while vyorJcin£, as one of a 
•witching crew engaged in tnoving cars, in the switch yards of de» 
fendant located at 37th street in Chicago, was injured mien the 
csor on which he was riding collided with other curs wtiicii. had 
"fouled" the track. Plaintiff was thrown under the car, and the 
car passing over plaintiff's right arsi crushed it, mairing necessary 
the amputation of it near the saoulder, 

II. it is urged tua& the u urt eoiumitted reversiole error 
in refusing ia offer of defendant to contradict tne evidence of 
plaintiff upon a material issue. On crosB examination of plaintiff 
he was asked if it wae not true that at the time of the accident he 
wae leaning around the end of the oar trj^ing to lift the pin lifter, 



seasc 

^., -r^ r"^ " 



-■*■ ^i5i' 



?TSitO'rj^^i siTt-iTi^ d'naia^M .hm 

»V'.yv,J:t--|> 'to mi8 sjSi'j %o'l 'i'ili'atMlq 'to aevr'c al ;tu&i:jj.i&i.,'-t &9'i#itn9 
'to .j-y.u 004S tio^ ti"«aifv-?ri 3vBW t\:"SiJt;, G to d-^ifciav J3 itooir oaile 6*'*i9^a9 

tsiij fits? ,Xi80 ttii^ t9br.iij nwoiii^ sB'.v "tli jTiii-sISi .;^oj8rri axIJ "i^aljjo'i** 



a 

and plaintiff answered, *'i«o*" On redirect examinatioKi plaintiff 

Was ucked by his counael 'wiietiier 'ae hj,d ever told iUiybody else 

that iie ^aa tryini at tiiia time to operate tixe ,)in lifter; iie 

replied, "ito , sir. I never operated it« " ile ■waa txien asiied 

whetaer ne had ever before been accused of operatiiiij tiie pin 

lifter aiid falling- between tiie cars because of iiis eiiort to do 

80, aiid lie replied, "j-o, sir," 

At tiie close of tiae case (it saving been stipulated by 

the parties that plaintiiT was in tixe court roui:i and listened 

to the entire arauuiejit of attorney for defeiidasit on the foriaer 

trial) attorney for defezidant offered to show that at the tiuie in 

his argULient to the ^ary he used tiieae words: 

"I subuit the evideuce in this case furi.isues a fair basis 
for the inf erei.ce that Maher was trying to throw ths s-witches, or 
tiirow the levers aroui^d in front of that car, with his arm down, 
anfl he did not have hold, as he claims he did, and \Wien the oars 
came together, he 'sent under, 77ith ais ri^ht arm, just as he 
naturally 'vculd, throut^h the natural law of Bioii entuiu, as he was 
goine, alone, Ui.at spur, " 

An objecticn to this offer was sustained by the court* Defendant 

error, 
ariiUe8_^_/citii.Lg. sucia authorities as ^Sigjaore on Svider.ce, vol, 2, 

2nd ed, , sec. 1000, pp. 430, 431; Jones on lividence, 2nd ed. , 
vol, 6, sec, 24&S , p. 4690; 70 0. J., sec. 1240, p, 1155; Bra^^v, 
Lathaa. 8 S, E, 64; Jounson t, Ebensen . 160 i:. H, 847; Bri£gs- 
Veaver ^aciviiiery Co. v, Pratt . 184 a, w, 752, whicii hold that a 
party who is sued has the right to contradict the testimony of a 
witness againat xiira by showing tnat at another time and place the 
witness kiade a contrary stateiiient, or that tlie statement made by 
him is untrue. This is, of course, only eiec-^entary law. In the 
present case, no witness had given sxiy direct testi ,ony to the 
effect that plaintiff attempted any such use of ths pin lifter. 
We think the question of plaintiff's attorney as to finy former ac- 
cusation obviously referred to testitiony given by some witness in 
the case ratuer than to the argument of defendant's lawyer on the 



axq OiiJ- iiiiij-fc'xsqo 'la issjos*: ii©od' d-.£c'J.so i»ve Ltai &u i^ii.i^dvf 
iisfl;is?^ail -'>iiji .A_'ux i'lxiot/ ':iii.i uX a^'s* T;.XoiUxXq[ ii)ds esxJigg sxi^' . 
ixs£cf "xia't ^ aei-siiiiiil »«*;q eiiid- ai ©oaooxva siii ;fliiidi)a I" 

,iiV/0;j ffi'Xi> alXi iU'XV;: ^'X.«& ^f^JliJ- CO ja.>'X'i HX isiiiiOl*, B1BYf:,l "SXH WO*Xi# 

, 1011a 

,S ..Cov ,«oi(;tJ-'i;Tii. no ^'ioi^-^s.V- a.f-. aaiii-ioiij i..:x^ floijis ^jiixj-ipXjj^oua^* , 

*I_SS?lS ;<J'-i-t ♦^i" ^Oi^iil .S23 « .X. .w OV lO^Bk ,q (Sdi-a «OSfJ ,d .lOT 

^ 'to ^-ao-.tiJesJ odt J-^X-bisiJaoa Ovt id^xx ;n'w s&xi £)9W.3 al ©riw ■^jll«fi[ 
i>.dj &o.«Xq fcfte siaxd I3iij oa-^ ^-^ Jjsn;}- i-,.ni>?o^e -0' i-oiii ioxti.jijj,6 aaead iw. 

-^di nl ,wjsl xT^^-^'^ia ■- -^^ \iXiio ^f*s'iuoo xq ,:j!i «l.aU' .©ijiJnw ai add 

^'X;:-.;^'!!! nig r;xLt io &eL il4>i;s "itxifj 5i:4i-cxsi»iJ^« 'i'i iialelq, _iMdi dos't'l* 

-a,w- lauvio'.t '{£u: oi ei. x^^'^'^^'^-^^^ a't'tidiiialq. 'to aoiiaaup ®di 3iax4^ 9W 

ai aeijuiiff suvoa x:^ navia T^iiOod^sect o;^ fisTis'i©'! xXaiioivdo aoi^Jaauo 

«iii no *x©\,w*:-X e'd-i££4i;),fi»'t®£) lo -jasiuj-^Ti;* »iC^ oa\ o^iia-jsftiivr*'?: es£o i>xi*,. 



former trial, 'i'he argument of a lawyer on tlie opposite aide 
made to the jury on a former trial is not ordinarily admissitile to 
impeach a party who is a witness. If defendant's attorney desired 
to use his own argument in that way, he should in fairness have 
specifically called the attention of plaintiff to the txi:2e, plaee 
and language of his accusation in order to lay the foundatioB for 
the su'bsequeat impeachment, afhere was, ho^rever, no basis in the 
evidence for injecting the inference that plaintiff was injured 
while using the pih lifter in the manner indicated, -mA it was 
vinfair for defendant to inject it into the case hy cross examina- 
tion, Ihe court did not err in sustaining this objection. 

Ill, It is argued that comment a of the trial Judge in the 
presence of the jury witlri reference to the attitude of a witness 
for defendant, k.r., Vanderhye, wiio was in charge of the train at 
the time the accident occurred, were prejudicial and erroneous. 
The incident of which defendant strenuously co^aplains occurred on 
cross exap.ination. The ^viienee of the witness was important, and 
his cross exaExination severe. At the suggestion of counsel for 
both sides, we have read his testimony as tt appears in the 
record, Eis ans-wers as to material, matters were often unr@sponsi-ve 
and evasive, and he was admonished "by the court several times ©n 
this account, Ihe incident which is characterized in defendarit's 
brief as *an assault hy botii court mi6. counsel^ is as follows: 

"■^t Will you pardon me a minute. Did you understand that 
question? A« Yes. 

^, You understood it perfectly, didn't youV A, Yes, 

(4, All right, suppn.°ie you are finding these two cars, 
after they were impacted together with violenee, fifteen or 
twenty feet apart? 

A, I don't see hovj they could* 
q. What did you say? 

I'he Court: 'I don't see how they could' he said. Will you 
listen to the man's qu stion. Your demeanor on the stand — - 

The Witness: I am trying to answer him. He don't know the 
nature of railroading, I don't tiiak. 
The Court: Listen to the question, 

%, Does that indicate to you how far the engine and cars 



c. 



Sftii^ a^iaotf/qrc fidi no ttDvv.-.i i? 'to :J a«if?iU}!,li; aifl- .Ijsiiit loa-io'i 
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ija-xiitjii ae'3 '.t'lxJ'fil^Xg iEXXii aoa^-x^'tni sri.;^ gaJiioatfl "so't so iai)i:r» 

»^f? si fiaa t.b0;)-i:-isi.fci/ti: ti'Xi£isM 9Ai nl ts^-'iii laLtq and rii'iiau alijSw 

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3Xit iix «>;:i.'.)ii1 X.s.J:-x^ 9,nJ" 'to ?! (tii^iiisfoo i-jirf;J fe'Uxrjj'ljs si ^I ,111 "' ■•' 

Bsoif^lw js 'io ai->i/ii.j J-B aa:^ o»; ©oi.ts'Sft.'isi's Ait-n xxu\ Mi^i 'to ecnssoncQ 

Ji* ax^'i^ %tii lo ©]S'5.s,rfo nj a^s*- O.JW ,«->5xlT9X'5aKV' .■xiS , ;fa»|» fist© ft* t«t 

,s«;'8iidtis» Sag £j6Xi> i?!i;t«'2<j -sia^!' ,fc»tt.xis&o c^j^-^isioois nrf* frmlj axftf 

•so'J. less iix) oo to aoiJee>::ij;x/'a «ri3" ;^A «??iev«8 aoi*x^nx.sii«x» eeaio eirf 
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3».:fxiSi;it«9'i«.5 rii iiScsJEX^Joisa^rio ai rldiriw iix%hit>i.\i »xl!r **nx/o«3& ©iii* 

ifjwoiXo'i: K.K 4.:i; "loeaxioo .sue ^twoo ri^ocf 'jtf ili;*ia»fi ikj** e« 'tslirf 

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,a»Y ,A ?noiJB0Xfp 

ttLuoQ x0iU vroii B6fi i'ccob I ,A 

f-^as i/0^ bib iedH ,p 

uoY. iJ-i'^ «J-ajB3 8Ji ',&Ix(os Ys>.:i,t vjoji *es d-'«o& I' :i-xiJoO erfC 

©xivf s-^jfiii * » ftoJb aii ,ss.td •x&'WBaii oi artl^ii .fae 1 casftaiiW acft 

,:<j.uxtir *"aoj5 I ^iiiilb&o'xLfBi 'to isixfJiso 
,.aoxi3»x;!:. ^rf;^ ot oe^slJ :JixjoO sxi'jC 

i»*T*-.fi hftw ftfsfnRLxj «fi* li'.'i wnif unv oi a.t«i^ii&ni iiA:i:t aeoG «fi" ' 



moved that hit these cars? 

A, itie slack would not permit tiiem to move tiiat i'ar* 

The Court: Does it indicate or doesn't it? 

Mr, liyan: I guess I won*t waste time pursuing tais. 

The Court: You are not answering the question. 

Jar, Smith: If your iionor please, I tak© exception to 

the remark ol* Mr. Ryan in the presencs oi the jury, 
kr, Ryan: What was that remark? 

(Resuark read, ) 
Mr, Smith: I take exception to that r®!.'.ark. 
The Court: There is nothing wrong about that reaiark, 
Mr, Smith: I take an exception to the reHi&rk oi' the 

court that he is wasting tiiae. 

The Court: There is not ing ahout that, 
Mr, Smith: in conrir:-.ing the stateuen t of iir, Ryan. 
Mr, Ryan: This gentleman is drawing on his imagination. 
The Court: He h^ts asked ine-- let the record sho^^f that 

the witness' demeanor on the stand is continually to evade the 

questionso " 

Defendant cites B. J, & S. Hy. Co. v. i.awior« 229 111. 
621, where it ^as held error for the trial judge to say that the 
evidence of a witness was not credible; Kane v» Jijnnare ^ 69 ill. 
App» 81, '^here Judge Gary made the classic stiiteiuent - ^One of 
the gres^test difficulties of a nisi p rjug judge is to keep his 
mouth shut^" sjid siiiiilar cases* 

The remark of the trial Judi;^;e, while not directed to the 

weight of the evidence, had a tendency t - discredit the witness's 

testiciony to a certain extent. However, what the Judge said mast 

have "been obvious to the jury. It would have been better left 

unsaid, but the error is not, we think, reversible, We shall 

other 

apeak of it in a later paragraph of the opinion, Several/al- 
leged errors need only brief attention, 

IV» It is urged that the court abused its discretion in 
permitting leading questions by plaintiff's attorney; bat that 
is a matter very much in the discretion of the trial judge, and 
error in tha,t respect is reversible only when there is an abuse 
of discretion with prejudice, Jones on Evidence, vol, 5, 2nd 
ed. , sec, 2532, p. 4562; i^eople v, Schladweiler , 315 111. 553; 
G. & A. R. H. Co. V. Eaton. 96 111. App* 570. Introductory 



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6 

matters, fmd matters not in controversy, jaay properly te. the 
subj'ct of leading questions. Greenup ?, StoXsg. 3 Grilm, 202; 
Chambe rs ,v» ,,Thf? Pe ople ^ 4 ScaBi, 351, Indeed, it oTten happens 
that the trial of cases may be reuch expedited by the use of siaoh. 
questiona. We find no re-versil'l© error in this respect. 

Defendant also objects that the court permitted impeach- 
ing testimony of defendant's witnesses a® given to the Jury on 
the former trial to be read to the trial Judge after these ?.'it- 
nesses had admitted that they so testified on the former trial. 
That this is erroneous, he cites Jones on iividence, vol. 6, 2nd 
ed, , sec, 2405; Swift fc Co. v, ka dden. 165 111. 41, and similar 
authorities. Defendant epecifies Vanderhye arid Bonta as witnesees 
concerninc whose testimony the court erred in tlois respect* In 
each of these oaBes the witnesses gave evasive anr-wers, and we 
think the court did not err in periEittiBg their former evidence t« 
be residtt 

It is urged that the court erred in permitting witnesses to 
be interrogated as to tlie custom of lighting the yards because 
counsel did not in any count of his declaration charge negligence 

against defendant on account of its failure to light the yard with 

at 
flood liis^hts which were stationed_^/the north end of the yard. 

These flood lights were out at the time of the accident, but 
there was no charge of negligence against defendant in this 
respect, probably for the reason that as to such alleged negli- 
gence it would be held plaintiff assuraed the risk* Ihile tiiis 
evidence would have been inadi^issible as tending to support an 
indeoendent cause of action, it ^^ras nevertheless adifiissibie in 
the absence of such ciiarge because of its bearing on other iesu^ 
and because plaintiff wag entitled to show in their entirety the 
conditions under which plaintiff usually performed hie work and 
the conditions under whica his work was performed at the time he 



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..U^iTw li'^sio'l !^di ao .bsi'iJ;5-t\'i* oe '4:5ja;t J-^xtJ' /)<9j-i j;«UJ4S b^BXi aseeen 

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Oil «jC)aaaiiT 3i4''* xsi f.ft-i'xs i-jMoo ariJ" ■^(toBxiiaei' eeojiw .iai/i'taortoo 

»Oisa^)ii:;§90 ^a-x.ftrfo noi^js-x*; foal; airi 'to Jnijoo ^0s Mi iea bib l&satfop 
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was injured, ii.Tidence is not rander«d inadaiesifcle ^y tiie fact 
that it tends to support a charge of negligence not made in the 
declaration, if, in fact, is is xaaterial in its bearing on ottier 
charges of negligence whicii ure averred. South Ohic ago City Ry« 
Co* Vt Purv ia, 193 111, 454, Moreover, this eTidcrjce was property 
limited "by an instruction given to the Jury, 3nd the attorney for 
defendant explained in his adiress to the jury that liability 
could not be predicated on the fact that the lightp were out when 
the accident occurred, and the jury wae, at his request, specifi- 
cally instructfid to that effect. 

It is urged that defendant was deprived of a fair trial 
through the repeated use by plaintiff's attorney of iiighly prejudi- 
cial and inflamiaatory language in the presence of the jury* The 
particular ruisconduct complained of is that throughout tne trial 
the attorney for plaintiff froa tiiue to tirue injected remarks in- 
tended to prejudice the Jury, On the forcier trial we criticized 
both counsel in this resoeot. While this record is not entirely 
free frosi conduct of the saaie kind, we are glad to note soue im- 
provement by both of them. We are not disposed to enforce with 
harshnees a rule which would tend to discourage tne wanif ©station 
of zeal by attorneys for their clients or to discourage eloquence 
on the part of advocateSe 

Again defendant argues, as on the fo riser trieil, that the 
Terdiet is against the manifest weight of the evidence* The evi= 
denee on this trial is not materially different froE that given 
en the former trial, although it siigntly differs in some respects. 
We adhere to oar holding on the former aopeal, 

V, Wp reserved f©p final eonsideration the first end 
second points made in defendant's brief. It is urged that the 
damages allowed were so excessive as to indicate such passion and 



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bite *aiil 9ri;t woX^siafoiajaoa XeaXl 1<1 ^»irt&a»i sW »V 
&di i^iii Jbaaiw ai ;tl .Iwxid «• d^asMislsb cU ^^01 ^I^^Xeot Mope's 
has inoiesFq xtoi/a ©i-BoXjbni Gi" 63 Bvl&as^oXB ojn oisw. &9WoXX« ««»s«;n«6 



prejudice ok tue piirt ol' tiie jury aa could not be cursd "by a re- 
mittitur. Tile verdict '^iab unusual in tuat pla.iiitifi' -was alloised 
tile full aiiouaL of da-^^aeeB ha cliAiJaed, - ^50,uO(>« M'rom tix%t ver- 
dict tii© court re iUired a reiuittitiar of ,^10,000 and a judgraent 
for ^40,000 waa entered in favor of plwiintiff and stgainat defendant, 
Eeasured by all tiie eases in viiiioii daaiages liave been aliovv'ed for a 
similar injury in thia jurisdiction, the judgment is yet exees?iTe„ 
It is not easy to letermine tae amount of damages Traicii should be 
allowed for a mutilation of tji.8 body such as plaintiff sustained^ 
vitn the p^in and suffering wnicn followed and wnicii will follow. 
In a sense of course, no aiaoant of raoney can give adequate cow.pensa- 
tion for sueii an injury, iierertixeless, the courts, for obvious 
reasons, have found it necessary to give protection froiii excessive 
verdicts and judtjtaents. I'he atiount of tnis judgtuent, wisely in- 
vested, -ffoiild yield isiore tnan the yearly earr^ings of plaixitiff at 
the time of his injury. Unfortunate and severe fts the injury was, 
his earning capacity has not o&en etitirely destroyed^ I'ais accident 
occurred iJoveiaber 12, ir'31. ihe defenses interposed are ls=rgely 
technical. This case nas been twice triAd and twice appealed* It 
is a rule of law that in such case the reviewinfj- court will not 
order a tiiird trial because the verdict is contrary to th- weight 
of the evidence ( Greer v , Shell Pet rqleim Go.r;3, ^ 281 111, App. S33) 
and that tias court will not interfere ©T-.cept tc prev^snt manifest 
injustice (Ba,rhes v. Jji^eans. 32 111, 379,) To the Bame effect is 
Calvert v. C arpenter. 96 111, 65. We have no doubt that any number 
of s"u.CGeB3iYe juries to 'Thicn this case mighii ce subiiiitted ?rould 
return verdicts for amounts as mucli. or more t.'^aii was returned at 
the first trial. The judgment for #40,0OC is, hoy.'ever, still ex- 
cessive from tne viewpoint of the law, and. we think a farther 
rei^ittitur of i50Q0 shoulti be requii^ed. If plaintiff wili., v/ithin 



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8 

ten days of the riling ol' tnis opinion, re^.it Iroia the judgiaent 
entered tbe sura ©f ^5000, the ju'lgaient "wili "be al'l"ir.(ited; otlier- 
"wise it will be reversed and tJtie cause rejaaaded, 

AFyiBKBD UPOS EEiJTTIXUH; 

0*CorxDor ar^d llcSurely, JtT, , concur* 



8 



38763 -ssr-- 

ROBERT HIKMEL, ) 

Aupellaiit, ) 

) APP'-AL 1^0. KUEl'blfAL COURT 
vs, j 

) OP CEICAGO. 

Appellee, ) 28 6 I 



MR. JUSTICE McSUBELY DBLIVIRSD THE OPIKIOisi OV THE CGUKT. 

■plaintilT by this action soui^^ht to recover daaages alleged 
to te 6ust>iined "by hi.^ on account cl' del'endarit ' s failure to per- 
form a certain agreement. Defendant filed a couiiterclaim. Al'ter 
trial before a Jury, and the entry of a nui..ber of orders ixerein- 
after rioted, tiie court ordered plaintiff's cause of action dis- 
missed ana he apaeals. 

The jury returned a verdict for plaintiff, assessing his 
damages at $7500, and against tiae defendant's counterclaim; subse- 
quently, on motion, the court on liovwiber 15, 1935, denied de- 
fendant's -iotion for a new trial tut sustained defendsiit's !.uotion 
for ;Judgivnt for defendant notwithstanding the verdict, overruled 
defendant's motion for a ne* trial on his counterclaija and ent?!red 
final jucigr.ient that the plaintiff taice notiiing by tne suit; after- 
ward xjlaintiff filed a petition seexing to set aside these orders, 
and on Deceinber 10, 19i55, the court allowed the juotion of plaintiff 
to vacate the order of JJovffiaber 15th, also allov-'ed defendant's 
motion for a new trial, and at the saiae tiae entered an order dis- 
mieeing the casft "for want of Jurisdiction" and ordered that de^'end- 
ant have judipient "as in case of nonsuit," the defendant to recover 
his costs from plaintiff. The record shows that the court based the 
order of dismissal upon its oriinion that plaintiff should lav^ nrc- 
eeeded by a bill in equity instead of by an action in law, This wae 
a aiisaporehension of the ehar-icter of plaintiff's claim, which was 
a aimtjle action at lair alleging a breach of contract by defeniant 



£aV8£ 

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a 

with ensuing damages to the plaintiff. Thin seRms to bf' conceded 
by respective counsel, 

Plaintilf appealed froii. the judy^erit entered Bovshibex IM 
and from the order entered Decerober IC , 1935, disidssing plain- 
tiff's cause of action* 

We do not think it necessary to reconcile these orders 
or to agree with tne reasons given by the trial court for dis- 
missing the cause. Defendant ir.ade a moticn to in^^truct ^he 
Jury to find against tae plaintiff, whicu wae overruled. Had 
the court allo^-ed defendant' Slot ion or. the fe^rouxia thtit on the 
undisputed evidence delVndant Tras entitled to a directed verdict 
we would not reverse althouglx erroneous orders may have beeri en- 
tered. In jL3 tate_o_f Gro8 8B?^n . 175 111, 425, the court held that 
the only question was whether the Jud-;^ent of the trial court was 
correct, and in Launtz v, Sinloc h Telephone C9., 239 111. App, 
204, it was held that where the record shewed that plaintiff vas 
not entitled to recover the Appellate court would not reverse a 
Judgment "because of erroneous procesBes in reaching it." Ilrron- 
eously granting a nonsuit is harialess where a defendant is en- 
titled to a directed verdict. People's ' Baxik of ureenv ill e v . 
Mtna_.Insj^.^Co. , 74 i'ed, 507, and gittle v. Gchlesinper, 46 i^ebr, 
844, In Welch„v, Jiorthern Pacific Hy. Co>, 9 6 i^inn, 211, orders 
like thoee in the instant case were entered; defendant Xaoved for 
a directed verdict, ^hica was deided; tnere vras a verdict for 
plaintiffs; on motion the court entered judgn>ent for the defend- 
ant notwithstanding the verdict, rjnd at the sa:;:e tiiae ordered 
that the action be disffiissed with costs against piaintiffB; it 
was hel-^ that these irregularities i:; the orders were not ground 
for reversal. 

The iecislve question is whetner, on the undisputed 
•Tidence.th.re could be aiay recovery by plaintiff, me contract 



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b&i(J<i»i.tiiss eiii no .iQii^rsflw fit fiol*s*>i?p 9i^leH»b 9/1? ■'"'■' '' • 



between tlie parties arose in the following raaxiner: One '^f. DuiEke 
vac the nominal o^mer and holder of all the capital stock ol' the 
Radio Products Conoration* May 1, 19 3"^, IXimke gave to the de- 
fendant a written option to -ourchase this stock for $10,000, 
payable at the rnt<=^ of 50 cents on each radl0 Bismufactured hy 
the corporation; under the contract defendant took full control 
of the corporation, hvt Burake, the seller, retained poises aion of 
the Btock as a pledge to secure the payments rxr.id as a protection 
against miy breach of ^xy of the coYenants of the contract, whiah 
required that th'' necessary working capital be provi'^ed by Sag<jr, 
the defend.aj.t, tho,t a financial statement of the conriition of tiie 
coi^pany be issued each month showing the number of radios aanu- 
factured, an-l that no radios be manufactured except upon hfiJia fid^e 
orders; the contract also pro'idei:! that Sager's rights under the 
contract v:ould cease snd Duirike vould be at liberty to deal i,7ith 
the etook certificates as he o'.ose in tae event oager vioj-ated 
any of these pr'^vicus obligations or permitted the corpQrwtion to 
incur obligations in excess of the reasonable snd fair value of 
its assets, exclusive of the value of its E. Uv A, (Radio Coroora- 
tion af America) license, A breach of siny of tiiese provisions 
gave Duiake the right to terndnate the contract, imager accepted 
the contract and operated the buainesB until October, 1933; at the 
time this contract was signed, the Radio Products Oorooration 
owned the K,G,A« licenue, a small amoxmt of equipiuent, leas than 
#500 in value, and it owed no debts, 

October 4th this concra-ct was amended in writing, changing 
the rate of payi..ent on the purchase price of the stock from 50/?r 
on each radio to 2S^, extending the tiiie of payment to may 1, 19 3§, 
and incorporating a provision that no radio be manufactured by 
the corporation except when it ''shall be in receipt of actual 
orders from a bofia fid_© customer^'' 



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std$ Jv3 jseei ^'xsd'oio'j Ii:a ii.« ijssruejjd oriJ li^jj^isQc has •fun'tt no'j e>iii :. 

,$sei ,1 v;A'.£i oi *fl«i.n-^«^ 'to ■!5i;.ij sxiJ- sjaiij.iWxs t^SS oi olbnt fioa^ «© v; 



Plo-iirtifi' and defeii.iaiit had a verbal agreo;:ieut looking t© 
plaintiff obtaining a iaaif interest in the stoci^ of the corporation. 
This was Ib-tei' rsdaced to %triting .md executed by botii p>^rti@s. 
The main features of tnis contract, \?hicu is ti^e subject natter 
of this suit, were t-'^at plfcintifi would be placed in fiill charge 
of the raanagCinent of tne baeineBS, xaaxiuf acturing on a cash basis, 
and was not to incur any iucel tediiesB for ii^erchaiidise until the 
purchase price of the etocli was paid said unless there *as cash on 
hand equal to the actount of any indebtedness ineurredo Defendant, 
an attrney at la-^, knew nothing about the i^snufaeturing of radios. 
Plaintiff was experienced in the radio business ax,d at one time 
eonducted a large business in this line; ne also owned a aiajority 
of th? stock of the hudson-hoss Ooiapany, a distributor of radios. 
The iiuds .n-Ross coip-'^y did not hav« an n, u. A* license to manufac- 
ture radios ?ind apparently it was to plaintiff's advantage to se- 
cure an int-rest in the Radio Products Corporation which owned 
Buch a license. 

It is a-dnitted that plaintiff, as president and general 
manager of the Radio Products Corporation, sold to ale coiupany, 
th.e Hudson-Ross Co.,.paay, on credit to the extent of iiany thousands 
of dollars. It is also not denied that plaintiff incurred debts 
against the Radio Products Corporation for inerehandiee to the ex« 
tent of at least |8QG0, 

Defen3-nt on learning that olaintiff was selling on credit 
an-1 running up large mE.rchandise bills, in violation of the terms 
Of the contract, after several verbal complaints, on February 
18, 19 35, called attention in writing to th-se violations of the 
conditions of the contract, cuargod plaix.xiff with uaing the Eadio 
Products Coroor^tion to fina^ice his private interests, and served 
notice that he t^^ri^iinated the afcreeat^nt between taem. 

The contract conteiaplated that no debts should be incurred 



d.'.id- iistiuj aeli/.ar.i'ioT.-v'ai -xo'J. sasa&^.j'Js.b.ai ■jas iima.t. Ost J-ors afi"*' fens 

,fifs.C!3clX a .dsiwa 

, \j;ttsqi'>.0& ai-fi o« I>Xv-js , noi.;: asioq'ioC/ aioi;fooi?: Olfe^H s>rf;t 'Ho ^SB^.nsfli 

aii9.5 ^S'jiwsni "i'tiv'aX^Xo i&m bs>liis>t ion osSji aX #1 .sXkXXc^' to 
«xe arid' v)J' «alf>.aaiio'^;-*;a ao'l noiJ's'toc.-zoO «lou'>o'.i;''i c?XI;».«:-H .sxit Janxsj^s 

, 0*^)8 i tBjs^X *3 'to ^nsd 
^lb<^-io no giixXXoa Ejyir ■I'ixtnlf.Xo i^d:^ aniaxi'Qi ao ^a- P ■u^tsCI 

XIsu-ioqI ao ,«;ij;tii5XQiiiOt> XjBd-isv Xja-isyisa i-^ita' ,Sosiiaoo >Mii 'to 

s»lw 'io (snaldidoiv- ^e^.rlj oi' amJ-x^w at aolim<iiA b^L£^o ,5f»GX ,81 

oi&&w 9i.W -^iiASiJ jiiJiw '.nxjaxjBilq fcojiiBito ,*oi5ntfri©o sil* 'lo sr!t>j:*xl>tto» 

bt^r-i&S! bus ,e^B'i'isJrax aijKvXiq exri ooiusax^t ©;r rtox t.'-:;iot-"Tol! aiouhoi^ 



9 

Tjy the corporation until the full "balance of the |10,000 purch!i«« 

pricfi of the stock -^as paid. This payment "Wias to be made ©ut of 
the current income, not out of catjitskl assets. By incurrixig a 
large deist the stook would, "by so much, be reduced in, value, 

Counael for plaintiff concede "breaches of the contract 
"by plaintiff, "but argue that the "breach of these conditions had 
"been waived ty a subsequent oral understanding of the parties. 
The state;: ent of claim did not claiia any walYer of these con'^itioHis 
but predicated t)lp.intiff • a el'-iim upon the full perf orriiance by him 
of all the provisions of the contract, 

We find no evidence in the record that defendant waived 
these con-^itions. i'lsiintiff testified that ho bad esTersl con-yer- 
autlone- with defendant about the manner of conducting the busineos 
but '^id not testify as to wh?^t was said in these conversations. He 
does testify that he had numerous disnutes with deffcrj4:ant» There 
Was undisputed evi-'ence that the froducte Corporation lost money 
on the Hudson-Ross account because plaintiff fixed the price at 
■which the i-^roducts Corporation would sell radios to the iiudson-Eo«« 
eoTapany, of whicii plaintiff was manager and in control, at less than 
the cost of manufacture. 

At the tiiiie defendant terr-.inated the contract there ha€ 
been paid on the Ihimke contract aoia© |8000; no part of this was 
paid by plaintiff; it was paid by the Products Corporation* 'fhere 
is force in the ciaiia taat plaintiff, by violating the contract, 
■uppiied his osn coiupany with radios at a price lesg than the ooat 
of manufacturing to the Prcaucts Conoration, an-i that by purchas- 
ing Hierehnndise for the Products Corporation on credit the Cor- 
poration was forced to the verge of bankruptcy. 

It is undisputed that the officials of the Utah Radio 
CaiRpany, the real owner of the stock and the Buadce contract, 
learning of the finaccial distress of the Products Corporation, 



e 

tftfitiwBO 0ivt le e(=^r.oi}s-rt-/ eSua.^co 'iliJ-ciliiiXo to'l XssnyoQ . 
I>«ri affoXo i:f>ri.cu »£!?/'.»' 'to ffe&aad' »t<,:' t^r!,? o.tj;:'i.rr ^ijcf /t'ilJ'nlir^XQ; .^d" 

m.td %6 sC'as-.TfTol'JiDCY XXif'i ad;)' aaq^u rsi^-.Xo e^ '>-'!:i-i-n.ti5Xq .&«d-«:iiit9i«i J^ii'dT 

«d"3£i3noo Sji^ 'io enoluxvo'iq axi^ Lla 'to 

--tsyneo leTSVSfs ^.sfl srf ;t<af5.j rjai'iXci'e®;? 'tlXtiiAisXI ..anolii&noo '^n'-aii 

eH .enojL^sBi^vnob ae-axW rri fex^a ««w ^ssn^ c* fli? \Xi.iBf:i ioci hih iud 

^9fla.<a' .t3oX aol^e-soqtoO 3:}aii|-0"i'i sriJ- ;t*?ii.t «ani'?jvivs .bsi'i.'qaii^m; ajs^f 
^js ''jriitfr *iii^ bnxti 't'liial^iZq soju^ioad ^nwooo.«? es&B.-aosbis'B. &jii no 

jaeiii- «!33iX fB eXo'.cJ.ioo ul fviii 'ts^^jsiifsia Sh^w 'iljtdixi^.iq iioiofr 'io ,\:;iX«qiaoo 

8.ew eirLd 'to jtsq on. ;0OCift|; ©ujos iasi^aos btIuhjQ 9x{# no .feX^q assnJ 
9TS£iT ^iiGic^^'ioqtC'O etoijSo-x^ $i5;J vtf £.X«q asis,' Jl frLiJnisXq ^ef blsq[ 

^atsi) fSJifd rmrf* eaaX ©oiiq & #£ aoxi;©^ xi'5-XT -^xi^ij^i^r^ mm slxi fcaiXqqi/B 

-loO ad;^ iilmiQ ao aoi.J'^'Xoq'xoU grf-ojjfcoa'i 9n:^ aol 6ax6xuix£ai»iTi anti 



demanded that defendant assign his interest in th,; contract to 
his daughter Grace on pain of a forfeitura of the contract. The 
daughter apparently ^iras a business woiiian, -about ttrenty-five years 
of age, and c^ned alictost all the shares of stock in the Grace 
Radip Corporation. This aasigGaieBt was rsade and Grace Sager paid 
the unpaid balance on the contract, Grace sold this stock for 
^25,000, froK which \'»as deducted |8000 in debts due creditors of 
the Radio Products Corporation, and the balance of the purchase 
price was to be paid, |5C00 in cash and |12,000 in monthly in- 
stallmenta over a period of about two years. .ihere is nctain^; to 
Justify any attack on the b on a f iges of this transaction, The 
evidence snows that these payraents were aade not to defendant but 
to (iraee Sager, who '?'&3 already in the radio distributing busi- 
ness, ^here is no evidence that defendatit profited by this sale. 
Moreover, in view of the adiaitted failure of plaintiff to 
observe the conditionis of his contract, which justified tne action 
of defendant in terminating it, it is jao concern of plaintiff 
what disposition was uiade ©f the assets of the Products Corporation 
after the contract was terminated. 

Upon the evidence shown by the record plaintiif cannot 
recover in this action. The order of November 15, 1935, entering 
judgment for the defendant non obstar^te veredict o on plaintiff's 
8tateH.ent of claiBn was proper and the final Judgment that plaintiff 

take nothing by this suit should be affiraieda Ghfxp, 110 (Practice 
Ait) i3ec, 92, sub-par, (f) gives tlie reviewing court po?rer to enter 
such Judgment as ougirit to have been rendered in the lower court. 

Ihe judi<;iiient entered iioveaiber 15, 1935, is affirmed, but in 
order to cleao: the record, Judyaent will also be entered in this 
court that plaintiff take nothing, i^o points are imde or arguments 
presented upon the counterclaim of defendant. 

JU'DGi/iiSMf AftlRMJlD MtV JU'DGwafiivT i'OR liU'mMBAMT 
UPOm PLAlivi'IffF'^ STATEMEIT QM' CLAIM. EUTIRKD 
IS THIS COURT, 

Matohett, P, J. ana O'Connor, J,, concur. 



d 

>^o£tO •jrlvf iiti JiSiots 'to s-Xrife oiij iis- ^'smuls ht^ti'^'o .bits ^s^s^ 'to 
.Slj-ifX *i-3S«i'3 <5>J)-;4^^ci ?.;sWi, .«}b.s.,': s^w JcsS-uiiTgle^ss alifl .m^liisTooioO gilvkiH 

*ijd jix^i aa'tsji; od- Jon y&i ;>i e-isw ei'ii«5 ■r^jBCi, *3f?d* Jsui.^ ewoira 9b«©&j:r«: 

0,7 riij«i.Rit[ 'to &'^sjLl£.i .b.3-3.ti;;ii>* &r-;.t 'to ffeiv ax /sovos-xoM 

■rixJai^sXq 'to .ineorioa ou bx jx , J-j: ^^nt^^cilan^i at imta^'iab 'tife 
aox^jijioo-ioO Bi-oiiho-ri stai 'io i?.!-:)s.3a &-i,-i 't& **^*.:.i s«w adi^iaoR&ii> itufiW 

aiTiiSvtne ,f^^f?X ,?X ^f)cfffi®vaA 'to 'iii*f-<To sxil' ,aoi-Ja*s p.iil.t iti i^vooet 

ia''i;"ti;J-ai.0.Iq no o J ; ;?i:5?T:ov f j".'^^ jstfj3 iiga ^faefou^T:*-^ oxfJ to't o-i'sSjfagfcut 

"t'ii.tfiiiilcj iis^^ ^aur^f^iil X«:.rti"i: 9il^ bete t^^ewTAX 5jsw itf|j3lo "!:o ■lTtfl>.'ia*«i-4i 

fil 3-vd ,bB;^iyi& el ,r!£SI ,51 -x'Stdm&venl lb»%^;>im tnwfiqjisut ^jci-i! 

airy al h-»%$>ii'is &cf oaX.s XXxw :taB!V::}hiii ,|ir'io»si »dd' -XiisXo o:^ i8*t6 



38778 



ABKE IISKSOM, ) ^,,<;^ 

Appellee, ) % y 



) 



V«» 



./» 



ALi»A liEUi-iAKli et al., ) M?¥KAL FROk CIHOUIX COUBT 
Appell?tfits, ) 
) 01^ coon OOUITTY. 



(Intervening Petitioner), ) O ^■' £J IT ^ /^ •< ^-t,-^ 

Appellant. ) ^O O i.A* O 1 



Mi, JUSTIOB MeSUHELY DikLlVERED IHS 0PIH10& OJ?' TIlE COUKX. 

I'hie is sm appeal from axi order eatered in the case of 
Hen son v , H e umann , jsio. 38774, opinion filed tais day, strikintj- 
the interTsning petition of Louise Kegel, one o:' the daugaters 
of Anna iJeuiaann, aiirl also the answer of the defendaiits jU-ffiia 
ifeumann and Anna Eeumann to lier intervening petition. 

In her petition Louise Kegel purported to adopt all of 

the allegations of the plaintiff in Hen son t, Neum ann, 'fhe p«=^.ti- 

tion alleged that on about December 1, 1935, the intervener ciade a 

deraand upon Anna lifeumaxin that she give to this intervener her sliare 

of the estate and was told by Anna iieumann that there was not'.ing 

coming to her, O^he petition to intervene was filed after the 

Blaster in chancery had made his report in Hen son v. Heimann. The 

facts alleged in the interver-ing petition as a reason for her int®- 

▼ention are different froci the facts set forth in plaintiff's coru- 

plaint and relied upon in her suit. The chancellor was of this 

opinion and grarted the motion to strike. 

However, we have already held in the opinion filed in to. 
38774 that the defendant ie bound under her ££:reeiuent to devise 
her property equally aaiong her three children, and also that no 
proceedings can be sustained to enforce this contract "wiiiie tixe 
defendant is still ali've. This disposes of the contentions of 
Louise -Kegel in her petition, arid the order striding it is 
therefore affirmed. 

ORUER AJFIKIviSD. 
Matehett, P. J,, and O'Connor, J,, concur. 



"'• ■ !: ' ' ' " 

j- ,.■■■■•.. 






38762 -««S^' 



mj^K WODICKI , 

Appellee, 




APPISAL, moU CIRCJ*!i: COURT 



vs» ) 

) OF COOK COUKTY. 

HAROLD M, PITiiAS COiAPAKY, j 
a Corporation, 

Appellant, 



iiH, JtiSTIGE O'eOHKOR DELIVEBBD XHS OPIHIOM Ql TiiiS aoUHi:, 

Plaintiff brought an action Isefore a justice of the peae© 
against Harold K, Pitman Company, a corporation, and Kdolph 
Mlyniec, to recover for damages to his Plymouth automooile which 
was struck by an Oldemohile automohile "belonging to the PitJaan 
company and driven "by defendant Mlyniec, The defend ants were de- 
faulted and judOTcnt was entered against theia in favor of plain- 
tiff for #332«20, Afterward the Pitxaan company, hereinafter 
called the defendant, appealed to the Circuit court of Cook counjry 
where tlaere was a trial before the court -without a jury and a find- 
ing and judgEuent in plaintiff's favor for #332,20. Defendant 
appeals. 

The record discloses that on June 20, 1934, rUid for some 
time prior thereto, Adolph Mlyniec conducted a gasoline etation 
and also *id greasing and sifflonlzing of autoitaobiles, and during the 
forenoon of that day aeferid?int Pitman, ooiapany delivered mi autom©- 
bile to Mlyniec for the purpose of having it siwonized, I'he 
charge was to be five dollars and the car was to be ready about 
five o'clock in the afternoon. About 5:45 o'clock in the evening 
of that day Mlyniao, having completed the sLmonizin^ of the car, 
««s driving the Oldsmobile from his place of business to the 
Pitman corupany. The car was being driven south in 51st avenue, 
Cicero, and at the time plaintiff ■Tvas driving his autoMotile east 
in West 29th Place, The cars collided in the southeast part of the 
street intersection, plaintiff's car being struck on its north side 



\ 'V,. ( ^s<slJi&(l^A 



IsihQO :i:lUDHID UG^\ JAF^'n^ 



♦av 






iiissfJ'Jcyi aiii*- Gw gai:-;raoI«"f mlidimioiiss Qli.'ioimfaZO as ^d" afowi-ts »«w 
-rii.i?ie[ 'So anvs't rti: wbiii ^snieg^ &9TE.i'-ii9 ©.(stt -liisSffiaS^^t f'^^ ^©dXufil 

rMlgisqqs 

es.oxS&iis sttJiLasmi *s /.'■2?v*'c^;^i-iot> GsJ;rr,';X!!* JEk^,Iofciv ,o,t3i®il^'' icxiq »iaii- 

itwo-ie •yjfos©'! srf oc? ai3'.v xso oxil fui»: Bi.-t'XIof* «>vxU ©4 c;J 8.bw 9Si«jiio 

,QiijLK^V£> 4;?Xfi nx xid->;o8 nss-yi-iJb arndfi ajsv? -ifiso eaU! .^topquioo xuwa*!^ 
.l3^« ©Xxd'ox-.o.tiJii aiif sa.tv'-x'x.p mnv Ytlsalj^lq, ©ml* aiii i& hm^ ^o'ssoiO 

eJixa ri^r-xoa a^Lt no jloJui^a saXstf lao a ' TiXi^fraxfilQ ^«oXia*oi5»*nX idatia 



ty defendant's aatoaiobile. Plaintiff's car v&a d.ame.ged to the 
extent of $332, 20, 

Defendant contends (1) that plaintil'f was j^uilty of con- 
tributory negligence as a juatter of law, ajad (2) that ft'lynieo, 
■who had just completed siiaonizing the defendant's oar and who was 
returning it to defendant at the cijcae of the collision, was Bot 
acting as defendant's agent hut was driving defendant's ear as 
part of the service he v?as to r.nier defexidant, 

'flae day was bright and clear ajid tue pavement dry. Plain- 
tiff testified he lired a short distaxice froii. the place of the 
accident and tras familiar with the neighooriiood, having passed 
the street intersection for the past fifteen years; that he was 
driving east on the south or righthand side of 29th Place at about 
twenty-five miles an hour, jind as he entered the street intersec- 
tion of 51et avex.ue, he "released the gas, blew his horn and 

as 
shifted his gears;" tha_t/4ie looked to the nortn or to his leftj 

defendant's car crashed into him; that the collision occurred near 
the center of the street intersection, "1 di(3n't see hin at all 
when I aoproached the corner, '^** ^'.lien 1 ^iot hit - tnat is when I 
saw him," The Court: "Tou didri't see hiia until you were struck?" 
Answer: "I say I did not see him until I got stiiick;** that plaintiff 
skidded Into hira, 

Marie Ceeh, called by plaintiff, testifiod that at th« tiise 
of the accident she was st&jiding at the ncrtnwest corner of th.6 
street intersection; that sne saw the ears collide; that she saw 
both care aporoaehlng the intersection as she was striiiding at the 
coamer; that Mlyniec who •rr&.s driving defendant's car, •'firaa going 
"pretty fast, about fifty miles an hour;'* that plaintiff was going 
east at about twenty- five miles an hour; that tiie cars collided 
near the southeast comer of the intersection; that plaintiff's 
ear was tipped over by the impact. There is other evidence that 



e^iw fttiw .'.uT: -i.Bo fe ' .tiTfl.fjna'LQl} siiJ v.ni^isxQ'Jixa iM^i-ei^Mioo dfsi»t Jf*^^ O^W 
-ixs.sJiM .T^Z jafei.'??v«<X sa^ J,im ttiesiXo onij d-(iai^<^ saw tj/iij srfT ' :. "■?■ ' 

fea^t- n-xoiX' sxii ??•' - i^ ,s:cs:^ siiJ' ASfSii^Xst^ sri ,»jti:<''-rt5 JaiS to aoxi 

SB 

,, 4-lsi feiri' oi '£0 r'#'S:i9fl' s?rf..+ o'l .fvs'iot^X «,rf\dhBi:f^ *;0TEij!»S airf .fcfti'lida 
"SflSfi SeT'axjooo xioiaxilco ■J^^is^ d.«i<j ;eh1K ed^rt^ fc«iii«£'23 xsso a' .tnjsf ffs1:»f> 

J. KsiiTf sl .fsifii- « .tiii ^0.;; I asfiW **s .-xsffioo isiuv fiofCoaoigc/A I ttstriw 

l'iiiai.*.X<I, c'isxij •';.i&irx-i!'W jo^ I Ixi'Oii; Mid »oa #ori: hih 1 y;'*« 1* :'XSWa«A 

Sri;3' '-to "i^jcnoo Ss^vdJi-'toa 9Jl.t j-it gaihixhvta «ja^ «!rf'8 Jrtijl'lod&a 9££# *t« 

Wjse »xiB feiii ;5t.i:lico tr'Xfto u»ri^ was ®rfs fsrii .;a9l;to»3i9*fsJ: ^ssTCis 

®x^3- tsi Qrii:^n,Bd-e sjsw Siic 8.« ■totisBjrtBtal nti^ -^ssi^xHjfm&ttiqM' t^«iO'' iiiocf 

•gnlo§ 8«w rtJfcJ-xsisXq ;r^xi;J "ii^'Od ruK 8»liM 'i^ni'^ tuocf-e' ,;f««l x*'^»'Sfli* 

6»i)iXXoa 8x«t. 311^ J-isis-t ;t«oxI ajs Enlist avi't-x^tiiowj #«ocf« Js *»«» 

.s«'i'ixjiii.eX<i tjaiii ;aoiio9sit9d-.aJ: &di lo "EaaT^o te«oxIJ-iJoiB »d;^ ^«»rt 

ffjerii soaafoiv© -xdxl^o ai Q-i^^ ,^QMqmt »xil x:rf :if»ro feetjq-i* »«w ic»»^ 



KLjmiec was traveling at about 35 ciiies an liour and plaintirf at 
about the sair.e speed. 

Adolph ialyniee, called by plaintili , testified tnat a Mr, 
Driscoli, an exnployee of defendant, brought tiie car to th.e witEees'B 
place of businesB about twelve o'clock of the day in xouestion to 
laave it Birtonized, leaTing the car for that purpose; tue enlarge 
was to be five dollars and the job was to be fli.isfaed about flY© 
o'clock; that shorLlj? before :..iat ti; e he received n. telephone 
call froK defendant asj.:ing whether the car was ready; tnat he ad'^ 
vised the job was not quite finished bat ■?»ould be ooi^pleted shortly 
after five o'clock; that he was then asked by defendant's represen- 
tative whether the witness would drive the car to defendarit'e place 
of business on^j he agreed to do so; tnat whsn the ear was left in 
the morning taere was nothing said about the witness returning the 
ear to defendant, 

Charles Driscoli testiiieil he was employed by defendant and 
delivered the autoiiiouile to frilyniec between nine and nine thirty 
o'clock of the uiorning in queetion for the purpose of having it 
eiJSionized, which klynieo agreed to do for five dollars, and at 
that time klyniec agreed to return the car when the aiiiioniKxng was 
coxupleted* 

See, 33, chap* 95a, Cahill's 1933 Statutes, whieh was in 
force at the tii e of thp colliBioE, provided: "motor vehicles 
traveling upon public highways ehall give the rig;nt-of~way to 
vehicles aoproaching along intersecting highways from the right 
aod shall have the rigiat-of-way over those approaching from the 
left*" Ihis statute, of course, is applicable only to autoraobiles 
approaciiing the intersection at about the same tiijie, Hei^ler Co . 
v. Wilson & i^ennett Go. ^ 24,5 Hi. App, 89; Ward v. Clark . 232 i^.Y, 
^^^5 gitts V, i^arquis, 1S7 iaaine, 75 (140 Atl. 909.) It is also 
the law that in such a situation as is diseiosetd by the evidence, 
plaintiff cannot recover xinless he is in the exercise of due care 



s' i;&0>niiyi a.rfi oS -j-wo niU jsi^^aoid , i^a.slnx^'ts'/:. 'to 3ex;oIqj«3i rua ^iXoosi^CE 

«;jsi,i'i;-iO «Ji.i ;©sooiir«5 j^fenJ- 'io't -/.so Biii .sax^jB.'fi , fe^sxaoitiia 51 fl»V4Sd: 
3TJ.'«: ;}i.od'^ |>«ri8i;rii;t i^el' o^ ajnr dot s^^' ?>iit 8:iJ3lIol> ori't acT a?- saw 

-u^ 9iu .J-ariJ- ;ti^,r>4;-;s'i a,>x\Y XBo ar;i I'siiSsdr; ^^nixa/i; iitei^nst^fj i'.iCt'J: IXfio 
Xl^iocie i>9.1^1'qiu.ot) oof iliiow ii.:ii j!®d£ iail si-iup d-on a^w do(, axiJ i>e^i:v 
-ci«ja^rja?>x s' *;i«?.-.a»l!:-»b x^ b^ilsx: a^ilt qjrw srl isiJ ^jCooIo'o evil aa;^'!* 
QO£;Xq b' iasbae't'^b oi tBc buj ovl'xb blt-'r-ir GB^iXtxvf iidi' 'XOiideiiw oviifij' 

ni tliS"! giiiW -Siio ©iiJ tTi'iiw isili ;ov ol' oi btn^'i'^B &si .5x1*; esenisiJcf 'ic 
•t^riJ ;^5n.tfrxi;3T^'3 8«*iix^ ii' orij :;xjc>s:^*i Alas 5.i.rtii:4on 3i;w ©rtadi niuircoci sruJ' 

bOM Sa>.iba'/if*h y,3 ^s^^oltji^jy s-b^ p;! fj'*x'ii^sj5ij Ilt^oJ^rxG sfuX'SisfiO 

-i^l^il'i «>ini-i^" ?;ae sale i.i-,*>ew.J-9cf ustltiiiM. o* aXxd'oiaeJ'x/fi &ii,t ftaiaTiXsl) 
^i gxilviiil "ro ssoqiiiQ ^rii 'co't aoits^jjp iii. iiitiin©.- aril 'to aloolo'o 

,ftfjvxe>l;iv3' BdS y.ii' RBimloeib aX s« ■■noit.tasjtlt.^ & rioff* ai dfen"* «»X aif^ 
»-r^-r, «,trf. In ftsift-sftx© 6tii al ai sif ea^iaw i»to3$t: iotiimo "Uliat^lq 



for his own safety. It was the duty el' both clriirers, as stated ia 
Hilton Yj,._..Iae j4^y 312 111. App, 255, to "proceed with, due cir- 
comspGotiori so as not to coixie into collision witii other veiiioli^s, 

Rupp. Y « Keeble r. 175 111. 619," aurl that where noi-h drivers fail 
in this respect an<i. therp is a eollision Tesulting in da.j.age, 

neither can recover, 

1"- pyp^e J^> J^e Plate & Mfg;. Ce. v. Do-irnQTi ah , 279 III, App, 
105, the court, in discuesinn the duty of df^ivers of motor 
vahicles when approaching an intersection, said fp, 107): ''It is 
the duty of the operator of a ffiotor Tshicle approaching % orossing 
or int.'r!3eetion to keep a lookout aixead of iiiisi, and also to look 
for approaching vehicles on the intersecting street or highwayi 
and although the latter duty is particularly inoperative with 
respect to the direction froii. whlcia vsiiicle-B; having the right of 
way over him woald approach, full perforjiiaace of tne driver's 
duty requires that he shall look in both directions^" and taat 
failure to so look is neglifi,enee p ^ e r &e, 

^^ ^£.gcM_.v»-_C M ca^o City Hailway CoxTO^iny , 2o5 Hi. %(p^ 
384, it is said (p. 385): "The controlling question presented hy 
this record is whether, in an action to recover da .agea resulting 
from SI collision 'bet-ween plaintiff's truck and def eiicauit 's street 
car, the court properly direet^sd a verdict at the cioBe of plain- 
tiff's case." I'he evidence disclosed that a trixck was being 
driven south in Wabash avenue at about ei ht or ten rdiies an hour 
and a street ear east on 39th street a,t ahout twenty- five to 
thirty-five ailes an hour. There was nothing t© divert the at-- 
tention of plaintiff, who sat beside the driver of his truck to 
prevent their seeing the street car aft'^r the truck reached 39tli 
street. 'Alien the truck was about tv^enty-f ive feet north of 59t]a 
street they looked to the T^est, froa wnicr: the street car was 
coming , and which was then about 300 feet away, but at that time 
they did net see the etreet car because of a building en the 



ri I^^jk^+k a« ^ux-^'ri-ib d^od "to x^'i.k ssiii sjbf :} I. .ij^sliSB iifwo s^iri "so'i: 

.©■^,B;'a4!iii ai ,inij I/ifs^-T rtoialXXeo « ai f^f^sii bnaio^ cist's: aJjlt Hi 

.^lavdo-^^' Xiao ■jerl.tiaa 

^ni^ao'io ** jjtji.iifi^o'Xtniii sloit'isv "xcJoct « 'iQ xoi&'x^qo »iii 'to y^^-'^ ^f** 

xl{J iw eyi,jjsi©Q4;:X ■^i-iaXi.;uiJ"x&ci ai ^^xii. is.jmX ^ridr xi^uadiSji baa 

iB'•Iavi:1.^, -iuj 'to 4>oiu>jiio'.t*2eq XXi..'l « .ao-s oitj c^* £(Xi>o«f flii-'f "isvo -^jsw 
*fi£icJ- biiki ".,enoi:cfu:^'ii:i:? i-iio4 ni £ocl Iii>iis »ri saxii esiiiipiS'i ^^"^ 

,q<j& ,XiI ?*&£ ,: yfciqut-o u„ ^rfewixjbi'I xf^"^ ,.^^'^'^^-',f^.. , -f,'^ ^/iooq ; fci nX 

-iiijaXq 'to \»nolo »,'id- <ts iolM^T b M>vt.osix5 ■v;X'£sqoi(? J"iifoo «itf ,1£;3 
Sfii»« B.^.w :hoi,'xcJ j? :fj2.d,t l5?«si) lassie ©an&lilys f^xd; *,sa«;3 a''t1iht 

«.:Ui trW ,ti-3v-lf> oi ijnirWoi? »aw «>T0ii'i' *,T;iioii ess saXiis «vi'i:->j*itXri;^ 
ojI' .Jiow'j^j- eiii 'to 'tsvi-if-* 9fy" afeiesd #b« oii'-* .Ttiiax&lo 'le aoi^rtat 
ilieff. fc*»£U>*i«'i ioiJtcJ exit -i^J'tB xso *©aad'» 3il:i' ^nicvea ii®d* ^♦a«v9iq 

8SW 'i;«o *9«!'ra8 ©iW ,!i.ai.aaf mox't ,*a0w eii* &t M.^©oX ^^:9JCi:^ -^osit* 
&m ao ■gatbllijd a "to 9«.\raDf>cf ibq i?>9tia »d-f »•» -^ow bib \:9xi* 



corner. Ih«y ii -i not looik to tlifi west again until tr.ay were 
about six to ?ignt fest from the eastbound street car track if^ich 
was too lat^. to aToid tiie collision, as the iieavy tr-aoic ---as loaded 
with merchandise and could not be stoppoi within tiiat dlstsiice. 
The court furtuer said (p. 385): "The bare Btatf-. ent of these 
facts as disclosed by plaintirr»s o'mi evidence istiowB net only 
failure to sustain the burdlen of proof with resoect te the ezer- 
cisa of ordinary oare on the part of plaintiff or ais driver, 
but affirijatively establishes contributory negligence on t.aeir 
part, oonceiinti the evidence tends to show negii^ienoe in the 
operation of the car," The court affij-ned the juig..«nt, nolding 
that the Yerdiot w»« properly directed for the defendtiiit. 

In the instant case, plaintiff's testi.aony (and tnere is 
none to the contrary) is that upon entering th(j intersection he 
looised to his right or to Uie south, bur. did not look toward the 
aorth until he was near the xuiddle of ti'ie intersection, when de- 
fendant's aatoi::obile ?/as just coiJ.iding with lolai-n-oiff ' s car, i£e 
t««tified, "I say I dia not see hisi until I got struck^" we thinlE 
this shov-s tnat plaintiff ^^as not in the exercise of due care for 
his own safety, but on the contrary affiru.ativei;> shows that he was 
guilti' of negligence which contributed to ttos injury, She court 
•hould have found in favor of defendant, and since ao rgcovery osai 
be had, it is unnecessary to discuss the question of whether 
Mlyniec ^as at the time of the collision the agent of defendant 
GOB-'pany. 

dinc« all the evidence eho-js tnat plaiiitiff was aulxtj of 
contributory negligence, the jud&uent of the Circuit court of 
Cook eounty is reversed. 

JTJUaMSi^T KKVIRSBD. 
Matchett, P. J., and^cSurely, J, ^ concur. 



/■■' 



3 

.■?5i:&«.- -y;;.')ri* iidfiif ai«is£ isa^f adj oS iool ios bib \;9frr «t£«>aios 
xtoxxS?" :49.f;'X5" ijGO itss'23't? ,bBUioa,t«i39 «rU mot.1 fm9't .tjcigis oi' xls ^ved"* 

^g-^ZiJ- 'io J as ■:-i\.,,ja &^s<"f •vrfr" ;(d8€ ,q ) hint "xftrl^tu'J: J'i.;ioo eriT 

^HBrJiih sXii "xo 't%iiim^lq 'to i'nm fnii ati. su«o \(;i,Biai:fei!:o tu Sei© 
*EX»it.J «© !f^nwf%iXs«a Tj^octixfiaSaojj awd«jXtf&^S9 ^Xovi jai-iTjtt'i^ ^xrrf 

eJc t>a©ii;! ?-.'Xbj Y^-toK-iiss-S/t ^'llijnljaflor ^BeJsi:> *imifiai otii til .. -s; *. 

iiTxna- y'jv "^ivOiii^B 3 0-.;v I X.i:-.^i4» «lx aea iou bib t ij«e T" ^bii^Hi^^H^i 
to'l i-j-zHo i»iii> 'io &-si-o't0r3 saU ux ;!'ea sjsw 'i"ix;lnl*?XQ im^i swdxie aixl* 

'to v;J--i'J*< a«'?f 'lliivcii.feiXq' JiJiii^' sJ'^o'M^^ *)or>.«i>iys 9r?:J XXii nonlB ' ; " 

'to 3'iijoo ii*'0'i.lO «.i;;t "to d-iss^lixf;, oa^ ,S!SisssxXss>n ^'xo;fi(cri«xd-aoa 



rssxiJf 



38766 

PETER qUARAClliro, Admirietrator of '"^'^ "' ) 

Estate of I0MA3IKA Q,UARAGIi»0, ^^i..) ^ ..- f 

Deeeased, '^ '" '■ 



Apnellee, 

yf' ) APP/aL from limiflCIPAL 
TB, --^ 

) gOURT 0¥ CHICAGO. 
SOCISTA AGRICOLA OPERAlA 3. CHISIO^oaO ) 

E, MARIA VEKGIKS IKCOROUAIA DI RICIGLIAUO, ) 
Appellant, ) 

MH, JUSTICJS O'COKNOR DSl^IVERSB X^ OPIfilOE OF Xm COURT, 

Plaintiff "brought suit against defendant to recoYer |330 
and interest araountinj., to |33 claiiued to be due frora defendarit as 
a death benefit under aa agreement entered into between tiie parties. 
There ^-^as a trial before the court witnout a Jury, a finding and 
Judgment in plaintiff's favor for ^j363, and defendant appeals. 

Plaintiff's position is tiiat his wife, Tomasina tiuaracino, 
was a ineiiiher of defendant society in good standing, having paid 
dues euad aseeasments up until the tiiae of her death May 23, 19 33, 
and that under Article 29 of the by-laws of defendant society he 
was entitled upon the death of his wife to #500, of whicn he had 
been paid but #170, leaving a balarice of #330, and that he was 
further entitled to interest of |33 on this siam because of un- 
reasonable and veKatiouB delay on the par* of defendant in 
refusing to pay the balance claimed. 

On the other hsmd, defendant's position is that Article 
29 of Uie ty-laws, which was in force arid effect at the tiine 
Tomasina ;4uaracin© joined the society, provided for the payruent 
to her faroily of $500 upon her death, but that tiiis article was 
amended December 4, 1932, bo that the faifiily of a deceased member 
of the society should thereafter receive a bxor made up by tine pay- 
ment of il'l per 3Qaen.ber as a uortuary benefit; tx^at there were but 
170 laeiuberB in the society when plaintiff's wife died, and there- 
fore he was entitled to but $170, whica had been paid to him. 



©avee 

I ■ «sv 

■. ( OSOUOTiilHO ,e AlAHKtO AvDOISCi/i ATSlDOa 

( ,if:eoBli"'j(5fij&. 

f\ f ^. ^ -r ^. r-. #^ 
X u^ ^h.o.x O oS 



,?;5;ei ,C.S? v/vii rlcJ-js.:*^. iceil 'i:o ?»,J:J- osif liiinj qis eJ'nsi'iaessas Jbxie s»i/I> 

-(50 'to §Sij2;-o^'j aajfj sid,? no «io^: 'to c^3->t&d■^f£ o* £sX:tiJ'a9 •isnj'^ju'l 

ni dTi*;l;n.5t't9l:- to iS'ijt^q orf^ no '.jbXbB aJw'oi.:t£KS»v ^rts; •i^Xci'anoajssTt 

tb^i!diiI.o i>ariiiX.«cf axi^ y,j3q o* sniexf'toi 

8!v=;7; *XoxJij5 aXiiJ- ijsxii ;;i:ja ,Xi;^iisi:i 'xoxf aoctf OUdv/ "iy t^Xiiae't lari o*f 

~?;*3rf «Atj' ^'io iiij stv^ii-i Ji;;j3 ^ avleosi 's^^i:'tHi->i0iii bluosiM ^c^eioo■'2 9xicf 'to 

"S''£S'/i:J biiB ,?>3X£> g'U'-' « ' ■fU.d-axsXt. -^a^i^r x;*6xoo8 s<ci;i .u eiscfdism OVX 
..Biiti oi hxaq, a»-*'i ftasxi. ii^xxfw ^QVS4 &sjd oiT fj^XOxJxis a*.nr oii sio'i 



The facts were stipulated, and. from them it appears that 
there was no written contract or certificate issued "by defendant to 
plaintiff's wife, who had been a meiixber of defendant society for 
many years and continued to be a member in good atcuidiiig oxxtil the 
time ol her death I&ay 23, 1933, Article 28 provided that from 
October 4, 1918, "The Society will pay $500,00 to the farrdly for 
funeral expenses," and that in certain cases the society would con- 
duct the funeral of the rieceased member, paying all necessary ex- 
penses and that "the r^st Qif the $50^) will be sent to the benefi- 
ciary, the Society riiuet respect any testatiientary disposition of the 
deceased and of hie will," Article 29 provided that the siortuary 
tax per capita would be fixed eacia year at the first meeting in 
December for the following yearj that "inis quota may vary annually, 
according to the number of members, due to tne fact i,iirit. the 
family Siould receive Five Hundred Dollars.'* And by Section 30 it 
was provided, "Whoever is in arrears in fujieral payjaentSf even 
though curreotly paid up wita Eontnlj/ dues, shall not have any 
right to a mortuary benefit, Ihe society B^all pay the funeral 
benefit (meaning mortuary benefit) not later fciaan sixty (60) days, 
however, in case of misfortune, whioa may cause more thai"i one death, 
wad. any other exceptional cases, the society reserves to itself 
the right to adopt those provisions necessary for the protection 
and existence of the society," 

The stipulation of facts further shows that after due 
notice a meeting of the society was held Bovea^ber 6, 19 32, and of 
its council Ii>ioveinber 20, 1932, and a new by-law was proposed and 
reeommended to the society for its adoption at a regular and 
special meeting to be held December 4, 1932, pursuant to notice 
to its members, including lomasina (^uaraoino; that on December 4, 
1932, the society adopted the recormuended chaiige of the b.y-lawB 
and the members present voted unanimously for the amendDient to 
Article 29, to read as follows; "Effective December 4, 1932, 



«)dJ- XiJai; iiuxijii^/jr, .Qvyj aj. 'i.vC).,sTi^a j& so oi fc??ijax;j;;.:.o hoe s'tss"^ viixeat 

-x^ V.'2;*i*3?-'i^o«Ji:i IXt- ■ri,i-jl\^45q ,*if,)dj'ii;fiu bsi>aj?.909B f^.:!:?' 'to X>'--'teajj'i $ifj ifoub 
-x'taa^d sxi^ oci' ;jix©r sd £ii^ i^-''^^ ^-^^ '^0 ^^s^^'^ ^M^*' J-^s^:!- 5xiB as^euog 
©x;j- lo ,;Jox J'i:3 0c«ifc "g'Sfcvja^./.Bct'a.s^i ^r;ig jo-a.^se'i .tsj.-^ •\»;J??i:ooe 9xW ,Y*i£>-io 

&iti .ii>..i4' Jo.-.il ail3' o3 ^5j.b (Si'jwrJi-i^-id lo 'jsd'eiijxi •JXid' oi ".'A-iihtcoosi 

i"X9va ,ecl:fe>iB'<;.jifi XjB'xsm/i Gi a 'X*-:e-i :!..-■! fil si tst/goilS'* ,fc3.tJ:T0tq 3.SW 
•\jiw OF-ri^ Jon XXiiiia jKe.u& i.x.ivij'aoi'a xijxw qv bl^v, v;IitH'^'X'iL>o A'guoci^ 

^a-^j.yli i06) -^j.t5iXs asilJ i'?>.ti-;i *oa (,Si'tea!*>X x^iciji'tojij snl-.«-3j3) {Jilanod 

,j:iij~ia.6 oao a.5$iwt a'xo*'*^ ©si^'ao y*''^'^^ dalsi^r , wiii-J-Xin'tfsiKi 'to oa-no ni ^i^r^'^oxi 

'rXijJx oJ- e^iivxiasi'x Y-^'-'^-iuos ^^^'--^ ,s>':.3,fio .Lsaoxt ;>aa:«- Trf!>ilto tro* has 

anijoaJo-xq. siij -xo'i •^'"isaaiiioiu'i ar£oI;-:x\'-oic ^aoxid- *«j»£jo, oJ' d'Jigi'i arf* 

'Co bi-ixi ^S.EQi ,d -xw'XuaYoK!; blBd a^w \;il-Qiooa *jp:# "io rvai,t9»st je (&sX:!-ca 

l)aB &0 3 0CT0'X:T a^x-! ■m:l-'Xd! vT£>a x; foil*; , JJ^Oi ,08 x6if*m?'tro»L Xiotix/os sii 

biUi islij^'i'i B i&i auiJq^&>3 e.tX Tio'-t \^j6>i.o{,)« •sxli' o^ .frsfcnuxsiiffoOS'i 

,?> todbsoaCi: ao i^^n-i joiiioi-JX-fJp A'.niti«*-ao'x SjulfciiXoai jaisdruoci eJi oi 



3 

monthly dues I'ifty cents; mortuary clues $1,00 per deatli. '^** 

"Mortuary JSenefits: #1,00 per raeraber for the number of 
memTDere current," 

In addition to the facts, as ahove stipulated, wi^jnesees 
testified, Peter "^uaracino , the surviYing husband, called "by the 
defendant, testified that he received a check fror/i defendant for 
#170, dated October 1, 1933, payable to his order, and taat he 
cashed the checii:; tnat at the tiTue of delivery the checii '-ore the 
followin>^ endorBement: "Received as full &.■ C0uj.plete settlement of 
Benefit iiortuary a/c Deatn of urs. loriiasina i^uaracino" - signed 
Pi«tro s^uaracino; that before this date he received another check 
for apparently the same aiuount but returned it; that his wife did 
not attend the meetings of the society regularly and was not 
present at the meetings in iioveniber and December, 19 32, 

Tlie finaxicial secretary of defendant's society t°stil'ied 
that he k^^pt the records of tne society; that 'kre. i^uaracino paid 
her montlily du^s of fifty cents regxilariy and after the change of 
the by-lawe in DeceiL.ber, 19 32, she made four pajriiients of one dol- 
lar each for mortuary benefits or funeral aBsess-i^xents; that the 
payments were made to him by irank Xaglia, a relative of the de- 
ceased, 

Taglia was then called by defendant and testified that he 
was a KjeEiber of th'^,. society and a cousin of deceased; that he wae 
in the habit of paying her dues to the eociety, and that he ex- 
plain. ed to her the doings of the society; that he was not familiar 
with the changes made in the by-laws in December, 19 32; tnat he 
was present at that meeting but that he left before the Question 
of amending the by-:^aws was taken upiff that he did not tell krs, 
Q»aracino about tne reduction in the a'.:.ourit of mortuary beneJMts 
the mesibers would be required to pay thereafter; that he had been 
paying the dues for Mrs, (^uarrACino for many years and tr,Ansacted 



f^-^-'^ ^iU-c^ab 'COP 00, If. ec-ii;'- 'Z'Xi-yiJi"Zo.'i ;5&i\bo -v^st'li't a'^uf) xldiaotTi 
'ig i-rra'/jjjya ©rfit 'io"t lOdia'sxt; 'iQfj 00. X^; :s! j'i:'ti=>ticj(l viisuitioii" 

d'on esr fux'-; Y-'"'^' -Ct'-.i -"i" X'i-Toxyos siij 'i;o eycd jfssai sild" bat>ii£i ioa 

be>t'ii:i&3^ 1^.;© j.;.>o,-j a ' .tfiBhii'^'Jiftb 'to ij'ii%.t'3i39c; ij-iouenl't "sriT 
bifccf iloi^-'if.LV tfr,'x'd 3Bii:i ;vo©i.ooe 3iio to aJbioo"?!. ■arfj j-qai arf i'BxW' 
'to i5»,^ii«iiio 9i"i.;' 'X'.jJ'iii iiiXfs vji'X-«iJ.>a»"i 'isd'ii.'^o \;i'U'i: 'to s^uft \-;iffd'noEi rt'Sd 
-lo!^, 9110 'lo B i i.i'^ >s{,iiq tuQ't e&jfl^i aiia jSS<t?I jT^tfjiaofJCI iti awjaI-\;J srtj 

.Jb3a;sd9 

aaw 9ii ii'.rfJ' ;i>»8/.':^'J9& lo axawo:) i? ijrui TjJ"9.tooe 3i\i 'to i^tfms.n £ sjbw 

fi'jxd'aeiip eiii' s'lolsd' d'i®X axi jisdJ J-iJcf arucJsaiii J-jnui is cfnsas'ig bjbw 

.■^Xial XI&* ^0" tib Oii Ji?.i-i* ^gu risjiiid a^w ffl%6^-y;cf ©ii;^ snifcn^fiifi to 

eii'Laned v.-TjiBud-ion: 'to 3n0Oi-i£. Oiid" ni aoiJsiJOyi aii,t *ifocfxi oni;oje.i^ifP 

mod teii Oil. J-BxiJ- ;r£©d-'tef>i9xIJ Y«Q: 0^ Jb9-iiifpei atf I-.XiJOW ansiaaia od* 



all her business v/itii tliy society. 

Defendant also ofi'sred in evidei-ce letters ?erit by tlie 
society to Its membere, dated June 1, Soveiiiber 30, and December 
23, 19 32, The letter ol" June 1 stated that tiie r).e:tt regular laset- 
ing would be held June 6t.i, at a certain time and place; that the 
meeting was of iLiportanoe, requiring the atteadsuice oi' the raesibers, 
and it then gave a list of the deceased laeiiibers. In the letter of 
Moverober 30th it was stated that the last .and most i. portaxit meet- 
ing of the year v/ould be on Deceiucer A^a, cpecifyinis, tne tiiue and 
plaee, and requeating the iuembters to attend; tliat at that meeting 
the program for 1933 would be arraixged, oiie no;..ination and election 
of officers would take place, -and other laattere, not iiioortsint 
here, were mentioned. in tiie leiter of Deeeiiiber 23th it \fo.s stated 
the next rCf/alar meeting would be held Jaiiuary 1st, The letter 
referred to a nuxi^ter of matters, sucn as the minutes of the previoui 
meeting, tirie disposition of pendiiife, iteras, the instaAlaticx. of new 
officers, amendment to uhe by-laws for payruRnts and bsiiefits, 
"Effective Dec 4th 1932, iionthly dues I'ifty Cents; kortus,ry dues 
$1,00 per death;" sick benefit iive dollars per week during ill- 
ness not. to exceed thirteen weeks, iinortuary benefits, *1,00 veT 
member for the number of members current," A great niany other 
matters are mentioned in the letter, Neither in the latter of 
June lat nor tuat of i^oTeaaber 30th was any ixiention laad© that it 
was proposed to change the by-laws so that the mortuary belief it of 
1500 would be reduced to |1 t>er member. And a consideratio^-i ef -XL 
the eTidence shows, we think, that the iiieir.ber, Mrs* >iuaracino, did 
not consent to such reduction. 

The by-laws frojui which -we hs.ve above quoted, proTide that 
upon the death of a r-iei-iber the defendant society will pay 1500 to 
"the faiaily" of the deceased mexaber. Jma defendant contends that 
any amount due froiu it was payaole to *irs, ^.uaracino's surviving 



©lis j'i.i::^' jSiOj^Xq ir-fue osi:! Hij3:;'2®u & i.& ,!.:id ©tlut. liXsxf ed bJCuow jjxii 

w&xi 'to .iciJ^vileJeai ■siij ^SJiW^J-x ■ijai.d.'isq 'to noxd'isoq'i xX> 9iiJ tgnid'asfll 
,8 3-11%-fiffd' Li'ts:. ?,o;.u:-fai'(;i!«i T:o't tjyi?4^X'r'^;d" ?^ri.:; o* ■^:\&-ahms&B .aiaoi't'to 

'jiS'.dd-o "'^i.uu'ff jlBS'ig ii ** »sti:ioi:".ti}a srcsdiiiMia to lyiawn ts!ii.t -zo't 'i©<:fmfta, 

i-.t ii-u-icf 9l)-.,iiS noi;J's'ias -i^ae atn xLtOC 'x?«cfu;3voa 'to is^iS tea J^eX snuTi. 
Io ;j-i;'.loii'-r>d' yi*^'''*"^«''- ^^"^^ ^■•-■^■-''' ot? S¥/*I--\;<.i fJilcT egasto o* ,t>©soqoiq e^w 

.n«>iS'0ir69i notG o;t ifnoaaoo ion 

o# 0(.'<ls> ■\C-«?cj iX.tv/ xioiooe Jsaa'ate'ifih sarf^ •socfxusf!! js Io d&nBh &iit noqt; 

'^.ax7ivtJjB a 'onxo^;'isi.v ,a-x.(i o« ©Xci^xjjuq sa-R-" Ji moa't suft ;tnwois» ^n« 



husband, Peter ^uaracino, that he alone could maintain the suit, 
sind tnerefore the suit brought by tae surviving husband as ad- 
ministrator of his wife's estate ■'irill not lie. The argument in 
support of this is that if the money is paid 'by defendant to 
plaintiff, it would become a part of the assets of the estate of 
Mrs, Q,uaraoino, and counsel cites the case of P e o x)l e y , P g t r jL_e , 
191 111, 497, \vhich was an action of debt on a bond brought by 
the People for the use of the widow and claildren of Benjarain 
Brooks, deoeased, against Petrie and others, sureties on the bond. 
It was held that the sureties ^^ere not liable because the r^oney 
paid did not belong to the estate of Benjamin Brooks, deceased. 
In a case brought under the statute for the wrongful death, the 
suit to recover is by the administrator and the money recovered 
does not belong to the eetate but to the heirs. 

in the instant ease, upon the death of Mrs, Q,uaracino the 
mortuary benefit -was payable to her "faiiily" sm.] it serUis to be 
agreed that Peter i^uaracino was the family. Obviously, if the 
judgment is paid, no one can maintain another suit on the saiae 
olaisi* 

Defendant further eontenda that the court erred in striking 
its additional defense in which it set up that it v^as incorporated 
under the laws of 1872 as amended in 1927, and the latter act -oro- 
Tided that after it became effective no sueh societies should en- 
gage in business otner than tiiat they may retain their corporate 
existence for six fisonths for the sole purpose of winding up their 
business or re- incorporating under soaie other act; that defendant 
did not wind up its business after June, 1927, when the act became 
affective, and did not re-iticorporate under aiiy other act, tnere- 
fore all acts performed by it after the act of June 192? became 
effeotiva were ultra vires the corporation. We taink this 
contention cannot be sustained. This same act was before our 



3 

ax ;fnfla;i.^XK erlT ,siX J'on lliv? ©;t.:j''i'\ i?'®tiw sxri "io 'xoditij-ainxw 

Ytf J-xisu'O'i" bii'..-d .s ri<3 ^cJei; 'io notd-o.G nn 8.q>f.' r^'ol^V ,?€*> .Ill IQl 

.axiu&ln^a 'to nax^ilLdo brui- woiii'W ."-dxij- 'to s:)'9J.; bi^ to't: olqos'? 9iil 

g.aiid'icf-e ..rii t©-ii:o ;tT:i;oo ^di it&rld'' a,%as>inoo tmiJiw't 4'.a«foi-i5>"l»G , :: 

-QisT d-ofi- ie>J-.t,.:I ^Ali- ftac ,?P9i «i bBbrmi'i^. a,fi f?vei 'to aWBl silvt nefcrn? 
-iva .biX'oiiS aaiJ«xoo3 doi/a off SY.ij-o?=Tt» ?='i?w<09tf d-Jt ■SPi'i.fi i-^jxld- twfeiv 

&;moo<i -■ion ©xii ii.-3iiw ,va9I ,sauO ■xad'i:.8 88Sfixa> cf a,i-j: cji.; bnltr -ioa hil 
-3i9iii ,.to*5 'tii£lio x^' lobruj 0.lBaoqioora~«t d-ea l>ifc hfU'- ^gtrij-jjs'n 

exixd- ii.iuxi";!' ^?' ,nf5Xo5io<i-2 00 sarf* Reijy «2liit ^i-^w ©vxdos»T:'t<s 



6 

Supreme court in Jones Vi^Loal s en Lat. Benel'it Asboc . . 337 111. 431, 
where it was held (p. 438) that "Heither the old association nor the 
legislature could take any action which would iiiipair the contract of 
the certificate holder unless such certiiicate holder oonaentsd to 
such change, and there is nothing in this record to indicate that 
the certificate holder consented to a modification of his rigjits 
or the reduction of the amount due under the certificate of meiuher- 
ship," See also ^ork v. Cent. Ill, Relief .A-ssoc. > 340 111, 59 5. 

In the instant case we hold that since Lhe lueJaber, i^rs, 
(iuaracino, did not consent to tne change iii the by-laws ^'hereby 
the mortuary benefit of «?500 was reduced to 41 per raeaber, sucxi 
change was ineffective as to her or her fataily. 

iv'or do we tiiink it can be said that she acquiesced in such 
change because shf, after the arnendsaent was adopted, oaid four 
mortuary benefits of one dollar each. There is no evidence in the 
record that would warrant the court in holding that she knev/ the 
assessment of one dollar reduced the mortuary b'-nefit whicii ^rould 
be payable to her family upon her decease. 

Defendant further contends there was an accord and satisfac- 
tion because plaintiff, tlie suryiving husband, deiuanded .|500 from 
defendant after the deata of his ?/ife and refused to accept its 
tendered c-aeok for |170; that he afterward did accept a ciieck for 
this sacount, endorsed as above quoted. Aad counsel says: "It is 
apparent that the check was offered to aixu ou the condition that 
his acceptance would be in full satisfaction of the deraand, ** Where 
there is a bona fid e dispute between parties as to the amount due, 
the acceptance of the check will be a satisfaction of the demand, 
althougl-i the acoe-otor protests at the time. Canton Union Coal G g. 
V. Pa rlin. 215 111. 244. 

Plaintiff testified that a couple of months after the death 
of his wife, officers of the company called at his home with a 



to jOfixJ-nuo eri;? ■si.iift..u!.i I^/yow ,;ioiii^7 0oi.vO£ -,;;i-is ©ri^jj- ^i.uoo ^aijJ'filaxaeX 
03- &sJ-n$aacr^ isijioii £>.t^yi:'c.tJ-T:oy dour: iieelcw %etI.Qd a;rai'> i'ix^i^o ^lid" 

.sycj ,£11 Wi'^. < v0.osaA_'fe_iX.&ji, .«4£I. .. J ..'.eO ^^y ji'ipY oaX* j^i^jii **,5ii'i8 

.tja*sio©,fc T9xi no©;.' ^li^uMl i&ii o^ ®Iij^Yj?cf orf 
-'Oji'ie JtJ'fiS Eirfei fc-xooojs OiS a,6W ©"xex.^S e^aso'iioo T??r;)"ii;'t o'^aefciis'tsff 

gap /is? '' ./MWiiisfc 9iU '.t';, .aox;toJ3'l:c"sld"i3s ilii'i: nx !.'d 5i«ow ©©rjAdc-sooje bIxS 

,3u6 d-awoi'ais oiiJ od' as BSiJ"isq asswSsd ni'ijcai;!' ©Ml M£^. ^ ^^ si'x^iii 

^hcv^is^h ©i1v '10 aoi;to«'i:niJ-i9q >a otf 111?=' :itcsnto sriit '.to ©oa£;^Q«oojQ arW 



ctieclr. "I fUd not take the checfe. I ^J'antef'. ncre aioney, Haey did 
not five me any more; they tclc^. me to go to court. They held the 
check;" that some time afterward the officerB sent for him and 
then tendered, to him the check which is in evidence; that the 
president then said, "Take the check. If Taglia T'in &he case, 
you get the balance;" that thereupon he took the check, De- 
fendant's president denied that he had made this statements At the 
time Taglia had a caee pending against the scoiety where iuar^iy of 
the facta were suhstantially the same as in the case hefore us. 
Afterward that case was decided Toy another Di': ision of this court, 
where the jud£3Hent in the Taglia case against the defendant ^as 
affirmed, Taalia. Aclmr , r. Societa Agricola Operaia^ '•^'.^y^s^^ol'.Q^ 
B, Maria Verfi ;ine I noeronata Pi Rici gliar xp. So, 37637 (opinion filed 
March 29, 1935, not reported.) About two months afterward the 
instant suit was broufrht. Moreover, the evidence does not show 
what was said by the partite on the two occasions when the check 
was presented by defendant's officials to plaintiff, This apoears 
only by inference. The witnesses were not asked what was said 
at the time in order that it might be determined whetlier there vras 
a bon a fid ig dispute between the parties. But in ajiy event, the 
amount ($500) due under the 3 aw froiu defendant to plaintiff, v&g 
liquidated. 

Defendant further contends that the court erred in allowing 
interest of $33 on the ground that its delay in payitent was un« 
reasonable and veyatious; that it defended the action in good 
faith, The record discloses that in isiay, 19 33, shortly after krs» 
liuaracino died, defendant tendered to plaintiff #170, which he re- 
fused to accept, clai4tj.ri^ he was sntitled to ^5uj; and plaiii~ 
tiff testified that ax. the "cime def eniant ' s officials told htra if 
he granted more he would have to f,:o to court; that in October 

following defendant's officers sent for plaintiff, aixd he further 
testified that they told hia to take the checi for |170, y.nd that 



»jrii f)ioJ ''^sri'X ,;i"'itiOG ot 03 0^ om b.CoJ ■^i-Silo js^D/a ^/rifc ein otX;'\ ^on 
fjxxjs! iflXi: lo'i drsfia ei^oJtrLO ^ifc bTiiWT:^;>''l;e sini-J '^ino.--} d^jTM^J- '*;^oori3 

-fi-Ci ,iio:>i:io -srl:) Aooi' sii aoqwsianJ J-i^ilt '* jaoa'r^X^'Ci' 9rii d-^g tfo^ 
, J-Xiuou siil.; "r.o aox8-'. '.'iCI ■i«ifI?oXit^ y^ 6oMo-'. f'^ 8.t:v/ 39^0 .trri;? ^'x^-^nacJ-'lA 

E;J:>oS Sii't?? Jisrl-'^ iislSB #0x1 aXivm' asBs-jiiJiw SjiX ^i^onsio'tai; ^0' vino 
a*3'.7 s'xsiij 't'^:;tcrf.-.-i?r fj'^nxxa'xsJ-i^S ':»cf vh'uxi'-i ;?1 -|«.tf;l -xabTco rsi aiaicf erij *fi 

gaiwoLXs «i fca'i'xe d-rxjoo Qi'li jsil3 shu&iaoa 'i-'-jd-J-TJu'l ;J'..T!«fi.u9'i©<l 

.&oo;5.i ni aoi-ioi-.? 9(ii ftebne '!«?.?> tx tsxLt inuoifsxAV hk-m ©Id.enoBJSS'X 
~s»T sii Moixiw ,OVX^^ ■r.ti;;j-ax.ielq oJ be^tmbmi tnBfH-if'^^t.»h ^brlb OEiioB-xsMjSi 

t'Siii'xui ':>x{ biic /rtLiiix^Xo: lo't inoe atf^jlTto B\^n^'bm't^h ^arrollo't 
iiidi bm. ,OVXv -o"t xLofjdo »a? ?.>3tei oJ mixi Mo.t ^ja^iidf i»iiS b^rtiJ^'^t 



il" Taglia won his case taen pending against del'end&nt, it would 
pay plaintifl' the talance ol" |330, Thp record discloses that the 
©pinion cf this court, arfinuinti the judfe^oient in favor of laglia 
an(3 against defendart, was filed March 29, 1935, 9<nd plaintiff 
"brought this suit about two monthB tuiereaf t<*r, Esy ?7, 19Z5« 
Eefendant'e president denied tb!%t he hsd made the etatee.ent 
testified to by plaintiff, tut the trial Judge apparently toolc 
plaintiff's view of the case, and we are of opinion '^e would 
not be Trarr:ant<*d in disturbing tne finding of the court on this 
queetlon. In these cireiimetsjnces, we thinlr the court ^as war- 
ranted in Piloting the interest. 

The judgiaent of the kunicipal court of Chicago is affimed, 

JUDGMi^JRT AWFimSB. 

McBurely, P. J« , and Matcuett, J., concur. 



8 

fbiii isjaJ e^aoioelp /noo^ri s..ru' ,0(f.6-| "to «o;ii5XB<jf 9s:i.y 'Vtlinhalii i^sg 

.bluo^'T 9vv aoi-.ieo to ^'t.^i a^ '^ii--? ,®'3Bo ^^f£.t 'to w©xt 8''t't.ttni.'slq 
slxiJ- ao j^tiior* -^W to :;,ax.bn.t't srid- gf!i:J-sj.<j^'^i^ iii 5'^;tas?TSJ3w -sd" ton 



":M. :!-.:)■ 



/■ ^ 



38596 f {^y f I 

'! i" 

-J I 

THREE BSST CLBAITSRS, INC., ) f I 

a corporation} ) 

Appellee, j APPEJU:, l^OM CIRCUIT 

T. ) COURT, COOK COUNTY^ 

WILLIAM D. MSTSRING, sheriff ) O Q ,p y ^, ^ 

of Cook County, j jQ 3 ■\^ L^Blo ^'^ 

Appellant. 



! 



MR. PRSSIDIHG JUSTICE SULLIVAIT DELIVERED THB OPINION OF THS COURT. 

This is an action in replevin instituted in the Circuit 
court "by plaintiffs Three Best Cleaners, to repossess itself of 
certain chattels consisting of motor trucks and machinery levied 
upon hy the sheriff of Cook county under an execution on a judg- 
ment in favor of Leo Oslan against the BTew Drexel Cleaners, Ince 
The cause was tried hy the court without a jury and judgment 
entered finding the right of property in plaintiff. This appeal 
followed • 

As cause for reversal defendant's major contentions ares 
(l) That no demand was made upon the sheriff for the return of 
the property hefore filing this action; and (2) that plaintiff 
failed to prove its title or right of possession to said chattels* 

It is sufficient ans^ver to defendant's first contention to 
state that this question not having heen raised in the trial court 
cannot he raised for the first time on appeal*. 

As to defendant's second contention the evidence shows that 
in March, 1933, all the stockholders of three corporations known as 
Klever Shampay Karpet Kleaners, the Circle Cleaners, and the IJew 
Drexel Cleaners, decided to consolidate the husinese of the three 
companies and a new corporation known as Three Best Cleaners was 



'•-■-^ 



^QQQS 



( 
^ ". ^. "Y T-l Q O (. ■ilii^axCs ,Z>V.17^Yms. .CI iaijjrr 

mUOO EST "50 WmiTO Sill: GEmVIvXM 1AYHJU8 210IT8UT; m.mi'3S.m .AM 

"J- j;i;o'i:.tO srfu ni he^uixietii nx'reS.qi->:t nx tioxoOB ns v,i sxrlT 

'So 1:XS3^J: aaeeeoqe'x oo ,a'.teri.c.5j.I0 vasE ssTciT ^':L?:ic!-ni..;Iq: vd" i',.uoD 

-gbxit fi no noJ:.-^0o©xs na -csbnu i^jftwoo iCcoO iO I'ii'ieris arid' x;ci noq-0 
^ox-il ^e'cofiseXO Xexs'sd v-rsl. S'fiit JenxssB nsIoO osJ lo 'lOTsl fix Jnsm 

Issqqs airn: , 'xlx J-Ki.';Xq ni v.?TSjqo'iq lo iriBX'i erii SJ«x&ni'i- bsisitns 

.bswoXIol: 
sa-xr-; anoi::^i;:G«noo 'iot-«K a ' ^'Tir.bxio'isi:) lijaxfcvs'x 'xol sawso bA 
io n^iijin' srW lol x^xT.sxii: sifi noqi; sLbki sbw briJaetyb or: :)«ilT (X) 
llxinxaXcr :}j3rio' (£} bfi.8 jnoxooB axn'j i^nxlxi e'xolsd" y^'^scjOtcj oxfd- 
,aXs3c}xir£o .bxea oi noxaasaaoq iO .•frl^x'x to oLsii eix evoiq oi heJiis't 
Oi noxAat^inoZ) ie.'zlt e 'ins biiolsb o^t ^s'sawi? cfn3X uxlLu!?, si Jl 
d-'xuoo Xbxij orl;: nx bosi/'/x nsscf snivM ;tofi ixoxJaex/p sxrLi *s:si.i adsia 
4Xi;3<iUi5 no Btaxi ia-'ix1 'Hii 'lox bsax-sti: ecT donn^vo 
:^Br{^ ewoiia sonsbxve. qxH floxjnc'^noo bnooas fs '^^actosxsb o^ bA 
as xrffoxii anox^.s'roci'xoo eoiiitf 'io aisbXorijfooi'a edi XIx- <C.^':cox trfotsM nr 
vTi^Tl erfJf bxto ti';c&n,'-'9XC sXo'JiiO oxTd- <s^'!n.39XZ daqiaS xsiCimaiie tevaDi 
&0ix{j sxi;* 5:0 isssniBud" firi^ 9;t.abi:Xoanoo o3- bsbxosb , st-anseXC XexeTCI 
ax-:i3- 3a:0ii£>sXO d-eisH: bs^xIT afi nwoxti noi^^sioq-soo wsn s has yeinsqojoo 



-2" 



organized. All the stockholders delivered their stock of the 
aforesaid three corporations to the Three Best Cleaners and re- 
ceired in return stock of the latter corporation. The Hew Drexel 
Cleaners dismantled its plant and moved all its business, together 
with its machinery and equipment, into the plant of the Klever 
Shampay Karpet Kleaners, which became the officer and iieadq,uarters 
of the Three Best Gleaners. 

The judgment pursuant to which the execution issued on 
which the sheriff levied upon the property in question was procured 
by Leo Oslan on a judgment note ostensibly executed by the Uew 
Drexel Gleaners and it is insisted that the property seized by the 
sheriff still belonged to the Hew Brexel Clesiiers and is liable for 
the obligation of that corporation. The difficulty with this 
position is that the New Drexel Cleaners hare long since gone otit 
of business, all of its corporate stock, machinery and equipment 
having been transferred to the Three Best Cleaners and its business 
taJcen over by that company. The business of the Three Best Cleaners 
was conducted principally in the plant and in the name of the Klever 
Shampay Kleaners and it was natural that the property in question 
should be delivered to that plant and used in plaintiff's business 
under that name. The possession of the property by the Klever 
Shampay Karpet Kleaners was the possession of plaintiff. The OTOer- 
Bhip of all the stock of the ITew Drexel Cleaners by the Three Best 
Cleaners and the outright delivery of the chattels of the former 
compajiy to the latter vested it at least with the right to possession 
of the property as against defendant's levy on the aforesaid exeoutioni 
and whether under the doctrine that a consolidated corporation having 
received all the assets of a consolidating corporation must also 
assume its liabilities, a creditor of the ITew JDrexel Cleaners might 
recover from the Three Best Gleaners in a proper proceeding against 
its is an entirely different question* 



-'j'x bun e'Xf>ii^©XO dasS ea'Ml ad;t oa enox.+.g'ioqioo eexrii' bia^s'to'Ss 
I r/XO •lu w'S'll si'T .fiolJ'.s'toq'roo -ic.i'ct.';! sri.+ 1o a^oeJa nT.i/je'x ni bsyiso 
^:dri«f.?aoo ^aasrsiawd" 3oJ; lis bi^vom fcn^i :*ao.Ic3; asi: !bf;IJn.*-.:t«.sx& atsK.aaXO 

no b^UB&i ivoitiiiosjcs edi xIoixfR- od' ?fisj;j!rii;q: cfrisaq^bi/i, arCT 

KeTl ari^ va" bsJiJoc-is \;Xo''xane:^ao adox; o'^nccsabi/i;, £; no ixalaO oaJ ycT 

axi? va ^e-EXda v.j^afio'iq silo djax;'3- bs>raJ:isai si. it ,jLi.K aisniiol''; lexniCI 

■xOi sXtf.f.iX si: uriaij axsxisgilO XsxPtCi jtsIS ©xii^ oJ ijsgrjolsd" IXxis 'itliaifa 

exriv £i;:i;i' \;iXifcmib silT ♦nox I'^'.-cocrxo'j #.f;rfit "io noivsgiXcfo srlc' 

jifti sinc":} '^crii;-3 s^oX ^vpjI e-xen,B«»XO Xexs-xtJ. ws'S edi insxi si aoiixaoq 

^rte.fiKiiijp© '.mii ■icionxrlofMrj <ji90;?a D;?.p,'soo.'roo a^i: lo XX* ^aasnlejjcf lo 

aafcXTXti/xf fe^J'l folia atcsnjtjoXO J!=iog: asxiiT ?idi Qi bB'X'isteap.t^i fseed" gnlv.aix 

i:ciio^!Jo fjx Y^i'-'<^IC"''i" »J^'* :^^-xf:i' Xs^xfJ-cxi 5;?w i^x bjKG exsnBsXJI Y-'sqffiBXlS 
sa5xsx&i;d" a '':'xx?r:i.8Xa ni Ibsax; tiXf-c ?xii3Xq :!T-XiU- oo fc3t«5TiXftb 9(f nX^'oxfs 

-tssa^'O 3x['x . A'iiSHx.-jIq 'io liolssseaoq sxl;^ 8.i?'Ar K^csruisX:?! ^sq:xoX Y^^I^aKUia 
o'astL 83'sriT K'XlJ- Y<;'' ■3-'iBn&e£Q XoxouO: w©l exici' lo iloo^a ^ri;' IX,3 lo txii'^-s 

nolsv'ssseoo; o* ^.iigx'^ sx-J5 x(s.tv? Jtii^eX ;^.« 5i fcsiaev 'X6iCi3\.BX Gxi^> o^ ^aetiffioo 

iHoxcix/osxs .bx.-rjBSTOXi^ ^xi;f £'.o X'-^'^'^ ',s K^nBbnelbh ctsniiiS-s ^^-« ^i'iBoxzq^ sxCJ 'io 

lini-VBXi nc.to^s'.;:pqaco &el'a5xXoa0oo .3 ;^jex[:f ©i^i'xsooft aid- •I^^«l;; lexio'jrr.v bni? 

■oaXjs JSHK fioJ:o.;'.toq-.voo s^-'^*--" ^'•^^'^sxxoo i5 '):c ad-saas ©ilcf XXb bsTiaoei 

axig-tfii a-seftaeXO Xsx&ia iv-s^s: ^J^-lci 'io 'rcii:fe''X& a ^ssi^^xXi-tlijiX a^i- snu/as-s 

ianisti^ Sixxbrtsoo-q; -xsqo^cq i2 nx eic-'HaSoXO isafi. ©©"JUCT siicf so:j1 wrcoei 

sHol^G^iip iKS'i^&'i'i.it xletiitio ns ei«Si 



-3^ 

Other points are urged, but thej have either -been 
corered \>y what has laeen said, or in the riew we take of tMs 
cause we deem it unnecessary to discuss them. 

The motions of plaintiff heretofore made and reserved 
to hearing to strike the report of proceedings, to strike 
defendant's notice of appeal, bo strike the proof of service 
of notice of appeal and to assess damages against defendant 
upon dismissal of his appeal are at this time denied. 

In our opinion the judgment entered by the Circuit 
court on it. finding of right of property in plaintiff was 
proper* 

JUDGliSFr APPIRMEiD^ 
I*riend and Scanlan, JJ,, conours 



^eVit/GO'x bKB ©t'AK s'xolo'i's'isil Ir'iXoKXBXg lo snoi:.1oi5i eriT .... ... 

S/OXVisB 'So Ico-xc" feii;! ail-xcVa oi «Xf:ecfCij3 to s-ox^Jon a 'd-fisfcnotsb 

3X13 .fcfjs. 4:6 b :;'oxfijJ5;iJ? s&sijiusf) sssaae 0^ bciB I^&qcji "io eoiion 'to 

,.oeJ:nefo e^Eiii sxdi ■is}, twixi Lsi^q^B aid lo iBMaxmsib noqu 






l4 



38728 " / i i 

WALfSR HACKBJTTp ) 

Appellant^ ] 



j APPEAL "FROM GIB cm T GOOHT, 

) 

) COOK COUJTTY, 



BIVimVlM^ PARK com AMY t } 

a oorporatioHf | 

- ^^^^''"'- * 28 G I A. Git 

m, Fmajnim justice sullivait mzirm^D thb opiuioh of fm couRTe 

By thiB appeal plaintiff » Salter Hackett, seeks to reverse 
a judgment rendered against Ma July 13 » 1935» in an action for 
personal injuries Ijrought by him against clefendaatj Hivsrvisw Park 
Company. The only Question presented for review is whether the 
▼erdiot upon which the judgment was entered was manifestly against 
the weight of the evidence. 

Plaintiff's amended deolaratioH alleged that defendant 
©waed and operated a roller coaster ride called the **Bohs*» in 
Biverview Park} that on July 29, 1933, he became a passenger for 
hire on such ride? that thereupon It became defendant's duty to 
exercise the highest degree of care and caution for plaintiff ^a 
safety consistent with the practical operation of the ridej that 
lie at all times exercised due care for his own safetyi that defendant 
BO carelessly and negligently operated said roller coaster ride as tg 
eause plaintiff's foot to become Y^edged and caught in the oar in xvhich 
he was a passenger on said ride, resulting in painful, serious and 
permanent injuries to him. Uo evidence was offered to support the 
second count of the declaration, which alleged the failure of defend^ 
ant to keep the ride properly equipped and in a good state of repair. 

Befenda^t filed a plea of the general issue. ^ .uestin . 

««• m question is raised 






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,*toHobxvc. exid to Srisia?* exl;J' 

«j: "BtfoS" exist baXXeo sbJti istfiijioy isXXot 3 5s*si9qc bn« 6s/iHro 
"3;oj!: Tssnsaa/sq ^ sEtfsosd sri ^i>ZQI t&ia T,XxiT. no ^jsxi* ijfttji;^ welT't&vifi 

a*'5;li:;t,ni.'..Xii 10T fjoJtixx.'so &xi.r s!t:£o ^0 sisva^fe itaerfSJcri <5xf;} ssio'ss.xs 

3sx£^ ;©&xi edi 'xo fioiJ^'xaqo Xaox^J-tixsiq eri^ dirtf ^rt&^Jalanoo i5#s^Ba 

d'ftB&ns'isb darf^ jy.^^o'ics wwo f'ixf 'iot sxao Buh boaiotsxs aejai:^ XXs ^.s 6x{ 

«t aa ebxi lySai^oa lellot bii-e beiBr^cio yXJ'wssjX®9» bn* yX83S>Xstso on 

xfoMv/ ni -i^o Sixict fxx ^rj'T?,iJ-v?o &n/J fc&Bfc®^' ©oxooecf oJ .Hto'i js 'I'J.xi-ni.sXcr ©subo 

exW cS'i;oo,qxj3 o* bets^^o asi'w ©oifybxvft oTT .Exxf os esx^ixtfii cfn9«aMi(*g 
-ofi^'isb to oiHXis'i crfcf ftegeXX^ i£c.rfI-P ^Hoi5fii.eXoab sdi \o inuoo bnoo^a 
^'xiaqQX 10 S)iBie f.oo>i js nx &n_^, beqqtup^ YX^sqo^q ©bi-r oiiiJ qsaji oo ;tn.«? 



oa the pleadings* 

Haokett, who was fifty-one years of age, six feet three 
and a half inches tall and weighed about one hundred and ninety-nine 
pounds, Tisited Rirerriew Park with a party of six young friends on 
the evening of July 29 > 1933. Tickets were purchased and all the 
aeffibers of the party were admitted to the erowdsd platform from whioh 
the passengers were loaded into the care of the trains which carried 
theai on the roller coaster ride called the "Bobs," which was owned 
and operated by defendant. The "Bobs" was a circular railway upon 
which trains started from the loading platform and traveled up and 
down over various inclines and declines and around curves until they 
returned to the starting point, from the platform or starting point* 
the trains proceeded slowly of their own momenttm down a mild grade 
for a distance of sixty to seventy feet until they reached the first 
incline, up which they were haiaed by an endless chain operated 
electrically, gravity furnishing the momentum for the rest of the 
ride. Bach train consisted of eleven oars coupled together said each 
car contained a single seat capable of seating two persons. Each 
oar was equipped with a handlebar extending the width of the oar 
and supported by upright bars on both sides, by which said handlebar 
was moved forward or backward through slots in the floor. ^^Thile 
passengers were entering the cars and until they were properly seated, 
the usual and regular position of the handlebars .ma tovvard the front 
end of the oar and away from the seat. When the passengers were seated 
facing forward, the handlebar iras pulled backward and downward toward 
them, and when it was pulled backward as far as it would go it ^^as above 
their knees and forward of and about opposite their waistlines, lach 
handlebar was equipped with a lock below the footboard of the car at& 
when pulled backward and downward toward the passenger as far as it 
would g©, it locked automatically. When thus looked the handlebar 
could not be unlocked or moved until the ride was about completed 



« egn i bas Iq, exfd- no 

®jiin-Y,*f>-KiB i>JBvi3 be'rbfiitti awo ^uoob h@a.i,lo'i-: buB LIB'S esifoni Xlsul s hnm 

&di ilB bn& b^e.sdo'isjq, q%&w aisidoi'jc .££^1 ^QC. \SjjX. 1o 3axn&T& oxl^ 

&t -t^itprj rfoMvf afil,3'i* 0j5[v+ 'to si.ko edi oini b&bsoX &'i9w aissnQ3e.-5q 9di 
foyitso a.'V;- rfoMw "ted'oS** OxU b©XX/>o abl-j: -Ca^Sasoo i'©IIoi edi no 3iaiI;J 
fs:Oi^:ii •'^j^-^il^iT laluoTio s saw "^<fog" sjiT ^Jacbisa^yft xtf &»*JEl[9qe fcns 

X&if-^ Xi-lmj HiST'OTo cauois bao B&eiilossb btm uanl.i^n'ii sifoitJBV tsvo m/ob 

fea*s'x-3€[© jfsisri?> B3&XbH£» as x^ bsLuBd s-r©?/ xs'rf^ rIoMw gw teniXoci 

sii# lo rf'iss'x «;.(i» T.ol ffliJ;5«&Brfiac sriu saxxfain'ii/'i x^-^'s^®^ <Y,XXjBoitJoeX3 

rfojB(5 bxtjs 'xsd^sgiOJ f}oXq«oo a'l^o nevsXe 1:0 peisiewos uIst:^ rfa^K .sfeii 

iscf&X&nari fcLee iioMv« xd teefoxa ricJotf rio a^stf M^i-iciiJ %€ fos^-xogqua fens 
©Xijf?/ tiooll iidS ni Bi@le, d^.^uotiii &^«wj£©«£J tc fc%awi:ol; bsrosi 8.sv/ 

bsSfifla 9'iaw uisgiJ&Eaaq: Bds csiiV- »i««>a »x£^ mitl \Mwa. txi^ a.«o ©ri^ l:o &ns 

9T0d«5 R.W" ^i: O'S bluof^ ^i as "i-^t 9& btsrii^itiB^ &©XXir<j « 'v 3i xioriw bne ,iMSxf;J 

!k<b xmo &di xo bxaocT^OGl s'rf* .roXfttf y.aol c ti^v^ bBvq.Jup9 &sm xad^^lhi-id 

T«d©j:tosxi ad;? he>:iLool swi(^ K3/B ♦^t-J^X.aoiif.&flito.^wjR ^siaoX *x jOb f-Xwoi? 



-3- 

and the train approached the loading platformi when it passed over 
a "block," which automatically unlocked the handlebars on all the 
ears of the train* If the train was not in motion the handlebar 
of any particular car could hare been unlocked by operating a '♦trip* 
underneath that oar. The equipment did not include a device for 
locking the handlebars on all the cars of a train with one operationj 
it being necessary that the bar on each ear be moved backward toward 
the seat as far as it would go until it was locked, either by the 
passenger or one of defendant's attendants* About four or five 
inches back frcm the front board of the ©ar and about six inches above 
the floor, there was a three tuarter inch iron rod attached to the 
floor of the car as a footbraoe. This rod was stationary as to 
location but revolved about a half inch turn in its place when the 
handlebar was pulled back and looked* 

Plaintiff's theory of fact is that he, not having theretofore 
taken this "ride,* in following Johnny Monahan, one of his young 
friends, in boarding the ear from the platform to its right* stepped 
down into the car with both feet, his right foot landing on that por- 
tion of the floor of the car between the footbraoe rod and the front 
board of the car; that before he was afforded an opportunity to be- 
come safely and properly seated, the train started while his right 
foot was still betwe^i the footbraoe rod and the front board of the 
oar, and the handlebar was pulled backward and locked either by him- 
self, one of the guards or in some other manner, pinioning his right 

leg and foot at an angle between the locked handlebar on one side of 

rod 
his leg and the footbraoe/in the other side of his leg and foot} tiiat 

he was forced to a position half standing and half leaning back over 

the seat and was unable to extricate his foot; that he immediately 

exclaimed "My God, you have my foot caught here - stop the oar, you 

have my foot caught;" that attendants or guards of the defendant 

heard his outcry, and although the train could have been stopped 



s&o Liz no KiBcJeXiCfiTsfl Qdi bo:^ooS.niJ \£Sj?oli.f>MQissB jdolrfr "^a'ooXcf" .e 

xstfslbijv-rl siid' fiOisoif; cj 7og asw rixaTci si£d' ^IZ t&t&'Xit &!iS 1c also 

^q^xrJ^ •z •giij-2-i3'.':eqo x<i f;s:iooIx^jj nascf sv.sri SXiroo xso Xx^lwox^-cag -^ti^ lo 

t:iiox>J.«t£tiqe ciKc i-;jiv= jxi-s'iis s ^o a-SJio sii^ LLb no a'Siicf&X.oaB/i siri;f ^ni^ooX 
tiiiVifo^t bisv.aoB(i hsTO£;r - scf xjso fCo-wai no :£s<f -srl; dw:-;* y^xsaasoen gaiscf ■j'i 

©Txl CO 'ivol »sjo<jA ♦e^'m:ibfii3j J.-^ a' jftsbrie'ixtb "io sno 'xo 'xos^nsaqaq 

■^■'/fid'i'', sBXlofii; xi'H J'iJotr.:- bxrs xv^o ©rf« '^o b'xsocf j^no'c'i s>iiv+ m;r.\ •la.^c! BoA^xai. 

9.lCd od- i)f::-iloM;^Jn boi koxx xioxii ■xo^-x;;ij.. cr.a-ii.1 .» a.«v/ ©'xsili^' t'iOoX'i' zd.i 

0,1 c^ \'x-mol^a«s obw box RXilT .socxcf^co^ ,e s<fl *«;«» *£[^ lO 'xooX'i 

©ritf aod<?f aojs?Iq sui kx ri'ts/tf :toai IX.^xI >: ^^wctfjs &evXovot ivd UQX*i^ool 

&totoi'*i'xBdi 'QRs.rs.il ^gk ^ed isni sJ: c^otl to x'^osila e'^tid'nxsX^ r- . ^ 
•i'jjojfO';:; sixi io axto tiij-sxiSKoM '^nraiOJJ ^Ei;?oXXo'5: k^ ",Dlbi'£*' eiiii fi9:iai 

"troci .tfx'xii no ■gciitn.zl ^foot ^rtBi'J: «M t?sj?l mod dii.^ 'ixio srl:} oi'/sx owob 
5r^o*ri exi;? bnc box t^joxj-xrio'oo'i axiii itserfiJstf lao sxJu 'io 'cool't sxid' lo nox3 

i'xiiii'x fiXrf eXixI?/ bs^t\:iia nx'j'X^ ©xS «b©jx-jsB \';XtiJQ.o%G[ fefiJis -^XslBa eaioo 

eria- io fiaxiocf rnox't ©xlo' &«« boi ^s-.ndif oo'i oxl.t rifjs'.^j&tf ixiis asw ;foo't 

*-iMixI --itf 'Xisxf^ie b&2[ooX fen?; bxew^iosa baXX^q as^sf i&^&lbnsd &di fens t'Xjao 

lo 5ii&i<^ sno no 'cxiCr-'X&nfifl wjjfooX yrU floefi^fecf «»X;^kc na S'b d^ool bos gsX 

(^.•^iiK ivoo'r fcCK ^eX sM to sbio 't^xld'e eriif K^y^OBirfifoot »iii J>na s©X elri 

"xevo >ioscf iKi:x<a©X 'IX^xl bn-c? -gni' bxi-e d^ a 1;Xsii ^toi^iaoq ij oi &«©50t a-sw 9Jrf 

^Xs3Blfo9jtfflax .9X1 Sbh';? ?;too';l sM s»tR»oJ:t*>:€) oi aXfifecxr aaw ftcai J' sea sxll 

WOT;; ^XBO e3xlj qov-i-s - si&xi dxl^jjijo tfoo^ x*^ svsai iso^ tboO x?^** bsal-aXoxa 

sit;3l>xfe^s>b 6i£i? 'to afeinxrs to a^netooi' js j'sfli "i^rfswias ;tool y^i »va£I 

bsQaoJv^ jdoscf s^Tari bXwoo nx^tti' sd* i^Bwo^^jC-s ^nja ,■^10^1;^ kM bisatl 



-4- 



■when it reached the endless chain at the foot of the first inoline» 
no efiort we-s made "by defendaafs servants to stop it; that he oon« 
tinued to hold on to the handlebar as host he could as the oar ascended 
the incline J that, i^hen ths car almost raached ihe top of stuao, his 
young friend Monahan, fifteen yeara old at that time, crawled luider 
the handlebar and snoceeded in tml^^cinc Ilaclcett's shoe and ralsasiag 
Ms foot just a^ the train reached the top of the inclinej and t;hat 
^»hen the ride ended he m-.s ascisted from the car, giver, first aid on 
the grounds, taken to a hospital and then home, at which time his 
family physician ^aa called* 

It iG undisputed that plaintiff's foot was "caught" and in- 
jured v;hll8 he was on defeudaut's train es a psssenger, arxd his testi- 
mony as to the faanner in v^hich his injury occurred was corroborated l»y 
the t^^etimony of four other v/itnesaes. Defendant called as ^sitnessea 
the builder of the ride and a city elevator inspeocor, who were not 
present at the time of the occurrence, but who ^ testified concerning 
the mechanism of She cars and the ride and their operation, and that 
same were in good condition. .Mother v-itness for defendant, a loading 
attendant, testified substantially thai; it was his duty to see that 
the handlebars were locked on all cars before the trains started} 
that, if the passengers did not pull the handlebars so tJxat they locked, 
be did I that he could not identify Hfickett, but recalled th^t on the 
night of July 29, 1933, after ^. train had started do^^m the grade froa 
the loading plstforis "one lad said, 'stop the train|'« that he had 
looked the bars on all the cars on that traiaj that he was about tw^ve 
feet from the moving traia x^hen he heard the call to stop the carj that 
he saw no one on the train in a standing or reclining position; that 
from the starting point the trains moved very elovgly to ths point where 
they oonmcted with the endless chain to be hauled up the first incline, 
and that they could not be stopped betv/een the starting point and the 
ehainj that as loading attendant it wag not up to hia to do anything 



i^ti'xl'ofil ^nzxt sdi lo s^ool: edi ir. Kl.sKo aB^Iorrs erf* barJoBS^ ,tj; a^&tr 

-iTCo aii isii^s \-it q_Q\^-^ q-^ ■^^^imY'iBVi iiHsmbnot'^h xii sbBis a>w 3-to /-"!:.-) on 

Ko foi« is:;: J: "I fHivii ,XiHo ©ffJ- ctoi's Soiaxnas Q^m &ii bs&na ebi'i ax{^ flSifw 

-.cd'oei' nisi hna eXe-aasaaBq b 3.53 nisii^ 3 Mc^fenstsfi no saw £»ii slixlff hiisjl 

a©.iaerj.i'.!v; 23 fe©IX---o in.i.ii>iifei<isl .a®£;8®fiixw -t^riiJ'o 'ix/oi lo i;iTOirfi J-a®* sxi* 
Son 3:c£aw odM ,T:oio«tqeKX -xo^^iiv©!© -^dio *J fexi-B sbii ^^iti "JO TsMixfd sdi 

i'.fsrf:? brxB ^ixoxc' '■^■■3ii0 sJierrtit tim abx'r exi* fctus aiKo srii.' io maxn&ffoeim od* 

3Xsi?u50X .8 <sK-n&nsx9b io"i oasjaii-v TsxiSon*. «noi:;^iunoo ijooa 0X stow aiJtss 

usiij •:i)f,'S oi \;jiiG sixl e ^^^w jx o\oxiit ■^li.UCax^xjsicffua botlii-iQ^ , 3n;,-,bn9;f*E 

?]b3i"2£>i^ s;xrx-.^i:.J siii' 'j'j.o'iuQ s'xso XX.r. xtu fot^iooX g'iqr- at^^cfsXfcncxf sxii 

^b&jIooX tf^fUr ssxf? o© sxt?©'^!?^..?!! 9ti;j IX-ug Son fcl& aia^ssasq: ©xfa "Jti ^iMi 

eiis no vf»iEi'4 bs-XXvSuci'X iircf ^ai'erSoeH ■^^txiiisijjx cSofi feXuco sd ^nriJ j^Xb axl 

meil ©bsi-^ sxij mt.Oi> b=.Jz-s3a &3« siLa^i .s *x«iJ''%ij ,c^cJ?X « *?3 tXifli lo Jffigiitt 

b^ sxi iiidii "^%RtB'xi &di tfois' ^Si^an bal sfio" m-roO: S r,Xq Sflib/ioX ©il^ 

BVje,yvc^ i^wods asw i?x.C .f.cjdS iniBii iivii no r'x- eix^o' Lt& xio e-xse' sxfvJ h&itaol 

^izdi 4'x&-o sriJ qoos od XXjso adi bisad od a9dr nL^tS ^aivost adi ssotJ i^st 

&nsiS fftoiixeoq gKiKxXooi ao linlhtixii^ 3 ei nia^^ 9xi.t no s«o on -yjss l-jiJ 

STSXtP iniog: odi vi vXwoXa Ajiev bsvosH saistit 3f/J JCJtoci gnii'r.g^ta add' atOTll 

tJJiulM .:• «h:c11: erf* qu belw/iri ©cf oi cti-axio easXfens sdi ditw boin mtico "^9x1*1 

exi;J brrj^ .'lixoq s^ii^^^'^a i^Jti^^ xteeiv^ecf &Jiqqoi« scf ion 6X«oo \;Qxi:t v+,cild" boa 

gxtiil^vHa oft o;f firxrf orf qxf Joxt ejaivr ^i iasbc&^i-B ^aibMOl n& iBdi inlssAif 



-5-* 



after the ride started, and that he could not do anything when 
Che aian shouted that his feet n&s eaught; tiiat h& sa'ft **a felloe 
stoop orei there snd uiilect Ms shoej - he ^ss in a «tooping posi'- 
tioni" ths.ii lihea the car got otttu the chain j ''he r&ised up aad 
said it sua 0»K»;" and thc^t nothing was done to r^top tlio ride at 
any timts. 

'i'he only other witner-s to tbs oocurrance for the defendant 
•was the aianagex of ^he ride, who teBtlfied tliat on the occasion in 
question, while he Tras unloading passoagers on tho rear platform, 
ona oi the attandaats reporteci to him that a man "had his foot caught 
in the bar" of one of the «£i,raj tiiat "1 followed the oars aa best I 
could \sich my eyes and saw somebody was seated in a hending over posi- 
tion j" that he saw no one in that car "standing up or leaning or half 
leaning}'' that 'after the cai' got up tlie incline a ways the party that 
was bent over raised up and wared O^.j" that he did not see plain- 
uiff get on the trainj ihat he did nothing to stop bhe ride when Uie 
tr«,in xetichfca t.ne incline, although he could .'xave stopped it there 
by simply pressing a button to shut off the elsctiieal po.?ei j and that 
•after the train ceme back in a aan got out of uhe car and that he 
had one shoe off and 1 aeked him -Jhat mi; the matter with him and he 
said that he had hie foot caiight in the bar.* 
I Defendant contsnds that plaintiff's* conduct in voluntarily 
placing his right foot forward of the footiail and bet^/een it and 
the front board vvhen stepping into the ear was an set of contributory 
negligence in iteclf . This position is untenable. Xhe apace bstween 
the footrail and the front board »&d at; open as the balance of bhe floor 
of the car, and while it is true tliat passengers properly seated and 
ia position for the ride would not ordinarily use that space for their 
feet, the undisputed eyidenoe shows that the loading platform was so 
crowded that the aiembers of plaintiff's party became separated and 
that those on the platform waiting to get on the trains for the rides 



^S- 



s^cIXiJ'x «" Wju-a sxi i.e.££d 2 iii^^rao a^aw c^oo'l aid Jmi tadfuoilg asm sAi 

cas qif Soals'x sii'' tniBxIo irii o^tic ifo® -xat? erlj mdw i^iii "iaoin 
J,rj t^iur. -Adi co^t.-s Ov ©xtch 3.a?v '^tUhi-JoR i:^d2 bnes "\*}U0 saw ^i bias 

ni aniuiJooo sii- f;o irAii b&ilki>;i'^'-^ oilv ^ebi'i &rfi iO 'isb*'-^"'''^ ©^^ saw 

id'gUBv doot axii baxi" oiJ-H r. 3ii£i«^ rati oo' ::.&cnct>qsi sSa/sto&^T^r-: Si<i lo sao 

-x8oq 'isvo snij&fi.-.^ a ni bs;Jsso as's; ^hOGT^mos m>s buz &ex^ ^ta ii^iw blvoo 

-ai/iXfi ©©a ;?oit £^i■':5 sri ^.^ni *'?..i*0 boT^w on.« qi/ o.ial«a tf.'^ve ^nacf aew 

&fi JiisiiJ iirx.o Xv^o &d.t %o Juo J e^ nisfa r, fix JiOiic/ yi^so hxst.^ adi, t&J'la" 
eri l>rj*! fs.tis' rlJi.v T9.j^aci Qxlrf a^R/ ^«iiv; mM baJlna l has, llo ooda &fio bJBfi 

*',;w;cr siiij ni i&^ui-o ioQi eiid hBA eri ifliiiJ £il-'5a 
Xlit.fiiaalo'? nl d»obfi03 a 'lliJfSl^Iq; iMil sM©ifl«o Jn.sbns'isd '-.■■■' 

■V:iotfx/o'x'jJflt}o 'io lo« xia ei:w iaso snJ Owrni: ^iqfje*} -' noxlv/ Pjxsod" ;>na7.'i ^£i;^ 
s.>M- sflJ Ttol «nisa^ ex£* xto U^ oi sai^^^w molS^Xq sriJ no s^erf;? ;>.«di 



•«« 



w»pe "pushing and shoving" when Hoekett and his friends boardad the 
oars. It appears almost conclusively ixom the evidence that in the 
rush for seats Haokett was not afforded an opportunity for deliberatiom 
in hoarding the oar or a reaaonable time to acrutinii.e the floor to 
ascertain where his feat should be placed thereon. E-.ckctt was a big 
aftn and from the pictures of one of the oara in evidence, the opening 
on its side hetT.^een the front end of the eide arwrail sna the front 
beard of the car. even under the meet favorable cirev^tanoes, offered 
eeant room for entrance and .canter opportunity to examine i;he floor 
of the car. 

It waa uncontradicted that H..ckett»s foot and leg were wedged 
and caught in the laanner testified to by him and that the train was 
started before he .as properly seated. It was admitted by defend.mt 
that plaintiffs outcry to stop .he car because his foot was caught 
waa heard by at lea.t one of its attendants i^ediately after the oar 

80 

was started, that this at tend an t^a^ vised che manager of che ride and 
that neither the man««er nor th« attendant did ,^ythinp to stop the 
car. although either of the« could have done ao by simply toaching a 
button when the train reached the endless chain at the bottom of the 
first incline. 

I defendant sought to avoid the effect of this evidence by the 
testimony of the mon^.ger and attendant, neither of ^«ho«i naw plaintiff 
enter the car nor his position uhen the car started. The attendant 
testified th..t it .as Mb duty to see that before the trains started 
the handlebars of all the cars ..ere locked. He .Ico testified that 
they were all looked on the train in «Mch Hacket. rode aiid that the 
fir.t time he noticed plaintiff waa iimaediately after the tr.xu had 
iUrted. When he made the outcry, and at th.t time "he ..s .ittin, do.n 
* * * looking around toward ae * * * and he ,vas hollering. « 

The manager testified thst «hen the attendant reported to hi« 



■*►§•». 



Oils CTOufi t*"* ^^Jaiii'J v". ' 

, ,„M,„o. .X.C,.. ^* o„ .noo .««5 '^X--^ --^- ■ 

'SK.t Yrf a^PvfrsJ V-» fa -lit- V. 1.V 

,. .~.I ron'iaotr aM loiJ ^bo sxf# t9*ft 

*„^ -.rii 1^^ 10 .i MCJS Ib«f«l w 
' ... «.ri fe«.~ ***•!« fc^^=»^*'^' ^«"°'''" ^iKi^^'OX 



-*%• 



tliat the foot of a passenger was caught, he followed the particular 
train v^lth his eyes and saw no one in that train "standing up or 
leaning or half leaning" over the seat* 

Although not stated, defendant's thaory of f^ot seeias to De 
that, its attendant havimg testified that it was hia duty to see that 
the handlebare on all care ^ere looked before t.xe trains ware ..arted 
and that all the hars on tha train in which :iaclcett xode .;cro loclcad, 
and its erldence being to the effect that no one, including Ifacl^ett, 
in that particular train was standing or leaning over his seat after 
the train started down the grade toward the first incline, ifeckett 
must have been properly seated before the train in which he -.;as riding 
started. In our opinion this theory c.nnot possibly be reconciled with 
the ad:.itted facte and the uncontradicted testimony. It i, .^^uted 
that plaintiff. 3 foot ^^ns caught some place below the .eat o;: .he car. 
It i3 not denied that in stepping into the oar his rif:ht foot >.as 
placed between the footrail and the front board, %ith it.s toe toward 
the left 3ide of the car an- the heel tov.rd the right eide, and that 
the foot waa pinioned -^hile in that position. If defend.-^nt's theory 
is correct, ^hile plaintiff ». foot ^a. etill in the position indicated, 
plaintiff seated himself, bending Me foot and leg over the footrail 
almost at a right angrle, and drew back and locked the handlebar or 
permitted the attendant to do bo without either pain or outcry before 
the train started from the platform. That such a theory is fallcaious 
is readily apparent* 

It is, of course, the settled rule that in actioas for personal 
injuries the questions of negligence and contributory negligence are 
primarily for the jury, but it is also the established rule that where 
the verdict of p jury is cle--rly and manifestly against the weight of 
the evidence, the failure of the trial court to grant a new trial upon 
a proper motion constitutes reversible error » 

The case of Oleen, Admr . v. Riverviev? Park Co,, iSo, 33270 



^^ ■,UtiMhi:<^^^h ,.fc»i-^^- Jon n?.iJoiiiXA 
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xto': 



(not reported), decided l3y tMa court axi6 cited toy defendant ia 
support of its theory, is rst.dily distinguishable on the facte 
from the instsnc case in cnat thexs ^wat 8Tid:-nce in that case 
that the handlebar of the ear in which plaintiff was riding was 
locked and that she way t^hromi out of the car on one of the inclinefj 
or curves because she did not maiabain a secure hold of the bar. 

On both the questionsof plaintiff tg exercise of due car and 
defendant's negligence, it is our opinion that .he verdict waa clearly 
against the manifest weight of the evidence and that the trial court 
erred in failing and refusing to grant plaintiff's motion for a new 
trial. 

Por the reasons indicated the judgmeuG of the Circuit court 
is reversed and the cause is remanded. 

SBV3Hgii:0 AMD Bi5MAmn;D, 

Friend and cleanlan, JJ., concur* 



■ " . ■ , '.«.-.* „,< ^?:i^'''}n»ti tibaitoaBt ion) 

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„ .,, ....^^..-^ a».n3ni3Xn loannisasiip ads ri^oc nO 
br-:p *i-=o &^^ ^"^ s..w.Oit--» ^ - -- 






33108 

CITY OP- OHICAaO, 

CEIGA&O & HOBTiT^STERH 
P. F. CO. et al. 



IS PE P?TITIO¥ 0? DA¥I11 
.1* MABDSS and mJ^hSD J. KSLl^Y, 
Appellees 



▼ • 



S^AH L. JOHSTSOH et al» 

Heepondents* 



OH APPEAL 01' SAEAH L. JOMGOU, 
Appellant • 






COURT, COOK comriY. 



.^ 






MR. JUSTIO]! II^I^HS D3LIVSRS23 Tff/5 OPHSriOH 03? TE COTBT. 

By this appaal» whicJ^ v.-r.s tTansf erred here from the Suprem* 
court and consolldatod 'with case Ho* 38109, Sarah L. Johnson seeks 
to reverse an order of the ooimty court directing the county 
treasurer to pay Daniel L. Madden and iid^ard J. Keilej'- #5,811»45 
theretofore deposited "by the City of Chicago in a oondeEmatioa pro- 
ceeding, entitled "City of Chiefcgo r» Chicago & Horthvrestern H» S« 
Co. et al.," then peadiag in the county courc* The f&cts necessary 
to an understanding of the issues involved e^re auf f ioisntly etated 
in the opinion tiled this day in Ho. ^8109, In vhat ciuQe. ^aarah L» 
Johnson had filed an answer to ^;he pe&ition of Madden and Kelley 
in the eotmty court averring that all her right, title and interest 
In and to the fund deposited fey the City of Ohieego with the county 
treasurer and to the real estate involved in the condeaination pro- 



vn 



BO£Q€ 

( 
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-Sis' 

eeediagj had oeen assigned and qaitclaimed to iSlaine Johnson Burg©#§ 
aad Isa^elle C. Johnsonj plaintiffs in arror. If that %'ere true* 
it is difficult to understand why Saxah L. Johiisoa, haring parted 
with all her interest in the real estate and fundj should have 
proeecufcecl an appeal from the judgmant of tha oourt, holding in 
effect that she was still the owaer of the properiiy and the fuad^ 
subject only to petitioners' lien. U'evertheless she has filed a 
comprehensive brief fcjid sets forth eight separate grounds for reversal. 

It is first ui-ged that the county court had n© general equity 
jurisdiction to enter tJ'ie judgment sought to be reversed. While it may 
he conceded Ziuit county courts have no gen&ral equity jurisdiction, it 
has been held that where the power of eminent domain is exercised the 
fund paid stands in the place of the land oondenraed, and the lien 
attaoh-ja to the fund, ami if there is s-^ney in the hands of the court 
or its officers belonging to a litigant, anybody having an interest 
therein may file an intervening petition to have it paid over, and the 
eourt has jurisdiction to entertain a petition for that purpoEs, 
(Illinoia Trust ■^.. E avings Banlf v, apl^Mnsjt 38 111. \pp. 575; Keller 

£L-§i» V' 2aidEHi» io9 111* 152 J Qjt^J±JU^^^l^.S^»jr^jhiTx&t^ 

239 111. 29?.} 

It is n-^xt urged that the decree o:' the superior court of 
Ji-xne 7, 19S3, does not grant petitionfirs a lien on the condeinnsd 
land, which is now represented by the fvind on deposit ^:vith the ccnmty 
trer-surer, and that the decree is void in bo far ao it effects no 
deal vith the real estate, since the superior court had no jurisdic- 
tion o7or the real estate. These contentions v/ere diaposrid of by the 
appellate court in Iladden et al. v. Johnnon, 274 111, App. 661, wherein 
Sarah L. Johnson contended, exiong other things, that tixo final decree 
wa0 erroneous in granting u lieu vn the property described in i^he bill 
because it v.as not supporsed by allegations of faetj the^t at common 
law an attorney's lien does not arise under the attorneys' lien act 



,SiLf£i stsw vx^ff^ rl »iov:to nl zVtl' r-kf::L'i ^aQBusioX, .0 elX&cf/^al 5n.(3 

oT£r[ M0oii<v ,fcmj~: ban s^ai^i^ Xnstc oJv? nl iRt<Ti&iitl -ted Lis^ diif/ 
ill ^ibxcu ^i'xuGo Bfia to c^noi-rauiJt ^lici' iao'x'^. X^©q;!i£ nua 5sdiiue30-ici 

^1 belli £u^ii ade aa&X&ir^J^&Tek: ,iieil falwaoxixSaq oo^ ^:Ino ;Jo^. t^3 
oHJ i6Sio-ta:jca ei fi^sjsofc ^ner.x^ss lo icsvioq srl^T aasxfer ^Biii fclaxi n93Cf aM 

^^ll^Z ,3Ve ,qq.. .XXI 8C xai^ioion .t ^jy^H" es|g^yg^ /. f^n.tT aiorcUXI) 

(.Tes .XXI ees 

aiH>^©iirv a^3 .^^i-^^ «-^i-- ^^^ J^EiliHieJt -^ 'ia.i^J'lS.^2S «^ ^ftuoo eSaXXeqciii 



•without the seirvioe of the notice therein prescribed j that the 
contract did not create a specific lien; that the final decree 
is erroneous in finding that petitioners are entitled to an intereat 
in the property daecribed in the bill of complaint,* and that the 
alleged contract does not belong to the class of agreements whioh 
are specifically enforced in equity. Ae to these contentions y we 
then said t 

4* .• "^""-i ^^^^^ points are argued at length vdth numerous 
citations of authorities, but none of them vme presented for con- 
sideration upon the former appeal, and all or them might h^v- TL 
presented at that time. This court and the Supreme Jlurt^^c^Sr 
times held in substance that upon the second appeal of aca?!! ^er 

dered L°?he'f?r.t' '^' ?T^^' '°""'' ^^^ ^^^^^««^ °^ thr^oirfrSn- 
dered on the first appeal is res. adjudicata as to all person=5 who 

T/aL'J"iuf' ^%*^%r°^"^^^"^^"°'^^^'^ to queetiona ao?ually 
decided but as to all questions which might have been decided if 
properly presented." (Citing ^avi^ v. |mcieIl4||L iS'll^'Ipp. 

U'hat was said in ohe foregoing decision is alike applicable 
to the other points urged for raverual. Sarah L. Johnson seeks by 
this proceeding to contest the rights of petitioners which have been 
passed upon twice by the appellate com t . and t^,ice reriewed by the 
supreme Court. Grounds urged for reversal ^ere available to her when 
the second appeal from the superior court ^as prosecuted. _Motwith- 
standing that feet she failed to raise some of them and seeks no^^ to 
inake this appeal the basis for urging additional errors, and to still 
further postpone the rights of petitioners which z^ey have been seek- 
ing to enforce through some fifteen years of litigation. This cannot 
be done. The superior court, this court on t.o occasione, and the 
supreme Court, by t.lce denying certiorHri, have finally adjudicated 
the rights of petitioners to the sum awarded them for legal services 
rendered under a written agreement whioh was held to be valid and 
binding upon her, and substantially all tha additional grounds no^ 
urged for reversal hark back to the superior court deoree, the validity 
Of which can no longer be questioned, 

we find afflong the points advanced by counsel for Sarah L* 

Johnson no convincing reason for reversal ti,<» ,< i.^ 

e 's Bwn iQr reversal, j.he rights of petitions 



lers 



S!r)'Xfeb X.s0ij': wdJ isiiiJ jffsi-X ollxosqa r. s;J.Berso -ton 51 ?> ioctinoo 

^i:ex;iinl tr.B g^ t^alSxAKs itts^ iy^ocoiii^Bii i^^ii^ ^nlbfiiJ. ai e.tioanoire ax 

mii ^^^ baa i^ttiRlmc'O 'to Xlxrf oi£,l ni bedlxoeob ^(fssqotq srf^J xji 

t fexsa nari:^ 

fifisd' svBxi jloxfi-f. axe.noi*i. ^t'l to affx.'.,-,*- -n- of. ju-^ 
n,.clvr ...-'A ci eXcfeXxBV.B ..sw X^.i^^v.i ^ol b.g-K^ Bbm;o.D -;r.«oO .^e^quB 

libera 0. M.;^ .^to'.-cs I.moiaxr^b,B snxstu ^o-J el-^^d .«;J X.«sfi(iB ^xri;? e^^K 
— ..n ..-.(^ -v--^ ^'^r^^ xlDiiivr nrBnoiU.i^t\ to se^rfsi*^ s>£{^ enoq^aoq -xsridiyl 

^o;i anm/o-s X.>noiJx^>b.s «rf^ XX.. •^xX.iUrti^JadKa i:>xiB .tsxI noq« ^xtlbnic 
^;jxf XX.V exl:^ .«e^c6b :t ti.«o tox^q;.. «xi:^ o. ^oM ^laxl X^.a^.v.. :.oU 5.s« 



-4* 

in the money decree awarded them and to the enforcement of the 
lien which the superior coiirt and the revie-sing courts have held 
to he valid, should no longer he the suhject of controversy. 
The judgment of the county court is therefore affirmed. 

Sullivan, P. J., and Seanlan, J., concur* 



*Ti;oHoo t • ^' ,nsXKf4&S fens ,.t .'I ^nsrilXuS 



15! 



38109 

CITY OF OHICAaO, 

CHICAGO & IfOETBUSST^H 
E. R. C0« et al. 




m RS PETITION OF DAFISL 
L. MADDEN and SD7/ARD J. KELL3Y, 
Petitioners, 



SAEAH L. JOHSrSON et al., 
Respondents. 



ILAIITB JOHNSON BUBSESS and 
ISABELLA C. JOHNSON, 

Plaintiffs in Error > 



EEPvOE TO COUNTY 
COURT, COOK COUNTY* 



DANIEL L. HADDEN, IDVfAED J. KSUSY, 
FOBIKT M. SWIITZSB, successor in 
office to THOMAS D. NASH, county 
treasurer of Cook county, Illinois, 
and SARAH L. JOHNSON, 

Defendants in Error. 



MR. JUSTICE FRIEND DELIVERED THE OPINION OF THE COURT, 

Elaine Johnson Burgess and Isabelle C. Johnson^ wixo were 
not parties to the proceedings below but claim to have been adversely 
affected thereby, sued out a writ of error in the Supreme court to 
reverse a judgment of the County court directing the treasurer of 
Cook county to pay Daniel L. Madden and Sdward J. Kelley, petitioners 
in that proceeding, #5,811.45 theretofore deposited by the City of 
Chicago for the owner or owners of certain property taken for public 
use by the city in a condenination proceeding then pending in the 

county court. Prior thereto Sarah L. Johnson, who was made 



< '^'^ \ \ 



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YTHUOO OT SO?IHJ>: ( ^^j-^ ^^ 1108HHOI ,J HAHA8 



t" f) A "^ '>\ ^ 



? ferns cStiCHUe ■KOB^aiOw SHSIAJS 



I tloeaHOI. .d HAfiA3 bns 

s-i-sw cn.v tficsr-rioTj ,0 sXI^cf.eal has aass^uO: ncanrlob scIbXS 
^Xes~9T&,3 n<?GC! e-yvaii oc isX:=Xo ffxJd- vVcXecT ssnibesooxq e:f* c;? ssi^t^Bq ion 

BiQ^iciiiisii «v'5XXoS .T, b^awbE hoc nabbsM .JL XsineC: \;sq o^ vdnooo iooC 
©rli- ai ^nibacq aedi- ...nxbssooiq: no i:t jsnsts&noo s ni 'C^io Si^<^ \.<^ ^'-i- 



principal defendant under the petition filed in the County court, 
appealed to the Suprsme court of Illinois from the Judgment there 
entered against her. The Supreme court found that ^oth the appeal 
and the isrit of error were wrongfully taken and transferred the 
causes to this court for determination. January 7, 1936, by order 
of the appellate court, caees 38108 and 38109 w«re consolidated 
for hearing. 

the claim oX Kadden and Kelley. hereinafter referred to as 
petitioners, grows out of litigation dating laacit to 1923. Sarah 
L. Johnson and petitioners hare twlc© been before the Superior 
court of Cook county, twice before this court ( Madden et al. t, 
Jolmsoni 25? 111. App, 635 1 same, <:74 ill. ..pp. 661}, and two 
petitions for certiorari filed in the Bupreae court to review the 
appellate court decisions hare been denied. Petitioners' cltdia ia 
predicated upon a certain decree entered in the Superior court 
Jmae ?, 1933, allowing theia #15,600 for legal services theretofore 
rendered to Sarah L. Johnson under an agreement between the parties, 
and petitioners claim that by virtue of the decree thus entered th«y 
Here awarded a lien on the r g?*l estate belonging to Sarah L. Johnsoa, 
including that part taken for public use. 

¥©veKber 15, 1934, folloising the entry of the decree by 
the Superior court. Madden and Kelley filed a petition in the 
County court, in a case then pending, entitled " City of Ghica^-o 
^* ^^i^g ^' Horthvi'egtern H. R. Ce. et al.,'^ joining ae defendants 
to th« petition Sarah 1. Johnson, city of Chicago and Thomaa D, 
Ifaeh as county treasurer, praying for an order directing ITash, as 
treasturer, to pay petitioners |;5,8il»45 which had been deposited 
by tke City of Ohics^o for the owner or owners of, and parties 
interested in, certain property taken for public use, and that 
upea payment of this aua to petitioners Sarah L» Johnson have 
credit for that amouat on the decree of the Superior court awarding 



£i&4-«-';i:XGgnci; fj-je^v SCIfeo h£iB SOIBC assso e^i-sffco s^ijXXsqqB 'stf^ lo 
-ici •caiiU".-: &43 '.r-c-o'ic'S njK*.d soxs'^ sv.sii slX'^?adi•^i';?^a, ::;&rts flfjfrilot .J 

3TI/00 'soi;-J&tii/3 £j^^ ati !;iV's;s.jR?> u'^-jo'.-f^ nis^Jfao « egq;»r br^i^oifts?^ 

■'^•i'l* f;a ■::?-•;! fr.?. QSJxii s&to^b sad iO au,;-*;"? ^f* ^,sst^ ei.cXo a-fanGl;ri.#3(j l»ia 

■vtf ©o'xo5^-; cxij CO 'iC'S'''£ss a^^^ :^ni: «oXXc"'i ^1^^9.1 tfU TsdarayoT^ ■ 

srlj ni £jai>;iieq a J:>oXi:;. "^sX.ra":. heis m)bt>&M. «itti03 loligqwS ©iJ4 
t^|j,.aaJAlO. ^o ,;^^.-i:J"'" I)i«.X^ i JiJ;=> «'j:0i&naq K«rf^ ^^"jst* .* Hi t^^Tira^ •'^JasjoO 



■-s*» 

petitioners tl5,600 from Sarah L. Johnson* 

The petition of Madden and Kelley, filed in the Covrnty 
coart, Is rather volumisouB and traces the claim of petitioners 
through various proceedings, culminating in a decree of the 
Stjperior court ordering that Sarah L. Johnson pay petitioners 
115,600 for legal services rendered, and directing that said sum 
he paid to petitioners hy aaTr.Ja I. Johnson \rithin fire days ana 
that npon her failure so to do, the propertjr he sold hy a master 
in chancery. The petition alleges that under the terms of the 
Superior eourt decree petitioners were given a lien on tl^ property 
of Sarah L. Johnson, including the part taken hy the city in the con- 
demnatioa pToceedings then pending- in the County court, and that peti- 
tioners were entitled to Y^.re the sum of $5,811,45, theretofore 
deposited hy the City of Chicago with the County treasurer, turned 
over to them as s credit upon the amount due under the decree of the 
Superior court, and they prayed for judgment accordingly. 

November 26, 1934, Gsjah L, Johnson filed her answer to the 
foregoing petition, ndmifcbuig ms: of the eesential averments of fact 
rel-ting to the proceedings there-^ofore had in the Superior court and 
the review of the decree of the Superior court and other proceedings 
by the Appellate and Supreme courts. She denied, however, that the 
bill filed in the Superior ooxirt sought to impress a lien upon her 
real estate for fee*, due petitioners, and averred thut it 7ms merely 
a hill to pay petitioners compensation for services rendered as her 
attorneys. It rms further averred hy her answer that iladden and 
Kelley were not made parties to the suit of the City of ohicai^ o v. 
£i-AJIi»:*lUiej'AernJj,_Pji^^ a,n6 tlmt they never served notice in 
writing, as provided in par. 13 > sec. 1, chap, 15, Gahill's Illo Tvev« 
Stat£!., 1951, 0Md that no notice of service of attorney*Ei statutory 
lien is alleged in the hill of complaint filed ia the Superior court* 



»S" 



r' T-:.'","^' --^rc^" Vinson ^rf. „i nni^neci r^ozio a^ixtl^.^ooiq rtoii«:iiso& 

... ^., .^..-rjo- *Ti;oo -rci'ieciwa 9fW ni belli Ixi 
1,^ o ,v. -■ ■t}t^:^Jiy — t . 

' ,, .„;.. 5~^f. ..aVi ,S ♦S K^9*'39'l4*JJ*l-il- 



*.4* 



It is further averred that on September 26, 1931, Sarah L. Johnson, 
for a good and valuable ooneideration, sold, assigned, transferred, 
set over and delivered to llaine Johnson Surgess and Isabelle C. 
Jom..oa all sums of aoney due and owing to her or to become due and 
owing, and all claims, demands and causes of action of every kind 
that she had against the aity of Chicago by reason of two certain 
condemnation proceedings, one pending in the Superior court aiid the 
oth^r in the County court, a^ that notice of said as.igment was 
given to the then county treasurer on May 20, 1933, a copy of which 
is attached to her answer as exhibit «A%. that aay rights ^.hich 
petitioners may have under the decree of the Superior court date 
from the time the decree was entered on June 7, 1933, am that the 
decree does not by its terms have any retroactive affect upon the 
rights, properties or moneys of defendant, Sarah L. Johnson, and 
that the County court has no Jurisdiction to subject the conde««atioB 
money on deposit with the County treasurer to the payment of a claim 
or lien ^hich did not exist at the time of the entry of the order of 
the County court requiring the deposit of the ccmdemnation moneys 
to be made. 

ilove^ber 23, 1934, the County court entered the Judg«.ent 
order which is sought to be reversed by this writ of error, reciting 
the petition, the answer of Sarah L. Johnson, the d efeult of the 
City of Chicago and of Thomas S. Hash as county treasurer, finding 
that the court had Jurisdiction of the parties and of the subject 
matter; that Hadden and Kelley had a right and interest In, e.nd a 
lien upon, the real estate of Sarah L. Johnson nhich Ib described 
in the order,- that petitioners were entitled to receive as com- 
pensation for their services, in conformity with the agreement 
between the parties as established i^y the decree of the Superior 
court, one-third of said real estate or the equivalent of lt.3 
value in money, less 13,200? that pursuant to the statute the City 



fens sy^> c.aioo?.« 0. -^ -— -- -- s^ 

:' y0 f . = il'i v.^jO*. i--v - - -* ■• - 

rlOinV -.0 -iHy^ -^ * - ^ ■ -i-lAatSB sl 

&n.> ,riosmie. *^ --^ . ^^^ ^^^^ 

... ...loua o;^ no^ooibai-c^^ on ^.^ri ^ ^"^' ^ ^ 

,,,,«Bom, o.. ...... - ^ ^^^ ^^ ^^,^^ ,,,,0 



of CMesso, on Jfey 16, 1930, deposited wilh the county treasurer 
the compensation fi.!r«d by t-he courc for tlici property taken, at 
15,811.45, and that the rirhivs and interests of petitioners had 
attachet^ to spid fund. It vae ordexo^- that Saah, aa county 
treasurer, pay peiitionera the Bair! sun. &nd upon payment thereof, 
tha,t Sarah L. Johnson siiall take r;^d r seeive ci-fedit upon the aeor® 
of ths Superior court. 

IdTvard J. tCell^y, one of ihe petitioners, died during the 
pendency of thl?^ oa^s-, and ^n 3eptei.iber 25, 1^35, Blaine Johnson 
Burgess and Isai>plla Jnhnson, plaini^ifia in error, &ug?:ested his 
death and moved the court th.^t ITora G. Hano , adiainistratrix of the 
estate of Sd^ard J. Kellsy, deceased, ue suostituted as a party in 
lieu of Edward J. Kelley, The iLotion v. as allowed and susamons issued 
to the administratrix. Prior thereto, during the liletime of Edward 
J. Keiley, he and Madden, aa dsffind-nts in arroi-, filed a motion Id 
dismiss the appeal, ushich was re^eryed to the li^£,rizig, Briefly 
stated, the motion in prndioated on the fact that neither JSiaine 
Johnson Burgess nor iBabell* C, Johnson w^x^ ps^x-ti^s to tne proceed- 
ings below, and, being strangers to the rrx^orJ, tiisy imve no appeal- 
able interest in the ce.use and therefore cannon; maintiain the writ 
of error. The order of the GouRty court dii-ecting r.he oouuty 
treasurer to pay petitioners #5,811.45 the-etofore deposited by the 
City of Chicago ae daaages awarded to Sarah L. Johtison, recites thjik 
witnesses were sworn and examined In open court on che her.ring siid 
exhibits offered and recelTed in evidenee. ITotv/ithstanding this 
reoital, no report of the proeaedings wks filed herein, and the only 
basis for this writ of error on the part of Eai;,irie Johnson Burgess 
and Isabelle C. Johnson is an affidarit by Eawart^ J. Padden, filed 
in the County court after the entry of the judgiasnt order, stating 
that he is the duly authorized agent of Sarah L. Johneoa, jiilaine 
Johnnon Burgess and Isabella C» Johnson, that he has p^sonal knowledge 



~9- 



3fliv^/j^5 ,'x;.-&xo o-nsctSf)JJl 6^i>^ ^^^ 'i'^^^" 



-6- 

of the matters and things stated therein* and makes the affldaTit 

on behalf of all three persons? ths.t Sarah I. Johnson assigned 
her Intersst in the fund in question and also Quitclaimed her 
interest ia thfi reel estate of -hich the condeKinsd property W2i,3 
a part, to }?laine .Tohnaon Burgess and Isabelle C. Johnson, who 
were not made parties to the proeaeding. There also appears the 
affida.Tit of Edwjird J. Kelley, likewise stating that plaintiffs in 
erx'or wsre not parties to any proceeding in the cont rove sy "bet-siraen 
Sarah L. Johnson and petitioners? a.nd that Edward -T, Padden, who 
filed the affidavit on behalf of Gar?ah L. Johnston and plaintiffs 
in ^rror, is en attorney at law, orftctiein.-i at the '^hio^H-o bar; that 
he took an active part in this prooeeding froai the time of its 
co?iai3nceiBent to the present; that he was in court at varioua hear- 
ings hold in tha Superior court and a wl&ness in ohe chancery pro- 
cateding; that on appeal of the decree of the Superior court to the 
-App«llati3 court Padden appears as "of counsel," and that he filed a 
petition for nertiorar_i in th^ Supreai© court of Illinois and -when t he 
Diatr^er iia.B remanded to ths Superior court Padden participated in the 
hearing and was also present and participated in the argument at the 
close of the hearing in the County court; thet during all this time 
Padden never informed the chsncsllor In the Superior court or anyone 
connected with the 3'?-16 cause thfit Sarah L. Johnson had quitolEiimed 
her interest in the real estate to plaint iff b in error. 

In support of thair motion to disBiins the v?rit of error 
petitioners have filed voluminous type^^rltten suggestions, ^ith 
authorities, to sustain their position, and counsel for plaintiffs 
in error has fils^d count©i*-suggeB Lions th.- ito. After carefully 
examining these decissioaa '.vs have roached the jonwlusion that the 
vTlt of error should be disicisseJ , for the follov^inc res,Eone IToither 
Elaine Johnson Burgees nor Isabelle C. Johnson vere parties to the 
proceedings below, and, iiaving no appealafele interest^ cannot bring 



-0. 



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„«* „,.« iX« ,««»>. >'^* '»«<" ^'""'■^ '" "' ^*'*'' "" '" "°'''' 

.««o fli ««iJni«Xq o* ««»*=« .X.« Mia i.1 43..»»lti ■I3«- 
ri»i, ..■,«ii.e.flSi.» »»!».•=«* .«««^.«,X« r«Xil .v« »»aoi*W.« 

«.i, o» «!«« "»« '"""■■^'"- -3 '"""""I «« O"'**'"^ """"*'■ '"'"^^ 



i 
a writ of error to reverse a judgment "by tJhich thsy ^ers not 
directly affected. Welther can the fact the.t tliey became inter- 
ested in the sub,iect laatter of the Buit, ae they contend, since 
the pntry of the f'ecree of the Buperior court, "be Ghov/n by affi- 
darlt. Wuerzburger V . Y/uerzberger, £21 111* 277, is precisely in 
point. In that case Mary Madison and Leona Golburn, who 'seia not 
parties to the euit in the cotirt beloti? either as complainants or 
defendants, sued out a writ of error, claiming to have an interest 
in the subject matter of the decree by inheritance through their 
deceased father, riichard Golburn. In discussing che subject under 
consiJeration Che ^upreBae court aaid (pp. 280-282)1 

"It was, ho)/?eTer, sought to be shown by affidavit, at the 
time the \i;rit of error -was eued out, that said Mary E, Madison and 
Leona Colburn have, by inheritance * * * an interest in the sub- 
ject matter of the decree entered in the court below. Their inter- 
est could not thus be shown. In Hauge r v. gage jii 168 111. 365, on 
page 367, the court said: 'The general rule is that writs of ; 
error must be sued out in the name of parties co the action belo^. 
"liTo person can bring a rrit of error to reverse a judgment v^ho »vas 
not a party or privy to the record or prsjudiced by the judgiaentj 
and therefore to receive ^.dvantage by the reversal of it. ■ (Tidd's 
Prac. title *'ISrror," 1139.) " heth^i' the plaintiff in error be a 
party or privy or is aggrieved by the judgment must appear by the 
record. A court for the correction of errors cannot, at otj^aiaon 
law, hear evidence to determine v.'hether a party seeking a reversal 
Is aggrieved by the judgment. Its mission is to ex-oaine She record 
upon ^hich judgment was given, and upon such examination to reverse 
or af ■irfii."' * * * »The record certified to this court speaks 
for itself, and v*8 cannot hear e.itrinsic evidence to determine 
whether a party seoking a reversal in aggrieved by the judgment*' * * * 

"For the reasons hereinbefore suggested, we are of the 
opinion the ^i/rit of error -was impr evidently sued out and that the 
motion to dismiss the ■■■rit KiUBt be sustained." 

In Mclntyre v. 3holty et al. t 139 111. 171, it Tvas laid down 
as a general rule "that no person can sue out a ^rit of error who is 
not a party, or privy to the record, or who is not shown by the record 
to be prejudiced by the judgment." JIuiaerous cases from various juris- 
dictions are cited therein to sustain the conclusion. Counsel for 
plaintiffs in error argues that he could not seek reversal of the 
judgment of the county court by appeal, since, as he statea , the con- 
deamation statute is expressly exempted from the civil practice act. 
We do not pass upon this question. There is before ua a writ of 



~.-ini ^iriv:^^<i -lP!^-i ^-rfd io^l ^ai nmo -tedU z^ ,bsJo^?n.s yI*OB^ih 

ioxx ..sn orf;v ,n.mrXoD ^nc..I fcn,. «o.xf3..M T^^l e.^o i^siS «! , ^nUa 
■10 uin^ai^lcipoo z.,i ^t^iie v-oXea ;*xi.:00 sri. n.. -jxxj. 

, . . .^r, .,«f...,,.-...rn xjT ,>^'CJjdXoO fo-.£f>r{oi?: ,'i8ri:r.^% bss.soofih 

- V. r -.-— ± IVI ,ei] e^:i ..X« l§^^i5iiL:. -^ SBlili^^ ^^^ 

. , ., . ,^„ .,,:. aiio no.li,q on *.exir- sXxn X^i^n.g ^ a^. 

-/■ (• 4.sc.in-of>Wr *Xiii ^CT hSOibKt£''^<T Sid 0» 

„... -xi;t ,«e^Bae ^xi »b .eofiie a^'C^.i-. \o 

. ^.. «....«no .irf.^ «oq« aa«q ^on Ob a^ 



error, and under tha clear weight of authority in this state 
Blaine Johnson Burgess and Isabelle C» Johnson, who v/exe not 
parties to the proceeding helow and whose interest is not dis- 
closed 'bj the record in the writ of errori hut merely "by affidavit, 
cannot prosecute or maintain a vvrit of error. 

Moreover, it appears from the affidavits of Kelley and 
Padden that Padden, as attorney for plaintiffs in error as well 
as for Barah L« Johnson, was thoroughly familiar with all the 
proceedings below, not only in the Superior court hut in the County 
court as well, and participated in some of them. It must therefore 
Tae presumed that his knowledge was imputed to his clients, and we 
think they are estopped, after silently sitting by and allowing 
both the Superior and the County courts to enter judgments and 
decrees without asserting their rights, to claia at this late date, 
on writ of error, that the interest of Sarah L. Johnson, in the 
property and the fund, was assigned to them hack in 1931. 

For the reasons stated the motion of petitioners to dismiss 
the writ of error must be allowed, and it is so ordered. 

imiT 0? mF.on dismissed. 

Sullivan, ?» J., and 3canlan, J., concur • 



^,-.r-^rv r ari:^vcr<:.p=r ?;f;- fi^s^^j.ijS: no&fixio% sri^S^. 

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jlftBo:^ ^itA ., *t .-: «rf.STxXXiiH 



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393^3 



r' 



iy^ 



JAMSS l>, asr^astis, Trast*© In ) 

•bankruptcy of ¥lCHOl,Aa J. roSi^l, { 

doing ^U8in®s8 as r/o1b«l Manufacturing ( 

and Plat lag Cearpaay, i 

/appellee, | /VPi*II,\I. mOM mmWXPAL 

Appellant. j2 d b I. A. 612 

3(mm» I). Hu«etl8, trt»st«« in baakruptcy of WloJieias J* 
Sotoel. doing toualneea as Dobel Manufacturing aad ^mting Compm^, 
f Ue^s B first olaso oontraet aetioa Ira th® muBlctpai eour* to 
r«eoTer 11,884 allaged to fee due for gravure eylinaer^ s,«ld to 
the defeads«it tey the bankrupt. A ma^^y or partial jurlgBmat 
of m96 m« entered in f^ror of plaintiff upon tlie pleadings, 
frsBo which this appeal is prsseouted. 

Plaintiffs atateaent of elai» alleges that Bob^l mnu- 
faetured and deltTere^ to 4^t^mm% at lt« sp^oi^ in^tmioe and re- 
quest t^elTO grairure oyllnHere at a purchase jprlco of f3,576, for 
whioh def.n.ant pat. o« account fl,698. leaving a ^al.nc. of U.sa4, 
^ wen a« interest thereoa amounting to $56.52. aggr^,ting 
11,940.52, 

f fhe aa^nded aff iaarlt of merits admits th^ ^.livery of 

the twelve cylindera, denies that the purchase prioe «as $S,576, 
«»i»d rsfere the oourt to a writtsn agre#B,^at hetv^een the partiee 
for the terms of sale. ffee wltten eontraet r^soltes th,-,t Uohel 
hm^ prevlouely a^lirered eighte^ oylindere to <iefendnnt, all of 



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^^,..:ismm^. mam. smt^ *^ 

v( .4 ;■>,*■■'■''•-•■ ^ «■-'■' 

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/.do^t 3-riJ ^.>n^^'>i: 5t>sti:i««^ fi^^^i-^^ ^^^ 

" -r ...*-.rf'a^, r-a^^.'^vUffc tX*i.»®i^^«i *»■" 



whleh were defeetlre ^n& ■m«t9 returned t,o ■'■•obel for rebuildiag 
In aecordanesf with fche specifications ux>oa wMeli %hBy were oriisin- 
ally oTdered. Ifc otsit&s that in ri©-vf of the fact fehat fe^s«« oy- 
lln'isra were not ijuilfc in a4cesdanc© with defeMsjat's apeelf t©atioa«, 
t0n of theaK having again he<sn delivered* the paj-tles agread that the 
rsmRlairif eLflit syllndars should be eliminated fTfsm the ord^r and 
that nob si would r«leafte defendant fr«i any and ail esste lncurr«d 
in ooiin®©tlon «lth theae eight cylinders. The Skgrmmmnt fu.rthes' 
states that BoTnel has rebuilt the ten cylindere with ttaeee beamings 
each, ln3t-3«^<? of two aa required hy th« apeeif Icatidnsj ttet defend- 
ant a^esa to plmoe th©s® tea cylinders in s^rrice and t»st them 
through one season* s wojrki that if proven a&tiatectory, defendant 
e^e«s to pay |.a,9ao for the ten cylinders. le«s n,692 which had 
alre^Miy been paid on aecount^ plus further d.dnctions rspse^aating 
freight ehar«es paid Tjy defendant. The eontraet further preirldeB 
that if th« t*« rebuilt cylinders prove unsatisfaoeory a.ft« one 
Beaaon^B run, Dohel will, at d«fend««f. option, rebuild them with 
five l>earing8 instead of t;hra6 fe^iore p.*.ymant of ths 'balance ie 
aa4e. It la further agreed that r-ohel umy rebuild t^o of th# re- 
»aiBlag eight cyllnd«ra ac^eordlng to defendant* s specif i^ationt. 
aopy of which was attached to the agreement, e.eh oylinder %<, con- 
tain five bearing© Inste^ad of three, and that if aftar thoroui^h test 
th6 two cylinders prove eatlsf aotory to defendant it would pn^ $^m 
therefor. 

\ fhe a»«nded affidavit of laerita further av«rs that defendant 

made known to nob^l that it relied upon Bohel'a skill ^ith a resulting 
Iwplisd warranty that the goods should he of »ereh«ntahle quality, 
and alleges that only %lm lm% t^o cylinders ware used through a 
se:,3on»s run and that they were not of aerohantable quality, hut 
were defective in the following reapecte* (1) the copper eoatiags 
were def motive i (2) the iseldlng holding the shaft mandrel was 



-„s. 



"J ■..;liwCii3'X -.V 



( ..^.- j-i»ii"vft o?'^' *i'^' ^^'*- -'*?*■■»" ^ ^"^ ' 
.,. ^nr,,., .i^..u^.d...m 1^ ^^« «^^^* ^-^^ -^^' ^" 



f.-.f-T^s-Jii-i?! 



.3- 

dftfi^etiT*! th«.t six of tho eylind^ra w«Jfe used f©r a isart of the 
eea9on» tout proT«d dafeetlre in all these resiJSoiE* aad tn sddttion 
I>fe«ret0 vers defeetiT* tn SMt thsy e«a««<5l t© fe« appTaxiaately p@ir- 
f«et cyllB<l«rB, "biit ♦*w®rs oMt of rouM" d-ue feo iastiff ielant liearingBi 
that tlie remaining foui of e^ld cylinders >3ar® no <lsf*s0t»lv« In the 
reepeet® emitsernt',?*! that fhay eoeld not 1)9 used at alXi that prompt 
notices was itlvBn to r-ohwl of. the fK-^f^^^®t» In the cylin<?er3f and rs- 
qu«stB jna^e that they should ^)<3 rebuilt to confonm to specif Ic-^t ions | 
that ?a©hal of.'sxsd to re'build felght of thfS cylinders with flTe bsa,y-. 
ings and deliver thera to defend ant » but this was nev**!? f^on-^s that 
4«fen<!ant again puggosted that Tiobel rabulld threa of the cyXindars 
with five headings, to %'hich no roply v/ae saad®, all of ^'hloh vt&B 
^xought to plaintiff's attention by lettsj^s a.td tclagraraB* The 
£Bi«n<3©(J aff id&vit luxther aver a that nons of the %ua eylindsre 
rehuilt proved eatisfs-ctoTy iluiin^ fchs 0©a.aon* a run, that non® 
was used throughout ths season, dtj« to fchoir defoctiy© t6aaufaofeur«» 
End offerts return thereof upen the r®turn of pE.y®®nts already -jaade* 
It wae aleo avsrrsd that the twelve eyiiaderts as s3slivsx'':.i<S! vs^re not 
werth more than 'v250 l>eoe-.us'« of the aefsots stated in the- sff idaTlt, 
and defendfent denies that it is indebted to giiaintiff in any Bvm 
wfeftt soever. 

Pefendant also filed a etate-KKsat of cl«-lKt hy Tsray of receup- 
Bient, ineerporatlng by refsreaee the aiaentled afft^'avii. of merita 
and averring that eyliacJ^re of proper quality and sjonatruction womd 
ipeaoonaWy have been isorth ^S,576, hut that the eylln«lera a® de- 
llT»red were not worth to exeeed :t25C), hy reason whereof defendaitt 
lia« eustaiaad ds^magem of ;|-1,S30, helag th© exosse of the aaaount 
already paid hy <}efend®nt ov#r tli^* value of the cyilaaert deiiveraa. 

Plaintiff Rdvanee^j th® thsory that the oontxaet for th@ x^**^- 
Olbaee of the eyliadera waa a severable contract, and that uine© no 
legal 'Jefenee was raieed la the pleaaings as to the purehajsa priee 



iSiCtoi i.;oJ;:iu;« Vii «'■* M*i Ikc- ^1 ':-.* '■ LUy.t^t -^^d' f:.Xitff?da ^l;atii-J if.e^.tfj <7i?w-! Si;f.Ci$up 

ffi 's- .li'jirfr? lo r^r^ ,vi^&^;? .'V.. \;i<(^-x cH^ j1i»'li^r cJ , t^gCii i^.-id ^ylt sliJiw 

K-ftori J.R£iv ,i5.;.:'x (^ ''^o^:^ ■:?<^r 5ij3 ^jni^iif;. \.3>0Ji><*t4ii.iis-4( bi&voucj, ;^-XJ;;iiift'$ 
,S>'i:irvo,*^l»iT*'ra s-vi Jos Isyii xlo^y ci .<;:;:.> <0Oi3«:t;j,i -^si-^ iuVrii.vMiU'uii h^BU arftw 
iwh^rj x,b^i^'il3 y^jK&K%.a^5i: 'Sb KTwJ&"t :^:ui^ eij-^v tmiX'^iti ifXii-i^t ?3^all«» fe«a 

iSi-^:-kiYin i:-&J iix fcsjtf*^Ja ":itic-'3r»^? i>fi4 1;d s^;y::S9vd' OcSt «arf^ a'xc}*! iiS'iew 
-^■& Bcs ?r.t>V'fe».»tli\;'a «fi sJ^^^rf.'"' ^w«f ^'fVajitsSt ^4'«?p a«5S«.' sr»4 Y^X^aia©?***'? 



-4- 

ef ttr© of th« «yliit(fe.rai, flatatlff w&s «atitl«t5 fee a paytlal 
^n<JgT»flt feli«y«for. The e«mrt tvid^rttiy adopted- thi« iJbeiafry and 
<»at«sir«4 a smisasaify pa^tlai 4m<lii»«3at mm hm^^t^mm mtut^ ©f .fSS*©. 
Two prlactpiil CPOtaHa m*e Vi.Tge,i. f«r t^vaTaaXi (1) ^S»i feii.« 4aiB«iRid®«Ji 

F»©« a eiwl^ «at«itis.in»tion of 'tb« j»l,«*id'ing8f iaeli:^ ing; t^ 
wftttwH Rfre^Rpfnt ln©orpN9r<s,t«t<l In th« !B*i€iid^4 mffWMXtt #f merits, 
wt njt» »'-'.tlefl©<f tbat plaintiff's irnvsmtttA 1» "&fiiiS:«<i? u,p«^it ft Gingl&9 
in^ivinihle ©ontrwefe. "?he aai»n<f«'d RffldaTit of »«yi|« aveys that 
fek« two oylln.«!«3r« w«»ye net of m«.reh»jitti:fel© ^^vuality litt-'fe wars ds;-f#©<- 
«!▼« 1b th« f?»l.lo«iaf re«p«et«J fSw oopgisir e«?at!.ingi» -wjsrw «iefee- 
felT#» «sn''^ tlj«? xareWlnf holdinf tM« shaft ts^n^r^l was <l0f#©t.lT®* It 
8>l«e nrers that ^fsf'^n4mmt ^4'Vini>^ DOli®l oa .iugtatt 4, .1944 # tkat 
tiss 0ylla<S«9TB w»y? not e&tiofsetory. Itneajualj. as tit® ®^5Fe!«®®tife 
provl<S«a tkat &a t^ th*?*® two eyllttd^re ^^lyiaottt la tg b« %nml€ 0Wklf 
*if » aftJ!? fefaoraugfe tsetsj eyili!i!5#rs prov« s^.tlafa^tsry io ii®»'* 
th* aT«rBj«al «p««tfic&llj slftlsslng i^^fscts woititl* If ^uj^jaMiali^ 
by o-0»pat#iil «Tti««ao«» «#4iatitia%« a (l*>f «ia««« fJaa 'iffliaTil «f 
js«ir4t» Oftrtalnly xaisfea a «oalTOVtjysi-y of fact fe«ife'«-oisa »4mi par'ti®« 
^Jaleh Ofsnnot b<s isitisrattt^fl i;fivlieut a h^nrlaij. :'=ueii ^«at,y«T«rsi«t« 
ure not ths *al3j«ot of 8UBSism;ry or partial jutlg!i«nfc« ""'^ ijMnit tMs 
®tat«a«at 4» ftmstAln'M l>y « pl^in T«a4laa of %he !.5tft5atiS &nd t3a» 
rulws of tlw i&iaalei]»«l eourt, aiMl irtfatr'S® m ^itmiiisn of fiitttili33*ttl««» 

Soy«e^«?fr, ^y its ooante:r«sI*t« «i«f«4a.iHat w% m|t a S0?j4 
iftff lr?6^.tlTe oamse »f sretloa agfeinsfc l-'Oli^i for sl^sao is e;so®e^ of 
4li« Talno of th« eyliywI^Ts aissllTorftsS 'toy hlji* .-- recoupa^nt is m&t 
ft ©yoss ioimai3» but a d®f#ae« « 0OU!!ife«-.r«l8.ljB ariolng out of this 
BaiB« troiis^^ctloii uipoa wJiloh suit is 1»ao«4» Bt^kfca of & trust^o ia 
oankryptoy aria® oiit of aa4 ^asf*"* gov^jyu^jd to;/ tse 3«atkmpt^ &0t# 



,0^^;y 1^ t;,^!)^.^;,^;/. ■f;'Vi^^$i?sr.yji> Af,,:^ in&m^i-isil S.0.k&H/,rq x'-:.siwmr^ R b^^^*-4m- 
to .iX^m~-tifi- iii^i * Si c.fH"v ?:*!.;;-:: -a »«ir*-55?j[:*?s-s®s ;,*i>ak!'tt|s&i^* ^n^sif^qaiti* ^sf 



**in all caaas ©f asutual 4«bts o» mataal cr«sait8 bst^ssfa 
the ©gitate of n toankrups. a«G a cra-.-ifcaj; iJae i'/ecomit i.»ii&ii !»• 
stated sitd o«® tisbt aWll b* est off against the athcr, and 
the ia^iajaee tttily shall be allo««ti or paid** (U« 3. Cesi@» Title 
lit «f»o» I08ft* ) 

FlAinslff aeekB t« avald tilt sffeet of ?!*!rf«tt!4 ant's r««oopa»Bt ¥y 

oojit«n<ilng fhj»t It «festtl4 be lltslted to t&e |«irolj^^a8 priori of 4;««» 

oyllivlers, and net agalasfe the two cylinders apeclslly providad 

for la the s.ATfr«sK9nt. ?Jtl«? esnt^ntlon 1» uat^natslat bOw«Tey» slno« 

by hlg oTon stst«»ent of cIrIm plalntt/f olntms that the l»».atarBQpit 

aanufActured and delivered to iSafan^lant ''IS grrnvwr® cylind^ys &t 

a prlee of fStS*/©; that tht defendant paid on aees^nt ih» sa» ©f 

^-1»69£» laavlnf a balance dttt=» af CltSS^." Tlau!;^ the entire transae- 

tiea is tref?.t®{5 as & siaglw, indtvlsi'bie ngr©e«ent, and d<^fen<3aat*» 

raooupsssnt g:o83 to ibe '^hol« transaction, vadsr tM clyoussfttartcea 

th« C'3unt«Telis.i»t it e»£a\)lishe4 by eomp^iieni (n-lj^sac® and to tht 

eiatiefaqtslen ©f the eoujcj,, v^ould defeat plaintiff' a cl&im am^ ehauM, 

ea defendant eant«n4a» ba a "bar to any suaj^asy jwdgaent. on t^lia |sloRd- 

Ings. 

It is eon^M^ hy lh« fls&dtaga that dsfendant j;)ai(^ llj.Sf^2 

towsixtl tha pu7eh£is« of fesa eyilnaara* vshleh* according to d-e^f anrfsuit*» 

contention* proT^tl to b« cJ*ffaotlTa auid UR@l«es» "}nt®Mmn.t nlxoulit 

thor«-ror»# not bo sui^'iarlly conpsllodl to pay i)5M aaditlQaal toi' wwo 

other oylin<i'3rs included ia the vmmst e^atrJACt 'o?hlsh &x-s ?W0y:rot! to 

hav® bean of unBerchaatablo quality and found upon a iss?A«0n' s tsat 

to li© 4«fsetiTe in coating tmd welding. If plaintiff b^ssiieTad that 

tht R«ftad«# affidavit ©f »trit» isaa not ouf f Ici'sntiy sp^atfie it -mm 

incusjbsnt Upon hla to soeuxro a sior% ^sp-x-lfic affidavit of Merits by 

Motion &o atrlket aado in opt time, or ather proeedii** ®Eploy®d aiaiojr 

the Kualcip&l court prsio&ioe* 

I IiDb« ooatrovoroy botwosn the ^axtioo ohould bo tried upon 

iooueo aodo up by ^o ploadlngts anic^ i:iot^rmlnd<i only after a hairing 









-j-^rr-ifiiccq •':J"t^:'i>'5J5:» S;t'-^i!5i,I%^ Qh^'^ -sJvt feftl<?H« ^ut- ftna ■ »%^?JbKiXt9 



Of t.. cntroTort.. !„„.. of t..u ana a„ «.„ ,^ ,,, ,,„^,,^^, 



Sullivan, P» J., aa^ Scanlan, j.^ 



OGnma* 






t "K-y^j^^C' t - !■• 



., njB.lHjB £ •.■.■i3>> < * ' ■ "^^ . , !l*i V X .L I u8 



38491 




kX ! 



VICTOB WISCiiCeBK, administrator 
of the estate of Ida v7ieczorek| 
diec eased, 

Appell ee , 



OF .yrSHICA, a corporation, 

Appellant. 



} ASm^ PROM MOTlClPja/ 
i COmT OF CHICAGO, 

1 €^ (O 4^tS "fr" E J^ 1 

25 6 I il ^19' 



MR. JUSTICE JBIISKD Dra,rV3BSI> TH3 OPIUIOlf OF TB^ OOtBT. 

Plaintiff, as iJenefielary, brought an aotion on the double 
indemnity provisions of two life insurance policies issued by 
defendant. Trial was had hy jury ret-ulting in a verdict and 
judgment for plaintiff in the sum of |>404, from which this appeal 
is taken. 

Plaintiff's statement of claia alleged that H72 was due 
under the terms of policies on the life of Ida wieczorek. ^hich 
provided that upon receipt of due proof that the insured had sus- 
tained bodily injury, solely through external, violent and accidental 
means, resulting in the death of the insured within ninety days froa 
the date of such bodily injury, the company will pay in addition to 
the other sums due under the policies a benefit e.uad to the face 
amount of the insurance. It was further alleged that deceased came 
to her death by reason of a fracture of the right femur, oocasioaM 
by a fall in the bathroom of her home, occurring June 27, 1934, and 
that the injured died .iu^.t 13, 1934. Plaintiff was paid the face 
amount of the policies, and this action ie brought to recover double 
indemnity, which defendant refused to pay. 



V 



\ \ 



Idb'B^ 






,,orli avBb ^0^«^:^ nxa.i^ ^.-.^.ru 



bJi.G « ^-'••■'- * ' 






-2- 

By way of defense defendant averred that the death of 
instired was not the resiilt of injuries ausfcained through external » 
violent and accidental means, but that said injury which preoeded 
her death was caused by physioal ^Heakness, disease, stroke and 
general debility, and also that defendant never received due proof 
as required by the policy and is therefore not liable for the sum 
claiffisdi 

Briefly stated, the facts disclose ths-t defendant issued 
two policies on the life of Ida Wieczorek, oae for f 184, dated 
Ootober 15, 1923, and the other far I'taso, dated December 29, 1924. 
She gave her age as 58 when the latter policy was issued, and was 
approximately 68 years of age at the time of her death. Deceased 
resided with her daughter. About fire years prior to her death 
she had suffered a paralytic stroke affecting her right leg, vfhieh 
caused her some difficulty in isalking. June 27, 1934, she was 
assisted to the bathroom by her daughter. Shortly thereafter lioth 
her daughter and grandson heard a thump in the bathrocxa, whore the 
insured had fallen. She viaa found lying over the threshold and 
carried back to her room. There appears to be soote conflict in the 
evidence as to when Br. Fowler, the attending physician, nas called. 
HoT»8ver, upon examinatiGfl he found that her left hip was broken. She 
was taken to a hospital for a day, where a cast was placed upon both 
legs from the waist down below her knees and she vmB then removed to 
her daughter's home, where she remained in bed. She appeared to be 
getting along fairly well but developed a bed sore on the left hip 
resulting in an infection, producing fever and high blood pressure. 
The physician testified that she had rales in the chest and that her 
heart became decompensated. Death resulted on August 13, 1934. Br. 
ffowler testified that some ttme after the injury she became incontinent 
and was unable to control her bowel oovements. Ultimately bronchial 
pneumonia set in and d eath ensued. 



,. , .,.^ -.-.,41 i..,^-^cT* ^aF.bael^h mn^\Bb 'to x^w x£^- 

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r,j,«^.£'^-?x ilxt.t?tsrLiS- bsnXivSc^Wfc »;wi u/u-'-^ -<^ .j..u-..»i 

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, , ,^.^,. e-t J««^A .tf.i^-BU^i> 't^A ^'^'' hohia^^ 

«lie .a.^oxc. .,..« ox.. ^. . .-. ^^^^^ ^^^ 

' " ' . .rf. v^tiJ^nJ: .ii* ^en^ om^i Oiuo. ;t.ui* bei.U?-^^ ^aXwo-S 

't^.t'-'-tnoopt f>fc5r.o©«S sxi« TtiJ ■,,"'»■ '•'^''■•' 



-3- 

As groun.-^ for roversal it is urged that plaintiff failed 
to prove that in-^ur?'! sustainei3 130(3117 injury solely ttoough 
external* Yiolisnt and accidental means vfJaich resi^ulted in her 
death within ninety days from the date of such injury. It is 
undisputed that decedant's death ensued within ninety days after 
the accident occurred, hut defendant insists that plf.intiff -"flas 
not entitled to recover because her daath wis the result of 
pneumonia, which is a disease, anc' that proof was lacking zo sus- 
tain the allegation that dos-th resulted froEi bodily injuries sus- 
tained solely through external, violent and accidental neaas e Tha 
gravamen of the defense is best set forth in the follov/ine excerpt 
from defendn-nt' s briefs 

"The injured had a stroke of paralysis abort fire years 
prior to the date vjhen ehe broke her leg. rhe stroke of paralysis 
rendered he-" right leg practically helpless. Her fall, whiob. 
occurred in June, 1934, caused a fracture of her left hip. If 
the in-ured were not psrtl'^lly paralyzed, she would no o hare fallen 
and broken her leg. * * * It is our contention that the deai^h of 
the insured w^s the result of her disease and bodily infirmity. 
If the paralyzed right leg, with shich it is admitted the insured 
was afflicted, contributed to her fall or if bronchial pno\UBonia 
caused her death, the plaintiff is not entitled to recover." 

To sustain its contention defendant cites ii.erns v» Ji-etaB. 

Life Ins. ^^ Co. , 291 Fed. 289, where an action was brought on a life 
insurance policy containing similar' provisions. The insured uas a 
physician and while eating he Gwallowed a small piece of macal Y/hich 
lodged in his esophagus. He suffered some pain and \'VE« ill aboat 
two wedks, but sesmingly recovered and resumed his prcctica. He 
stated that some four mouuhs latex, 7/hile at^endino^ a professional 
call, his automobile became stalled in the snov; and in assisting 
the chauffeur to push the car he slipped and felt a pain. His 
death a month later was attributed to abscesses, superinduced 
by the breaking down of the incapsulation surrounding the 
piece of metal ^Nhich he had s«allo<v3d. It was the theory 
of medical experts who ta.'tif ied thatthe metal had become quies- 
cent and harmless, but that the shock of slipping had dislodged 

I 



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e!.T .u.,...i .C.onabxoo,. !>n.. .noXoi^. .XBn..;JK. rf^^.^ri. .a^Ioa- bealB. 

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.^is^^xni^ vxm^ Ui.. r^"t.°^4 ,%.^^ ,,.,i ii^gi, &9:^'(£Xf;:Ex.cT srid xX 

, .... ,. .„c« .xi:. .ax.oxBX.o.q .cXx.x. -.nlnl.^noo ^oxXo, .o....ani 

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it and brought out a reinfection causing aliseese and hemorrhages, 

which produced death. Plaintiff was precluded from recovering on 
the policies in that caae» on the principal ground, however, tii&t 
death did not occur as provided in the policy tintil more than ninety 
days subsequent to the initial accident, and in the course of its 
o^jinion the court said that the initial injury waa such as oaoie 
within the category of injur i ©a insured against and that if the 
insured's death had ensued within ninety days, or if the initial in- 
jury had induced a continuing total disability of SOO weeks and at 
the end thereof death had ensued, a recovery could have been hadi» 

Another case which defendant says is very similar to the 
caese at bar is C*Meara v. Cpljagbian_HaUonal Life Ins, Co. , 119 
Conn. 641, 178 /tl, 357, decided in ipril, 1935, and there also 
suit iTas brought under the double indeHsnity portion of the policy 
containing siniilar provisions to those here involved. The insured 
■was a butcher, 47 yeajs of age, who appeared to be in good health. 
On the date of his death he h<w!I ®aten a hearty meal in the afternoon 
and thereafter played cards Tsith a companion until early the next 
morning. Later he wae seen by a police officer entering the laneway 
south of his home, and about an hour later was found unconscious 
near the steps of hie house with an abrasion over his left eye, 
Taken to a hospital, a diabetic condition was dieeovered, and an 
examination disclosed that he inae suffering froffl bronchitis, nephritis 
and chronic gout. He contracted lobar pneuffionia from which he died two 
days later. Ho recovery \"ras permitted in that ease. However, xm think 
this decision does not help defendant, because the court said that 
there wag an entire absence of any teafciiaony to show that the uncon- 
scious condition of insured was due to the injury raeelved in falling 
or that the injury was of such a character as would tend to produce 
tinconsciousnesst Hia attending physician daclined to express an 
opinion as to how the unconsciousness was produced, and an expert 



$^,i ,-'^vev.oxl tbrOJO^B I^'^^o^-io: etf. no «a^.,... -J— 
Yo'pi-^Xfi m>ii^ y'^Q»^ iJivAiJ ^^^^'-liG-i 

^„..x5- -,0 r-sf-r-i-t lQ rro-&T^iso iris Eii^iiw 
«rf^ 'IX ^^-< &^ ^aK.niS« »^'^*^^^ d^^i-ii-l^^i '^-"^ 

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.,, .... .... .1.00 .V.V.O.. . .M.... ..xi ....b .0...^. ... .4* 

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«, ....,.«. 0, M«M-...>t -iot=^^ «"»■'«"« '« ..««a«oio.nc.n. 



-5- 

diagnostician stated tixat the iinconscious condition was a diabetic 
coma. In no i/7ay attributable to the in^jury to the h®ad. Other 
medical testimony tended to show that a contributing cause of the 
death was diabetes, and of course there was no recovery under the 
circumstances. 

In 5i?l5e_Acxident_Ins,, Co. t. Gerisoh, 163 111, 625, also 
cited by defendant, suit was predicated upon an accident alleged 
to have resulted from a strain produced by lifting a b©x of cinders 
and ashes. I'rom an examination of the opinion it appears that 
there was no proof whateyer that deceased had strained and injured 
his body in this manner, and the court, in discussing the facts, 
said that "one essential fact - indeed, the all-iaportant fact, - 
is therefore wanting in order to zaake oat a case." 

In support of the judgment plaintiff eitea Prehn v. Metro - 
£°M:^3aJiif±Jne.^lOjj, 267 111. App. 190, where defendant mde the 
same contention as la here urged under a policy containing similar 
provisions. Prehn, the deceased, had fallen from a scaffold on 
June 14, 1930, apparently sustaining a slight injury to his spleen, 
and the following Septeaber, while at work, he arose suddenly from 
a chair, complained of a pain in his baolc, and was taken to a hos- 
pital, where he died shortly thereafter, A post-mortem examination 
disclosed a ruptured spleen with evidence of prior injury, Judg>° 
ment for plaintiff on the policy was affirmed, although defendant's 
medical expert testified that the rising from a chair in the manner 
described would not be sufficient to rupture a healthy spleen. The 
court held, however, that the evidence sufficiently showed Prehn' s 
death was traceable to the original injury and "did result from 
such violent and accidental means and independent of other causes 
as rendered the defendant liable under the certificate or policy 
sued on.* 

In Christ v. gacific _Mutual Life Ins, Oo. , 312 111. 525, it 



,e- 






.... ............ -^^- ^-^^^^^^ " *-^^ ^^^^'^^'^^^ ^^"" ^^^'^ ''^'^ 

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-6- 

was held that "blood poisoning caused "bj an accident W0.s the (direct 

or proxli)]ate result of the accident and ijlaintlff was therefore 

permitted no recover on the policy. 

I^ 3ohs.ke r v. Travel ers In s* Co., 215 Mass, 32, plaintiff 

was allO'*ved to recover under a policy of instiranee •'a;rain??t borllly 

injuries effected directly and independent of sll other caupsB 

through external, violent and accidental means. * The deceased i 

while ill -ft'ith typhoid fevsr, in &n effort to reach fresh air, 

went to a balcony outaide his rrindow, and, as stilted h;/ the conrtj 

'•without premeditation or purpose or dsllrium, hut only through 

weakness lost his balance an'? -want over the lo^ ratlin.^ 3,nd received 

mortal harm." In conKsnting on the q.ue3tioa undsr consideratlonj 

the court said 5 

"The point of difficolfcjr in this conai':ion ia .rl ether the 
disease did not contribute to the injuries, ©r at least ^rs it not 
a cause co-op-arating TTith the fall in induein,: the result , but the 
disease Kay have heen found to have been simply a condition and not 
a movinr cause cf the fatal Injuries . '' sick man nay he '':he sub- 
ject of an accident which but for his sickness would not have befallen 
him. One may rceet his der th \>y falling in' n Lrnrinsnt danger in a 
faint or in an attack of epilepsy. But such an event conmonly has. 
^©Ji."? .^® ifl- A?, ^%..yi® result of acci_dent rather than o'F J is ease »"^ 
vitaliee ouxsV) 

In Miner v. l[eg_ imsfcerdam, Qasu^^ Co _» , 2^0 ill. ^^pp. 74 » 

suit was brought on a policy oani^aining provisions similar to ohosa 

contained in the policies involved herein. The evidence showed that 

the insured became aick to his stomach from eating peanutb on a 

train and went oo the rear platform and aat de\vu. He was found under 

the train with hie legs severed, from which acciaerit he died» There 

Tsaa no evidence to disclose how he had fallen, i^ judgment in the 

■beneficiary's favor vas sustained. In lihe course of its opinion 

the com-t said: 

"Even if it could legit imfitely be found to be a fact that 
Roberts was nauseated and that, because of his nausea» he went 
out on the platfoj'm and uhnx. he then became dizay, either from 
nausea or the motion of the train, and fell off from the platforc! 
and under the car and there roceived the injuries in question^ 
Roberts would not thereby be precluded from recovering * * * because 
the sickness or disease mentioned in the limitation clause of the 



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xtoxwxqo eifi "h? 92*fi;oo 3xla xtl tbeah^iBva a*^w toir^'S e *\;^«ioi A:jxxtcf 

t&ina itstoo ©rf* 

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moi'x Toxfd'i.o tX-siI:> omjiood ntdi ml J.-?ri.r bfi.,? aizo'iiiS,q oAi no cUfo 

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oi>J lo 8QXi.tXo noi*fi#iatX ex{;> tii fcextoi^riKK e8J3oajr.& 'xo :*Qem(oJ:£i ©n'^ 



-7- 



policy above referred to do'sfs not mean ovary mo-mentary InflispoiBi- 
tion that ia suffered "by the insured. * * * It means a siokrn ggs 
of some 3PjJ:0n^n^Bs__apji^jQej!S£i^^ 

oont'r il3juitee^_^g3.fae'j!i^^^ ^^!£-.J[MQ^ ^^Q loaa wouJ Ld 

nob h ave baen sustai ned ." Cltailcs oursTJ" 

It is plaintiff 's contention that th^ death of the insured 
in the case at "oar i-'ay he traced to the "bronchial pneumonia repu2.t- 
infj- from the infection from b^-d soreB ^hich aross out of the oondl- 
tion created by the plaster oaat and the post trauBiJ=tic incontinenoy 
of the insured, and that her death therefore resulted directly as 
a result of the accident. v'e think plaintiff mr.de out a prim faolQ 
case of death of the insurer' ?/ithin the provisions of the -^olioy, 
and thereafter it hecbMi the burden of defendant to aho^? that the 
d-pth rarult->i from a cause oxopted in the policy, ( Bogor^ v^ 
rrudantial Ins. Op_._, 270 111. App. 515? !ralty v, t^ederal Cr-sualty 
Co., ^45 111. App, 130.) "^efend^nt'B counr,el prcrue that -Dr. -^OTTlgr, 
the attending physician -who testified at the trial, fMile-^' to express 
an opinion that the broken leg tvjas the sole cause of d eath, and it 
is urged that v,-ithout such evidence plain t,if/ cannot recover. Defend- 
ant's abstract of rsco.rd doss not accurately show the proceedingB had 
when Dr. ^o^'ler was on the -.'itness stand, but froE -m sxaran^tion of 
the record the follo-7;ing appears* 

"Q, Doctor, have you en opinion bs.sed unon n, reasonable 
medical certainty as to whether the dsath that oocurrsd in .;ku,gust 
is traceable to the accident and bhe subsequent caunes comin*^ 
through it¥ 

A. The line of events — 

Mr. Welsh icounael for defendant}: Just a minute, it 
calls for an answer yes or no. 

The Court i Yes, or ao# 

Mr. airrls (attorney for plain^.lff)^ Q. md -ivhat is 
your opinion? 

Mr. elshJ I object, he hag already told us the faots, 

i'he Court i .ell, he is the attending piiysician. \,hy 
couldn't he e-^press an opinion? 

Ifir. Jelehj ihy, ha hai^ told us, your Honor please, all 
the f*5.cta. ?Jo-w, this jury is here for the purpose of solving that. 
What he naya o'oartn' t make any diff-.renoe, imy iaors than anybody elae. 

The Court: He is a medical expert. 

iCr. elsh.- If he hyxin't givan us she facts, if it was a 
hypothetical question of some other doctor's teatimony it would be 
different, but here ha has given ua the facts* 
Honor ^' Harris: i think I -^iii withdraw the question, your 

The Court J All right," 



,f.. 



^ibmo bA^ '^■0 '^^>o e*o-2^ rioxilv^ a-xo.. .-cf .1. i 

3^ ^I^t.-'^x^ b@il^zex ^-i^^-^rssi. :i?.->so .w.. viu. 

,o;^^)/a^ !^r^^ sii tio^ x:i;'^9-X^ ^ ^!^i .i^ tiXoV ^^^«oi) c^u-i 



It appears from another part of the record that plaintiff's 
counsel asked Pr ♦ Fowler whether he he,n an opinion, Ijased upon 
a reesonahle medical oertainty, as to whether or not ths bronchial 
pneumonia could have resulted from "bed sores, ahout which Dr* Fowler 
had testified? and the following ensued i 

"Mr. Welsh: He said they could come from Infection. He 
has already testified there was an infection in these feed aoreg* 

The Courti I unless that objection he makes is a good 
one. I am going to sustain it* because the doctor stated all 
his findings here. 

Mr. Harris: Not to argue with the court, of course, I 
WEi.s just covering this question of Infection, your Henor«i 

the Court: He has testified it oaiae from an infection." 

Defendant's coimsel say» on page 3 of their brief, that 
"it should be noted that not even Dr» Powler stated at any place 
in his testimony that the bronchial pneumonia and decompensated 
heart of the insured were caused by the broken leg." In viex. of 
the proceedings hereinbefore quoted, indic-.ting that defendant 
objected to the testimony preferred, it ia not in a position to 
claijB that plaintiff failed to make the requisite proof. The 
record clearly shows th8.t she bed sores caused an infection, and 
plaintiff tried to elicit froia Dr. j;'owler an opinion Viiietiier the 
infection could have produced the bronchial pneumonia from which 
plaintiff died. Since defendant objected to the evidence it cannot 
now complain that plaintiff failed to assiime the burden of shotting 
the connection betv*een infections r esulting from the injury and the 
post traumatic pneumonia which evidently caused insur;d's deaths 

Defendant's argument that il the insured vers not partially 
paralyzed she would not have fallen and broken her leg is untenable* 
Well people may stuaible and fall, i'he deceased had moved about for 
more than two years following her paralytic stroke, and we csnnot 
presume ths.t but for her illness she would not have fallen and 
suffered the injury to her hip. There is nothing in the r eeord 
touching upon the cause which produced the fall, Piid under the 
authorities hereiabeiore cited we think it may clearly be 



•-8" 



..X«^ .m. ^^^^ --^- '--^ ^^^^ ""^' '^'""^'^ ^^"^' ''^" ""°"""'' 



o2 no. 






-9- 

characterized as an accident wtthln the provisions ©f the 
policies. It clearly appears froai the ericienoe th?tt the chain 
of circumstancee rerultlng from the Injury proxiiaaiely led to 
infectiont pneumonia and d eath» and in 3Uchc?seB courts will 
not distinguish between the accident itself and the means wherehy 
it -was hr ought ahout, "'e so held in the recent cas« of Bums v» 
Eetropolitan life I ns» Co» , 283 111. App, 431 f where an action 
for double iademnity for accidental death was brought under the 
policy, death having resulted from a fall from the second story 
window to the sidewalk. There was evidence that the insured* 
v/ho WES aixty-three years of age, suffered from arterleeolerosis 
which caused dizzineee sad headaches, but this illnesB Mvas held 
insufficient to establish that insured's disease or bodily or 
mental infirmity was either an immediate or oo-operativo cause 
of her death. To the same effect were Burns v. Prudent ial Ine« 
Co« of America, 283 111. App« 442, and Illinois Co zimerci al Men's 
Ass'n V. Parke , 179 Pad. 794. 

Finding no convineing reason for reversal, the judgment 
of the Municipal court la affirraed. 

AS'PIBM^D. 

Sulllvttii; P» J.» and sedni&ifr, . J., conour* 



^„i. .„o.. «f.- «^'" XX.>- « ««* !>."--- BH1V.S ««!> .^01X0, 



■ ,,:■ ■.)':M,!f:!v 



33499 



WALTISR 0. SFIKSOET, 
Appellee* 

▼• 

a body politic and corporate, 
Appellant « 

and 

InterTener and Appellee , 

r* 

OHIGAGO PARK DISTRICi', 
a body politic and corporate* 
Appellant, 




APPSia EBOM 
MWIGlPAt- GOURT 
) OP CHICAGO. 




MR, JUST 101 5^I1SX» m'lIVSRTSB THS OPIMO]? OS" TITS COIRT. 

Walter C. Srilcson, hereinafter called plaintiff, torouglit 
an action in assumpsit against the Chicago Park District, Jierein- 
after called defendant, fordajaages of ^^^ 20,500 growing out of a 
contract "between plaintiff and the North Shore Park Distriot, 
hereinafter called Park District, which isas superseded lay Chicago 
Park :oistrict "b/ operation of law. Harry Bairstow, defendant 
intervener and appellee, hereinafter called the intervener, claims 
an iniereet in the proceeds of the suit by virtue of an assignment 
by plaintiff to him of #12,269.38. .Defendant filed an amended 
affidavit of defense to plaintiff's amended statement of claim 
and to the ctatement and affidavit of claim filed by the intervener. 
The oourc sustained plaintiff's motion r,o strike the amended affi« 
devit of defense, and defendant elected to stand thereby. Accordingly 
a draft order was entered finding that the amended affidavit of 
defense was insufficient in law, and adjudging defendant in default 












t£isf;ir:riasii xt.b 'to suJ'.iv -.o oiu.. 



for want of a sufficient affidaTit of merits. Thereupon .iudgment 
was entered in favor of plaintiff for ^19,765, $12,269.38 of wMoh 
is for the uee of the intervener. Defendant appeals. 

It appears from the pleadings that March 22, 1934, North 
Shore Park district, a Dody corporate, entered into a initten agree- 
ment -with plaintiff pursuant to a prior Park District resolution 
whereby the lattsr agreed to pui'chass, accept as and when it desired 
to, and pay ior, not to exceed 30,000 cubic yards of dirt fill to be 
deposited in an area under the control of the Park iJistriet. The 
price stipulated in the agreement was |1.05 per cubic yard, payable 
35;^ on engineer's certificates and 15^ on completion and, acceptance 
by the Park district engineers, payable at the Park Mstr let's option 
in it. bonds at full face value. M except 700 cubic yards of fill 
were delivered, leveled off to grade and accepted by the Park Dis- 
trioi;. Certificates of aoceptance were issued therefor, and as part 
pa,iuent the Park J.istrict delivered to plaintiif its tax anticipation 
warrants in the amount of s 10,500. Plaintiff sublet a part of his 
contract to intervener. Harry Bairsto..-, who furnished and delivered 
27,561 cubic yards of fill m accordance with the speoificationa. 
defendant admits that there was furnished by plaint ixl 30,000 cubic 
yard, of fill, for ..hich the court permitted his recovery of $19,U5. 
The a»«>unt of the judgment was arrived at by giving defendant a 
credit of m5 for the 70c. cubic yards claiiaed by defendant as not 
having been daliv.red. It further appears from the pleadings that 
by consolidation the Ghioa,,o Park District h^.0Bm3 Buocessor to 
2fo-ih 3hore Park District, ^md a« such refused the demands of 
plaintiff and intervener for payment of the -balances respeotively 
cue them. 

Defendant interposed several defenses, the firet of which 
is that a contract for the delivery of dirt fill at a specified 
price. ^Mi^ provides that payn^ent should be made in bonds of the 



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©yn,B?q60y.s i)ff.?.' Roxie-lqmoo «o S;csl .ferj« at*rf'r,'.iJ:'Ud''ii^o : a':3S®snX:5;n9 no, ^26 

nil %o £!&*):;:>- yii/wo OCV ;t<|S3,r.9 Hi, .»wIa<v eoal IX-i/l i*^ afeisecfij;^! ni 
-axTi; >i;x.o7. &fi-J rcf Et^-w^ie-'-'O/:; isrw; ot-i^'iB oi x'io b;.'Ii;:)\ri3X <fc3t&viXsJb 9t«?w 

d^'tJEfj a.o fcas tto'r: 'xc^xi;' beWHtii ©taw 60Hs;^q;© ;>•>*'. to ssJJ-aoiiiiJ-xaO «d'ai;*£^ 

a,x,ii iQ .cft.^Q wS ,,5.i'Xclya i,':.',rJ.f£l^sXl xOOscJ.tPX'^ 'i© S0ixrw*.5 sfij kx a#fi.etx'xfiw 
*fi*iaife.ax'X;i^-'onii.-i «-^«' xiJi-.v &oi-i*.;:n,»y^i' /U XIx'J. "iQ ab'iJ^-% ^idlflQ li):4tfS 

»Sc;V^,yii lo ,TC"rsvoo©"x axrl ;;-c, .' u xftrxi'Q. ^',*xx^oo -jiU tiaxxi-.N- 'xct i,XXi,S,;,.^,0' a,te??JB"t 
B w^xiBbHslob jjfiXv-x^ -^e!' ii B beyjtii'XiS3 exsv; dKSJius-bift 8x1^ .lo imfoaim «xfT 

,:lo ;.ii>xjaK5:>.ij ':):d^ !bi>Siis'lsx -iiXifSB t!^ fsOi* «*^i*cif«ia af-ajft attadR if^"'X<»K 
»il;t 'io fflftxiocf nx «>-?mi ©rf ^la&siB Jix&m:^% *i5fW,eio&|;vosg mXil.w ^eox'xq 



-3- 



lS9Tth. Shore Park nistriot, is a contract promising to daliver so 
many doll&re nuaerieally of the gecuxltias described, aad tJaat 
upon a breaeh of this oontraot liy failure to d sliver bonds, the 
meaaure of <3a^gea is the Market value in specie of tiia bonds, iw 
shaking prorislon for the payments to Ijeeoas? due plaintiff the 
written contract employed the following language' -May mke all 
payments provided for in bonds. '• 7e hare carefully examined the 
authoritiea cited hy both parties and have reaohad the conclusion 
that the eurrsnt weight of authority is clearly to the effeot that 
an agiement to pay a certain sua in epeoif isd articles of personal 
property at a fixed time, and a failure to deliver the articles in 
accordaaee with the agreement, converts the transaction into a laoney 
obligation. It was bo held in the e= rly case of Borah v. Gurry_ and, 
©sen, IS ill. 65, where suit wa& brought upon a note for v-40 ^ieh 
provided that payment way be dlscharge-d In sound corn at twenty cents 
a bushel. la diaousBiog the effect of this provision, the court said 
(p* 63)i 

*i. « ^^^ i*^.^^^ ti note for the payraent of personal property other 
than money, but a note for the paymsni of mon^j, ^dth a privilege 
to iaaker| to diychar^e it in corn -t a certain price. 
-, .'^ . :?® ^*^* ^^ ^^^® *^- ^°*^ P^i'^ ^^ money or corn, ms not 
selTeg! ?^e^» ^^^^ the ine.kers reserved that privilege to thea- 

H&a corn at the tiae the note fell due, bean worth fifty 
cents to the buehal, the payee coulci net have compelled ita deliverv. 

whil^ he vveula have beon aoai..ll.3d .o take li.. if tendered^ thouS 
its TQltte should fall to tan cents. •• "a^aga 

I« lili^^„ack T. BuTlingaae^ 27 111. 33 7, suit .vas brought 
upon a note which read* "i?ue Wm. .3. Goddaxd four hundred and fifty 
dollars, to be paid in luafl&er when callod for, in good lumber, at 
one dollar i..nd twenty-five cmts." ^fter citing Bor^^ v. Curry and 
esen, sttgra, thR court in dlBcusslng the question under consideration 
eaid {p. 342)8 

"It wen a money deaand from which the acceptor could have 

discharged htmcelf only by proving the delivery, or offer to deliver, 
the P^fP^^^uantity of lumber, or by the payment of the r.oney. It 
^n ne. a bill for the delivery of lumber in any ^ense, nor like a 



:t>s^3vi.Isw o4 ■^M£^uiis^*m. *»ii-s3ncf; -s al ♦^^slt^eitT il'S^'I ^-sci^a rii-sot 

Itl .»3bffOt3 Sites 'lio »i5?-g>tjfc5 xti £5«X0V ^eaiiEsus ®i^s et as^fysj^S i9 o^arwaifcH 
XX.S »2i.asi -^JtjM" * a^jejasri-sl jj^df/ollol erf^^t fee^^-^^*'^ *os«tje6» n^m^v 



. a«TX«9 

■^4-1:11;. i£i?*i©'l?«4>s^^' i«Hl> Lls't Biistx »«£■;) ssBji^ ©^i- «'£ rtioe b»EL' 

^iS'Ce"^^ ^«* **"^^« «^^^' »~-^-' '^^ jL«^!«!!Myil!*i, *'*' I^^is^te&XIS «i _=,^^, 

fefss X^X^^' *'^' ^'iXS^4 ■jKiiio 'jffi,t'tA ",B^«-:>3 9Ti.l-ij^n4w^ &«(« lallob m^ 

i(gM ♦«) WAS 

»TJBtii foX»oo toJ<3;^-v>y>« fti-f? ti!>i*r.-.' fljo'x^ btsmmb TjawCfflf s aw tft* 



-4- 

covenant to deliver Ixiiaber , for a breach of ij^iiioh tM party coxild 
recover damagea. It was a privilege to the maker to discharge 
his acceptance in lumber, and on his failure so to do, the money 
could be demanded." 

It appears from the pleadings that defendant failed to 

make payment when due in "Donds, as it had the option zo do under 

the v/ritten agreement, and thereupon plaintiff had the right to 

demand payment in legal tender. It was so held in MeKinnie v» 

Lane , 230 111. 544, \7here the court held that upon the failure of 

defendant to pay p. certain sum in specified articles or pergonal 

property on a day certain ix^i converted the transaction inr-o a 

money obligation. Snyder Co. v. Sisgon^ 233 111. App. 24S, is to 

the same effect. There a building contract was involved in ^Mch 

defendant agreed to pay lO."^ of the net cost of the building, and 

was given the option of making payment in stock of the ccrporationj 

but failed so to do. In holding that the option was no longer 

available, after default, the court said (p. 252) t 

"We think that by a fair construction of the contract, 
the defendant agreed to pay complainant 10 per cent of the net 
cost of the buildin{:; that the J^faadant was given Che option to 
make this payment in stock of the hotel company, and that since 
the defendant failed and was unable to avail itself of this option 
on account of its snctunberiag the property for about |400,000 more 
than ths contract provided it should be encumbered, and on account 
of the Iwi making that part of th'? contract ultra virea^, it must 
pay complainant in ruone/.'* 

In County of Jaclcson v. Hall , 53 111. 440, plaintiff con- 
tracted to build a county jail and to receive in payment bonds of 
the county. Upon coEipleuion of the building he .raceiveci the bonds 
specified but they were afterv.ard repudiated by the county as 
invalid, and it was held that the county having denied the validity 
of the bonds, plaintiff could recover the price agreed to be paid 
therefor in money and that uhe county would be estopx-ed to assert 
their invalidity so as to defeat the action. iee also the Joxmt^ 
of C oles V. (joehringj 209 111. 142. 

Defendant argues that because the specifications attached 
to the contract provided that payments "would be mac'e in bondfi, 



la -oiiiiXx.?:* »u«ii' rst-qw ^i^rii blBB i-'x.yoo srf3 ©ra^w tl-frS «III ass t£tt»i| 
o4 -si: eSiNg ,:.x(iiv *IS.1 €&a ^g.BiSX£l «,v ;».oO..,'ia;.^S.f# ..:,r!0J-J3^ II do ij^sKoa 

'isiaieol ^i'K saw RoHqo ndi i&do -.^t'd-hloii xil .qsj ni o® heXxB^ ^wcT 
I i' lic'ji .♦ ;;^ ] &i.;?r; i"::i;of:, -^-rfv tSXmjl-So -Si^tis ,eXtfsX,i©T,fi 

Xif^i oc o anU to 'Xjs^S'I: X*jsv^ c^ i,f>»-rK, < ^tT j^i-..^ >{iXi'''^ -J^js&netsh BtU 

ss x^Kuno Stic? "^rd b^SgiGuqftX b«i^w'ieJl.fj ©is-r* x^di ifs4. fisilioeqs 
'<^<>xL'iii':?v ©xl'.S h®iK&h ^.jRiT-t:xI ^ji^fijjos! isxfi- ;Jj>xia bln>fl aew 3i bns «biXsviil 

Jrraasii o;i Mqco^'a© s>o bXjtf©*' "^jJewoo s£i^ 3:3X1^ bns '^©noaj ui ^Oj:ai»il# 

*S.->I .ill e<i£ ij3fiiL«leo|! ♦v asXoO ,^o 



that tMs was the only way that payment coiild be raade, and that 
since the PsJk District \'9as unahle to issue such "bonds, plaintiff 
is liffiited in his recovery to the market value ox the bonds at 
the time pajinent f3hould have "been made. This argximent is based 
on the false premise that the contract provides that paj'ment *• 
would "be made in bonds, whereas in fact it provides that payment 
maj be so made. The clear contentb of the agreement, as shown by 
the pleadings, indicate that defendant had an option which it 
failed to exercise, and thereupon, under the great weight of 
authority, the transaction became converted into a money obligation. 
Defendant relies on 3mith v. Dunlap, 12 111. 184p and ganville Briok 
Co. V. Yeager , 271 111. App. 86, but upon examination of these 
decisions v/e find neither of them in point. 

It is next urged that the park commissioners ha.d no authority 
to issue bonds without first authorizing the same by enactment through 
ordinance. The record discloses that in the instant case the bonds 
were not issued, and defendant's argument is therefore tantamount to 
saying that the bonds were illegal notwithstanding the fact that they 
were never issued. This presents a purely imaginai-y issue. People 
v« 5Mcaao_Heights_S3rj_Co_i, 319 111. 539, is cited ^oy defendant to 
support the second defense, but tliat case merely holds that the power 
to issue bonds is strictly statutory and throws no light upon the 
question under discussion. Any lack of power to issue bonds j or 
even a valid exercise of that power, would simply result in defend- 
ant's inability to make its optional payment, and the bonds for which 
there was no ordinance and which were never issued merely emphasize 
defendant's inability to avail itself of its optional privilege to 
make payment in valid bonds. Since defendant admitted of record 
its inability to pay in bonds, the argument advanced and the case 
cited in support of the proposition are not convincing. 

It is next urged that an ordinance is a condition precedent 



is s&cod sai 10 ot).UT o:.?. .---i 9-i^ 

inS&l-{,^':. cSiiU --■!&'..,£ f-'-^V ^'■'•■•^ 

. .... -,.=,,;!- --^Tcs ^At :.o 3;i-x.;3iTto'o -1.38X0 ei.i .sj.-j .i. — . 

",,. ,. ., ex ,r I ox .aBXmiU: .v xiiM: ho aexXex Jn^bnelBG 

^en^ ^^^ ^0^^ ^^t ,nxbn..5.xl.r.:tcn I...eii. -) -^w ,.,.n 

n;; ^xs..bK<e^eb v;a &o:?xo (;x ,^-- '-i^^^ -^-^ * -^ 

ciid X.OCIU A^Un o« ..v-o:cxIi fcn« .,.o.i>^..o. .X^ox... 

.... ..^-^x 0. ™^ ^0 oiosl X^ .^oxaa.o«xf. ..bnn noxdaaup 

OCT o-o.eLivx%ci iBXxoxicto a..x .0 iX-^J-'^ 

b-£005'X to ,)VoiS^^,H Jil^-5»i-- ^ 

... >..,-^ «if-' i-n >-*toTci-0a nx b©*io 



-6- 

to the validity of a contrect for a local improvemeiat , and defend- 
ant argues that the failure of the Park District to pass an ordinanoe 
is fatal to the contract and constitutes a ccffiiplete bar to plain- 
tiff s claim and that of the Intervener. In arguing this point, 
however, defendant's counsel say th? t if we should hold the failure 
to enact an ordinance as merely an irregular exercise of the po^er 
of the park commissioners to contract, the measure of damages upon 
"breach of euoh a contract would he the fair cash market value of the 
materials furnished and the labor performed. The rule, as we under- 
stand it, is laid down in Sadger v. The InletJ^raJn^a^e D^ 141 

111. 540, wherein it wae held that when a park district is empowered 

thing 
to do a partioulaj/hut is not authorized to proceed in the manner 

employed, if after it is done and the benefits are accepted and en- 
joyed by the municipality, the latter should pay for v^hao it accepted 
and enjoyed such amount as it would have had to pay had it secured 
the benefits in the rightful vi&y. In Hitchcock v, i£SlTes,t_on|^ 96' 
U. 3. 341, a city council had contracted for certain construction 
work to be paid for by issue of city bonds. The council stopped -svork 
after part performance, v/hereupon suit wae filed for breach of con- 
tract. The city contended that the contract was void because it had 
no authority to issue the bonds, but the ITnited States /Supreme Court, 
in discussing the contention, stated what we believe to be the 
correct rule, as follows (p. 350 )i 

i "If it were conceded that the city had no lavvful authority 
to issue the bonds, described in the ordinance and mentioned in the 
contract, it does not follow that the contract was wholly illegal 
and void, or that the plaintiffs have no rights under it. rhey 
are not suing upon the bonds, and it is not necessary to their 
success that they should assert the validity of those instruments. 
It is enough for them that the city council have power to enter 
into a contract for the improvement of the sidewalks; that such a 
contract was made yrith themj that under it they have proceeded to 
furnish isiaterials and do work, as well as to assume liabilities} 
that the city haa received and now enjoys the beneiit of what they 
have done and furnished; that for these things the city promised 
to pay; and that after having received the beneiit of the contract 
the city has broken it. It matters not that the promise was to pay 



-.<5~ 



,...„c> ^..... aa...n ..n.. e.. ... .«^-^ ^^^ --^ o. .n....«. o. 

|(0a« .€) m&ll'^t BA tSX»' *09M«0 

X..JA^^XXi ^UXOA^. «^v, ^o^'x^no. ;^t.*«S:i^«iixa »ii* ^^* "^^ ^'^'^^^^ '»*^^ 

•a^rii OS ^^^^'•'^««''::>f^^; biiiv iii Vx«..a.. bX«oxis ^^^^ ^-^^^ ««^f «? 



-7- 

In a mpnneT not authorised "by law« If payments cannot be made In 
bonds because their issue is ultra vireai it would be sanotioaiug 
rank injustice to hold that payment need not be made at all, i^uch 
is not the law. I'he contract between the pariies is in xoxa®* s« 
far as it is lairful." 

It is next argued that -where a HDtmioipality hae po-.'?ei' to 

enter into a contract but exercises that power irregularly it is 

estopped to set up a defense of ultrja yirea feo the extent of what 

it has received* and recovery can only be had on a quantum meruit^ 

We think defendant is estopped from taking this position because 

the ITorth Ohore Park District fully ratified and approved the ^storTs. 

done under the contract with plaintiff and issued its acceptajice 

through its president as provided in the agreement • Subsequently 

it repudiated the theory of recovery on guantua meruit by electing 

to pay one-third of the sua duer namely $10»500> in its omi tax 

antioipation warrants of a face value of one hundred cents on the 

dollar t thus indicating ite intention to stand by the agreement* 

The defense in this case is not made by the North bhore Park ivis- 

triot, nor by a taxpayer litigating the legality of a proceeding, 

but by a body corporate which cajae into existence after the ordinanee 

¥<hich culminated in the instant agreement ^b.b adopted and after the 

vjork was fully performed by plaintiff and accepted by the iforth Shore 

Park Distriet. 

Lastly it is urged that a contract expressly prohibited by 

a valid statute is void» In support of this contention it is argued 

that the provisions of sec. 18, par. 76, chap. 19, Gahill's 111. 

Rev. Btats., 1535, prohibit the deposit of fill or the construction 

of a bulkhead nnd make it unlawful so to do without first obtaining 

a permit, and prescribes a penalty for violation of the act. Counsel 

for defendant say that it necessarily follows that any contract 

made in violation of the act is null and void and of no force and 

effect, and cite JX ick Isla nd Hun ting fe giBhing ^^lub v, Cxi llen^ Co ,j^ 

330 111. 121, to support their position. Unlike the circumstances 



-T~ 



0-3 ,30^0 J; ra ei .^^?iv*sc. wv .....«- -v. ^,ii/^ivsJ: si ii eJ» ^^ 

, .n.;.^ ..< vrrti^ 'oitsaia ^i'xo^i- s-soiir^ xCnoH s^l 

.«r. ^..3-^. ^xod:.: ric^-^o.. eri. X^ e^..« ^o.. .1 a.^o aiil^ ni een.leb aiil: 

v-tf b.iidii!ci:q v.I.B«W.. los^Jaoo s 4^1 6>ai" at 3i ■iXJSo.i 

,„;-'L.'.„™. «« -x^ IXn .:o .i«4.b «i* OWi*«i .SEW ..».»*.■! .-« 
il^n«.5 .*o.;, .^5 10 »li..X<.tv «tt«-"«^'' a»-Si.xo«M<I i>« >n«t^K ■ 

„. „„xx» .V cii,x^. ^w«nA.EftM.jiaaL^ "ff** «*«'-''?**^- 



in the gill en oaBe» plaintiff's eontraot ..'as for tht, delivery of 
dixt fill to be dumped ^md spread upon the land and property of 
tlie Uorth Shore Park District* and notf as defendant contendaj 
for the erection of a iDulkhead. The statute itself does not make 
any agreeisent for construction of a "bullchaad or "oreak^wator void j 
and it certainly does not aontoraplate that ivhsn such "^rork is don© 
and accepted "by a T?mnicipality, that payment shall he unla-,vful. 
Moreover, plaintiff's contract did not cover work "in any of the 
public bodies of water within the State of Illinois," within the 
meaning of the Btstute, or the ouilding of rxny bulkhead toy Srikson* 
If a permit ^ere recuired to do the work provided for in the con- 
tract it WPS the duty of the commissioners to obtain the permit. 
Considsrable time has slapsed since the dirt fill isas delivered aa4 
leveled off, and the public has enjoyed the benefits of the improve- 
ment during all this time. Therefore, in harmony wioh Badg er v. 
The ,liilet_ D rainage iJistrict , 141 111. 540, supra, the mmicipality 
should pay for "^7hat it would have had to pay had it got it in the 
right way." 

'S'roffi what has been said it follows that none of the con- 
tentions made by defendant constitutes a valid defease to plain- 
tiff's claim for damages for breach of an express contract, livhich 
is set out with great particularity in its amended statement of 
claim, "iace by consolidation the lorth Shore Park Bietriet no 
longer exists, and the optional pa3nnent by bonds could not be 
made, the effect of dafondant'a position, if sustained, would be 
to deprive plaintiff and intervener of i^ayaent for the labor and 
material furnished and unjustly sive the municipality the benefit 
of the executed contract at plaintiff's expense. The authorities 

do not sanction such inequitable results* 

The Judgment of the Municipal court is affirmed. 

Sullivan, i^. J,, and Sggtnlan. , j,, oonetjr# 



'S- 



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on i3i*i^'8X-. auH.c«s. w^rofir. rxo^e..- ^*- 



33519 



TAUBSR MOTCSS, Ino.j } 

Appellant » ) 







APPEAL WRiM CIRCUIT COURr, 

COOK couirrY* 



lEURY S. TAXJB3S-, for use ) 
of Maurice B. 2uker et al»j ) i^ o ^- tt *v .n -9 ^'\ 

Appellees. i -286 1^.61^^ 



1 
MR, JUSTICE iRISHD lELIYMlSD THiu OPIKIOBT OP THiii COURT* 

This Is an appeal froia an order of the Circuit court re- 
fusing to vacate and set aside a judgment in garnishment entered 
against Tauber Motors* Inc.» as garnishee, and also refusing leer© 
to file answer aa such garnishee. 

The history of the proceeding is rather involTsd* It was 
Initiated by complaint of Haurlee E. Zuker* also kno^m as Ja^es 
Zuker, by Charles S. 2uker» his next friend, against Henry S* Tauherj 
doing business as Broadway Auhurn Company, and Motor Aoceptanoe 
Company, a corporation* to rescind a certain contract entered into 
May 12, 1930, Maurice E. Suker had purchased from Tauber, doing 
business as Broadway AUburn Company, a Lincoln automobiles for the 
stipulated sum of |;i,80C, and delivered in trade his Chrysler car 
for which he was given credit in the sum of |l,100. The balanee of 
|700 was evidenced by certain promissory notesy secured by chattel 
mortgage. The notes and mortgage were negotiated "by Tauber to the 
Motor Acoeptanoe Company, which was joined aa defendant In the 
original proceeding. The complaint v/es predicated upon the infancy 
of Maurice B. Zuker, who sought to rescind the contract and secure 
the cancellation of the notes and mortgage* 

The Motor Acceptance Company appeared and filed its answer 



\ 






SX38S 






^TiitJOD TIUOliXD Wyyfi JJyM'^i^l^ 



C? i O ®il..X U O^ • 

Q^iti bii'iBva'^ j-oii-sSfsoo m.--f---' 

■ .^ -e-'n- .^ sot-xu^'^ .o&ex »sx \;^ 

.. -^ .h.^^ ri r,...vJ:Xeb .ua .0O8.X^. ^0 sum b3J«ii^3xa8 



-2- 



to the complaint, and answer was also filsd "by Tauber, doing "busi- 
ness as 'Broadway Auburn Compeny, 'botli dsnylng -^-hat f.uker -was ©■ 
Hiinor and that any adTantage was taken of Mm in the transact ione 
The cause was heard hy the chancellor, resulting in a decree in 
favor of complainant, finding that Tauber wae indebted to eomplain- 
B.nt in the sum of 1 700, that Zuker was under the age of t>7enty««Be 
years, and ordering Tauber to pay 2uker the sua of #700, and elso 
decreeing that the notes and mortgage "be cancelled and held for 
ns.ught . 

Peoeniber 16, 1932, the court entered an order giving Tauber 
leave to appeal from the decree thus entered upoa filiag an appeal 
bond in the sum of tl,500 within thirty days. January 18 j> 1933, 
some eleven months later, complainant's Bolioitor filed his petition 
asking that Tauber be adjudged guilty of oonteapt of court for failure 
to file hie appeal bond, and asking that an order be entered in accord- 
ance with the prayer of the petition. An order was entered, not 
however in accordance with the prayer of the petition, but modifying 
the decree so as to provide that judgment be entered against Tauber 
and that execution issue thereon. In accordance with this decree 
execution Issued January 19, 1933, and was on April 19, 1933^ re- 
turned "no property fotind." 

So further action was taken until March 11, 1935^ when a 
garnishment summons is;as issued to the Tauber Motor Sales, inc., 
garnishee, and a certain affidavit in garnishment and interrogatories 
were filed. April 24, 1935, another judge of the Circuit court 
entered an order reciting that summons had been served on Tat*er 
Motors, Inc., that it had failed to file an answer or appearance 
and was in default, and giving conditional judgment against Tauber 
Motors, Inc. May 7, 1935, a scire facies was filed in the cletk^s 
office, same having been served on fauber Motors, Inc., on May 2, 
1935, ruling it to show cause on May 3, 1935, why judgment should 






*xISXJS« 



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^"' .,, ,_,.e .^ ..MO .. ..om.«. ..I^ ^^ -^-^ -^^ ^^^^ ^^"^ 

'" . A '* > !• f-.rm-« A1 a a oa 69 "Soft «>'^''^ 

l©68jfr/x j3£Ur.,:-..« -WW"'- 

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- ..t.= .o.^>; «...,..,. .rt* 0= -oeuaBi a« ano^a .«^.»««S 

. •> .. .^^.v-" •v^ii.tofu. ,e5§f t^<2 Xi^<J^ '^^-^^^ ^^^'^ 
„. r-. eXn 0;^ bsXlat bi^rf *^ i^^-^ -•^-'^■^ '^''°*'*^ 



-3^ 

not "bs entered against it, and on June 12, 1935, final judgiaent 
T/as entarea ag?ansfc Tauter Motors, Inc., for th3 sum of C700 and 
costs. 

July 24, 1935, Henry S. Tauber filed sn affidavit irith tha 
clerk of the Circuit court setting fortli that he had never laeen 
s-^rre*? with cr receive^!! any w^ge demand, prior to institution of 
this procee-r'ing, as required "by lawj that at the time judgment was 
rendered ag^inat him in favor of Euker, Tauhor ms e. ma.tvied mn 
and thP head of a family; that he w&.s not served with execution on 
the judgment ejid th-at the return of "ITo property found" was '^thout 
his Icnowledge; that Tauber Motors, Ino,, the garnishee, was not 
indebted to him as of Ifcrch 11, 195r., and had no proparty of any 
kind, nature or description belonging to Mm as judgment dsbtor then 
or at the date of garnishment, /aiother affidavit was filed by Max 
P.. Tauber, setting forth that Tauber Motors, Inc., as garnishee, 
h8,d never been served with a wage demand as required by law, prior 
to the institution of the garnishment 6Uit| that Henry S. Tauber ^ms, 
at the time judgiaent was entered against him, a married man and head 
of a family and that Tauber Motors, Inc., was not indebted to Henrj 
S, Tauber on March 11, 1935, and had no effects or estate of his In 
its hands on that date? that any notice or summons served on Tauber 
Motors, Inc., as garnishee, by leaving copies T«ith Bd Meyer or L, H*. 
Hurt as agents, were vithout authority inasmuch as the latter were 
not officers or agents of the corporation j that the first kno^'ledge 
thst Tauber Motors, Inc., had of these proceer?isgs was at the date 
of levy; and it was averred that garnishee was u^illing to ans-s-er any 
interrogatories and asked that the conditional judgment be vacated 
and leave granted to file its ans^-er as garnishee* 

July 23, 1935, counsel for Tauber Motors, Inc», served 
notice on complainant's attorney and also on the sheriff of Cook 
county stating that they would on July 24, 1935, appear before the 



., ,, V ,,, ,..ro^o.:. v.Hd;/:.'?: ^e^nh^^B b^^ceina s^w 

» C o 

no liO-i" '■'^'^ ^■"■■^■^ noi'"' ■■■■'- 






.«,.i„«3 . ...... -^.- ^^^^^^^ ^^^^^ ^ ^^^^ ^^^^^^ ^^, ^,,^,„ ,^^ 

erft e:^0'l^>iJ T^oqqs ,c36.X ,^- '^^^^' ■ -^ 



coiirt and move to set aside tlie judgment, in gainiahment, and 
ask lep.ve to file aiisY/ex ac gernishea. The motion ?;as continued 
until July 26, 1935, and on that 6a.te denied. Tliex'^axtet ^ July 
20 1 19c5, Tsuber i'otors, Inc., Dy ita counsel, aerved nooice 01" 
appeal to this court, Bpeclfying ae ground the rcx'UB^.,! of the 
trial cotirt to vacate and pet aside the judgment a^jpainst raubtx 
Fotors, Inct 

Tsuber Motcre, Inc « , ai-Tpellant, aselgine nix separate 
grounds for reTersal, but upon oral arguiaent it;; comieiel stated 
that it relifid only upon the tT?o following} (1) That the court 
had no p07ver to modify the original decree after the clotie of 
the term at which it Trss rendered, ?nd (S) thsit no ft-age deaaaad 
having been served upon deff-miant, Henry S« Tf?uber , or Tauber 
Motors, Inc., the ief3ur„Tice of garnishaaent sumfficns against Tf.u.ber 
MotoTP, Inc., was unlawful. 

x\8 to the first ground, it is sr^ued thet the chancellGr 
on January 18, 1935 1 fflodifis-^ the decres of December 16, ISSSij, by 
psrmitting execution to issue on ths judgment after the expiration 
of the teriB, when the court had lost jurisdiction to so aiodify the 
decree. Undtr the original aecree the complainant was awarded 
4700, and the subsequent Kodification merely provided that execution 
isaue to enforce payoient thereof, ^.e a general rule, courts have 
n© po?)er to modify, alter, change or int^^rfer^ with their deoress 
ox judgments after expiration of the term at shioh they were rencleredj 
but it has been generally held that a oourfe of chancery has jio^mt to 
enJorce its decrees by lawful methodB and that an g:ceeutiQn ifs a law- 
ful method of enforcing the pajraent of decreee. ( ,T)urbin v. "'urbin^ 
71 Til. Ap-:. 51.) In the latter case the court modified Its 
origins.! decree, entered nome thirteen monthe prior thereto, eo 
as to provide for the issuance of an execution, and in sustaining 
the action of the chancellor the appellate court said that the 



Oil*. U) X^:%ir'cz-'-i rdi Lm;ocx ^siji ^::i?r| y^iio^qa ,:-l5J-oo airi".- o? Xasqci'^ 
i.;.«u.v:jl vurtix:;.'^ -tr:&.t^ !:•*.;•, vulc aft'.t'n!.?; :!fs-i bm' s:>no'jr o" d'-ruoo Isiri 

10 &i;cl'5 C:;jiJ- Xiii'iii 05'xc:!b I^:ni>-x iO anfi x'i-^'^''^'! C!^ Tswoq on bad 

•i-cfcp';'' ^iixiXiii^^s ano3!i^i;fB ineiaaoxnt^S "tc scsiri^wosi sxJ3 « . oxfT ,^'^oS'oM' 
X©Xl90j^.^xlQ i)di omi b-sirii.x<i ax vtl « hnwotg ^Ki'i?.; s*xI.t oS bA 

B<di z'^iboxn GG o.f Kox-'ci&ax-xjoi, c^aoi m-M »;ciifo-o ®rio nerfr tfii'^^v exid /:o 

8V.isxi a^xiioc tSlJJt I,'?'rftn-2 •^s bA .iOsxexf^ «?n«>srv;is;f ao'xOiK?' otf ^u&t&k 
BSfeiOfxe -xxori^J rf^iv,- s'xe'jraK^xij -xo e-aaniio t-i-giJ-I.,-;; ,7;1-r5!3ex 0,? •.tycyof Ott' 

©;J Xf-fiioq, f-.Ad -^zifortsdo lo ;i-c»oo .r, *axi;- i-).t&.d ■^j-XXft'SfeineTi ft&3cf »*»:{ *i :f«(f ~ 
-wsX .?i ill iioi?ifo;}r;t rt'='. ;?;;:Xi-"f bits a&eflc'-saf Xiilw.^X "^d" a^S'XO'^b 'i^x so-xotna 

sd'f .f5©J-'txhoi:i ^'xuoo ^fli SS.30 -;e^*.f!X srf;t fil (.Xc! fi^qA. . £XT X? 

0=^ to^tatfsxli 'xolrci af-I^xiara j:t45t!?'-jir.U oraii><:3 f30*c-iJn0 ,9St9eb Xjswxsi'Jo 

■T40in.b4jem'. xix bn-3 «rioi:.i0O:-)y.c;' r:.; l-o sotmu.sJ: Qdt "S&t sMtottq; 0$ aa 



-5- 



modification of the decree eoaplained ef consisted only in provi- 
ding an oxdirmxj method for collecting judgments and enforcing 
decrees, naaely, the issuance of an execution against tHe property 
of the delinquent delator, and approved the modification. In Totton 
^' -°^"Q^ , t 299 111. 43, the court ia ooHimenting on Fulton Inveat mant 
QSL» V. -Poraey . 220 Fed. 298 , stated* 

*>,« * "■^* ''^f ^J^^"" ?®^^ ^^^^ ^^^^^ ^^® oo«^^ a*iy aot, after 
the term, amend the principles of a final decree, it has the 
inherent right to modify by a subsequent order the tiae of its 
enforceaent or the manner in which it shall he enforced ! citin«? 
t^rrSl%rr^ ;J *^" ^"'^^^^^ ^^^^^- ^^« ^^- believe uo h^ the^ 

In M9?liaj[JIa t J^nal^ Bank v. Martin__et_aX.j. 213 111. .-pp. 
566, the oourt pointed out that it %a3 not wishin the power of the 
chancellor to amend or correct a decree in any laanner affecting the 
merits after the adjouiniiient of the term, "hut the limitation of 
the court's ocntrol to the tera at which the decree was rendered 
does not apply to provisions inBert<?d for the purpose of carrying 
the decree Into effect." To the nfm^ offset ie The Paoi^le y« Lyons, 
168 111. App. 396. Litigants have the right to the saiae remedies to 
enforce the collection of a decree in chancery for a specific sua of 
money as they have to enforce a judgment at law (Eei^htean y. Hat«^ 
17 111. 281) and in modifying the decree in the instant c,,se. the 
court did not In anywise alter the decree affecting the merits thare- 
Of but merely provided a means for enabling coaplalnant to collect 
the saiae. This it had jurisdiction to do. even after the expiratien 
of the term. 

The second contention is that no wage demand v.as served upon 
Henry 3. fauber within che provisions of section 14 of the 3arni.h- 
meat act. rhlB contention is predicated upon the affidavit.' of 
H^nry 3. Teuher and Max R. dauber. Wa find from the record, however, 
that coaplalna-nt filed counter affidavits from ^hich it appears that 
Sllis Byman had personally served the ^age demand m %nry S. Tauber 



I 



" """ i&f,^.festT3 t®*?® ,&©'? o«t£ *:ss£X^ ''^ '^-S^ 

,s«o^; .V siiio^ii sik ^- "■'■■■-'■ •'■•■ :. ■ 

. ,.. „,. ^,.,v,,>,,., .;£i;f j^jrvtiboxft' Ri bKfl (X8S *XXI 71 
5<.'ci>1 a«eHiCi,«i ^5i lioi^i- Jsto^x ...*tiv« . 



-«- 



■fey deXlTsriag a tme copy of ths original wag© deiaand on hta at 
tfes addrges of the Tauber Motors, Inc., on Mar eh 3, 1935, and 
aXeo Bervsd a copy of ths original wage deaaad upon a torothei 
0f Eenry E. Tauber git the same address, ae an officer or agent of 
Tauber Kotors, Inc., as garnishee. Byman' b affidaTlt was supported 
by that of niara Louise Crosby, v^ho stated that sh® acknowledged 
the v.ago demand slgnad by Eytaan r-jid caussd the original thereof t© 
be attached to the affidavit for garnishiaent, or the suMionB, In 
the garnishment suit. It is pointed oat by Zuker' s covtnael that 
both of the Tauber affidavits are inauff ieient in law because they 
fail to Stat 3 that Henry 3. Tauber was an .ggaployee of the garnishee, 
aof] that thig omiasion was made advisedly bocauae, as !uker con» 
tends, Tauber waa in fact an officer of the gomishee corporation 
instead of an employee, and it is Rrguad that this defect is fatal 
since it is the oleer intent of the garnishment act to enable only 
employees who are heads of faBailiep residing with thf3 same to 
reserve from gsrnlshDient part of the wages necessary to support 
their faujilies. Harris y. Montague, 247 Til. .^pp. 89, ie cited 
to support this contention. That oase holds that the burden of 
proof is on the plaintiff in garnishment to establish a garnishable 
debt, and having done bo It then bscomef: the burden of the garnishee 
to ehoTs, as a^rainst proof of the garni shable debt, the right to any 
reduction therefrom for exemptions of salary of an employee under 
the statute. In the instant case Suker in Instituting the garnia^- 
Bsent proGf.eding3, and not knowing 'Whether an amployKent relation 
existed between the garnishee and the principal defendatit, took the 
precaution of irooeeding undei- both section 5 and section 14 of 
ohap. 62, 111, state Bar. Btata., 19S5, Ha sasuaed the burden of 
establishing a .farnishable debt, and it '^hen beeeine tha fluty of the 
garnishee defendant to sho^.-^ that the principal debtor was entitled 
to exemptions uadsr the statute. By failing lo includa in the 



-s- 






-7« 

affidavits of the two TauTaera the neoessary showing that Henry 

S. Tauher wn,?? an eiaployee of the garnishee, vte think the garnishee 

failed to meat the burden thus placed upon it, and it cannot now 

assert that he was an employee and entitled to any exemption. 

The four affidavits appearing of record presented to the 

court for determination the credihility of the Tauhers on the one 

hand, and Ellis Byman and Clara Louise aroshy on the othsr hand> 

and in judging their credibility the court evidently took into 

account the fact that Tauter also denied service ol the execution 

upon him, although the return of the shariff shoT??ed that service 

was had. In serving' wage dema,nd on the principal defendant and 

garnishee, Suker cannot "be said to have acknois-ledged that an 

employment relationship existed between defendant and garnishee^ 

especially in view of the fact that interrogatories were filed 

under section 5 with the gprnishment summons. The relationship 

of Henry 3. Tauber to the Tauber Motors, Inc., in the absence of 

any showing to the contrary, must be held to have been not one of 

employer and employee but that of an officer of the corporation. 

Under the circumstances of this case we have reached the conclusion 

the motion of 
that the chancellor properly denied/Tauber Motors, Inc., to vacate 

and set aside the judgment entered against it in the garnishment 

proceedings and for leave to file an answer as garnishee. 

The order of the Circuit court is affirmed . 



Sullivan, P, J,, and Soanlan, J,, concur^ 



^7- 



.. , .^ ,..,.j; ^eA,.ici audi mbi.^d rxli :^sem of benst 

,noxoq£ii©x& y/'f' .,j,u>.. -i. 

_ „-^ ■'-•i ^T.-V', r'^^r> 'li^o'i oxiT 



belx^ STOW .errorf-.BO-^'^e^nx o^rlo .... -^xi. - 

lo eons so,:: eii^" x.i ,,j..--^ t 

lo ono son n^^^o :.^v..r- ^ " —• ^- 

. • r^o-r.^-T'M in':,p'>hui SXii 9f)Xa.8 *98 b.OG 

. ine^^irv.^. odi ni n ^^bhi.^B^ bei.3.r-t, .n.n^.x. 



.^amnvmA 






5S602 



Appellee f 







) APPIAL W-OM BUPKflOH COURT, 

) COOK COUFPY* 

TIRSS IMCURPORATM), ) 

a eorporationf ) ^f^/^T/l /*"iO^ 



appellant. ) ^O O ioil* O 

MR. JUSTICa SEISHD DSLIVSEED THS OPISTIOH OT? THE COURT. 

V/illard A^estman, plaintiff, while crossing aa inter- 
section ia the City of Chicago> was struck by an automobile 
owned toy Tires Incorporated and operated by William Hof erle, 

its servant or agent. Suit was instituted in the Superior court 

for 
to recover/injuries suataiaed by plaintiff, naming both she oor- 

poratioa and Eoferle as defendants. JJuring the trial bafore a 
Swcji Hoferle was diaaissed and a verdict was returned against 
Tires Incorporated for |5,000, upon which judgment was entered. 
This appeal followed* 

The accident accurred December 9, 1933 y at about 8j3C 
or 9iOO p*iB« •yestem avenue runs north and south, while Belmoat 
avenue ruas east and west. Both streets ara traversed by street 
car tracks. It is a busy intersection, and there are stop and 
go lights to regulate traffic. Plaintiff had been employed as 
a chauffeur for many years. On the evening in question he 
alighted froa a westbound Belmont avenue street ear at the north- 
east corner of the intersectionj crossed Belmont avenue to the 
southeast corner, and then proceeded to cross to the west side of 
Western avenue, a street approxiiaately 75 feet wide. There is a 
safety island in the center of the street. In approaching the 



\ 



susse 






. ^ f...r, , r>ijni:.'5i=:; t^a^^-S' otcaiXivv 

^^^^^^^__^^ XBsqqa 8i£[T 
.-^.. o ^r..a=...,.>su &&T::aJcoc Asi'ibloofi BdT 

erf Kox^tesii:- ci ,,mn».v.. -.> - ^ . , 
^^ ;,,,,, e«n.v. «o^.a ^«oSSa.. ^ .ov^. i*-<(3XX- 

3M3 ^nitioi^oiq^B n.L ♦o.s^o.. 



.2. 

Bffifety itslana plnlntlff lookad §» his left far rmrfeKfesaas iraffi«» 
sBdit th«y« being non«» *alir.(>5 vm% road yeaefe^-4 tli« ©^aiei" of t^ 
9tr«'9t la 6ff9ty» Be th^n vlnserYed »hjat th& gs^mi Xi^htM wisjr« s'&ill 
ia iil« t'ir^r ©ad pr«e«ediNi te^&ifdi %%& wust «l^» ©Jf tht star®«% at a. 
yather rapid pacs* ^Mfftsdaiw** au'5©««>"blX« wrie vtnaJiiif: tiXon^ %im 
tmet our% of '8st<9r7t >iV''mue a«»i*th df B«Xs»stt* ^^iixa^ for a ^J^agci 
of i^lgnals* Te «ta@ @H»t of its ea^t %l»o s«»tt^)iL&eii3a^ * ^ft^ro ea« ox* 
fc%o etlii«r ft«i^ett«bll«»» ^, i3t7tt<st oart geln^:,' i^««t on Bc^noat ^viiiiuiit 
)9i'iial^I«il %h& oajra 8 tfiiKl lag: &o th9 sudt of d@f@ad»A'. to eiarl la amnion 
alliihtlor la <%4Ttm««» of 4ett$M^n%* n <imrf «a»l It is d'Sf^odMn^^s eo»» 
i^tlea that iiieee esjrn olastracte^ Hor»yl«*s rit* ta tlis laft»» .. ftey 
iaalatiXf Itmd preoo^de^ part of tlie ^^ay fr^a &i» eoatar of - «atorn 
aT'Wim®* lilo ^'.ttm%ftoii wj^s Attrael^sd to the aortli* and he »^m 4ef«M*> 
iyit*H e»r abottt tw^-nty f«*t away, cotain^ t^lractXy townapd iiiSc iio 
heoitsit^iiT mon^ataxiXj «nd thon mid^ a a ash towasA th9 woot @ur^« Imt 
**-s fltru«f]£ ^y d«f®ndaat*e ear |uet licforo raaehiag th« easr'fe £^d 
oovoroXy iaj|ar$^# 

1^ prlBctpfil c<a«ietio«t for d^torsilaatloa la ^>h«tiiei' pX^latiff 
tmu la the «x»relg« oi* ^e OAr@ for his omi a«.fo%y# and $^X«« «he&h«r 
dofendnat wag guilty of aay a9gllgt*ao«» ifht ?«mpX.nlal »pe«if ieally 
all$ce4 d«sf^a4ant's !t«gll$9noo in opar^^^iiaf tho mmtoaH»''»ll<«» ia f^iliag' 
to i(o#p a proper lookottt* sad ta fniliag to nmm4 a ^^tnim* fharo «a« 
la affoot at th« tl»« of th* oeoasTflnoo sui or.4iaan«« of 'Sha (5i-&y of 
Chleago Uoe* 16» &a.'%* 4 of friyffle vOdo« Uniform 'iv^'SXs Qodo fox tho 
City of €hioa^« July 90t lt31) whleh ;;^iroTidoa» 

®M lattroectton® %h«jc« tr&fric i© <?oat.jfoliM hy ofilcial 
tr^flo »1i»bJ.8 or by polices officers, operate ts of T; Males tdis^ll 
ylold th« Tight of mmf to p«lo@«Tl»ne er^is-^lag or %h&mM who hssro 
ota-rt©^ to croae the ro-^wStmy OB & CJreiati oX' ♦Oo* si«^tlfii» jax*^ la all 
ethef (;«s.aos yo^ootrlaao !»hall ylels %lm rl^t of isay to ▼ehicloo 
l^^fally pr««*®^l«^ <!tr*»otly «^««d on a 5r«ea or "Go* r.l^n.%l»'* 

Uaa«r th« i>laia l»plie*-.ti©R of tihl® ordiaaaoOf ^«;f©nS«a9t*» i^«t©«o)>llo 
wao howid fco ylel4 "the I'lght of way" to '^a'f«iiiS»at* Svld«afcly ttea 
tvsff !<} sli^aals ehaago^ ti-hllo plala^lff w«.@ eroa«iaf fro» th« neater 



jsj ^a^ *■' 



- ■■ ..-..,.... ,f- l^..^.>.*r ?.5>.n Hm ?:o:Ci:,.** ,-«stil« l^«i^^- ^^^«i^^ t ?>«« 
' «« .«.« .=«*t..» = ,, ,«.^.«^« ..o«....- .«=.«. M.- ««- 

,U<'.r^Z .^^..^^^^ .^^^^^ -^' '- ^■^r..XPml i^^m -*^ -^- 



-3- 

of Western avenue to the west curb. It is undisputed tlae.t vihen 
he left the safety island in the center of the street he still 
had the green, or "go* lights in his favor and Ts'as walking rapidly 
to reeeh the other side of the street. In that situation he -was 
suddenly confronted with danger. It ie conceded ttur^t the tiso 
cars to the left of defendant were procseding south? just "beMiid 
plaintiff. Therefore, it would not have "been s-fs for him to turn 
arottnd sjnd try to reach the safety island in the center of Western 
avenue. Defendant's counsel stated on oral argumenty in response 
to ths court's question, that "plaintiff should have stood still." 
This, however, might have been fatal to plaintiff. Under fchs cir- 
cumstanoes, he pursued the only course left open to him and ma.60 a 
dash for the west curb, hoping to reach there in safety. These 
facts do not indicate a lack of due care and caution on the part 
of plaintiff for his own safety. Under the ordinance it was 
defendant's duty to "yield the right of way* and proceed in a 
cautious manner until its car had cleared the path of pedestrian 
traffic between the safety island the west ciwb. Defendant's driver 
had a clear vision before him, his headlights were turned on> and if 
he had been in the exercise of care, he would undoubtedly have obser- 
ved plaintiff rushing across the street in time to have avoided the 
collision. We think the accident resulted from defendant's negli- 
gence, and that plaintiff, when suddenly confronted with danger under 
the circumstances hereinbefore narratedf did nothing to contribute 
to the accident. At that moment the law of self-preservation prompted 
Mm to escape injury, and he '-ias not governed by the rules ordinai-ily 
relating to the care and caution required of persons in other situa«» 
tions. ( stac k v. l ast St. L ouis & Sub« By* Oo.j 245 Ill# 30S« See, 
also* Mahan v. Biohardson et al. , 284 111. iipp» 493.) Pedestrians 
crossing the street at busy intersections are entitled to the 
protection which traffic signals are intended to afford them, and 



.?> 









^^, lo^ .^^^. mad .T.^ ^ca '^luo.. n ,.xo'^e^roril ,llicrnl.X<i 
„ ,. .K- p-~...^--«r-. ^v^<i xf.c '^it Uinss i:sawm asicx2£i«o 



^ -,-^.^-^^.^,0 nx Bao..e<^ ^o 5.^i..o.-. mlium to>^>^ ^^^ ^^ S^tl^al^l^ 



— 4«» 

automobiles crossing thfv ptith of pedesjtrian trarel at such ir.ter- 
sections shoiad proceed c&utiously. Traffic lightc are likely to 
change while pedestrians are enroute scioss the street, and cau&ious 
drivers should foresee the possiToie danger of relying entirely upon 
a Changs of lights. It is thoir duty under the law to drive care- 
fully until ihey have passed the line of pedeatriaa travel anci allotr 
pedestrians to cross* 

It is urged that tho court erred ia instruotiag the ji.iry 
at plaintiff's request that on the day of the occuxranoe in >'iUe&tiony 
there was in effect the ordinanoe hereinbefore S'3t forth. It is 
ar^ed that this instruction is mandatory in Lta Ifmsttage and that 
i-ts effect was to charge the jury in positive l^^nguage that if 
plaintiff st'irted to oross the interaeotion with the green .ights 
in his favor, it then teeoame the duty of defendant to yield to hi» 
the right of way, thus disregarding lihs element of due car:- on the 
pajt of plainbiff as well as defendant's negligence, axid ^ave plain- 
tiff an absolute ri-rht to crosu the intersection, regardless of the 
surrounding circumstaaceE or conditions. 7Je do not regard the ia- 
KtruotioB as objectionable. It was simply a Etatement of the law 

in the language of the statute, and apprised the juvy OJ" the fact 

if 
that/plaintiff «fas croesiag ¥;ith the green lightss in his favor, it 

beeaiae defendant's duty to yield the right of *;ay to him* 

Defendant aliso complsins of the following instruotion, 

given fab plainiiff's request s 

"If, after fairly and impartially consid siring the testi- 
tnoay of 3I.I the witneacee ia uhis case and the-, -evidence oM the 
facts and circumstances ia evidence before you in this oase, you 
"believe from the evidence Ih&t the plaintiff at the time of and 
prior to the accident ia question exercised that degree of care 
for his ovm e^.tety th*ic an ordinarily prudent person .vould have 
exercised iinder the same circuaistanees and coniitioas as shown 
by the evidence in this case, then you are instructed that the 
plaintiff t.va^ at and beiore the &ime of the aoGident ia question 
in the exercise of ordinary care for his os?n safety," 

This instruction was nothing more than a definition of ordinary- 
care, and since the care exercised by plaintiff vraa one of the 









:Oir 









tlOi&O!' 






■.■Xij. 



^i-^ .01.':' ^■Ol-,....j^ --i ■■: „ % ..„ rvJ-TT' ?f' s&af'.i-.;'?''!!fiii'0'Xi" :.> una «iv'>..»x 



-5- 

ls3ues in the case the jury were eatitled to kno^ the effect or 
meaning of that tejrm. The instruction has laeen given and approved 
in othsr oaseS) and* in our opinion^ is not subject to the o)3jactionB 
urged hy defendant, (i ll eke v. Henrptiny 241 111, 169.) 

No point is raised &b to the measure of damages* the conduct 
of the trial or the admissiliility of evidence. ^e find no ccmYincing 
reason for reTersal» and therefore the judgment of the ; uperior 
court in P'fiirBied* 

Sullivan* F. J,, and ocaalan* J., concur* 






'.1. i';,l.>\l.i-- «^ 'J 



„„r, ^..v- 'ortp. .»!, »'•■ ^irjavilXifi 



38615 




JOBS STRYSSWSKI, also known as 
John Strewe, and ASTTHOUY POPPSBT, 
for use of Howard Larsen* a minor t 
by Ignatius Larsen, hie guard ian» 
Appellees^ 



▼ • 



AMSRIOAM MOTOEISTS INSTJRAITCB 
COMPAHY, a corporation^ 

Appellant* 



APIEAL YROU SirPlEIOR 
COURT, COCK COUHTY# 



28 6 leAa ^1 3' 



MR. JUSTICE SRISITD DELIVEPED THB OPINIOIJ OF THS COURT. 



John Stryzewski* also known as John Streve, and Anthony 
Poppert* filed a garnishment proceeding in the Superior court as 
nominal plaintiffs for the use of Howard Larsen, a minor* by 
Ignatius Larsen » his father and next friend, the beneficial 
plaintiff. The court found that there was due under the garnish- 
ment writ from American Motorists Insuranoe Company, the garnishee 
defendant, to the nominal plaintiffs for use of the beneficial 
plaintiff |4,500. Jud^ent was entered accordingly, from whioh 
defendant appeals. 

It appears from the record that John M. Strews and Anthony 
Poppert, as copartners, applied for the issuance of an insuranoe 
policy for the c ops. rtner ship, whose address was given as 6248 Warwick 
avenue. Henry Carson, an insurance solicitor for the Assureds Service 
Corporation, took the application. The premium amounted to |59«85> 
on which there was paid $10 on account. Two policies were issued, 
one by the American Motorists Insurance Co., covering insured against 
liability or injury to the person? or death, and against property 
damage, and one by the National Retailers Co., covering fire and 



2X385 






\ 'r--fs^fi£F ''i'SIOii'Il^A tine ^ai^rstao oftou 

) .;rov . :.rjr j;.- .-jA T aTB I '?70T OSS HAD I S^SKi^. 

...od... fen. ..^..^^^- n-c^ ^^- ^-^^' '^"^ iiM^^-r^^^ -■^^'' 

. ' _..,-. b-co-oK 10 saiJ ^i^^ •^o'^ ^^'^^^^^^•^^ '^^''^^°'' 

.,., ..., •>,.. ^,-.edd- dnri;i bmo^ o-z^oo eiW .l^UnisIq 
-xisxn-i/rij Of--' xt i..f.«i> ->-<■ ' 

9ea.xnt.B3 ^i£;) ,^^qaxoO eox^ai;ur:I .cr.x.olo.. .b. 

. ,r ..- -r-s ^^--w ■•0*1 a^li^Kifilo, l3Ki2aon siicf o;r ,Sn?5&nsl9b 

n'- Lon-ii-^B-I s*aX'ic.^oM nsoiieo;. exi? X^ ^^o 



«2« 

theft. The liahility policy was lfo» 3»537,060, and was issued 

for a term of oae year eommenoing August 22, 1931. By the terma 

of the policy the insurance otm^amj agreed to pay on behalf of the 

a83ureds all sums which the latter should become obligated to pay 

by reason of the liability imposed upoa them by law for damages, 

and contained a provision that the policy might be cancelled "at 

any time by either the Ifamed / seured ox the Company by giving not 

less than ten (10) days* written notice to the other party of said 

cancellation, which shall be effeotire at 12s01 a#a» on the date 

specified for cancellation in said notice* * ^ ^ If cancelled by 

the company at any time, the Company shall be entitled to the earned 

pro rata premium. Notice of cancellation in writing mailed to or 

delivered at the address of the assured as herein given shall be a 

sufficient notice on the part of the Company." On the back of the 

policy, printed in bold type, was the name of "Assureds Service 

Corporation," which was a recording agency and made up the policies 

on blanks furnished by the insurance company. Between August 22$ 

1931, when the policy was issued, and November 14, 1931, the assured 

paid only tlO on account of the pranium of |59»a5. Uovember 14f 1931f 

the following notice of cancellation i»as sent by letter to John M. 

Strewe et al., 6248 arwick avenue, Chieagoi 

"Noveaiber 14 th, 1931* 
Mr. John M. Btrewe et al.; 
6248 Warwick Avenue p 
Chioagc, Illinois. 

Ret Policy Mo. 3537060 • 
Peaj* Mr» Strewe » 

We hereby give you notice of the cancellation of policy 
#3537060, issued tc you by the /.merican Motorists Insuranoe 
Company and that said company will not be liable for any loss 
on property described in eaid policy after the expiration of 
ten days from the receipt of this notice? as provided by its 
conditions. 

If payment of |49»85, due on your premium, or a sub- 
stantiej, part is made to us before the expiration of ten days 
from the above date, this notice may be regarded as void, other- 
wise, it will be necessary to charge you for the nueiber of days 
the policy has been in force. 

We regret the necessity for this action and trust you 
will avail yourself of the opportunity to pay before cancellation 



,.-, ,.„-^ .->■: .WEX ,SS S^-'X'Sia seiamt-MO imx sno lo r«ei ii rot 
I.. „. ..,,.™>r.io ..o.a.- M«=rf3 ,.J..I ar« «»i* =««^ «» s6o«.« 

ic^r'-h fOX^ ne.* nt^.ii^f 3«sl 

•yd' ?)0XI'9orii5O ■■£■'- " ' »-<-* •■" 
f'&n'="CC ??iJJ <^^ ■,. .r a. J - " >- - 
'"■© O •' ^O.Vi-iS''*- ill— •--»■• 

- -^e IX"riB novi?. clo sr^ii >s^' j"^-"- 

..i.xe. ....-a." .0 .... erf. ... .b,^^ ^XocT .1 ...«!.. ,XoiXoc 
*i.-X'>iIoq exi* 1« ?^^^^ ^«^^ ^"^"S^- ;.nxl-xc... 

a^ j=ii^^u noe^^^B. .^casqaioa yon^.^^rtx on« ^ 

"^ ., . .,. . .....c x:^ c^ne. a.. «ox.bII.o«.o Ic .oi;ron ^ni.oXXol: ari^ 

tSwasvA •3foi:wx«V.' SI'Sd 

.Odovses .OK Yoixci ten 

voxXoq 1:a RO-^^^i-^r^' :-^.^„ ,„;"^p. • erf? yd yox OJ bs«-3X «a&OVf.cJto 
^ eox-uvmsfil a*«x-^«^o.i r^^cx.iaB^^ srf. .c ^ ^^^ ^hb^bic ; 

Bdi X^ .t>9fcxY0tq a*? ,eox^on sM3 ^o jqi.» .enoiSibnoo 

.^ei?o ,bxov aa bet^^^ ^^ ^I^^So o°%'ia'^o.n".o' XXi^ ^i .^^^.^ 



-3- 



date* 

Yours very truly » 

ASSUKSD'S SLIKVICS COEPCX^AIIOU, 
P» ■^.' • Lobing'i9T» 
Asst* Manager 
Bepartaent of Insurance." 

The trial judga held tliat this nstlce ^sas not a can- 
oellation end that it fioaounted '^ simply to a threat." Platntiff e 
counsel, in justlfiontion of the court's conclusion and finding^ 
argues that the foregoing letter purported to gire notice of oan- 
eellation only of the policy issued "by the Asisrican Motorists 
Insurance Company, T^hereae the insurance in cuestion was provided 
■fay two coBttpanles ieeued together for a joint premium? that the 
letter doss not even aaicunt tc a cancellation of the policy of the 
yjaerican Motorists Insurance Company in its entirety, hut only as 
to "loss on property descrilaed in said policy," and did not purport 
to cancel the company's liability for injury to the person, as in- 
volved in the present case; that the notice did not say that the 
policy had been cancelled, or thnt it ?;ould he cancelled, except as 
may he implied from the statement contained in the letter *that said 
company will not be liable for any loss on property ^^eocrihed in 
&aid policy after the e>;piration of ten (10) days? from the receipt 
of this notice.'* It ic also urged that the notice was never 
actually received hy the assured, and therefore the company failed 
strictly to comply with the cancellation provisions in the policies, 
and that the notice of cancellation was signed hy the Assured' s 
Service Corporation, without any sho-*/ing that the latter acted as 
agent of either of the companies* 

With reference to the last two contentions j we hare 
examined the record carefully and find ahunds.nt evidence to sustain 
the conclusion that I", v. ifObingier, as assistant managar of the 
department of insurance of Assured' s Service Corporation, dictated 
and signed the letter dated November 14, 1951, directed to John M« 



-fvao ii CiQfi fc'-vf fr:>xiO±i sM^ ^sri.? fjXoii s^«t ^s-i%i oilT 

?.^0!bJ:vii-ij s."'.'7 noi- jsfjif.p p.i. sorii5'ii/a«l ytf^ sas'-reri?? e"(t«,0QTS<5'^ ssxaj^ojeal 

Si- -Xn> c0cr tV^fcv'-li-jE-^ aili «i ■^OfSCsgcu soi^a'iiwaitx ac^^i^iO^oM £t?30i2Si«ti 

d'^ioq'X'^c Jor bzh \:n.i- 'S "■i«^Xv;o; &i:«3 tsi bis<^i%osBb x«"ts<ioiiq no e»oX" oi 

"Sii Br- taoaifti-; 3iu oci XMi;ni -xo'x. Tj.'XXxJf^ii 3'in/i:q;ffioo adJ Xsoo«» o^ 

e.u^ ^«ri* -"If^c son bl5 tjoioon sifw i-:^d..i teseo .iHss^'xg s«£o .ai jtevXcv 

B» c!'q;D0X9 < &eIIyo«.!--?. ^;i(S tl.um: ix '-'cri^ ~o tr.!S»XI:=i?3f!ai? f^agtf b.gxi •^oiXoc[ 

fii •}SGJ::-r ; b x^-z-oqaxq^ Ko assX ■s&n^ •scl: &Xdi;.ii acf ion XXiw x^^qsaoo 

^x'jj-'SOTi f-ni iso-::".: ■nj-^li (CX) nsi ■to iificf.:5ti',j.'<.-3 srli leils -^aiXcq l)i«€ 

tevaa a..;v eoxJon siU j-.3Xi;!- Ss^iii 02XS sjt SI ".saioon airiJ lo 

•yfti-oiXccr Sii^- ni enoiriva-iq Eoi-u.ylX'?on>'.?o «{o As iv-i xl<imoii <»i xlS^iiiQ 

sfi;5 lo stsjiXiBia ^Jn^^wlaaje «^ j-^bigaicfe^ » i-' *'f.' 3t.sd:i stolsiisXonto ^di 
*M ru?(oI- 0^ b3-.fo3ii& tXSSX ^-M" ■Sfcfeiavoll bs^Jsb 'xeiJt&X oiii bea^la has 



-4- 

Strevre et al«» 6248 Warwick avenue* and sent the same by regis- 
tered mail* with a request for a return receipt} that a receipt > 
signed hy "A.. Poppert" was delivered to hlsj "bj the postman in the 
regular mailf and that the registered letter was nerer returned* 
It further appears from the evidence that oae Pred Meyer, a letter 
carrier, aho had "been delivering nia,ll to the residence at 6248 
'Warwick avenue for some eight ye&rs, retui'ned to the registry clerk 
in the post office a return receipt signed by the addressee or soae- 
one at the house, and he testified that ho believed he had delivered 
the letter to John Strewe at the address designated. -hile both 
Strewe and Poppert denied that they had received the cancellation 
letter, Poppert admitted that he had alisays lived at 624i8 ■-'arwick 
avenue, and there was sufficient evidence, including that of a 
handwriting expert, to shos that the registered letter waa delivered 
at Poppert* 8 address. Since notice to one partner is notice to all 
partners (Lur ya Lumber Go. v. Bernstein^ 163 111* App, 35), we think 
the letter of JJo-vember 14, 1951, suffioientlji apprised the assured 
of the cancellation of the policy. As to the other contention, the 
record shows that the Assured 's Service Corporation was authorized 
to cancel the policy on behalf of the insurance coapany, and there 
is no provision in the policy to the contrary. Moreover # plain- 
tiffs* ^ by their owa testimonjr, developed the fact that the Assured* a 
Service Corporation was the agent of the Insuranoe company* 

The objections urged to the sufficieney of the cancellation 
are highly technical and in our opinion are untenable. The con- 
tention that the notice was ineffective because it purported to 
cancel only one of the policies is sufficiently answered by the 
fact thp.t the parties expressly agreed in the policies that can** 
cellation could be made separately* The argument that the notice 
of cancellation covered only loss on property described in the 
policy* and did not purport to cancel the company's liability for 



.,-,-..^-^- ^ ^.ti:; j;?qx-ov.^ a^y^vst a Cv(il :rse«ps^ s ^^^^ *-^^«^ ^^'''* 

ZiL .0 a..^o.bh.. .il^ ^0 ben^i. ^qleo^<r r^.«;5.-. ^ ^oino ^aoq sn^J ni 

.!!•,.,: 8^id fe h.rU. r^x^s^l^. b^^ SB ^^^^ b.^^l^soB ^t.qqo^i ,t.6^^el 
"7 ^0 1.U ^n..l..^ .ecno^av. .«.ion^.a ..- ^^s^^ ^n. .axr^rs 

^'^,.1. ,..vo.-xoM .v^--*^^-^ ^^^ -^^ ^^^^*'^ ^^^ "' «oi.xvo..I on .^ 

rioi:a'fi-iIft^^s'';so m.3 -<-0 ^'f; -"•^-•'-■•' 
r*^^j-',r'i^n- Bi e'^iioiiey sd^f 1:o ©no v,Ino I-3on.so 

, , . .^,. cr»* r-4'.«'- oJ .^-^©ffxac Jofi &ife f:"* t'^CoiXo^i 



Injury to tlxe person, is rebutted by that portion of the letter 
-which gives "notice of the canoellation of policy Mo* 3»537f060? 
issued to you by the c.merican Motorists Insurance Company." Thie 
amounted to a oancellation of the policy and all the provisioas 
contained therein, including the company's liability for injury 
to the person. As pointed out by defendant, the language omployad 
in the letter may be regarded as mere surplusage, and could not 
havrt misled ov prejudiced the policy holder as tc the effect of 
the notice. (Ooiameroial Standard I_Bsuraaoe Go. v. Garrattj> 70 
Ped. (2d) 969,) 

Plaintiffs' priaeipal criiiiciaa of the notice of oan- 
oellatlon, anc" the viev that the court evidently adopted, is that 
"it is not in effect a eancellstion, but Eterely a threat, •• sjriti 
that in order to have made the cancellation valid it ehould have 
been follov^ed by another letter after the ten days, notifying 
defendants that, hrviag failt>d to uoaply with the reculrsjinante of 
the first letter, the policy was cancelled, v.e thin>: the notice 
%&s P caneellatioa of the policy and re«iUired no f ua ther coisiciuni- 
cation. It stated *'v;e hereby give you notice of the caneeliation 
of Policy #3,537,060 * * * after the expiration of ten (lO) days 
frcaa the receipt of this notice, as provided by its conditions." 
The letter then stated tliat if payment of |49,85, due on the preiHium 
or a substantial part thereof, "is made to us before the expiration 
of ten days * * * this notice may be regarded &.B voidjr otherwise it 
will be necessary to charge you for the number of days the policy 
had been in force.** The plain implication of this letlex, ai»j the 
only conatruotioa that a reasonable person could place upon it, is 
that the company ^^as availing itself of the provieioas of the policy 
aad eerviag notice of cancellation thereof on the assured, by reason 
of their failure to pay iihe balance of the premiumj but that the 
notice would be regarded • s void if the assured, within the ten 



aitiT "j-vrn^qiiJoO 'ioiisii/y^i s^^si-i^ocio:''; fsaoxtsff^ siid ycf iro^: cd' ^e*JS3X 
ofigxBi-^o ^(i ?xiJ X.i> br!i3 vollsci. nxia 2c r!Givi»IX:>or./^o .8 Oil ba^«*?oas 
Y'Jiiiifii iicl Tc^iiXiooyiX B't^Sf.;gtcy 5ii-;5 ji,rii|:>0loni ,ris:£exi;5- Ss^isJiioo 

l-r ■. •'tij,;s^d^ B xli^i6fti ;;i.rtr , rici^BXX:i>on»o .^ ioslla X!X cion 3^ iX"* 

zo 3insaii3^i;j..si oJii n^i^? vX'jffioo o,! oyli^l. :,nxT/=xi ,;tja£i;J a^n^feast^b 

~lriu;j:mo -x^AS-ul on b^o-xups's isn^J ^oiXoq sxiJ 1g aci;j.3ll30fiA0 .« e*5w 

iTOx;?::iXX£0X!:«3 axi:: re 3oxdo:i uv^c ^"^^ii ^tie'iaii ©vv« b3^s;fQ ^I .aoi;jGs 

n%iih (01) rro;) lo noi2;Vxiqx© ^di Xfiil^ * * * 0d0tVfi3»£^ ^oiXo'X lo 

''.anex^UbKOO e^i i^G bi^Dxro-xq ss- ^:voi,^Gn alxi;: lo ;tcj.xsiOs>'x siii taoil 

xsol J'jxxa;.:? ^aS aiolfit^ su o^ sSi^sas si" ttcis'iad^ i-.a,q. l^lic^eJadua 3 to 

$t soi'AF'Xi-iiJo tftio'? a^ hifii/i^-B?)'i so v^sci ^^loiJoxi aM.r * •* * a-\^& nQ;r lo 

Xioxloq tsxi-* av.'-.b lo •xe'Gigj.jxi ;>fi^" 'lOl ae^. i^'g'ZH'iio oi xi&aa'iOQii arf S.U^ 

&ds 0X1.3 ^laJiTsI axii.? lo aosiiollqsii nxsXii &iiX %soioi ai E&otf be-rf . 

ax tuX iio<iXJ oojsXq L>Xu&o fioa-^eq; sXuaxioa.'aoi jj. ^.vj-{>l a«i Joi;-:u'8n03 tiKC 

ed? ;feri;> ^isjd jioxjisiy'xq SfXii 'zo oofs.iXsc( 3Xio iii.^vi 03 3'j.ifli*i1 liaxi* Ic 



-6- 



days, paid $49 .85 then due on the preisiuiia. The aecident wMch 

plaintiffa claimed was covered lay this poliey did not. oceur until 

April 8, 193ii, so that the assured aaok %q take the benefisg of 

a poliey upon which they cli^imed the dafendanc became liahle many 

months after they were notified that the halanee of the piemum 

w&K due. They made no effort to pay ttis balan©Q of the pretti«m» 

and could not expect the insurance company to continue the policy 

In force undar an agreeicent Tihich assured had failed to fulfill. 

The contract of the parties expressly provided that can'- 

oellation in xiting ehould he sufficient notice* and the courts 

haTe generally held that no particular form of notice is rsuuired 

for the cancellation of a policy. It wns so held in Colonial 

\8suranoe Co. r. H at, ?lre Ins* Co,« 110 111. App, 471, where the 

court said: (p. 474) 

"/.ppellee TO.g thus informed of the instructions fjiveu by 
appellant to its Chicago agents to 'take up' or cancel these 
pollcieo; and ^shile it mB.y h© true, as argued hy appellee?, that 
thia letter ^ae not in form a cancellation of the cerfeif icatea, 
it was a distinct notice to oppellee that appellant had oiJered 
the cancellation; and seiTed upon appellee as it mis constituted, 
*e think, a 'notice of such c«noeilation,» sufficient to weot Uie 
requirements of the policies in that respect, and Germinate the 
liaoillty five days thereafcer* * * *" 

^» Jiii ▼• Burgess > 134 111, App* 373, it wsis said,* 

"Ho particular for» of notice of oleotion to rescind a 
contract i© necessary. ..ny act vhioh el early indicates an 
intention hy the party to rescind a contract is sufiicicait and 
constitutes notice. Chrlaman v. lliller, 21 111. 026 j Murray v» 
Schloaeer. 44 111, 14; .vnderson v. McCarthy . 61 111. GAT^ 

■We have no doubt that the letter addressed to the assured sufficiently 

coaplied ?Jith the requiraaents of the policy and fully apprised them 

of the cancellation of the liability unless within ten days the 

assured paid the Oalanee of the preaiaa. This the so&urea failed 

to do, and the policy was therefore effectufilly canoelled upon the 

expiration of ten days after Boveiaher 14, 1S31» 

One of the aajor coatentions raised hy defendant is that 

the court had no j^i^fisdictton so enter the ge.raishment judgment, 

because the authority of Ignatius Larsen to represent the minor 



Usv.^ li^ooo ;;^f. oil) ^siic^ ^xdi^0 Dt>..5.T^. ^...^, baffii::!^ ^.tli^^i^Xq 
i3^i:^«j« SJS5 10 ^oa^I^d ^id^ ^^ii- j.oitx?en ov.-.,? nl^O' tn^l* sM^^ea: 

-n:-:> ^^.iiv :>'5;.iTD.rfi vX.i.,j:.xa;w. nalv-^q «5it.J ^o ;J.t^s.?rf&5 si!f 

(*.?!' »q,} -. &i.«s J'xfa-oo 



,., ^-,iw .,^^.Ssaj xUlM^ll ^^ -co fi©i^BXX«ofL^o ^^di t& 

s=xiJ nc":.r b3iI.^o..,^i> 'eXI^^A.^o^m ^T^t.-s^fi* a^* t^lXoq sU* ^^-« ,ob o^ 



had c-aased -miie.a ths ori^jlnal pj-ocee^- in?:^ ha^l terminated la a judg- 
msnt . In vie'?? of our conclu^iion a:-: t^^ the sufficiencj of the 
notice of cane el la t- Ion, it will "be umieoessary to discuss the 
le^al ispscts of this jurisdictional question* 

We think the court erred in entering the judgment in 
favor of plr.intiffgj and in vie-w of rvhat we have said it 'vvould 
nerve no purpose to remend the cause. Therefore, the judgment 
of the Superior court is reversed and judgment entered here for 
the £:arnlahee defendant and ag^dnst plaintiffs for costs* 

ASH agaihst i^LAiMnma POH Gorixa, 



Sullivan* P* J»> and Soanlan^ J«> concur* 






*"S^;o0oa , . I. t.as>XfiS--s;: bna ,»G »\v eGisyiXii/S 



S3635 



W^.Y DAUBIsrSE, 



Appellee^ 



▼♦ 



Appellant* 



Appellee f 



▼• 



JOHS SEgHBSRG, 



Appellant* 



I I . 






,^* M 



APP3A1 FSOlf SUPmilOB 

oouEX, Goi^ oorarrr. 



a 



MR. JlTSTIGS iKISiro HSLITSR^B TH3 OPITTIOU OP TH3 COURT. 

By this appeal defendant, John 'itenberg, eeeks ':o reverse 
two judgments entered hy the Superior court upon two jury verdicts 
returned after a single trial of two causes whlcla had heen eonsoli- 
dated "by the trial court. The actions were for personal injuries 
arising out of the s?nae accident, a collision between ti70 auto- 
ffiohiles. The plaintiff in ono case was Mary .'Daubnerj in •whose 
faTor judgment -.vs entered for t4»000j the other plaintiff was 
IPrank CJebhardt , who was awarded $6,000# 

llae collision occurred at naonj .Ueeeiober 24, 1930» at the 
intersection of Diversey and Cicero avenues, in Chicago. Plain- 
tiffs were standing at the northwest corner of the intersection^ 
waiting for a street car. A Euick autoraohile, owned by Btenberg, 
collided with a Chrysler car and then struck plaintiffs, causing 
injuries. The Chrysler car was driven by EEaaett J. Duffy, a co- 
defendant, agsinst whom no judgment was rendered. The driver of 
the Buick automobile stepped out and ran fro» the scene of the 












^^^ .._ ;::*- --^ ^^ ?*^* v*-^ /-^^ i 

t; - ^! ;' ■•' Ml ■'■ ' ': ■'^- I 



"fe-? Jfc, ■•- fc 4 






f , j^>-•XXsqq..- 



■:.':,r\ :-\' 



;i'rijtX:- IB|-;03'C£K, '10^ £-a:. :i;0'0. 



Dts^G ©ia.'^ sdo 1g iijc onxsx- 






* :J 



.. , ^ <•{ + JW'l »;■': n JTil 



-2- 

accident immediately after the occurrence. It t/^s alleged by- 
plaintiffs and denied toy defendant that the driver of the Buiclc 
ear was John Stenberg. The determination of this question of 
fact adversely ta defendant » together with the amoxints of the 
yerdicts and the charge that plaintiffs* counsel made ia^roper 
and prejudicial statements and ar.^uments in the presence of the 
jury, are urged as grounds for reversal* 

It appears from the evidence that for seven or eight years 
prior to the accident Steriberg owned his own home at 6959 Hidge 
avenue, in Chicago, where he resided with his wife ajad family* He 
was forty-nine ysr^rs of age and was the owner and operator of a 
garage at "Idge avenue and Peterson road, Chicago, which he built 
in 1924. He was also an officer of Acacia Park Cemetery Assoc iaticn 
of Buffalo, ¥. Y* 

On the day of the accident sHenberg left home in his Buick 

car at about 8i30 a«ra» and drove to his garage, where he -was in con*» 

ference with his partner, Fitzgerald, until about ten o'clock. He 

then drove the Buick to the Builders & Merchants Bank, located on the 

northeast corner of Clark street aad Baecher avenue, parked along 

the curb where other cars were also parked, and went into the baiik, 

where he talked at length with 0» A. Christensen, one ©i the vice 

presidents wh© was also treasurer of the cemetery company. According 

to otenberg's testimony, he and Christensen were expecting the arrival 

of some mail from Buffalo, and Stenberg decided to wait for the second 

delivery, at about 12:00 e*olock« hile in the bank Christensen had 

oonferenees with other persons, but returned at intervals to talk to 

Stenberg. Stenberg also oonverserJ with Martin Catte, the cashier, 

and stated that he remained in the bank constantly for about two 

hours, and left about noon. Aceordisg to the e"vidence the accident 

occurred between 12t00 and 12tl5 p«mi9 and it %as stipulated that l^e 

Builders & Merchants Bank was located some seven miles from the 
scene of the accidents 



lo tioi^ensjy siiiw lo ftoicVaniiifieasD mi's .gxeeffsjc; niic t* es'^' ^*;o 
tsqpi'-its'J. ssBia Xtjr.fi-iTO'S *a'tj:A:'-f-'x.nI«r cf.r-.ii.l- eigx.i^io f?n5 one aJai&iE-^' 

tlsa-r^'/G-; to 5: a sm/o •;:^ as b@sta s^-ss t^jti/t 

.3 ":o io^< -^'iivqc oxto 'xsKv-r© eil* ss?? haa ej^f? t& stzs% ssnjrx-'id'TOi s^w 

-nco rri Si^>T e-ii s'ss.fisr ^sss^-'B ^^'-^'^^ o>J fsvoib tos? «ax»^ Ooi8 Quod's J,e tso 
oil .lioolL^'o r-.::o crtrcdc Xxjrti:; « Dl.;5'j;3'Bs^i'n: tTsisJ^^iq; a rri dJirw soflSASt 

^-•uaid exij ojfii dnsi? .^ri;- « i;-s;3C'i.oq osX.-? &'xecv- s'jCiiO 'isriJo ©isxift' dx^o edi 

Xa>v- h/toj oi:[.3 snii!QSC[:>£s e-3.es- ne&nT;iet"m') Emib si: tV.GOcfiu'ss;} a '•aieons.t? oi 
bacDSQ sd£ %ol ihim oi bs&ioeb grtsG'ns^o ^a.f- ^oX-s'x'iwa a^ct't ll&si emoe lo 

^nsbloti-a er^c? iiOK'Si.i i"") trl;!' o3 gjiitiTOoo..; .0oori ;ixroa"3 d''ieX bni; « szjjorf 

silif S.s£f^ .tJsi'^iXiiqlda s.<^v,' i~ i bur. < *ri*CT SXiSX i)XiB OQsbJX nsswJod' .bs^iuooo 

©lie! xao'ix asXin fieyoa sisoa fscv^BOoX aaw iLri&S. Q^RMSiarsK S) QnsblluK 



Stenberg testified that when he left the %ank he looked 
for his car. It was gone* He returned to the bank and told 
Chrlstensen, who suggested that he look for it again, steaberg 
then left the hank and resumed the search? hut could aoc find his 
automobile. He went back to the bank» told Christensen his oar 
was not thaiG and thsc he was going to the Sxuamerdale police station 
to report the loss. The station was located on i'oster avenue^ about 
a mile and a half from the bank. Stenherg walked to the station; 
and on the way over met an acquaintance named Walter Conroy at 
Clark street and Foster avenue. He told Conroy that his car had 
been stolen. Conroy> who was engaged in the automobile business » 
testified to the conrersation and fi;ced the time of the meeting at 
a little pnst noon. At the station Stenberg reported the loss to 
sergeant William H. Kelly and officer Molph Meyer. Because Sten- 
berg did not know his license number and did not have his automobile 
identification card with him» no written report was made of the theft 
at that time. Kelly and iieyer both testified that btenberg arrived 
at the station between 12i30 and lsl5 ptm* After remaining at the 
station about ten minutes » otenberg returned tc his home for the 
license card, taking the Clark street ear. Gus ¥ewberg, a carpenter 
?7ho had been working at Stenberg' s home preparing a Christm&s tree» 
took him back to the police station in Jiewberg* s automobile, where 
Stenberg again reported the loss and furnished the nQceasHVj license 
information. The ritten report, dated December 24, 1930? 2i00 p»m* 
was prepared* 

According to stenberg* s testimony, he did not know his auto- 
mobile had been in an accident until December 26, 1930, tv/o days after 
the accident, when police officers c^ne to his home and notified hims 
It was thus 3tenberg's contention that his oar had been s tolen on tfee 
day of the accident, that he was not the driver thereof when tl» 
oollision occurred, and tha.t he did not know of the accident until 



ef^^ol ..i;J :^e^cr^.o^.•x B^e^ne^. nci..i. ^si^ *A .noou ^3.ci al^^^lX ^ 
.nllLL. ^i.I .v^^ ^-^ ^>i^ ^-- ---^ -"^^^^ ^'^- "^^ '"^ ''' '"^ 

.^. -oi err^oii aiiiS 0. b^ci^nu^^-x g^^edna^^ .ae^iJru^ asJ ^yoda noio^^a 
-.. ^^ fio nsXoi-«n3£a r,..>j{ .■-« -^i* "Ci:- ^-'^ 



-4- 



Deceaiber 26tli« 

On belialf of plaintiffs, Duffy testified that he had knowa 
Stenberg for twenty ye&ra, had frequently seen .hiEi in a saloon on 
7/9st Madison street, hut not within three to fire years before tha 
accident; that he saiw the driver of the Buick car step out and run 
north immediately after the collieion, and that he recognised him 
as the defendant, btenberg. He stated that the driver of the Suick 
got out of the car en the side opposite from him, and he could see 
him only partially tlirough the -windows of the car, « h diatanee of 
some fifty feet. He aaw his hack and shoulders and got a side and 
hack view of the man as he left. Buffy iiaaediately took the liesnse 
nuffiiber of the i3uick and then went to the police station xor tae pur- 
pose of finding out in whose naae the license was issued. The police^ 
after consuJ-ting the records, informed hia that >Stenherg ms the owner 
of the car, and tv;o days' later Ouffy g-.^ore out a warrant. 

The other identifying witness was :."ellie Peterson, T7ho was 
also injured as a result of the accident and suhsecuently brought 
suit against Duffy ^d citenberg. .;3he \ve,s ill at the time of the 
trial, and the hearing was delayed while her depofjitions xi^ve taken. 
Sl» did not identify Gtenberg as the driver of the Buick, but stated 
that she remained at the scene of the accident anc^ about twenty 
minutes after it occurred a checker cab, driven by Vane Jaudon, 
arrived. A passenger alighted and reiaoTcd from the Buick three 5 
gallon cans of alcohol and a bae.ket of 1»ottles, put. them in the oa> 
and drove away. She did not know who this man .ms hz the tijue, bat 
later aaw hiia is the police court and found oat that his name .7as 
Stenberg. She testified that no one tried to stop tha man v.ho re- 
moved the cems froa the Buick, no one spoke to him, and although she 
wes close enough to speak to him, she did net ask his name or make 
any other inquiry* 



jfijtaS lad'msoS'X 



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, adcJ -3:0 eaw3 erf- '-- ■s--f - .^ 

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..., « e«.« ... -= - -" -• ^ ^^^^^^^ ,^^,,,^ .^.,. 



-5^ 



To support Btenberg's feestiaonj that he \me not the driver 
of the Euicl< no:? present at tae time of the aacidoat and that his 
ear hc!.d been stolen? C. i.. Christensen, rice president of the 
Build sra & iisrchants JBajak, aad Martin Catta, &he cashier » tioth testi- 
fied to 3t«3nl>erg*s presience in the Tsank afc or about the tima of the 
accident ciXid jot ap]jroxiiaately two hotu's prior thfcXQto a-xtd of hia 
report to them shortly aftsr 12j00 o'clock that his car had be.3a 
stolen. "alter Conroy also corroborated Dtehberg^s test-uaoay aa to 
the oonvereation had on Olarlc and Poster streets, which %*as approxi- 
mately seyen tiilea froia the scena oi the accident, shortly ufter 
twalva noon, wherein r^tenberg told hia thac his ear had been stolen. 
Officer Meyer and sergeant ilelly stated thf. & otenberg was aci-uaily 
pi-2c.ent at the police station ai about l^JoO to report his loss, aad 
again at about 2s0^ o'ciosk. Qua "Jewberg testified that he drove 
Stenberg to the f^tr tion to report th'D th?5ft. Vane Jaudon, also 
confined to a hospital at the tiito of the hearing aa3 testified by 
deposition, stated that he was at the intersectioa shortly after the 
accident, stopped his car and 'silked over to the autoiBor.iles inrol>- 
ved; thai; he waa alone and then drove his ca* back to the cab stntioa 
at Cicero and Milwaokee avenues. He stated that he dii no': see any 
cans of alcohol in or around the Jutck, and denied that any v;ere taken 
from the Juick and put in his cab. Ha never knevj Stenberg. He 
testified thau he had n« passengers when he arrived at the scene of 
the accidsnt. and took none away, i^his is substantially all the 
evic'ence as to tho identification of Staaberg and the question ^hather 
or not he '«as the driver of the Buick when the accident occurred,. 

It is urged as one of the grounds for reversal that plain- 
tiffs* counsel mad-? improper and prejudicial atatementa aad. arga- 
aents in the presence of the jury, ."hieh rnBUlted in the verdicts 
against defendant and in the award ©f sxoeseive damages* The 
statements complained of «ere that L^tenberg ^as in the liquor 



. ,^„, res p 'n-ro^rjfc^!;. u^ &Qi'i 

sii;.' ts &^d^ Oil- ^wcoi" iu >-■-' ■•"'*-« 

«,.^u bM ^^o eixi Ji^ric ^ooiu'e v..^L isvX. ^x 

.T t-^.rS •.-<-•« •> trl »).Uio alii* "J-fc-^"-' o*" 

.rsioin; fi«^t>«^ ^^'^ ^-^^ •^•'^ ,. .^^n 

o;5X--"' ,f{o.i«.'.: -J — >■ •■ ^ 

.. .^ ^..^v-^ ^.s^^I*-^ &i^B "tr.0 rid beqqor.B ,3ne..i-o« 
. .... ^... .,r, 04 :4oa<f d..o .xfi .'To.b n.ri^r -a- ^^^" 

sva.' x--^> v.— - ..„t^v-t«-'-^.i ^^iii oi 3.n sone'oivs 

*r:.G tir.ro 00 ;Jnai:-xoor. cj^.- r.— >-• 



bootlegging business and operated a saloon. In his opening 
statement to the jury when plaintiffs' counsel outlined the 
evidence that he expected to introduce, he stated? 

"At that time, the defendant, Stenberg, owned three 
cars, as I understand it. Among his various occupations, 
he had a garage. * * * Mr, stenberg at one time, years ago, 
I think, operated a saloon. Later on, he operated this garage, 
and I presume operated somewhat on the side in spirituous 
liquors. 

Mr. Montgomery (of counsel for defense) 8 I object 
to that. I don't know that it has any bearing here. I think 
it is inflammatoryk 

The court: I do not think that it is hardly material 
in this case. 

Mr. Irwin (counsel for plaintiffs)! I think it will 
"be important in this particular way. It is material. I v;ill 
show in a very few moments why it is material. 

The Court: You might as well tell the jury now. 

Hr, Irwinc I am going to»* 

Later, in his opening statement counsel for plaintiffs further said* 

"JTow, the reason I said this about this man's business* 
after the accident, or at the time of the accident, there were 
two empty caas chrown out of this coupe, Mr. atenberg' s car, 
these big five-gallon cans that are used for alcohol, and inside 

of the car -^:£.s pt least one can of alcohol, and bottles of beerj 
and after the accident, about twenty minutes after the accident, 
or a half hour, a man drove up in a Checker taxicab - I got the 
number of the cab and the driver - whom we believe was Stenberg, 
and loaded from this taxicab - loaded from this Luick car into 
the taxicab, this liquor, and drove away with it." 

And in his closing argument to the jury, plaintiffs' counsel stated: 

i- 4.U .''T^en another thing. The man who was driving that oar 
at the time of this accident w8.s evidently conveying liquor con- 
trary to the prohibition act. Now you know sometimes we don't 
admit that we know all that we do know, but some of us know a 
little about the bootleggers' system that were in business. In 
those days the man who conveyed liquor was not conveying it in 
SGolencars, and there was a good reason why. The man t/Iio was 
conveying liquor in those days waseoiJering up. He was not taking 
any chances of being caught*" ^ 

It is argued that whether or not Stenbsrg was engaged in 
the illicit sale of liquor ox the owner of a saloon was immaterial 
and was brought into the case for the sole purpose of prejudicing 
the jury against defendant and to support the conclusion that if 
Stenberg was a bootlegger or a saloon keeper, the presence of 
alcohol in the oar showed that he was using the ear in and about 
Ms regular business of bootlegging at the time of the accident. 



S.bJt,38 



.ey^s-B .If ^^^-Jf Lte :5? Po ;:riw;Sca ^^o....cio et^.o., I bna 

• *^^? J'^SS:£ ;S b2r:.r^Li .HBO noXI.B-.vn sxd sae^ 

,dne)bloo3 on;? -•^''^,"^^^ . _<^ p ri: cw 9V( to riBUs b i-^aod II. £ -f^ "^^o 
^>K^ io^^ 1 - tfsoi*^^^ ccs2io9xi../ * J^X'^ds bLiB dso 8xl;t 10 ^srfmun 

^%.nx .BO -^^-%f^ll^^i1?o'. ^..ou,n bM. .d^oxxscr oxi. 
, .1. . ■...^-.- rTU-r -di 0^ in^^-B-^^ S«i30io sM fix bnA^ 
^ ..- ., ..xi^ -.nxvx.b s^w oxi^ x^am ^rf-? ;|;S^o't?Sf ^rSi* eric^ *b 

B«xoxbx;-.q lo 9noq-:^q eiOB sxl. .0- _ 

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MoTeoTeri defendant's counsel insisfce that there is no evidence 
In the record ta suiiport either of hhese ooaoluslonf=is and there- 
fore under the close questions of fact pertaining to the identifi- 
cation of Btenberg, the opening etstements 'i.nd. concluding argumenbe 
upon the^e suhjects were especially d-^uiaging. .''e i'lnd no evidsnoe 
to support the stptoment that Stanljer^ operated s, saloon* Jaffy 
testified that years before he had frequently seen Ttenherg in a 
saloon, sometimes standing "at the "bar" and on other oocaalons "in 
the rear of the s?loon, pitting down." ^e have searched the record 
in vain for any evidence to sustain the statement that Stenherg was 
in the liquor hootlegging husinesB, or that he "operated somewhet 
on the side in spirituous liquors." It is conceded that the question 
of :::ten'berg' E identity presented a sharp conflict of fact, and the 
assertion that he operated a saloon and was engaged in the illicit 
sale of liquor, without ^ny evidence to support it, undou'btedly pro- 
duced a prejudicial affect on the minds of the jurors. Plaintiffs* 
counsel not only made the opening statements heretofore referred to 
"but after the court had sustained objections thereto, repeated 
elmilar statements in hin concluding argument t Although the court 
finally told the jury to "disregard it and consider it as thou?^ 
you h^.d nerer heard it," the daaage hf.d been done an"* the effect of 
the statements had undoubtedly oije rated upon the juroro' minds* As 
was said in Chicago Union Tract ion Co, v. Lauth, 216 111, 176 j at 
p. 183 s 

"But a ruling does not always remove the ill effects of 
misconduct of counsel, Xhe rule isa that although the trial court 
may hare done its full duty in its supervision of the trial and la 
sustaining objectioas» a new trial should be granted where it 
appears that the abuse of argument has -srorked an injustice to 
one of the parties," 

To the same effect are the follov?ing cases; Bale v, Chioaf;o 

»j unction Hy , Co,, 259 Ill„ 476? pgel v, Chicago Ay» Go, , 269 111, 

561} Mattice v. Klawana , 312 111, 299,, 



«.T- 



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,;X-f e«S ,.o(L-^^?2i£2iiiS ••^iSiA.. '^^^ '-"^ ^^^ --^*'' 



-3- 

nincQ there was a sharp conflict in the evidenee as to 
the identity of the driver of the Buick automobile, the injeetiofi 
of prejudicial etateiaenta, unsupported "by evidenee, was unfair to 
defendant and mi.rht wf?ll have heon the deciding factor in producing 
tne vf^rdiotB against him. 

It is also urged that tha verdicts and judgment- are a,f.»ainst 
the manifest weight of the evidenee, and that the damages awarded 
plaintiffs are excessive. In vie^ff of the fact that ths gsusqs 
will have to be retried, W6 refrain from comnenliing on the -f-veight 
of the evidenee or ae to the damages. 

For the reasons stated the judgments of the Superior court 
will he reversed, and the causes remanded for a new trial* 

Sullivan, P. J., and Sceilan, J., concur* 



o-J tiii-YoD ^Bsf ,siOJ2*(i)iv* Y,©*" fef'JJ'-toqfxw-sxs:*-? t&^ii-S'niJ&i^s^S'si Ijsxj?J:bu{,s'xc "io 

» p.eBasjififc gjilu oJ' as vvo sons^uv;: erii l-o 



/,. 4i 






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^ J'' -J^' I 



38411 



IWITSD STATICS ^IDrSLITY MD ) 

GUARAMY GOMPAHY» a corporation, ) 

Appellant, ) appBAI FROM CIRCUIT GOmif 
) 
▼• ) 01' COOK GOUHTY. 

AUBBRX SABATH, 



Appellee. ) 25 ^ G I. A. G 1 cl" 
VE. JUSTICE SCAELASf BSilVEKeD THE OPINION Of THg COURT. 

Plaintiff appeals from a judgaent sustaining defendant's 
general demurrer to the eecond amended first count of its 
declaration. The declaration also contained the common counts, 
which were v^iithdrawn before the court entered Jud^^ent, go as to 
permit an appeal on the r'uling sustaining the demurrer to the 
second amended first count. After the demurrer had been sustained, 
but "before judgment, plaintiff's motion for leave to further amend 
the count was denied* 

The second amended first count alleges, in substanoe, that 
on July 16, 1928, an attachment suit was pending in the Circuit 
Court of the City of St. Louis, Miesouri, wherein Pollock Clothing 
Company was plaintiff and Millard's, Inc., Tsas defendant i that 
certain goods of Millard's, Inc. of the value of 13,150 had been 
seiaed by the sheriff under the writ in the case; that Millard's, 
Inc. desired to regaia possession of the goods and it became 
necessary that it should gire bond with surety in the penal sum 
of |6,30O, conditioned upon delivery of the property to Pollock 
Clothing Company, ii delivery should be adjudged, and that in de- 
fault of the delivery Millard's, Inc. should pay to Pollock Clothing 
Company the assessed value of the propextyj together with damages 



llMi^ 









) 

Cj5 1 w^ *ii..i ■- -''-"' 

.,.„i..*«... ,«scr ... .t...«-..oi' e*. ..■..r. .ir^-00 *«« t..bne«a O.ooo. 

rfx»;o-i:xO ..« nl Bf'i^"^« «^^^' ^i"« ^Kstado^i?^ hb ,6£eX ,Si ^il"^^ no 
B0irf^oXO ^oollo^ nxo:c9rf^ ,J-x«oaQxk ,.iuo.!: .«c, io ^ox.) ^X- 

■' .. » '•■T .- r r i Li bn s 111 i Hi »Xo a cw ■^inqmo'i^ 

.IiLxXxM ..L ,.e3o e^. .x .1.. od. ..5.. .^l.^xfa eri. ^d bs.xae 



-2- 

for injuries thereto, oto.? that on July I69 1928» Millard's, 

Inc. applied to pl,.lntiff in va-iting to execuiie as surety a bond 

as aforesaid; that on the srjme date cefendant, to induce plaintiff 

to execute a bond as r-,f oresaif] , executed an.-'; delivered to plaintiff 

hia indemnifying agreement whereby he ai-reec to keep plaintiff 

indemnified and to hold it harmlcj^is from and against all demands> 

liabilities, charges and expenaea, 01 .-'hatever kind or nature, 

v/hich it at any time ini~ht eustc.in or incur by reason of or in con- 

seciuence of its having ertecuted yuch bond as surety? that the 

applicstion and indermity agreement are in words and figures as 

follows! 

"TJKIT^T) 3TAT^b Jim^LUY aSI) aUABAJTPY COMPASnT 
Baltisiors, Maryland 

!• JTsJBe of Applicant • * • Mllard'e, Inc. 

2. Occupation 

3. Address 

4. 'Mature of Bond applie'-l for » • . Helease of Attaehment 

5. Penalty $6300.00 

6. Title of case . . • Applicant ys Pollock Clothing Oo« 

7. Court in \7hich filed . . • Circuit Court, City of !^t. Louis, 

Miasouri» 
* * * 

SIGNED, SEALED MW DliXIVSRHD this 16th day of Julv , 1928» 

'A^ITlfiiiSoa Victor E. Krajci MILLARD* S IMC. (SEAL) 

By i/^awrenee Jieumann (sS-^i) 

fHE U?JI)lP3ia]OD ff?;':'BY XGP.'ZT^ TO ITTTAltUTI »T and keep the 
IOTir:iiJ tiXAXi;;^i ^liiXLlHY Ml) G'UMMilY GOMPAilY indemnified and to hold 
and sare it harmless from and against any -mcl all dein-inds, lia- 
bilities, charges and expenses of whatever kind or nature, which 
it may at any time sustain or incur by re:^'^on or in conuoCiUence 
of its having executed the above described bond. Mi6. thereto he 
agrees to waive, and does hereby waive, sny right to clt-im any 
proper iy, including homestead, as exempt, under the constitution 
or law of any state or states, from levy, p.r.^rutlon, snle or 
other legal procese. 

Aim, ?i'Ur:Tffii?i, Hii GU-AIUil'lSSS that the premium on the bond 
will be paid as above agreed. 

SIGNED, SBAUD and DiSLITiPSD this 16th 6ej of July, 1923. 

WirsrSSS Albert Sobnth (oJAL) 

Lawrence Neumann 

Julius Heldiaan (SiLf^L)" 



.52- 






t s^pollo'i 



-, ,. ... --...n: YtT' ''■'E C':?:70ID«E;Q:mJ SHI 
poor ^-r^- ^0 T^b rir^M .M* O-SHlVma i^ CI2LIASH ^aSEDlfi 



-3« 



The count further alleges that ^jeeause of ths application, the 
inaeainity agreement, aiad a pramliam of (63, it executed, as surety, 
a Bele&se of Attacliaient bond in ths sum of |6,300, by «hieh bond 
plaintiff jointly, with ths oald Millard's, Inc., and severally, 
beciuae bound unto lollook Clothing Cciupany in the penal sum afore- 
said, conditioned for the delivery of the property to said company 
if delivery should be adjudged, and in default of such delivery for 
the payment to the cJiic" eorapany of the arcesced value of the property^ 
for the payment to said comp&ny of ell damages for injuries to said 
property and for its taking and detention, and all costs that aii/jht 
accrue in Baid suit, which said bond was dated July 16, 1923. (The 
bond is set up verbatim.) rhe coun;; further allciges that on July 16, 
1923, the said bond was delivered to and accepted by the sheriff ^ and 
the pronerty that had been seiaed by the latter under the writ was 
returned to Miilr.rd's, Inc.; that tiiereaiter proceedings .?arc- had in 
the sui., and on November IQ, I93j, gudgaont was entered in the cause 
against iilllard'a. Inc. for ,.3,139.50 and the property that had been 
released to Millard's, Inc. under the bond was ordered delivered to 
the sheriff to answer the judgment in favor of j.^ollock Clothing 
Company? that on Jecember a, lyso, an execution issued upon the judg- 
ment for the amount thereof with interest and costs, and for the re- 
tui*n of the jjroperty; that the writ was delivered to the sh;:.riff to 
execute; that Millard's, Inc. did not pty the judgment and. did not 
return the property to lollock Clothing Company ncr to the sheriff, 
and on December 13, 1930, the sheriff returned the writ, "Sjo property 
found, and no part satisfied;" that sections 1297 and 1327 of the 
UisBOuri statutea were in force and effect at the time. (Said sections 
are set up verbatijR.) The count further alleges that the judgment 
remained unsatlsfiedi that the value of the property was greater thaa 
the amount ©f the judgment and costs i that plaintiff, as surety on the 



-e- 



, r-rn -"ii i-^i Yrcf;q^a) -b^xs^^oV-: j.vfl^Xo- OJru 
.rct-recic-xcr siict 10 9irXr^v ho^ise.^- .^.^i.^ ^- ^^ -^ 

Sri,, ,t,>-.-. t . .. j^ r 

d be .ass need b^'xl ;J:.fC^ .vi^^.^-q 



S SV/ 3 ■*■ i • ■ •^■'■- 






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;ioxt bxb bn.. ;t^^iaB^^xi, ...^ V^c, .on 
,,,,,^. .« . ... ....o. ..«.« .00.X0. 0. ..«.o.. - - 

'iUl'J .to iv.is«j. 1^- _ , 



-4- 

bcnd, -becrme liable to pay the amount due upon the exeoutionj 
that under section 13S7 of the Mlspouri statutes Pollock Clothing 
Company, on ileoemher 29, 1930, filed its motion for judgment againet 
plaintiff as surety on the bond and that judgment was entered against 
plaintiff, on the motion, on January 3, 1931, for $3,767.40 and 
costs, and execution -waa ordered Issued thersonj that thereafter, 
on January 31, 1931, execution "as issued on the judgment f.nd plain- 
tiff, on said date, with the knov.'ledge and consent of defendant, 
satisfied the judgment by paying to 2ollook Clothing Company the sum 
of '^'2,622.35. The count further allegaa that mallard's, Inc. vms 
then insolvent and bankrupt mid that defendant, undsr his indemnity 
agreement, becsine liable to pay plaintiff v2,62£»35, and toeing ao 
liable promised to pay to plaintiff said sum; ihat jplaintiif in the 
defense, ee tlement and satisfaction of the proceedings incurrsd 
additional liabllitisa, charges and expenses in the sum of 4-750, 
and that defendant, under the terms of the indenmlty agreement, be- 
came liable therefor, and being so liable promised to pay the gajae,ete* 

The decision of the trial court was based upon the theory, 
advanced by defendant, that the bond given by plaintiff was not 
the kind of bond that was applied for by Millard's, Inc.; that the 
application contemplated only a bond Tshich v;ould dissolve the 
attachment, - in other words, a "dissolution" bond; tliat tihe bond 
given was a "forthcoming" bond, and, therefore, defendant was not 
liable under his indemnity agresaant. ^--laintiff contends tiiat the 
court erred in so iiolding. .-. like theory, advanced by the same 
defendant, was considered by us in Un i t ed 3 1 a t es Pi del i ty a nd ^ 
Guaranty Company v. fklbert Sabath , Gen» ¥o. 36410 ^ v/hereiu 6m 
opinion has been filed this day* In ohat case we considered th© 
Ciuestion at lengthy and held utett an application practically the 
same as the one in the instant proceeding contemplated a forthcoming 
bond. fih&% we there aaid fully answers the tiUestion now before us 



•-K- 



;iTOi;?i:osxD fifi;} nmu a^f'. ;tnyomi? atf:? ^^.^cr.oi- elcTsil 9OT5;o9cf ,hno(f 
SiiiaaoXO ^ooilt^H Be:M!*c;y«^ i-^^oor^M ^ii:: ^o VSf:I noiinr^e t^^bnu i.^ri-i 

*ani.-B^ ^-i;o;?n9 saw i^B^hifi *M? t^m hnocJ erf^ r.v xicr^r, ge lllcfixii^Ii 
„,ull:.; bn. .x....S^xrl e.e no b.u...r .3. no..uo..« ,1^:91 ,Xe: ^.^^hbI no 

^, .... ..>.=«o ..X,ni.I. ..»«.... Vi.».Oni SM «b„u el-^U 

ctB tiiaT;eii« ^.Jisoo .0.. .nsv *w^ -^ 



♦ uUj » eOlSc! 



-5- 



and n9«d not "be here repeated. 

Defendant also ui'ges, in support of che ruling of tJae trial 
court, that the bond fuxniehed "by plaint.ifr was not a "Reloase of 
Attachnaent" 'bon'.l, but thai it was in the natara of a "Counter 
Eepleria" bond tliat is furnislied in a repi'^^vin suit. The deiaurrer 
admitted all of the allegations of the declaration well pleaded. Th® 
declaration alleges that an at^aohiaent suit was pending; thst goods 
of Millard's* Inc. had been seized on an at taciimeai; writ; that to 
effect their restoration to Millard's, Inc. the bond was applied for 
and given; that it was given to the sheriff, and accepted by him, 
as a forthcoming bond. That the iit, Louis court so treated it is 
evident from the judgment entered. The Missouri courts have held 
that a rigid compliance with the statute is not indispensable to the 
validity of a bond and that to hold otherwise would be sacrificing 
undoubted justice to a mere technicality. (See Hoshaw v. gulJLettj. 
53 Mo. 208, 210; H enry County v. 3almon| 201 Mo. 136* 152-3; Sitate__ 
V. 0' Gorman , 75 Mo. 370| Hewton v. Cox, 76 Mo. 352; Wimpey v, Sya.na , 
&4 Mo. 144.) There is also merit in plaintiff's arguiaent that even 
if the bond given was not in rigid complianoe with the statute, never- 
theless, it was a good coMaon-law bond and accomplished the same pur^ 
poses that would have been accomplished under a bond drafted in striot 
accordance urith the statute, and that it was, therefore, valid and 
enforceable. In DraJse on i^ttachiBent (7th Sd., see. 327-a), in speaking 
of forthcoming bonds, the author saysj 

"A bond of this description? given where not authorized by 
statute, or in terms variant from those prescribed, though not 
enforceable as h statutory obligation, is not necessarily invalid; 
it will be good as a conaaen-law bond, where it does not ccnti^avene 
public policy, nor violate e statute. And so, where it is given 
to the officer who levied the attachment, when the law reouirad 
it to be given to the attaching plaintiff," 

In State v. O'CS-oraan . supra , the Missouri court said (p. 378) s 

"Conceding the bond not to be good as a statutory "l»nd» 
the conclusion drawn from this fact by counsel vy no means follows* 
If not good as a statutory bond, being voluntary, it is nevertheless 



-3- 



»b&i*'-f»cx&'£ i^'c&d ed' ion insert fjns 

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!"-.' .7c.,r a,x .oH lOS ^.i.£ .V 5?iffi^W«H ,OXS .COS .c« « 
... c.»^ ^n. -v .xoO -v nr,3-«K SOTf. .oM SV .JHSSaSJS. '^ 

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.:r;:-:.:n n %-r:: t^:^^ .^^--^ ^ - -■ -- « 



-«• 



good as a coumion l!W bond, and the parties ex':?cuting it are "bound 
by all the conditions it contains, and to the full extent of 
such conditions." 

Befendfint further urges , in support of the Judgment, that when plain- 
tiff asked leaTo to aaend the court Ixad already sustained the demurrer, 
and it thsreby confessed the insufficiency of the count. V/e find no 
merit In that contenbion. and the caees cited do not support dei end- 
ant's position. The judgment of the trial court was not entered until 
after plaintiffs motion lor leave to amend had been denied, and it 
recite, that -'the plaintiff, in accordance wi.h agree«ient heretofore 
made in open Court, withdraws and diBmisses the Second Count of the 
plaintiffs :oeclaration, being the consolidated Gordon Counts." This 
recital eridences cle.rly that plaintiff withdrew the conunon counts 
so that there might be an appeal from the judgment on the demurrer. 
V.'e do not approve the action of the trial court in denying 
Plaintiffs motion for leave to amend the second amended first count. 
In our opinion in the c^se of SchaUkia v. ROBenwaM.,^_veU, 267 111. 
App. 169, we said (p. 176)» 

The new Practice act has not changed t he above rule. The ar^ended first 
count set up a good claim, which defendant was attacking on technical 
grounds, and the court .hould have allov^ed plaintiff every reasonable 
opportunity to cure any technical defects in the count, if any existed. 

The judgment of the Circuit court of Cook county is reversed 
and the cause is ren^^nded with directions to the trial court to orernile 
the general demurrer filed l»y defendant and for further proceedings not 
Inconsistent ^A'ith this opinion, 

JUDaMSFP RWSRSSD AID CAUSl WmAmP-D 

SulM^or, T> T ^ ■» . WITH DIR15GTI0US. 

BuxiiTan, ?. J,, and Friend, J,, concur. 



.bxiiioo K'ljs i'i 



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<T'vmi^^T 5^eu« OTA o:5iEHsmi T^^^crui 




38442 



ROBiaT OSBOBIS BLAIK, SSLLAR BUILARD 
and THE PIRST UKSIOmO. BAHK OF 
CHICAGOy a eorporationy etct? as 
Trustees uadev the Last Will aad 
Testasient of Sidney 0« Blair^ 
Deceased) 

Appellant 8 t 



▼ . 



BSTTEPr BSAL ESTATS IMPHOVSKSNT 
CORPOilA'riOH et al., 

Defendants. 






APP3AL FKOM SUPiiEIOR 
COURT OF COOK COUFrYft 



286 I,A. 614^ 



CHARLIS P. SCHr/ARl2 and LAVIHIA S. 
SCH.«'ARia, (Defendants) 

Appellees* 



HE. JUSTIGS SCAHIAH DSLI?mSD THBl OPIHION GW THS QOUHT* 



I An appeal by plaintiffs from a part of a foreclosure decree 

wherein the trial court sustained exceptions of defendant Charles 
P, Schwartz to findings in a master's report that Schwartz had 
aasuHied and was personally liable for the mortgage indebtedness 
and decreed that the contract, upon which plaintiffs based their 
claim of assumption, had been cancelled* 

Plaintiffs made Howard W. Hayes and wife, the original 
makers of the note secured by the mortgage* Schwartz, who is 

I alleged to have assumed and agreed to pay the indebtedness, and 
others y defendants. 

The following findings by the master, to which there were 
no exceptions filed, are incorporated in the decrees On July 26, 
1926, Howard W. Hayes and Harriet Hayes, his wife, made and delivered 
their note of that date, for #22,000, payable to bearer five years 



\ '"^ 



s-^mc 



CHi\.iiire: a!\.LiE?: ,Fioj:a ETioaEO T^iraofi 



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-2- 

aftar date with interest at six per cent per aunum» payaljle 
semi-annually, the interest paymentB "being evidenced "by ten 
interest notes of t^eeo each; that to secure the payment of the 
said notes they executed their trust deed» "bearing the same date, 
conveying the premises In question} that the trust deed wae duly 
aokno"<7ledgeu and recorded; ".hat nine of the interest notes were 
paic? ; that plaintiffs ?.rE the owners of the principal note and 
interest note To. 10, both ol which matured July 26, 1931, and 
are unpaid; that certain t&xeu against the premises for the years 
1923, 1929 sn<? 1930, aggregating $4,525 .95 were unpaid; that the 
total amount due under the mortgage and notes, including attorneys' 
fees, etc., is |31,220«24; ''tlmt complainants have a valid and 8Ub<° 
sisting lien upon the premises involved herein, and the rents, 
issues and :o:oofits thereof for said sum, together with interest on 
#29, 791 .49 thereof at five per cent from the date of this report 
and all taxable costs, and complainants are entitled to the fore- 
closure of said trust deed." The master further founds: 

"That on September 20, 1926, Howard W. Hayes end Harriet 
Haj'es, hie sifc, ty ..axrarity ;D«jQd dated that date, conveyed and 
warranted unto Charles P. Schwartz and Lavinia S. Schwartz, his 
wife, the ^reEiiscs herein involved ano herein sought to be i'ore- 
elosed* That prior to the execution and issuance of the aforesaid 
'^arrf'iity Deed on ugiiet S-O, llitC, a contract. Viarj; xundti and fititeted 
into "between Charles P. Schwartz and Howard W, Hayes and Harriet 
H?.ye;, (•7pt-->f'? August 20) 19^6, fo;- Mie pia'ch5-£.e of uaid premiscE, 
and the Master finds from all the evidence that Charles P. Schwarta 
did purchase spid premises soxjght to "tie foseeclosed herf?ia from 
Howard W. Hp^ea snd Harxiet ilayea, and that the amount of the 
inde"btedne3F pecuxed "by the Trust Deed herein sought to be fore- 
closed, '.vas a part of the consideration MJhioh Charles P. Bchwarta 
proTEieed to vr^j for -s.id premise?, ;.n:' that Cliarles P. '•:chw£,rta 
did retain that part of the purchase price; that said contract 
provided, amon:' other thin^jr. , that Charles P. .ich-.vs.rt;? aaeuaied 
and agreed to pay the indehtedneas evic^eiiced by the notes 
described in and eocured by the Trust Deed being .foreclosed herein, 
and the Kaster finde that in aiid by said contract, Charles P» 
Bchwartss asoum^d and '^^greec^ to oey the lnd3"btedn€3e Becured 1:7 ths 
Trust Deed being foreclosed herein; that the aforesaid contract 
bsr'rine date /mgust 20, a92n t-nd ?. c^Ttified copy of the tu'raaty 
Deed aforesaid, were introduced in evidence. 

"That Howard >■• Hayes and Harriet Hayes were duly served 
with process and are the makers of the principal and interest notes 



I ( 



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mi£ tXSyl <idC^l "iI.o'X. bftii/Ssja dyiriw lo .rWc ri ,01 .oil 63oa w39t0;}nl 

'3\;6ii'xo;;' J-.3 3«.tcL'.Coxii ,*i«35oft &ri.'3 i-i5^^3sd"tOEr ©il;i^ 'icjbn« sash imjOEta Xxr^c^od' 
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bii-^x&is-id hiim ob^JXi c^^'.v .ro£i;^HOa s, ..di-'CX tUS *3in>ij-' no b-saC. xh-:^itsi^ 

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itrox'S frio^sd f3»s©Xo&'tol ofl c4' Jxisiioa a^aiyKM-j-:; t-i'JB saarfniug bib 

^'dsitinoo btR!2 i£^d* jeoliq svaivfi^iiJCi ddi lo ^■suq, isAi nisder bib 

^iuo'isxl fjyi; 0X031:0 ?•. :3Kiscr J)-3a(!: JsurtT ©xld "^tf botxroo.-i beo rti fcstflToaefc 
,=^. a«X'XiifiO ^:iiiB%^mo hX^H xd bim ax H&di shcii.1 'xe^BsM oiW bxtjs 

»90ir.aibfvo nt h^oishotini stew ,bieasT0i:j3 bSBtt 

beviss %J.ub ©tev? sg'^jbII d'e.tixeH &jxe s^-^gH »•.'• I?jbi»oH #mif** ■ ' " '■ 
Eifi^'or. ./asxsJiu* {'ae Xeqioniiq siiit lo S'cs-alBiK 9x13 s'x® bus aesooiq jSdiw 



-3- 

and the Trust Deedt and that Charles r. Schwartz was personally 
eeryed with prooesB In this cause, and is the maker of th« afore- 
said contract for the purchase of the premisss involved kerein» 
and that Howard ?• Hayes and Harriet Hayes and Charles P» 3chwartz 
are personally lialile to the complainants herein for the sum of 
v^31t220«24 with interest thereon as aforesaid* and all taxahle 
ooete herein found to be due." 

To these findings defendant Schwartz filed the following escoeptionss 

*!• For that said Master has in and "by his report certified 
that the defendant, Charles i\ chviartz> asaumed and agre sd to pay 
the indebtedness evidenced by the notes described in and sectired by 
tlie trust deed beinfr foreclosed herein, as part of the consideration 
for the purchase of the premises involved herein. 

"a. Hot that the Master has failed to show in his report 
that said contract referred to was marked on its face cancelled^ 
and there was no evidence introduced to overcome the cancellation* 

"d* For that the said Master found that part of the con- 
sideration for the sale of said preaiises niSiB the assumption of the 
mortgage debt being foreclosed herein, whereas the warranty deed 
introduced in evidenoa dated neptember 20, 1926, expresaly states 
that the property was being sold subject to said mortgage indebted- 
ness. 

*4» For that the Master mad ? many rulings concerning the 
admissibility and exclusion of certain evideaoe, that the rulings 
were and are in all respects erroneous, and the proof introt^uced 
in said cauee in all respects insufficient to warrant the findings 
of said Master •** 

The trial court sustained the exceptions and the decree provides J 

••That on September 21, 1926, Howard W. Hayes and Harriet 
Hayes in and by a Warranty Deed bearing fch£%6 date, conveyed and 
warranted unto Charles '. : ohwarta and Lavlnia S. "ctemrta, his 
wife, the premises involved herein, subject to the mortgage herein 
foreclosed! tfej^t prior to the execution hiXid issuance of tli© afore- 
said -arranty Deed, bearing dete Septeaflaer 20, 1926, on \ugust 20> 
1926, a contract was made and entered into between Charles ?• 
Schwartz and Howard '^^. ifoyes and Harriet Hayes, his wife, bearing 
date August 20, 1926, for the purchase of eaid premises, and the 
court finds that said contract was cancelled and that Charles P» 
Schwartz did purchase said prsBises foreclosed herein from Howard 
W« Hayes and Harriet Hagres, his wife* 

•That th-e defendants herein» Howard W. Hayes and Harriet 
Hayes, ware personally served ^sith gtwDBons end &re the makers of 
said principal note and interest coupons and trust deed; that 
Charles P. ichwartz was personally served and is the makar of the 
aforesaid contract for the purchase of the premises involved 
herein, ^nd therefore the court finds that Howard W. Hayes and 
Harriet Hayes are personally liable to the ccanplalnants herein 
for the sum of 4f31,220.24 with interetst aB sforesaid, and all 
taxable costs*" 

The following are the relevant provisions of the written 
contraet 9f August 80, 1926* 

-Charles P. nohwartz hereinafter called th« purchaser, 



*»£•> 






..«oJ:^q.o;c. ^x.cXXc'. ^d. beXn .^^.wr^oa 4«3b«.l:ab «BnJ:fe«n e..ii. oT 




od. s«in.oonao .B^^I.^^;^5^ ^^^^^^-^^^ 



-4<- 

hereby agrees to purchase at fhe price of Tliirty-^ight Thousand 
and no/lOO Dollars the following descrlhed rsal estate (here 
follows the legal description of the premises in ,,uestion), and 
Howard W. Hayes and Harriet Hayes hereinafter called the seller* 
agrees to sell said premises at said price, and to convey or 
cause to "be conveyed to the purchaser a good title thereto by 
general warranty deed, * * * suhject tos * * * (5) General taxes 
for the year 1926 and subsequent years? * * (10) Principal 
indebtedness ag;2;regating 5*22,000.00 secured by mortgage, truat deed 
of record, which indebtedness the purchaser does agree to assume 
* * *. 

"The purchaser has paid rwo Thousand and ao/lOO Dollars as 
errnest money to be applied on said purchase \sfhen consummated, and 
agrees to pay, within five days after the title is shown to be good 
or is accepted by himf the further sum of Fourteen Thousand and 
no/lOO Dollars, provided a deed as aforesaid shall then be ready 
for delivery. The above described mortgage of Twenty- Two Thousand 
Dollars (|22,000) is dated July 26, 1926 and recorded as "^'ooument 
#9353753 and due on or before five (5) years after date with 
interest at the rate of six per cent [Gy') per anntan payable semi- 
annually. * «• *" 

The contract also provides that "Buyer is to hare possession of the 
within deseri'bod premises immediately.'* It was signedj "Charles P. 
Schwartz Howard W. Hayes per T. C. JSrnest Harriet H. Hayes." 
Written across the face of the contract is the following! "Oaneellad 
by Delivery of Deed & Commissioa paid in Pull 9/20/26 Alvi» H* 
Eeed 4 Co. by T. 0# Smest." 

The warranty deed from defendants Hayes and wife conveyed 
the premises in question to defendants Charles P. Schwartz and 
Lavinia B. Schwartz, his wife* in joint tenancy, ♦*for and in consid- 
eration of the sum of Ten Dollars and other good and valuable consid- 
erations, «« "Subject to trust deed dated July 26th, 1926 and recorded, •» 
etc. 

The original bill alleges that Schwartz and his vsife occupied 
the premises and claimed to be the owners thsreof , and asks that 
it be determined who is liable for a dsficienoy and that a "^" 
deficiency decree be entered against such person. The answer of the 
Schwartzes neither admits nor denies the allegations in the bill, 
alleges that Lavinia Schwartz was the owner of the mortgaged premises, 
and denies that any good purpose would be served by the appointment 






' try .rivi^c^Q iii &R3? .aoi'cq bifis .^e «esxKstc[ fel.oa II©8 o- r.QdtSi^ 

.^ti^ea alcfe\:-q ffiwnn« 'isq v^a) ^^^^'^ «<^ -^ ' b» ^c * .icXlBtrfiWi 

•■.ittana .0 .I Ki •<^" ^ """^^ 

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-5- 

of a receiver. The aziBwer of tiie iiayeses alleges that some time 
prior 60 September a©, 1926 t they made and entered into a contract 
v/ith Charles P» ijehwart;^ and Lavinia a* i-iciiwarta, Ms Mite, wherein^ 
for a good and valuable consideration* they agreed to convey and sell 
the premises to the Sohwart2es» and the latter expressly pr(aiised 
and agreed to pay the aota and trust dead described in th« "bill, and 
thereby they bacame principally liable on the snaid note and trust 
deed; that the amount due, o-ving and secured "by the aaid trust deed 
waa deducted from the purchase price of the property at the time the 
same v/as sold to the Schwartzes, who thereby iaipliedly promised and 
agreed to pay all sums due under and by virtue of the trust deed| 
that by reason of the express assumption and implied assumption of 
the Schwartzes they became primarily liable for the debt sought to 
be iorecloeed by the billj that defendants Hayeses are not personally 
liable on the note and trust deed for the reason that when the note 
and trust deed became due, on J\ily 26, 1931, certain extensions were 
given to the Schwartzes ^without the knowledge and consent of defend- 
ants Hayeses* 

On March 27t 1933, plaintiffs closed their proof under the 
original bill. On May 5, 1933, defendant Howard W. Hayes testified 
in his own behalf as followsJ "My name is Howard W. Hayes. I am 
a Justice of the Municipal Court. * * * 1 -was at one time the owner 
of the premises being foreclosed herein* I entered into a contract 
with Mr. Schwartz for the sale of those premiBss on or about the 
middle of September, 1926. That was a ?/ritten contract, I have not 
got that contract with me. * * * i made a search through my safe 
deposit box, through pigeonholes, drawers and desks and everjrwhere 
that T worked in the different courts where I kept my private papers, 
and entirely through my home and through every law office I have been 
asBociuted vfith, but I have never been able to find it. it was just 
the stereotyped form of agreement to buy and sell, and as I recall, 



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sKj iuo6?^ ii> -0 Reaxia&T.'? ©soft, 'to &J.sa ^<» 

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XX...« X «o .a» ,IX.« .«. ^* 0^ -'n---*^ '^ ''^'^ ^»«*°"^^^ *"•■ 



-6- 

one of the Chios^o Real Sstafee Board iorms, moatly typewritten In 
the usual language that is contained in suoh documents j" that the 
consideration named in the contract to sell "vsas %>40,000i that the 
mortgage was made a part of the purch&r>e price? that at the time 
of the closing of the deal Schwartz stated to witneee that lie T/anied 
to buy the premises and would taice over the mortgage and pay the 
notes and the mortgage as they hecf-me duoj th-.u Sclmartz prepaxad 
the deed and submitted it to the witness and his wife for signature? 
that after the property WvS sold the witness did not recsivs any 
notices from the holder of the mortgage when interest became due: 
that such notices were never sent to hiin; that he knows thE,t they 
were sent to defendant Schwartz i that it was the middle of Jtine or 
the first of July, 1932, whan he first learned that there was a 
default in any of the payments; that he then asked defendant Schwartz 
why he had not paid these notes, why he had not paid the back taxes* 
and why he was in default on the principal note, to %hich questions 
Sehwarta replied that he did not think that he woiild be able to 
handle It; that he told Schwarta that he and his wife would joia 
with Schwartz in getting aa extension of the loan for five years? 
that the bank would be billing to make the extension if the •vitness 
aad his '^ife v.ould join in tho execution of th3 not 3 for e:t:tensios» 
that all that the bank required was the payment of the tajces that 
were past due and the payment of ths past due interest on the loanj 
that Sehwarta said he would try to ^/ork i'; out with the bank, that 
he "had a good deal of money stuck in that house;" that he had pmt 
in ISyOOO.C^ for some Improvements and had made alterations that 
"^ere completed after he took poasessionj that he had spent consid- 
erable money in putting an oil burning system in the house; that 
witness said to him: "You fell down upon your payments, but yeu 
recognized your responsibility on this inasmuch as I am edrised by 
the bank you did make e<nBe payments after the first and second year 



r f: 



cxfc; if-;ir{^ }0OC',Cf*Si asw lies q^;?' c^ojBiJitou ©x;d stl BsmsK ft-oi*.iJi:9fei:aKoo 
oxi;? ^«q to/^ bb^S^'-^ki ari;. -xoyo iXB.! bXifOi/ foc^j aejiisasiq; Oili xis^i e;> 

I0{f& eDT.-rsC'd' ;t.st&ie.'e''ni- xt^sxiw ogB^^ion ;3ri./ lo labloxi 'mi moil asoi'^on 

"visx(>-' J -Mii av-oml -sff v,".n^' :.stx;{ o# Jnc>a -xsr&xi q-xow as'jJ'^on xloi/a J'Briit 

"xo sfxiis^ 'to al'obim Bii,1 p.m:- il Jisxiit iSJtuvrd'od i aabne'^.e b oit cJitaa s:e9w 

jb as?:f r?':c«ii>t s.yri;; ')exiT..3:;)I isixl &d n&xiw , :>^Ji?X «YX£>Ti lo weriil exf:? 

axioI:^aeiip rioM?/ o« ti-jfca X.5qi:ofiXtc( Es.r[c? no ;iXir*3lsjb ai sjsw $il -^w bn«!, 

o,) ttXtl.v od r.Xfxcv. axi -.«IJ :j'njrf;f ion bib ari vivrij oMxXqsT a;^ifiwrifip^ 

HAQi ^Xuffvi- @1:ii/ gxd' l»a« ©d cfj-itl^ ^i.^^.tmxicji Moit &d ic-di til aXJbnaxf 

iK'trtr^c i?ri'j. ■j.ol riA'-fe^X s.-x^^i' 'xo xfoiriisf-uxs cb ;;^ni:3*ss ni sJ'Xawxl.oC:. xl;fiw 

0&K.c:.r.n' erl,t ■tx nox^jr!.:j^vy.e ed»''' ^ssi oS i^ttillxv; atf bXiJOv/ ^n^tS sdi -J'jaxitf, 

txsn.iffin:?v:c0 'xol sitoxt sxl? 1© iioi^uosx© Gxf;f rii xiior oXi/ow ©lift- aijS hna 

^^Bili 'ocij^-sit ,T-iiO "io ic.&cx{,aq sii.t aaw foeTXUi.trr lux^ed mii iBiii 11b ii^i 

irxiol er.'i no i^^.&'.isni-r'A f^uh *HBf.i ex(o 't.o d JKafltY/iti sit:?' fene eub isjsq ei&v. 

ivq Ixcrf srr J s[i "i^cisjoii iAdi kX 5£o;j>;2 t^'fxofii lo Xsefe fee©:?, « l)sif" $4 

ifiijcCu anoiwfl'xaJX* e.b.fa.i fo/m bnc 3.tnf;iiaftvoiq{Hi ©laoa vcot 00.000,S$ nx 

-.dianoo iXKcqe fiwxi s»xi ^.ijxi^ {noieasaaoq; sfcjo;^ oil 'iQitis heisXqstoo ©leKF 

4'«x:Lt jseixoxi siiJ xji m3d'8\:a ;gnlx^'i.x,'ci' Xi:o xib >3EXs.ioii ni ^snoffl sXrfiS'c® 

«t»Y, :?.>xtf .8,i-x3SiWT£ari. -iwov noqu mrob ll&J. uoY" tjkxxI oS M^.a 3a»n;^i:w 

^^<f feasixvL's t^w I SB £{vx;OT",x!ni airiJ no ■\;*xXid'iax7oqr.3*r -mo-^^ fesiiiiaooan 



-7- 



that you went into possession of the house on the notes, * * * 
Why don't you and I get together and work this out, because I 
will do anything in the worldto assist you by siting new paper, 
if you will;- that Schwartz -said he would try to v^ork it out 
hiaself at the bank, and that is the last I hes^rd of it. He said 
he ^ottld be able to live in the house he thought, during the fore- 
closure period, but he did not think the property ime .,?orth over 
half what he paid for it, and he did not think they would foreclose 
on him, and if they did foreclose, he ^ould remain there probably 
during the period of foreclosure;" that Schwartz ctiBO said that he 
could not pay the mortgage as he did aot hare any funds with which 
to pay it. The -.vitness further testified that Mr. Xhies, of plain- 
tiff bank, told him that he had not considered it necessary to 
notify the witness that :;oh.7art2 was in default in payments for two 
or three years, as the latter had "proaieed a dozen times to pay" 
the amounts due. v/hile this testimony as to what to. Thiee said is 
hearsay in its nature, nevertheless, aeiendant Schwartz made no 
objection to its introduction upon ttet ground, and therefore it 
must be considered and given its natural probative effect as if it 

were in law admissible. ^See £ia2 v. United Jtates, 223 U. g. 443, 
450, and cases cited thereinj Sawyer v. French, 235 . . 126, 130, 
and cases cited therein; i^utkus v. Valter, 26S 111. .^p. 624 (Abst.)s 
fedina ▼. Dodsonj, £59 111. ..pp. ^55 (..bst.); Hoover y. £S£ire„Co^ 
Co^. 149 111. App. 258, 263i Percival v. ochneider, S55 111. ..pp. 
428, 435.) i^efendant ochwart^ made no attempt to answer any of the 
testimony relating to the payment by him of interest notes. 

On ;.ugust 7, 1933, defendant Charles P. Schwartz testified 
in his o-n behalf. Upon direct he tet^tified as follows^ That he 
was a lawyer; that on September 20, 1926, he purchased the property 
in question from HoTjard \. Hayes and received a deed from him at 
that time. %. (By Mr. Adelman, attorney for defendants Schwartz 



•r- 



I „«..»ed .iuo axris ^..-r bn« ^=...«.J,oS isg I bK, OT^£ J'.oI> ^/ 
,..,.,, ««. ,nin«. ^« -^ ^«t«» o"^'- ^"^ «' ^-"''"^"^ °' '"■" 

„„.»«. ....» .^- -«^ *- "- - ^'- '" ^"^ ^^^^"^ =" ^^^ '"^ 

sd ;^^-iri^ .»>^^'« «=^^''^ EJiBV?£lso v>wid ^sxubox.).. .u 
rfoJcrfv- jd^i^v abnifl Vf's ^'^aa ?o« L^xn ©fi ^1.^-s 

,, .,:,. ,0X« ... ^«<» 0. ..:. .U.OMW... «.« »X^^.' •-' ^'"-^ '-' 

■"~ . . . ^ r.-a-ia-ta'-l i £SS »8aS .qqA .ill ^M .^ 

,,«..«/....-.-- .. «X-x^" ^.-^-»^^ .«-^" '' "*"-"■' "° 

,. ,«.T .»oXXc^ o. t.«U«* =H .o..». no,U .««K.* ..-o a« . 

^ -.cor r.o ^»diaa^g©a .HO :tr,fl«? ttES^wfiX b a, 
^1-xsciOtiQ Slid l^aarfu'xuq, eii . ^^^^X , -.* t^dm-^Jd^c 

J^. Miii moil beafa » beTTi^^o^x btm m«X«H .*/ fi^swou iB« 



-8" 



and wife) Were there any other agreements 'between you and Howard 
H£.yes and Harriet Hayes, his wife, at the time you took the deed? 
A. I bought the property for l'16,000.00 subject to the mortgage. 
I paid them t'16»000.00 and took the deed. Q,. Was any etgreement 
executed by you under which you au^gUMgd^tojig^^^ ^ 

^» l--qgTJJL-a3SumQd_tQ pay t hat mortgap^e. We closed the deal on 
the basis of $16,000.00 cash and I took the deed subject to the 
mortgage. The mortgage was executed by Mr. Hayes at the time he 
bought the property from Mr. Blair as part of the purchase price. 
^■'* AVil9LJi?i.e. di^_X03LJtS3:e.e.Ao_^ay t^^^ took that 

property subject only to the aiortgage? A. I^t J^ Jthejra^[_J_Jbou^h* 
i±, the way the deed talks." Upon croas-exsjoination the following 
occurred: "£> Before you purchased, you executed a contract to 
purchase, is that right? A. I looked for the papers, I couldn't 
find them. I presume there was a contract to purchase. Q. You are 
not positive? A. Ho, ti. isn't it a fact that a contract was 
executed about thirty days prior to the time the deed i»as given? 
A. There might hare been. q. You hare had enough experience in 
purchasing real estate to know that there was a contract? A, You 
can close a deal with a contract or without. Ci. m this case? A. 
I don't know. q. How much did you agree to pay for this property? 
A. i;16, 000.00. (4. j-re you positive of that? A^. Yes. q,. Was the 
Mortgage deducted from the purchase price? A. f/e never talked about 
the mortgage. They said the mortgage was a purch^^ise money mortgage 
for $22,000.00. I was to pay >,;a6,000.00. Q, You are positive that 
is ^hat took place? A. It is seven years ago. I have not got the 
papers. Mr. Rosenberg (representing' defendants Hayes and wif e) j Let 
ae refresh your recollection. Mark this defendant Howard Hayes' 
Exhibit No. 1 for identification. ^« Does your signature appear 
upon that document? (Howard ¥. Hayes* exhibit So. 1 for identification, 
shown the witness, was afterward introduced in evidence as complain- 



*.tl- 



,^./^ -^-in Ar,-* *Eol vi-:;9«iO'XQ «'JE[* Jdsuod I .'^ 
J*ffi£4-.^"i..&*-'-* --^ ^ ^^^ ^^, ^.,, ,„ .„ 

n^'xoqo'cq axd.> xo. v^ «? .,^,000.9X4 --^ 

,.0.. b..X.. .-n aw .. ..o... ea-.^. ..a . 

^w-f ;>o-«, :^0K i?^-^'^ ^ *^«^'^ axto9\ i'^ 

, „.-, s hMWOK) V*.-toBB50b Jm1» no 



-9- 

ants' exM"btt !Io. St ai^ is tim contract of Awgust 20, 1926 •} 
A. Yss» that is 8cr slgnntiirs. Q,« J5o you recoLleot signing this 
dooiment now? A» As I aay* my signature is on »hsre. I don't 
recollect the transaction except as I recalled it - q» Yow recall 
it now? Ign»t it a fact that you agreed to pay #38f000e00 for %Tm 
property? A, I have told you «hout the transaction as I recollect* 
Q,. Are yoa billing to change your teetimony? i-*., iJo# I aia willing 
to stand by By testiaony. ?:„• Your signature appearing en this eon- 
tract does not mean anything? A. That is jay signature, q,. Isn't 
it a fact that this contract to purclEise property w&b executed 
August 20, 1926? A. I don't know. Q,. Isn't it a fact that yoa 
agreed to pay |33,000.00? A. 1 told you isrhat the facts were as 
I recollect them. '<%* Isn't it a fact ttiat you assumed to pay the 
mortgage? A. I don't reoolleot. The contract speak? for it self g 
whatever it saye. ^. Ahat other eignatureB appear thereon? A. 
Howard Hayes and Harriet ilayes* That apparently was signed hy their 
agent. It Kust he a re=jl estate agent. ^. You signed it? A, I 
don't reoolleot. ^. jjo you deny the signature? A. Ho. Q« Do yott 
sdmit it ie your signature? A. Certainly. Q. How much did yc«i 
pay, fie.OC'O.OO? A. la rough figures, it is seven years a^o, I 
don't recollsct the deal." Bcdirect hy Mt« Adeluan: ••i^. At the tirae 
this deed was- A, Apparently this WB.e eanceXled at t'le time of %im ■ 
delivery ©f the deed. * * * Q,. At the tise that deed was d slivered - 
for that property, was this agreemont cancelled hy the parties? * * * 
A. I don't reoolleot what happened to the- » * « I don't reoolleot 
what happened to the agreeaaent except that we got a deed* fhat 
closed the transaction, and that was the hasie ^$e closed it on* ^ * * 
^. At ths tise the deed was delivered, the total agreement between 
the parties was contained in that deed? A» Yes. * * * Q,. Ifow 
were there any other agreements in existenoe betweaaa Howard Hayes 
and Harriet Hayes, his wife, and yourself and wife at the time that 



l*C£ib I •,^xt>do Hf>. si f*5if;ti.-£i-.c,iis fs ? v;i?e I aA »A ?«reh ircsEujoob 

«5jf3' t©^ 0D»»00«$£| ■\S*3«| odt.N 5®©2|^« «-0'{ ^cii-^-* ^o.al js ;Ji: ^r'xTal s^on j-i 
»io?}S.loiinx I Hi.'. c©i^fi£-afi#i?i j*ji^ Jwotf;S ifOT^ l>Xeo £V»ri I ,A ?x*T:o<IO'sq 

l^iam^xsi sg!s fi^^reijfts^ &aiyfo'Xjri^ oi! ;ro£5'E#n:oo atrf? ir^cfd^ ^o.'l ail 

tllii&ii •Ais'l Tj£.^§qa it')i';'!:ktfl0© aril .doelXoo^vi ;S *iiof> I »A -^^ftsfia^'ioja 

U!?'^; ©ci •p *0*4 .4 ?9-£A«v.i;iiBis; ads -^a&b M^i o6 «p *d'osIIoo®i: i^a&b 

etsit ';o ©sfl^ 9f!;J *s &©il9»c!ij;?si .^j^ew aid* -^Xijtfe ^^^^[A «A ->»«ar b995 aiji* 

feigs'tf-rTilafe B^w ,&«*©& 2^sfli mtiii »slt ^f ...^ * *• * -.feaeb &£i 'So xi»rtl9b 

n4^®i&';i.^<I in' £1^03 9 1^^ l»S&'i stii ib3't.»ri£&b asm b99b odi BOiti 9d$ iA m^ 
\r<i% ,.p * * * •«»¥ «A 'tb99h. iadJ ftl {)o«iij.tcto8 et^\>f notitaq, 9di 



-10- 

deed waB executed and (delivered which is not contained in this 
deed? A. That is all. * * * q^. When Y.as the last time you 
saw that document? A. I don't have an independent recollection 
of the document. I see niy aitT^ature there and notice here the 
notation of cancellation hy delivery of deed, and cooimisslon paid 
in full 9/20/26 signed by Alvin E. Eeod & Company, per somehody, 
which is the eame date the deed bears. I don't knov. if I saw 
this instrument on that date*** 

jjfter dKfendante Hayes and Dchwartz had teetified before 
the master plaintiffs filed an amended and supplemental bill| which 
alleges the Biaking of the Hayes-Schwartz written contract and that 
defendant Schwartz thereby assumed fttnd a^eed to pay the debt and 
is personally liable therefor. Still laier, the bill as so amended 
and Bupplemented» with the issues thereon* isas referred to the same 
master "7?ithGut prejudice to the order of reference and the evidence 
heard ajid taken in pursuance thereof." 

Plaintiffs contends 

"1. The Court erred in sustaining the exceptions and 
each of them of the defendant* Schwartz:. 

"2. The Court erred in not confirming the Master's 
report in its entirety. 

"3. Xhe Court erred in not decreeing ;;chv/artz tittsumed 
and agreed to pay the indebtednees evidenced by the note and 
mortgage and 1b personally liable for the deficiency* if any, 
hex ein . " 

In support of their position plaintiffs cite the folio^isg principles 

of law, none of which is disputed toy defendants 

"I. A person who purchases land and agrees to pay off 
an incumbrance on the so^e ae a part of the purchase price of 
the land, is liable to the holder of the lien for the sum due 
him. (Citing cases.) 

"II. To impose a personal liability for a mortgage debt 
on a grantee in a deed there must be (l) an express agreaient to 
that effect or (2) a retention by him of a part of the purchase 
price for the purpose of paying the debt. \ Citing oases.) 

"III. It is not necessary that the assumption of a 
mortgage indebtedness be in the deed. It may be by a separate 
written contract or by a parol oontraot, and ^ J^^^^^l^^aaJolf^ 
who agrees, either in writiag outside of the deed or by parol, 



isox ©liili' J3Sl f'ii^ sr.v'- Bad-' .p -f^ * * ,ILb is'i dsrff .A Vbaob 

5 7;i:>od's«tO!ii teq ,Vi?5.iRqffic.) ;v. bo^H .3 02-vL'' v;cf boix^ia 3S\qS;\*? IIu^ Ki 

".3;to& fcidJ^ no iv-smistisni aiHi 

3'io'xo<S belliiTit'i bsri s.iiswrf33 bits asxriH sJ'nsfin&'iab lai'L't ' • "■ - 

biiii itcfsb on'J Vv,iq Ov F«*sX3,« bm: bscfiue-a-^ xqbiciiU iS^iBwrfoO ixwbngtsB 
b&biiBmsi OG SB Hid edi ,te'tel Hi*:' .•xo^e»isji;J ©Icfi>il xLLsincaieci el 

' t&ixaJnc-o al'£jt;fftij3X*I •'■!"^^" 

H'-xeJasM Slid ;;mi;viTX'zaeo ^on xti bistis if^jjaO sxll »S" 

bacajaaja atf^Bi^'ivjo; gKi'S^'-s^&b *o« «i bei'::e ;i"UJ0J) ©xll .S" 

i\i^m li <X3Jn'=>i'>ils:3 art i a 04 ^JcF®iX ici^jUneai'sq ai toa ©g-B^dfijija 

" > aiB led 

a9l:iioalx<i ac-hfoIXOi odi aSio s^^iJnJT^Xg: noxvtxaoq iteiii lo i toqiqus at 

iinabiteli^b x^ bSoJafggJtb si dnidw lo saon ^w^eX lo 

*lo "t^Q 0,+ eosii^i has hsuiS, esmui^rjiq. odvr noateq A »!'' 

ewb miia sxl* toI naiX odd to 'xefeXoil ojc'^ ©J eXcfBiX al « bnf;! en;} 

^ _ ' (•9©Q«o s«x;fxO) .autil 

JcTob 0Si5Si;fT,pjM f; -re's •^dxXirffiX li^noeteq « 8s©«CKi oT ,11*' 
03 tfnsaviseitso s«sertg:X5> rtjs (X) od" Jaiifir Bt.&di bssb s nl s^ednsx:^ i? «• 
esfiiio'jtiq Kff^ ^0 tT.sia v. 1o mxxl T;;cf n<iiinaiet b (S) to Jofil^o iedi 
i»a&aao s£U6-ir.] ,^tr©b sxW sitt-^-q *o aaog^iiig eri^f s©! eoitq, 

B \o fiOxcJcj,rj:f®iaf; ax£;!' indt x^Bm^^otn i&R Bi .11 ,11 1" 1 

0i&'XBqii^ B x<f ©tf ^BM cH .b©eb eri.f ni ©tf uasxibstfcfebKi egaBoiOia < 



-11- 

to assume pnd pay r,n incuiabranoe tc ';hich. the preiBises conveyad 
to him are suDject, will be held upon the agreement, not only 
by his gT<^ntoT f "but "by the owners o^ the notes » the payment of 
which he assumes i although his deed contains an express oorenant 
that the premises are free from Incum'brance. (Citing oaaes.) 

"TV. It if- well settled that, rrhers one per&on enters / 
into a simple contract with another for the henefit of a third 
person, such third per5?on m^y mrintain an action for the hxeach, '■ 
and such a contract is not within the Statute of i'rauds* (Citing 
oases. ) 

"V, The intention of p. grsntee to asBume the de"bt is a 
question of fact. It may ioe derived from a contract which recites 
what liens the property is subject to, in connection with the 
closing statement showing to whom charged although that statement 
does not expressly mention the mortgage except as to interest 
theraon. (iviting cases.) 

"VI. V/here in pux chasing premises which are incumbered, 
the amount of the incumbrance is taken into account in fixing the 

conoidars Lion and becomes part of the consideration, the purchKser 
thereby becomes liable for the amount of the incumbrance." (Citing 
caees . ) 

The theory of plaintiff is "that by express proTisions of 
the contract of sale of said premises, the defendant expressly assumed 
and agreed to pay the debt and becaiue liable for the deficiency herein 
and, second, even thotigh ths debt \vere not expressly assx^med by the 
defendant, Schwartz, having purchased the property at the price of 
138,000 and paid but 116,000 cash and the mortgage indebtedneea 

of i22,000 making tha balance of the #38,000 consideration, it was 
included in and form^ a part of the consideration of the oonveymce. 
Schwartz thereby assumed tiie d abt by operation of law." 

In his brief defendtuit cJchwartz states his position as 
follows? v'e find no occasion to dispute the general propositions 
of law and the cases cited by counsel in their brief. Iz can be 
admitted that grantees in a deed may become personally liable to 
pay a mortgage note either by an express contract or an implied 

contract resulting either from a recital in the deed to that effect 

the 

or proof of the fact that, at /time of ths eonTeyance, the amount of 
the mortgage was part and parcel of tha purchase price. It can also 
be admitted that the holder of the mortgage debt may sue the grantees 
in his o^»n name as third party beneficiary. ghe only issue in 



~'LL" 



boT.~vvnoo av^-.xiJ-.Mo -xi.. --;//'!',' ,^lui '',cf XIxw ,;f'js{,cfwa 9'xa mid oi 
Xliio JOG ,SfT«me'rBi= ®?i."^ 4;^o 9^ Ytf ^JJtf Noim>is «irf X<^ 

Jnx^fiO) .sbUBi'i ^o &^ir-«i<i ext3 iSiu;fi.> ^-Jn a^ (,a©8Bo 

Sn^.i3:;Bia *^^^^«"^^^i-^;..rfi;, ^^^'oxf? noi=^n^m .^laae-xqxo ;^co b90o 
*«s'c©;?xa 0? s^; ^!I-^^-y ..Bb..?^«^«i 9' [.jiaaBO a^x^iO) .xtoevcexl. 

'to 9ox'iq feOJ ov.. i.-.^:. a , , ^ rvn-^ ar* 

/■vs ar^ iifrf )■!■ htm ^^'S OOJtOC'^ 

ro-. Pc:/ e.xii^ to sonBlKO- axU JsXtii^m 000, SS. .o 
- ,K- "xo ^t£.c' ^ vei^-o'i bar, ai fcetoipni 

^ . „,,^, ,, ,oU....o^ .<I«^ -^ ^— ^ ^-^^ ^'^^"^'^ 

- .,' a .ic^ «^^... -^-^^^^^^ :rxx.^x..l.O lui^cf .xxi ul^ 
.X* ^-riiTTPtb o;^ rtoi3.-?oao on oj-- - ^' 

.V |-,..rtTO Vd btvUo RSSi^O «Xi* ^"fi "^^^ ^° 
- -^.-i-fO 'vi-niv ni liJUXiL.0^ ^!,« .'J-'' 

ot .X.U.XX vXX.«o...<I .uioo.d ^^ bs30 X. nx a.^^^n..^ 

SgOsJXs,i.;^S S'i>.<> ^'*J- v'-^' 

^ -fno -'-^^ .^XBionexiaxf Xtim htiH^ B^ 0mBXL xt«0 «ix£ XX 

ili 9XJ^'8LJ145SJ^ ^ ■.:l- 



-12- 



M-express_.or_imEli_ed, conlract_o^^ 

(Italics ours.} Schwartz contends that "plaintiffs failed to 
allege or prove a contract of assumption ^y Charles P. Schwartz of 
the Hayes note, either express or implied at the time of the transfer 
of the property," 

t-v. /'^•'' ®^ *^® testimony taken in this case ms taken hefore 

the master m chancery. ?Jone of it was taken in open court ?h! 
Blaster had some advantage in heing able to see and hearSrl% J^?-i r 

If it were necessary subsequent decisions of our Supreme court to the 
same effect might be cited. 

At the conclusion of the testimony of Judge Hayes it seemed 
probable that the t;ritten agreement about which he had testified 
would not be found. In the direct examination of 8ch^artz he stated 
that he "never assumed to r>ay that mortgage,- that at no time did he 
agree to pay the mortgage, that he took the property subject only to 
the mortgage. Upon cross-examination, after he ^aa shomi the written 

contract, he stated that he had no independent recolleotion of the 
doeuaent, did not recollect signing it and did not recollect the 
transaction save as he had stated it upon direct. During the cross- 
examination the following occurred J "q, isn't it a fact that you 
assumed to pay the mortgage? A. i don't recollect. The contract 
speaks for itself, whatever it says.** fhe written eontrr.ct fixes 
the purchase price at |38,000, and provides that #16,000 shall ^e 
paid in cash and that Schwartz assumes the #22,000 mortgage debt. 
In other words, Schwartz assumed the payment of the mortgage pc a 
part of the purchase money and agreed that the amount of the mortgage 
Indebtedness should be included in and form a part of the consider ration 
for the canveyanoe. Schwartz, in his testimony, di. not ol.im that 



-Si- 



S^TO'XvJ^ bflS_JJ_9:^0J.Av' --*At.*li5ii-- » — ' 

{.'C^o .^i>0 — ■ '^^ -^"^ ,,.oi.*ioeb *r<3;;?*-etf^^« ^^aaooon O'xs^ ^^i ^X 

«tfl bib efsUJ- <.>n ^■^' ^i"-- .-.'.-j^^'' 
' .,.. ,„,uoo,-,. :-o.. t« .«■, U ,,ntaa» ^""--- =-' '''" -"^'"^ 

HOJ:;m*3:?r).tBnoo duo xo ^ .bq ... i^.o.. 



-13- 

"between the time of the execution of the '.irritten contract Jind the 
execution of the warranty deed there ^^as snj ne?/ agreement that 
changed or modified the i.Tritten oontracti He testified » upon 
redirect exsminatlon, rb follows: *Q,. At the tiai<3 that dssd was 
delivered for th^-^t property^ wfs this agreement oanoellsd l3y the 
parties? The V/itnessi I don't recollect what happened to the 
agreement except that re got a deed. That closed the transaction* 
and that viaiB the basis we closed it on." In eonsidering the 
equivocal testimony of Schwartss it must be borne in mind that the 
v.Titten contract gave him imrcediate possession of the property » a 
somewhat unusual concession. Yet» before it appeared that the con- 
tract had been found » he was willing to claim that no suoh contract 
was ever executed, l^'rom certain parts of Judge Hayes' t3stiraony» 
not disputed by SchT,=?artz, ib appears that at the time of the 
execution of the warranty deed Oehwarta stated that he would take 
over the mortgage and pay the notes and mortgage as they became duej 
that for a number of years after the sale Schwartz paid the interest 
notes as they became due. But the great depression came on, real 
estate values tumblsdj and Scteartz no longer laet his obligations. 
JiJven then he did not deny that, he had assumed t,o pay the mortgage 
indebtedness. Hia attitude^ as stated to Judge Hayes, v/as that he 
did not think the property mis v/orth "over half what he paid for it|" 
that he could not pay the mortgagej as he did not have "any funds 
with TJhich to pay it;* that if the bank foreclosed he could probably 
ramain in the premises during the period of foreclosure* As a defense 
Schivarta now relies upon the words written upon the face of the . ; ■ 
contract by an assistant of the real estate firm, although the first 
knowledge he had of the superscription upon the contract was when the 
document wag shown hun. during his cross-examination. The contract 
provides thc't it shall be held in escrow by the real ©stete firm. 
Under v/hat circumatanceB the words were written does not appear. 



'•CI- 

is - yitiaqotq erL*^ xo fioisssBiSoq sd'sitysjiyai mid ^Vfi^ chojaijnoo nsid,ixsr/ 
-ir.yo siii 3.&dt bet^&qqx^ ii s'so'i^d" ^s-aY « it© i: as eo no o iJBJ/axjau ;t^f{*©aio8 
icsivHco Hows o.n dsrO mfjlo oi -jHi-iliT? saw ©ri ^tojjoi H&»d fiKii i'oBiS 

©ji;} 'to SAiiu QdS tB ifiAi ^ii;.-^eQq.?\ i'i x&.itm<:ti<iZ xd hetuq&ii) ion 

\fsiib ©fiitior-jG Y-'-iii^ t!« 6S>Bg*'.tcm t:is.s -o'-ion arlS' -s&bcj fcnB as^S^'^Oiii ^^'^ ibvo 

IxvE-x ,no ©raco Koxese'iqofe 7;os':'a onM ^JifK ^eub ©fttuoecf XBiiS as ae^oiet 

";^x -xol M3(x t'li jFxJvi' ll-Bf? tsvo" i!ii?to\. as?/' •s^*T04jO'j:q yi<j jinxis'cf J on &ii) 
efeifu/^; yhb'* »^sd ion bifo sax-f s.3 <f>^f53#:tO£ii s»rld" v.sq tfO0. biwoo ©if iad* 

;. s-flo to ^oh\ et[1i ftc<iW weScri'iA' aJixow oxla' tto<iW S3sil3:£ won sd'S«wrio 

sxJi nsrK e^^w 3o«u5noo axi:? noc[U Kox^^qJttioaaaqxJe Sfl^ lo UbA ad osbsXwoi 
j»o.iiT:^noo ©ri'i ♦noii'sHJiatjjss-i.iao'^o a£x£ gniijwb raid nwoile eavr ^tnemtfor 
.fei'til oi>V5^?i'j' X.v;9i- 9/{j -ii<^ wotoae nl bl&d od XXarie ;fi; Jf.'sifi a&bivo 



-14- 

ITeither Hayos nor Schwarta knew tha,t tte real eotate f irn* s employee 
had ivritten the words across the face of the contract. The words In 
qusation were used hy a la;^aan and were intended hy him» apparently, 
as a memorcondura bh-at the wxiiten contract ^ras closed by the delivery 
of the deed. The vj-ritten contract provided that, ths sellor agrees 
to jjay a "broker's coiTimission to . Ivin H. Resd & Gompanyi and the 
superscription contains the atateiaent thau that coamuBsion had "been 
paid. In our judgment the defense w&s clearly an af i; er t hought • 

In support of hie claim that ths v;ritten contract ¥.'as can- 
celled defendant "^'chvjartz relies upon Rapp v* "itoaery 104 111, 618» 
We find that case entirely different from the inst-ci.nt one upon the 
fticts. There the Supreme court held (p. 623 )i 

"There is much evidence in the record tendinr: to prove thnt 
this written proposition was ahandoned » and a new and different con- 
tract .r.rreed upon before the contract "betv/een the pai'ties yve oloeed* 
* * * Indeed, there was no dispute in regard to the fact that upon 
the consuiQmation of the trade there VTafi a material departure frcm 
the teririB of the original written proposition. By the original 
proposition 800 jscrep of Kfinsas lands were to he {riven In exchange 
for the block, "but by the terms of the trade, as consummated, 400 
acres were given for tj^ 'block, and 160 acres for a tenement house, 
which was not mentioned in the original proposition. The fact that 
there was suoh a clear departure from the written proposition phen 
the trede was finally closed, in connection with the evidence that 
the written proposition was rescinded, when considered In connection 
Tivith the fi-u'ther fact th&t the deed conveying the lots did not bind 
Reiss to pay off th© incumbrances, was enough, in our Judgment, to 
jUL:tify the circuit court in holding that the ^rittan pioposition 
yiB-a canceled by the parties, and a new agreeaaent aiade.'* 

In the instant case, ae we have heretofore stated, f)ohwart2 did not 

claim that "between the time of the execution of the iTritten contract 

and the execution of the VHrrnnty dead there wo.s any na?; agreement 

lihat changed or modified the written contract. 

Plaintiffs contend that even if it were possible to find from 

all the facts and olrcumstanoes that the written contract was cancelled 

by Schwartz and Hayes, such cancellation ^ould be ineffectual as against 

plaintiffs, the mortgagees. 

"^here the conveyance is absolute to the grantee, Ms 

assumption of jm existing nortga.c;e creates agninnt him an abnolute 
obligation for its payment, and a release of this obligation can 

not be made by the grantor '-ithout the assent of the mortgageso 



^M' 



S.^y.^. erf? .;^o^;r«co ofF^ 1o ea.^ .x^^ 3..o-.o^ .b-row edi nern'^ M 
«^.--..t 'toIX^^ oiW .^vifJ ^Dhlvo-rq io^'r*rT<^o i^^.^-t.- ^n 

Olid hX::^'! isXK-'^'CVfitO.^,' C% Df^9-^ • ^- 

.5.XO .1X1 i-^x ^.:t^£o.^i ^^ siisli ^'^^^' ^^^^^- '''^^'"^^"' 

,5^«oXo ...ra0i^'..3ci on^ ^^^l^l^^^f r]^"^]^ on 3«w ei^n^ ^beebrtl * "* - 

«c.i.x.o,o.c,^2|^--^^;4-J^f -g;^ %,,,^^ ..I. ^^ b.I..«.o a.. 
.0. ... ....WHO. ....n.. e.o.o..-x.cl .... .. .. ,..- .n.,..i .si, nX 

,....noo n...x.. ed. .o xxox....xs erf. lo e^ii en. x.eew*«d .^la axx«Xo 

*n&i«-je>t^i' K-en -^b am, e xyxict .,>«an v« • 

,Jo:.-.i^noo ne^o^si -r oxi^^ P)9riXboCT to bQ^tmiio i^? 

..XX.on.o «.. .o.,..oo n^.^l^w e.. .... ..«....n.o.lo bx^ a.oa. oxi. XX. 



-15- 

Thes acceptance on the part of the mortgagee of the benefit of 
the asBiiJBption is a legal presumption, in the rtoaience of proof, 
of his actual disaente" (2 Jones on Mortgages (ath ed») 344, 
gee. 960.) 

A purchaser of mortgaged premises from the mortgagor, who astxaaes 

payment of the mortgage debt, or who accepts a Gonveyaac© reciting 

his assumption of the same with a knowledge of such r>.-cital, tsill 

at once become personally liable to the mortgagee for the mortgage 

indebtednessj and he can not defeat the mortgagee's righc to hold 

him responsible by procuring a release from the mortgagor* ( Bay t# 

Williams. 112 111, 91.) 

•• hile it is true that the recital in the dead itself was 
not sufficient to render appellant liable for this indebtedness 
and to authorize a deficiency judgment againct him, yet it is 
true that where a grantee in a deed in fact aasumes the mortgage 
and as part of the consideration of the purchase price agrees to 
pay the same, he is liable therefor and a deficiency judgment 
against him is proper, even though there is no express proTiaion 
in the deed to this effect. Lobdell v. Ray^ 110 111, App, 230; 
prury v. ilolden, 121 111, 130; Bay v, Jil iiams , 112 111, 91, and 
r.ig;:leston T. Morrison , 33 111. 'pp. 625, •* "( west Fran kfort Bids:. & Loan 

Assn. V. Mtiir . 237 111. App. 133, 138-9.) ■ 

hile the contention seems to hare merit, we do not deem it necessary 

to pass upon it* 

Defendant fichwartiZ has raised several technical points, none 

of which possesses any merit, and it would unduly lengthen this opinion 

to specifically refer to the same. As he conceded in his briefs "The 

only issue in this case ia one of faott Whether plaintiffs alleged 

and proved an express or implied contract of assiuaption by Charles 

P. Schwartz." \¥e may Bay> however, that plaintiffs do not claim tiiat 

Schwartz is liable by reason of any provision in the deed. Their 

cause of action, as alleged in the amended and supplemental bill, is 

that by the terms of the written contract Schwartz assumed and agreed 

to pay the mortgage deed and that the deed was given pursuant to the 

terms of the written contract. Plaintiffs concede that as lavinia 

S, ScM'-i.rtz did not sign the written contract she is not personally 

liable for the mortgage debt, and they are asking for a pe.'sonal 

deficiency decree against Chp^rles P, Behwarts only. 



I 



-'31" 

^Ifi^G (.5«- jSiiS) asit«si=ieM jdo aortoX, 2) ".d-noisgib lijudoa etd lo 

(«oae ,o&a 

(.19 »ixi axx v^,ui£xXXr^ 

as£.p5o3ef; biRi- atdc xol aX<Ji:iX Sc.-?II&Ciq^-^ -xefcfis'j: o;f i-fi©xoil'iws Son 

o.t a&easa eoi-tq. OBssdotuc eifa' ^o nol Jv-jehioaoo sxii 1:© itisg ea? bn« 

?'''5S «'/aA .J.Xi ail j^j^ag »v- X.Cj^&#bJ ,.*o®i1:s ?5iM^ o^ basb sxij nj: 

SiSiJ «I'5 ;xi: liXI ^ecT^iXIi,.^; '^ mi ^-^-i^ 'f^- ^^ s£$h^£^ *v :5i^iL5^ 

xiboJ * '.h£>X5 ttacMxTBil ^BsT) "%CS& ,qc . ,liz £8 t^I0?iI:ilSi3i 'V £o£3M-;iiS. 

«^ ci._„ . (.e-8SX tSSX ,qqk .III VSS ,ii6U .v .naaA 

«.tX no<iw 3aj?.q o-t 
aolffiiro fid? mAigml \:Xm&ku liXitrov; ii &n.« ^iit^ss ^,>5 assyaaaoq il©lilw "io 

ex flXxo X^i^flsKf'Xqoi/e hm^ b^ibtmmi s>«15 KJ iejssXX'a aJ3 ,noi3o3 to ssw^o 

tjejs'XB-*- &fi-i t)0BiiJ3a« a^-sijwiloS ^3«*j:^rj©o KSj;J.-tl-m mU lo B«tie;> ©lii ^cf i<MiS 

Bdi Hi imaaimi m^vi^ saw bos)b 0f£v^ ;Jitff;S: 5^/?. fe»&& ©s«s^t.om o/ivS v;«<S o^ 

fiiSfiY.*5.I ?!s S.sfl^f 96?JOft6o at'iidKi.^.X'i ^ion's.'^rioo E»,t.^j:-xw arJ^t "5:0 a«T«*-^ 

■^XX-eKcsTii^g Jort sx ©XiV; d-os'Ti^Koo a^Silxv- Qiii rt'^.ts ion hib s^irvri^r- ,?, 

,-<;Xh«> s*i,awjfo8 *'^l RsXrt.'aKO ^etti/iSfS estof^b t;0«»J3i^°" 



. -16- 

/ 

The decree o:*^ bhe 8ttp«r(li.<lar court of Oook county In «o 
far as it denies the rl£ht of plaintiffs to a conditional 
personal deficiency decree a.gainBt "Schwartz, is reversed, and 
the cause is remandec! with directions to modify the decree "by 
provi'ing therein for puch conditional personal dsficiency 
decree ageinst Schwartz, 



ouXliTan* 2, J*, and Priend* J«» concur i 



•• '^ '' - 



,-X/iOriQC- (tl ti)K3il-'iI &i-.ii ,.i. .y. tfijoYiiXt/u 



■ / J I A 

LSSTM? JASTKOWSKl, ) / I 

Appellant > ) 

) APPSL'j;, 5*R0M CIRCUIT 

t^» j COURT OF aOOK OOUaTY, 

JOffir P* KGBE4THSKI, ) -. , .. -^, ^^ ^ -s /i^ 

-appellee. ) ^O O ^,A. t> 1 4 

MR. JXrsTICS SCAHLAS DELIVERED THS OPIHIOIT 0:5* THE COURT. 

This is an appeal from a judgment in an action in trorer, 
tried lay the court without a jury. The court fotmd defendant not 
guilty and plaintiff has appealed from a judgment entered upon 
the finding. 

The first count of the complaint alleges, in substaaoe» 
that on Deosmher 6, 1929, plaintiff was the owner and possessed 
of a certain note cOid trust deed of the value of ^32,500 and that 
defendant at that time ".wrongfully took, carried away, and unlaw- 
fully converted the Scime to his own use. The second count is the 
same as the rirst eave that it further 8,lleges that defendant 
wilfully, maliciously, tortiously and fraudulently took and carried 
away the property and converted the stone to hie own use. The third 
count is the same as the first save that it further alleges that 
defendant unlawfully pledged the property as collateral security 
for his loan of |4,300 and that plaintiff vi?as compelled to pay the 
loan to recover his property. The fourth count is the same as 
the second count save that it further alleges that defendant 
wilfully, malictouBly, tortiously and fraudiilently pledged the 
property as collateral security in the payment of his loan of #4,800 
with the intent to cheat and defraud plaintiff. The fifth count 
consists of the cotmaon counts. 

I 



''•"'■•iUMIM*-.: .^,. 



TIiTCJiiG MOHf j:xi;i:s;<%A 



5ie8< 



( ^1^BWXYJ,.X. STT3EJ: 



,Y'iirUO0 SOOO ^0 a^HUOD { *r 

• Bfl-iSnil Btii 

,©0fr.Bd'acfjji5 ni saossILs iainliiLioo arli 'io Jnuoo d'a'ii'l erlT 
fooaeenaoq &fi.a xiir-vo sxl;; ff«w llxJjsi;iIq , QiiSI «o 'XscffiisoaC. no AbtH 

b'thii srfT .D-u; av70 aM oci asiViS ©xU feeJ-xovrfoo brxr. ^i,tj:9Q.oig sri;f x^p/js 

an sums Biii vl iniiov diisjol sri'i I'^ii'x&q.o'rq eixi ■xevooe-x oi njsoX 

iHBfcfolsb ;>Bjdi ae^sJ^-t-' 'led^iul ix Si'ilJ pvob cxjwoo fcnooea odi 

siicf b&B^^-J^H; X-C^^-'-i^^^'"--^'^ ^^^' Y.Xai/oiJt£o^ t-^^^XciUOXoiXsm ,vXIxr'iIiw 

008tl'# lo ix:?oX alxf 'io i ii9xsiy;>e(i odi ax -^^siijuooe IjS'xeuBXXoo a.a \;o-i&gLO"x^ 

dxjjwoo xUlxl- ?ri'i .llxd-ni.HXq busTl&b bm i&eiio od- ;fn?/^n.t bdi sii Iff 

.aifXfefco xiC'r:u30o s>xi3 lo sd'aianoo 



-2- 



The instant suit was started a fevj days "before fixe running 
of the statute of limitations. Defendant's wife is a sister of 
plaintiff. I>efendant and hie -Tife had "been separated for some 
time prior to the trial, the '4^if© living in Europe spith her parents* 
Until 1928 the note and trust deed undouhtedly belonged to the 
father and mother of plaintiff, who resided in Europe. Plaintiff, 
a lawyer, olalias that i?hile he was in Europe, in 1928, his father 
Eiade him a present of the mortgage. .^t that time the note and 
trust deed were in plaJlntiff's safety deposit box in Chicago. 
Plaintiff's mother, wliile in this country in tha early part of 1928j 
had turned over the note and trust deed to plaintiff to keep for her $ 
and plaintiff placed the note and trust deed in his safety deposit 
box and they were there when he left for Suxope in September, 1028. 
Prior to his dep&rtmre he executed a power of attorney to his sister. 
Thereafter no one but plaintiff and his siBter had access to the 
box. Plaintiff testified that when he returned to Chicago, in the 
latter part of August j 1929, he want to his deposit box and found 
that the note and trust deed were not in the boxj that he then spoke 
to his Bister and defendant about the matter and defendant told hia 
he had pledged the note and trust deed at a bank to secure a loan awL 
that he was then unable to pay the loan; that plaintiff paid the loan 
to obtain the security, pledging the note and trust deed to his own 
bank to secure the money to pay for defendant's loam that the wife 
of defendant thereafter paid #1,000 of her own money on account of 
plaintiff* s loan. Plaintiff further testified that on IToveaiber 15 j 
1930, defendant needed some money and aeked plaintiff if he vould 
place the note and mortgage as collateral s^^curity for a loan to 
defendant, that plaintiff agreed to the request and defendant and 
plaintiff signed a note to the iloel State Bank for the amount of the 
loan, plaintiff giving the note and trust deed as collateral Bscui-ity 

I 



6U08 ■:<:o:; &e;y.!i2nq:3e nrfxf tA^fl pt.trr ^.m i>na itiX'^^Ms^se « 'i'ii;f«l8Xg 
QXii- o;f he.BXJcIed •^X?>e;^cf);jobKi; Sseh ie.ivii fun.?' erfofi sricf 6SSI ljir«vj 

fina iiucfi ail* sifiic; Jariv S-.. je-Tj^-is^toia iiii::t;f 'i':© iri^aeiq *s mid. s&ass 
»OB«yiiiO nx icod' ;! xoocif:;]:; ^(;;fGlBa ci ''i:^:x;'ni!2lii nt eTSvv- !>©©& *ss/T:d 

t itsrf to"! q-a&:a ©J 1 1 J; ■;■■£:.£. 3 Xg oi fctis-b tfairjrf- fcfis B;JoLf erlS ^ilSvo foec-a'j fc.eri 

^ifioqab xisti^ci vi'A n.c &«.&& ^Kiiid ban siaa &iii Moclq t^x^rsl'^slq; bnn 

«SS?i «xsQKi-ai'CjsB iii sqo'i.yl- xo'i Slel efi jrienV 9T«'X'r^ fttsw x&di bivb xod 

ets^iaia sir: o;' -H^&n'soj ■:?>; lo is^^oq b b^^uosxe i^d e'SMJf fncjeb sJtri oS toi'j^l 

^iU oo SGeo^«. bafi 'Tc#*iXK; &-kri bna Y'tiiitxBlq .lucf eao on 'xo;Jl i^tsxjT 

bKUol wt^i xod" if i; acq «:■;■() siri o# Shsw sii «^S0i: tt^^ewsi/A ^0 A-j-^ti "Xfuf;*.*?! 

QSiOcja ifoftj 9c( vlsxl:? ?xod 3if.7 flr cfoxi ©tsvj .vi&c->ij jisij'i;? fon?? s;S'on srl* 3arfJ 

0x.a &XC.1 ;^a3E)^^]t0f; bK.'? '^-'eiiim f/xi;- C-xjogs ^tniibas'iit^b JjRjb 'isitaxr; shri 0:^ 

naoX &di bx&q I'liinlsitq ^Bdi |X!.«.oX b^S X.sq_ 0.' sXcfsjfu; xisxf;* asi^- &d SBdi 

nno aid oi h^.'^b i'girxa biri^ aiJoix stU -gixigb-^Xq ^^d-xina'JB *x{'J ffiftido oJ 

fe^-ir axJ^ i£;ii^ ^jxaol e ' Ja5ort:'?'tsD -sol i£-eg. OvS- Vf-xiOia &d^ stWoss o^ 3li!tac 

■:;o ,tx:wor-o» no -\-6nocit mro -loii to <?aO«X4 &i'a<5 tGcslsuiexId Jtmih-frslsS lo 

^ex Tsdmovol: KO a-jnxlj b^Jtlx^-essr %s:S\i'mt I'jJiffiX.ari »0^3oX a 'lii^nicSXq 

IjXuo./ ed "si TmntfiLq, beitBB bvM •^snoaj. &moa f>o&a&« tfn'ifen^lr-f' tO£f?X 

Hi ns.oS. B -'.ot x;ii'-'i'0'-s IsieisLLoo a a ^gss^^-xoiC 6ar> sdoxr sxl;? qobIv^ 

baa icBbKt->tt'b fcr/s d.^euper sxW o ;!■ fisS'ts.s I'slcTitislG tefIS , ir^fonsls'r-) 



to the bs.nlc for the loan; tliat sulasequeatly, by arrangement of 
the parties, Sdward 3. Scheffler paid the Hoel State Baak the 
amount of the loan and now holds the note which plaintiff and 
defendant signed, also the collateral. 

Plaint. iff contends that he established erery essential 
element of his oase by a preponderance of the evirience snd. that 
this court should enter a judgmen:; for hlin, "or in the alternative 
that th3 cause ^^e r^^ms-nded to the Circuit court for a ne-w trial,'' 
The trial court found for ciefendant on the ground th3,t the evidence 
was •'vagus'* and tmsatisfactory. ,\fter a careful consideration of 
the entire evidence we have reached the conclusion thst justice 
will be bet5t 8 erred "by a retrial of this cause. 

The judgment of the Circuit court of Cook county is 
reversed and the cause is remanded for a new trial. 

JUBGMEHT REVEF;S?;i) MD GAUSS 



Sullivani P» J,, and Friend, J., concur » 



«,. i... «.»a I.OH -aU .i..-i .aiiwoa .a .,«.^^ .-"-. -'i* 

.I.^xsJ.wi.Ioo f^i:U oaXs t Crisis ixr.HJ>nal©b 

w ..-•ir-. ofl^ r^ xe" *E:ifl ^co^ dx^at^^bi^^t. « ^^©^ne f^Iiioiin 3-uco exifi 

.o„,r.ir, .« :r=« t«-o-r, ..a «.o «,stesl»^ »t .-m.ci .«-oo X»1tS .« 

•, ,.•- -,.- ,.-,i.~Hi«c« «■:; t,3r'.o.5Si 9T.W w ean^blTs siilfs sd* 



js'ix; 



oHoo ,,;. <ha&x'fi bnc, ,.X. ,'1 <fixsviIXifB 



38555 




-h- 






OliGA M. SK'mumk^^ as Ixecutrix V / / 

of the Istate of KA2IMIB MUXIOIIS, ( / / 

Beeeaeed , ( / 

Appellee^ j APPE.AL PEOM 5nrSIGIJ>AL 

^* ) COIBT Oy CHICAGO* 



EfTEOPOLIT^JT LIJ?3 HTSURi^JfCS COMPANY, ) c% r ^ ^^ -w 4 ^^^^ -,3 /« 

a corporatioa, ) j«i O 'O 1 « A^ U 1 ^ 

Appellant* 



1' 



MR. JUSTICE SGANLAU IJSLIVSPl^B THB OPIOTON OF ms COURT. 

This ia aH action on an insurance policy iesued fey defend aat 
on the life of Kaziiair Maliolis. A jury returned a Terdiot against 
defendant and assessed plaintiff's damages in the sum of S626»18t 
This appeal is from a judgment entered upon the rerdiet. 

The poliey was issued May 11, 1931, and the xngured died 

June 13, 1931. Fo medical exaiaination is required under the type 

of poliey issued. The policy provides* 

"If, (1) the Inr.ured is not alire or is not in Bound 
health on the date hereof; or if (2j ^- * * the Insurea * * * 
has, within two years before the date hereof, been attended by 
a physician for sjiy serious disease or ccciplaint , or, before 
said date, has had any pulmonary disease, or chronic bronchitis 
or cancer, or disease of the heart, liver or kidneys, '>■ * * then* 
in any such case, the CoEipany Bta.y declare this Policy void and 
theliability of the Coiapany in the case of any such" declaration 
cr m the case of any claiai under this Policy, shall be limited 
to the return of premiums paid on the Policy, except in the 
case of fraud, in which ease all premiums vvill be forfeited to 
the Gompaoy." 

Defendant contends that the great weight of the evidence 
shows that the insured on the dat- of the application, also on the 
date of -Che policy, was not in sound health, but that on She said 
dates he was suffering from tuberculosis and cancer, which diseases 
had e^cisted for a considerable period of time, -vfter a careful 
consideration of all the facts and oircumstanees la the case we 



■.OvADiSw ^iO 



d58£ 



/ ,eiJi01JUM mMlSJui 'to eSfl^sx J;iii '3:0 

••c;-;v/, ' ^ £3 j-i.^t^wA 



»T 



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=!i^ * •s^.y is) Ji i {■) -.'i, ^-' ■:&'-' ^P"^! ^ * ^ 



feKwr.a £i? ;tcr:- -jl -jC' ovil.? .toa ax Liaitii.ijfsl &ii4 (X) ,11" 

!iii'fi''i!r.o'^~ii "I'-iO •'■'•• '^' ••'"o t s rt f<s '•■■ .t fe vx'-^fiOffiXuff 1CK.S asil E-;:5ji t^ish Eii-sa 

■s^e ^ioT.' v^i:Xo"i '3i:!.is o7.?.Xoe& v-jfs '??;£ii"i<jMo;' sri^ ji;>3iJo douQ x.riB tit 

vy^-Stf^il sif CXi^i^^ \Y3xXoi sMJ ^:ebi?i? ^IbXo ^fi^ Is esso ©dc? fii "^o 
'©Ka ffi ^ntiv^r: lotion ?idz no uif;<i r.suiias-q '::o n'lwc^ei adi C? 

" ' ^ "*■ ".Yr.oqaicO sxiw 

bx.es eil<r no SBflJ .iii>- .xOXi^eri nni/ot; iil Sox; 8xu; ,v:aiXcq oriJ' lo s^^fc 
li;l'^:-xi^D .3 ijij'i- .&fiiXo ic j:;oi";srq. &lcf^tfhi?;£iCO i; -scl fc&c^aiJsi- L'j^ii 



-2- 



hare readied the conclusion that the contention of defendant aiust 
"be sustained. Defendant also contends that the evidenea shOTi?s 
that the deceased was a'^oxe of his physical condition at the time 
that he made the application for insurance, and that in obtaining 
the insurance he was guilty of a fraud upoa defendant, '.'e do not 
deem it necessary to pass upon this contention* .-^a the case may 
be tried again 'ttq purposely refrain frcaa coiainenting upon the evi- 
dence * 

The judgment of the Municipal court of Ghieago is reversed 
and the cause is remanded for a nsTi? trial. 

JUTj&MSFr liEVFI< SED MD GAUSS 
BEMAFDIiD FCfR A Wm miAl,, 

Sullivan, P. J«, and Prisnd, J», concur* 



xr^s: <oft/^D SJ-Io :--•- ,r.Gu irie^go-o axxCv noqL' Jissq oi' '<j'j:?J33!&oex: ii ais©?^ 



38380 

CSJSTRAL STAl'ES JflKjUJCB COMPMY 
a coiTporation, (Plain till') 




V. 



ADOLPH SCHDLTZ et al., 



Defendants. 



LOMDOS & LANCASHIRE lEDBMSITY 
COMPAJSY OF AMBRICA, a corporation, 
{Defendant) 

Appellant. 



COUSX of OHIUA0O. 



1 



J28 6IX614' 



liR. JUSTICE SOAKiAK DELIVBHED THE OPIiyiOS OF TSE COURT. 



Thia is an appeal from a judt^ient in an action in debt 
brought upon an injunction "bond, X'he suit was brou^iit against 
Adolph. Schultz as principal and the London & Lancasiiire Indemnity 
Company of America as surety but no service of BumBions was had on 
Schulte. After a trial hy the court without a jur;y , judgment was 
entered for #500, in debt, and plaintiff's daeiages were assessed 
at #350. 

Schultz filed a bill in equity against the Central States 
finance Corporation, in which he alleged that the Central states 
finance Corporation secured a Judgaient by confession against him 
on a note; that to satisfy the JudgEient certain preaises were 
sold by the bailiff of the liunicipal court of Chicago, without 
the complainant's knowledge; that on June 5, 1929, a deed was 
issued to the said corporation by the said bailiff, purporting 
to convey the property in question to said corporation; that 
complainant has a good defense to the action in question (the 
nature of the defense is set lorrtu in detail); that the said 
judgment -vas obtained by fraud (described in detail); that the 
sale of the property was made by fraudulently concealing the 
facts from the coHiplalnant with the intention of depriving hiia 
of his legal rights; that the Central States finance Corporation 



v., ' 0668^ 

^ \ '( \ "'"^Yi^i^OO aDilAKlH S£T1T8 JAHTTiSD 

{ '' . ('t'ti t.-jL.;X':i) ,aoiJ'fiioqioo a 

( *^f 

( , . K; c^^ li^ JDIi08 MvIOOA 



v^a-iX.i:~,.^ ji..;ji/y'X'."f o.ew Jii.ua aiii .tnod noiw*-otU!l^ai xus notfi; in^uotd 
ai;w ci-ixsii-abiyt cV:'X;-il a juo^'-i ii^i' J-i;joc ei'i.T 'iff Ij^xiI- .3 tts-^^'tA .{sd'Xs;.cfo8 

©•i'®w aaaxics'xq «i;*.t'i:??o 5T.ifn4jl-;.ut ©-i-iJ •^^;'i8i;t.i»B od^ imdi jsioa jej no 

Jfiijj .•iioicJjB-xoq'roo Ji^ijea ocJ- noJJasup al. ^<;.t'£st}-oiQ. oxi^ -^©vnoo o* 
3.di] Kois&esjo ai. uoiiosi BrU ocr oens'tsfe &oos « aaxi Ja?.-iii6Xqiaoo 

9x<.i- .-i^Aii ;(Xi£vj0ft ax Sscfxioseb) Bjje'x'i vcf fisaijs^td'o ajsvr *n©iXiiU''J"t 

®i{^ aaiXjseoiioo x.£in<ili.>i>ijMt'i v,tf eJbiia b«w ^iJJiaqoig. 'srli 'to oX»a 

mirf iiif^vi'xq©!- 'io aoi J'n^iiu »>xit xi,tiw iaBniiiXgatoo &di aio-t't eion't 

,.,. ^*^..^^.,.^-..^ <af,niruiJ'A aart&ia XK'.tJnsO ■SIkfiJ J-.«?nJ leJ^-tU'l le><«X aixi 'tO 



-8- 

had instituted a forcil^le detainer action against the Gomplainajat, 
to secure possession ol" th© preaiises* The bill prayed that the 
Judgment rendered against the complainant "be set aside, that the 
Judgment note he delivered up and cancelled, tnat the deed of 
conveyance issued hy the "bailiff to defendant he set aside and 
declared void as against the complainant as a cloud upon his 
title, and that in the meantime the court restrain and enjoin 
defendaat from proceeding in the forci"ble detainer euit or in 
any other action to oust complainant from the premises, Schulta 
filed an injunction hond in the penal sum of |500, signed hy 
himself as principal and the defendant ( aiapellant jiere) Londcm & 
Lanoashir© Indeaaiity Comp&iy of America as surety, and when the 
equity cause came on for trial it was dismissed without costs for 
want of prosecution upon motion of the court. 

In the trial of the instant cause plaintiff's dasiiages 
■were assessed at $350, $25 of which represents a sum paid for a 
real estate expert and the halance for attoitiey'e fees incurred 
and paid hy plaintiff for all legal services involved in its 
defense of the equity suit in which the injunction bond ^^as filed. 
Upon the oral argument in this court it was conceded that the triaO. 
court erred in assessing damages for attorney's fees and other ex- 
penses incurred in the gerieral defense of the suit in equity, and 
coiuisel for appellant, while contending that the amount allowed was 
grossly excessive, stated that it was 'ffilling that jud@aent he 
entered here in favor of the plaintiff in such auia as this court 
deeiiied proper. Counsel for plaintiff stated that a judgment for 
plaintiff for |100 damages would he satisfactory to plaintiff, and 
counsel for appellant stated that appellant was willing to have a 
Judgment altered against it for that amount. It was also agreed 
that each party should bear its own costs. 



-s- 

0_d:| jsxia ,*»lJii2i5 tfi>a ■.•?td ,fa..-^;,!is;.iQSicio 6ii^ t?«iai:'.a« SsSTCftfrnffiT d'n^iS36trt 

«i'Iijxioi;i «s«)3 iffia'iq And' ao-i'i d-aKixxBlCimoo &&M0 oi aoi'^^s r&TLto ^nn 

..fi.coo -a-tU 'io noiiros'i iioqiu acicx-ioaeo'iq to i^xtetv 

aij: as. h^-^lovnx isfioxvtBB Xsisssj; [Xsj ro'i. 'i'3:l:j0x.slv^ %a iiiaq fjos 

>;^tiiO£i Bind' 8f.: sffijjs asua rti Tti.^ai:,ijlcr ^iLf 'io 'lov-tl i-ii ®i.*»ri fc^^i'si'fia 

« ©Will ol sruXIift- a^w 3a-«IXsqqia d-.sd;t i)a3-jetE< iasXIsqcfXj ao't leanifoo 
Ma^ii^B oalia Sis'* :^1 .jni.iomi5 ;>Brii- aa'i cfi" ci-aaisjijE fcaasJ-m Jnssijsfiut 



The .jadgrue'nt ol" tas iiunicipal ooart of Oiiicago is reversed 

and Judgment is entered here in favor of plai^.tiff arad against 

defendant London & Lancasiiire Indeuinity Ooiipaiiy of Afaerlea for 

^500 debt and damages are assessed in the sum of ni'lOC* ©acda 

party to bear its owrx costs. 

JtlDL-i-JilHT REVSR3SD M^ JUDaiililiT iiSBE 
Ih ^aVOR of PLAIIITIW AliD AGAIi'i3!E 
Di;J'Si>*DAwI LOi'.DOi't k LAisGASHIisE 

#500 DEBT Mm DMiAGES ARE ASSESSED 
W THE 3Ui4 0? |100, SACIi PARTY TO 
BEAR ITS OWii COSTS. 

SulliTan, P, J. and Friend, J,, concur. 



»'xt.'orcoy , /i> ,, f asii'S. bar; *T. ,u ,ii»vi:XIii8 



38590 




■f'/ 



/ 4 



BOGSBS PiLtvK POST, ilO. 108, ) • 

iraPAETMHTfTT OF ILLINOIS, ) 

TH3 iMirAlQi\^ LEaiOU, a ) 

Corporation, ) 

^vppellee, ) APPEAL JB.OH mmiQlVKL 
) 

'^* ) COURT OF CHICAGO* 



CHICAGO P/uiK DliiTEiar, a 
Gorporat 
.ppellant* 



Body Politic and Corporate, j itfi^ H 6 T ^^^ 



MR. JUSTICE SCAKLAH DSLIVSRSB THiE 0PIUI05 OF lim. COm'i: , 

This is an action in forcilsle detainer In which the trial 
court foxrnd the defendant .guilty of unlswfully withholding from 
plaintiff the possession of the premises in question. Defendant 
has appealed from a judgment entered upon the finding. 

Plaintiff's statement of claim (filed July 5, 1935) 
alleges that it is entitled to the possession of the premises 
described as Canteen ¥o. 1, situated on the property formerly 
controlled by the North 3hore Park District at Lake Michigan 
between Harwell arenue and Greenleaf avenue, in the city of 
Chieagoj that the defendant unlawfully withholds the possession 
of the premises from plaintiff. 

defendant contends that plaintiff failed to prove, (ij 
that the defendant was in possession of the property at the time 
of the commencement of the suit, and (2) that the defendant un- 
laTs?fully ??ithholds possession from the plaintiff. Under the facts 
of this C8Re these contentions must be sustained. 

It is the la'w that in forcible detainer actions it is 
incumbent on plaintiff to prove that defendant was in possession 
and withheld possession at the time of the comiaencement of the 



.. i v."i.' Uili 



>Qms 






» ',- .v.- iW 



inn w '■'■moo 



[ » J n.e.i.lS'^ii-.■^. 

.r-i^gMoiM 35{j3.I 5-b J :>x xJ s x^v :si'X£"-I sTGiia iii7.ol"' B&i -id tsllo'xsaoo 
'lo '/oio sifj fix ttiivi-javs l-«elKsS'rO &r.fe si/n^Ti? XIs^^^ib'^ nss's^ocf 
Kci^sasaooq ;?rfa yfcIoiM;^J:- xllifi;: v>Xni/ 3rJsbiielJ>^ si£i ;?6rf;t joy^oidD 

a^oijt cd.^' '.u^&ix-J »':c'li::?rtisXa SiSS' woti fioiacw-iao':; s?bXojf{iiJlw \LliA%'yl 
3Jt ?x snolSo.^ ii;iTi«^s& eI<fiuioT ni i-Biii 'k'-L sxl^ .rix JI 



-2- 

acfclon. The right to possession is all that is involved, or that 
can he determined. (See Shulmjan v. Moser » ^84 111. lo4; Vi eat Side 
T rust & Savings Bank t» Logo ten, 353 111. 631, 637-8.) ilaintiff, 
in its evidence in chief, introduced a lease, elated J'ehruary 28, 
1934 J between IJorth Shore Park District, a municipal corpora-tion, 
and plaintiff, for the i)roperty known b.s Canteens Ifos. 1, 2 and 3, 
for a period comniencing June 1, 1934, and ending May 30, 1939, for 
a consideration of ^iSO, payable in five annual installaents of flO 
each, upon the first day of June of each year of the term. The 
trial court held that the introduction of the lease made out a 
priaa f -cie case for plaintiff, that he isas not concerned isith the 
question of possession, and that it devolved upon the dsf&ndant to 
make a defense to the lease. Mo evidence was introduced "by plain- 
tiff ths,t had any hearing upon the question of possession. However, 
upon rebuttal the plaintiff introduced evidence tending to shois the 
following state of facts: That George Kayworth, acting for plain- 
tiff, had ohurge of Canteen Ho. 1; that he had during the time in 
question and still had at the time of the trial the keys to the 
canteen J that -^hen he left the canteen on July 5, he looked the two 
doors of the sasie; that he has not attempted to enter the canteen 
sines he left it on July 5. It further appears from the testimony 
of this •witness that in June, 1935, a police officer asked him if he 
h8.d a permit to operate the place, to f^hich t;he v.'itness anaviered that 
he was operating the place under the lease and that that 'acted as 
©ar peraltj" that the police officer said to him, ''If you make a 
sale, I will have to lock you up;" that the witness thereafter made 
a sale and that he was then arrested hy the officer? that on a 
later day in June he made a sale and was again arrested j that on 
July 5, after he had made a sale, he "was locked up again." There 
■was no evidence introduced to prove that the defendant was in the 
actual possession of the canteen at any time. At the conclusion of 



^^^-':. r.ix*t-.:. ^^^'--'^ '-^-^ ^'^^ *.^i!i^:^^ •''■ Ili^^'^Siu s--) . 5s*itlKt5'd-3& so nso 
^ 't:tJ:^ni j'l'i ( »S"V-:.d , IsSd till LxiC (^ia^Og-i * '^ iii^f^y jjji/iljTJ.^ =^ _-^ei/^ 

iisi 1i mid ho-Asn ■:i^oi':'xo ■<oil:<i j: t^li;l « sinuL ni £ sidS aaonsiw sidi to 
fi.!i ')^•Joii' >.::!;* j.^iX^ ;';a;c sas'-I Sii* ■;:;::'£ii7iJ soctla ©fid ;QnxJ;5'r5q;o ajsw sd 

no i-sri'i ^t&sas>'rxA nitigw S'^w ^as bLbb s sftj^^ia sri sr.ij'f. ni xBh "x&rf^X 
SitJ fix sfeiw .tr!/?-&j:?;&ls.» bp.-^ j-:jffj evo'xq; c^* tisoifno'i^ni oonahlre on. •2;B¥f 



-s- 

the erldenee the trial court adhered to his ruling, heretofore 
referred to* and held that the lease was a good and binding one 
and ther^^^fore plaintiff ^as entitled to Judgment, His action 
in that regard constitutes error. If the defendant is illegally 
preventing plaiatlff from selling articles under the lease a 
forci'ble detainer suit ia not the proper action in ^hioh plain- 
tiff fflay obtain relief. 

The defendant contends that the evidence shows that Vi3s 
lease, upon Tshlch plaintiff bases its right to possession of the 
preniisesf is a fraudulent and void lease* It also contends that 
plaintiff had not the power to enter into such a lease. In our 
vie-fl of this appeal ^e do not deem it secessaty to pass upon 
either of these contentions* 

The judgment of the Municip^^l court of Chicago is 
reversed • 

Sullivan, P. J», and Friend, J., concur# 



vcyc ii^ tusr^i'l a rfoiii o«fi:i -xecin?: os mv^oa eff:? Jon ';£5iJ ^lionislq; 

* a n o 1 ;i' "■ s ? ri o o o '• sd s x o 'i sil « i" ?* 



[roivc"!^ &ris . « T, ,'■•:. »rts^llLijB 



^ 



38620 




MABEL ISSLEB, ) 

Appellee p 



▼ . 



) APPEAL PROM SUPERIOR COUl'iT, 

j COOK COXJITTY* 

JOSEPH WOIEK, nO/*Tffi ^ -^ ^ 1 

Appellant. ) 26 O I, A. D 1 5 

MR. JUSTICE SCANLAET DBLI"V:bIRED THE OPIHIOE OF TH^ CODHT# 

defendant appeals from a judgment in ths sua of |5j»500» 
entered upon a jur3'" rerdict. 

Plaintiff was injured in an automoToile accident that 
ocourred aTsout 7 P.M.. on December 14 » 1933 j on Diversey avenue 
at its intersection \)7ith Major avenue. A-t the time of the 
accident she vas a passenger in aji automo"bile that Tvas being 
driven "by her hus'band in an easterly direction on Diversey 
avenue, 'which ie a four -lane street^ forty-t/jo feet wide. At 
the time of the collidion the car in which plaintiff vjas riding 
was In the outer, or most southerly^ lane, "about four feet iroBi 
the south curb*" Just before defendant's automobile collided witll 
the automobile in ■which plaintiff was riding he was driving in 
a v;esterly direction on Diversey avenue* 

Three points are urged by defendajat in support of his 
contention that the judgment should "ke reversed s "Ii» The Court 
erred in refusing proper insti-uc tions suggested hy the defendant* 
lit The Court erred in admitting improper evidence offered by the 
plaintiff over the objection of the defendant. Ille The verdict 

is excessive." 

A 4- ■ J. T refusing 

As to point I, defendant contends that the court erred in / 



X 



X 



r\ 



^TfiJiuoD moo I 

^ -^ «*v « -^ 1^ n, lli ( 

1^ X. ^-' fr ii P J. ^ ^' w». ^ 



(iSsIXetiCX'A 



.^nsIIsqqA 






*T)iUQo £:H^' '::d hoimkg siiT as^JikLViiac; KAJimoa siDiTaui; .hm 



.Sol^tsT Yfxft s noqw bQteJns 

;t,-3J!i? on© b. CO 0.0 elxdomooiJi'^ as ni b^:7Ul,ni r-i.-iw IJiialBLI 
evLKYs Y.^cizorl(T. no « •';'::GI ^^-J ■!«(&[;• ooCT no sM.T V iucd!'- berr.ssooo 

vs-r:i>vj.' fj') nox^o^tcab Y-£'i:e.:5'3".© its ni bn-Rtfawxi 'isr! i^tf n^^vi'Tb 

i. ,ybx!7 Jp6^ ov;i-\i;d--^o:i; ^dssac^d srisL-'wo": s ?:; 1 ifoxrfv; ,sj:/n9TB 

Junior: B.Fw Itiixiinlq; i^oiii-.r ni tco bXlJ rsoisiXlIoD srfvt I'o esnii sdi 

laox'z li&Qj. ■r.uo'x ri-uccr.y" lOP.sl ^-^I'xexfc'jLfOs iaom ■xo ^reo'uo oxlc> ni ssr 

.diJx-A- ovjoxXXco 3 li a Oi-<!o:i;.v a 'on..;bnets b siolatf JaJjT, *'*dxsj-j diuoe edi 

nl '/aiiYi'i:b sbw ari :.inxbi r sisw 'tlxcfnirjlq doi-lv/ az sXxdorrto^us 9ri.i 

,9WfieYx-- xoexQYid. no noxo^o-ncxb ^'Xi'S^ts?',': .r 

,,.tn,>-.on&l&b ©lid- Y.c*' f'^vd^^sasJi'-'s afcoJ:SoiJ.i;;i-enx Teqptq_ x.aiaisls'x ni bsiiQ 

edd- x^ bsteTio eoxieiixve ■ceqotqxBX -^filo itirsiL.: ax bei'is ^iwoD sx£T ill 

ivibier exiT .1X1 , ixia fori sis b exfcJ lo noiio;:'tc'o fJ^''^ *tf'VO ':t:'Moni.3XQ 

".svxaasoxs ai 

aniBJu'is'X ^ , ^ . . ^^ „\ 

\ni bs-x-sQ ;Jx/;oo s^d ^^^ds abxia^rioo ;JjM^fen&lfoD <X inxcq o.t aA 



the follov;ing ins cxuctioiisi 

"The jury are inS'.ructed tht. I; the iiaxidntj oi j.ei3onal 
appearance and humiliation resulting from the contemplation 
thi3reof v.xe not elements ^nt-rin.^ into computs-Lion of pacuniaj-y 
dsBoages for personal injury sustained by reason of alleged negli- 
gence, if any." 

"The jury are insoruct-^d fch;'.t if they believe from the 
evidence under the instructions of the court that the injury to 
tho i-l'-.intiff vv'c-.E caused by a mere ticcidcnt occurring; ^/ithout 
the negligence of either the plaintiff or the defendant, or if 
they believe it v;as caused by the negligence of the plT,intiff , 
or if they believe it was caused by the combined negligence of 
the plr,.intirf an:? the defendant; then in either of such cases 
the jury should find the defendant Joseph Wolek not guilty." 

As to the first instruction* In the case of ITosko v» 

0' Donnelly 260 111. App, 544, 554 j the court j in sustaining the 

action of the trial court in refusing to give a like instruction^ 

said* 

"Def endstnt also contends that ■fiie court erred in refusing 
to give as rei^uested by defendant an instruction that the marring 
of personal appearance and huriiiliation resulting from the con~ 
templation of bodily disfigurement are not elements entering into 
computation of pecuniary dai:aiiges for pei'uonal injuries L;ustained 
"by reeson of alleged negligence, and it is asserted that the 
question of law raised by the refusal of the court to give the 
instruction 'has never been put squarely to the Supreme Court. ^ 
Defendant says the question was not before the court at all in 
Chicago Cit y Ry. Co. v. Smith, 226 111. 178. We do not so construe 
that case. Moreover, the question vies passed on in Fitzgeral d v. 
Savi s p 237 111. App» 488, and we adhere to that decision." 

We are in entire accord with that ruling. Moreover, a jury might 
well understand from the instruction that if injuries marred the 
personal appearance of plaintiff such injuries could not enter into 
their computation of pecuniary damages to be awarded plaintiff. It 
would be a strange doctrine if such were the lawo 

As to the second instruction refused it is sufficient to 
state that v/e can find no evidence upon which a jury could reasonably 
find that the injuries to plaintiff were due to a mere accident alone^ 
not coupled -with neglect. Defendant vas the sole ?,'itness in his be- 
half, and it is plain from his evidence that the accident was due to 
the fact that he was determined to pass cars that were ahead of him 
even if he had to travel westward in the eastbound lanes to do sos- 



?.ar.vDJtd-0Ju'iJ3xii •^niv.-oIXo'i sdi 
JxoidaXqxaoJnoo edi sao'i'x ■gKXi£ki;i:B-± ncs isiliauri bus sonBXseqqB 

'it to (.oasbnt>teD &di 'xo 'llxinxBLci 9iii lefiiie lo eonagxXgen siij 

^ xT-x Jni-:-Xc: oxIj '5:o soncaiXssrc sxid' ■^cf hsuL'so qgv oX svsxXsc v;s^r[d" 

'io ©siio^c^xi'ser-i Irsnicl'EfOo 5.d* licf bsawso a«w ^i sTexXeef -^exic^ Ix xo 

soas^o xIoL'a 'io "cfjricMs ns nex'ii ^in^bmrieb axii bn'?:. llx iriisXcr erid' 

'*,Y,Olxij'j don 2ieXoW iicrasoT, ,tcrj5jKe't?b exltf foxiil bXwoxfa xt^^I sxf;} 

•" £H«o}:_ lo en 30 til^ nl : no i: SOU'S Js£ii dpixi ex£;t ou a A 

Silcf "^inxnxsa'tiJoTc: ni. ^j-iwoo fjxio ,1^55 ^^t^iifi .qq^:- ♦iXI OSf. iXx£n«I2S_L2 

^ncxo'OJL!TJcu.tx tiilj; a ©Tig c3 ax^xaoXK'x nx i'liioo Xsxii ©xIJ 'io ncsios 

I bxisa 

gnxsw '..;:'; nx ot '..;'£■.) ^'^xroo erS ;^f'.xlv abneonoo oaX^ ;^ iUibastoG.* 

giiX'.:xa;ua eiii' S.firli noJ; cfi>0'x>Jsxii xia Jni&l)Xi» "iat/ y^' bs^asxfyuT a£ svi'fi o^ 

-Xioo exio aroii :ijnx.tXi;;je';: rioxcfi;xXxi;U)il fuijs aoricx'ssaqa XsriOSTLSq Io 

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sdi isiii J-j9;i'i0cia.y ex ix bus tSortc^aiXgeK feegoXXB Io aos'i&i x^ 

9xi.i oviy ocJ- ci-j;uoo t^xf.] Io Ifrais'ten odd Yd" beaxxii weX Io xioliussjp 

' . d -.cajo'J ejajjaqwo exio' oc' -v^XstexrpB cfijq; noi^d' ■xsvaxi szd' xioxiouii >£ii 

ni XX.s u,B rfiiroo sxij s'rolsa dort s/-«!7 rfoxjst-Jjp edi a'-jsa ^nsbnalsQ: 

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-3« 

It is idle to argue that the accident occurred without any fault 

on the part of defendant. In none of the three points urged why 

the judgment should be reversed is it specifically contended that 

defendant was not guilty of negligence* In our opinion it would 

hare been error to gire the instruction in quest ionq (See Stroeter 

T. Humric h0U3ej> 357 111. 234, 244; Peters v. Madigany 262 111* App* 

417 J Mississ i ppi Lime & M aterial Cot t. Saiithp 282 111. App. 361 y 

369.) 

As to point II, that the court erred in admitting improper 

evidence offered by plaintiff over his objection, defendant's 

counsel states in his brief* 

"On the evening of July 2, 1935, at the close of the 
court day, the plaintiff rested her case, and on the morning of 
July 3rd, the Court called counsel into his chambers, and on hi« 
own motion said: ^I am going to allow him to call the plaintiff 
for the purpose of exhibiting to the jury the scar on her head? 
and following that you put downp the plaintiff rests.' Whereupon 
the plaintiff Y<je.s recalled, and over defendant's counsel's objeo-' 
tion was told and allowed to step over and walk along the jury 
box, and exhibit the scars on her head* So motion or request was 
ever made by the plaintiff or her counsel to exhibit the scars 
on the forehead to the jury at any time. * * * Hevertheless after 
the plaintiff had rested, the Court took it upon himself bo reopen 
the case and to suggest, a.nd allovY the prejudicial exhibition 
despite the objection. The effect of this, in vie'.? of the Court's 
previous ruling, would call to the jury's particxilar attention that 
the scars on the forehead must have meant something. Sympathy, 
passion and prejudice was the logical result of this errors * * * 
There can be no question, we believe, but that the jury were in- 
fluenoed by the conduct of the Judge in reopening the matter on 
his own motion and suggesting that the plaintiff be placed upon 
the witness stand for the purpose of demonstrating her scars. That 
such a demonstration, emphasized by the reopening of the case to 
stage it, would affect the verdict seems to be self-evident^ » * # 
The Court by his action in staging a show for the benefit of lb# 
jurors in allowing the display of the scars, on Ms ovm motion> 
forcibly brought to the juror's attention and consideration these 
scars ." 

In support of this attack upon Judge Gridley counsel refers to page 

139 of the record. By a reference to that page we find the 



following! 



"July 3, 1935^ 
10 o'clock A. S. 



Court met pursuant to adjournment. 
Presents Counsel same as before. 
(The following took place in the court's chambers' 



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^ .^nexorfiixotte oo^ (iii^ixa'xxf'q: ^3xa iiuoO 



"THE COUPTt I am going to allow him to call the 
plaintiff for the purpose of exhioiiine, to bhe juiy the i.!oaT 
on her head and following that you put down the plaintiff 
rests. 

Defendant's motion for a directed is denied and an 
exception. Plaintiff diamisses the second or wilful and 
wanton count from the coiisidaration of the jury." 

After the filing of defendant's brief in this courts Judge Gridley^ 

upon motion of plaintiff's attorney, signed the following amendment 

to the report of proceedings; 

"This cauee coming on to he heard upon motion of the 
attorneys for the plaintiff for an amendment to the report of 
proceedingsi and counsel for the defendant hsTinT "been g-iven 
due noticG thereof, and it appearing to the court from files $» 
records J, notes and meraoranda in its possession that the report 
of proceadings heretofore filed in this ct-use does not fully 
and accurately set out said proceedings as they occurred j the 
said report of proceedings heretofore signed and certified in 
this proceeding is amended at page 139 to read as follows? to-wits 

Wednesday, July 3rd, 1935 

IC o' clock, ii.«M* 

Court convened pursuant to adjournment 
Counsel present, as heretofore. 

Court and counsel retired to the court's chambers whereupon 
Mr. Sinnott, attorney for the plaintiff j asked the court for leave 
to recall the plaintiff to the stand for the purpose of exhibiting 
to the jury the soars upon her forehead. The plaintiff's attorney 
also then and there stated to the court that he --vould dismiss the 
second or wilful and wanton count of the plaintiff's complainc from 
the consideration of the jury* 



(iWooeedings in Chambers at which the Heporter was not 
present, pursuant to which the following proceedings, among othersi 
were had in Open Court )j 

THE COURT* We will go on with the plaintiff's case^ 
I am going to allow xiim to recall the plaintiff just for the pur- 
pose of exhibiting to the jury the scar on her head. 

Uow, (addressing the reporters) you put down 'Plaintiff 
rests.' Then you put down, 'Defendant's motion for a directed 
verdict in his favor is denied,' and 'Exception.' 'Plaintiff 
dismisses the second or wilful and wanton couni from the con- 
sideration of the jury.' 

(Mrs. Mabel Issleb recalled t) 

The foregoing amendment to the said report of proceedings 
is approved, signed, sealed and filed in accordance with the 
statute this 6th day of January, A» iJ. 1936. 

Enters 

(Signed) M« M» Gridley 
Judge," 



=^h.~ 



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j'XQoiiSi 



That the charge Hade was without fotmdation in fact also 
clearly appears from the written motion for a new trial, wherein 
no complaint was me.de as to the conduct of the trial judge* The 
original report of proceedings, insufficient and unfair as it 
was, failed entirely to justify any attack upon Judge aridley* 
Since the filing in this court of the amendment to the original 
report, counsel has not seen fit to retract the unwarranted and 
unjust charge, nor to apologize to this court for making it. 
Judge Gridlsy has had a long and honor ahla career iipon ths trial 
"bench and in this court, and the henoh and bar know and appreciate 
his absolute fairness in the performanee of his judicial duties* 
A judge who fearlessly performs his duty, howerer unpl'jasant it may 
be, sometimes incurs a spirit of animosity whleh may, at times, 
manifsnt itself* The case of '</at son v. Trinz , 274 Ill» App« 579 > 
was decided when Judge (Jridley was a member of this dirlsion of 
ths court • 

Defendant contends that it was error for the court to allow 

plaintiff to exhibit to the jury the scar on her foreheade Vie find 

no merit in this contention. In Minnie v. Friendj^ 360 Ill» 328$ 

the court spid (p. 336 )i 

"The contention is made that it was error to permit the 
appellee to display his injured leg to the jury when, as here, 

there vas no dispute as to the fsct and m-tuxe of the iujurv* 
It is claimed that the purpose of such an exhibition was to 
excite feelings of sympathy and passion rather than to enlighten 
the jury. The question whether injuries to tne person shall be 
shown to the jury rests within the sound. dii-:crt.tion of the trial 
court. V/hen the question is as to the extent of the woxind or 
injury it is the common and correct prectice ^:o exhibit the v\/ound 
or injury to the jury so that they may see for themselves, ( lals h 
V. Chi Cr £Q^P 9 i Iwe y s Co. , 303 111. 339, 346.) In r.rriving at rxa 
amount to be paid as damages, if damages were to be allov/ed» the 
jury 'would hare to ^etericine the nrture and extent of the appellee's 
injuries eyen though the fact and nature of the injury were conceded* 
The trirl court did not commit error i^hen it permittei the appellee 
to displs^y his injuries to the jury." 

In our opinion, if the sear upon the forehead were eliminated entirely 

in considering the damages sustained by plaintiff, still the amount 

allowed by the jury would be a very reasonable compensation for 



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-6- 

tbe other injuries sustained "by plaintiff. 

We find no merit in the third, and last, point urged "by- 
defendant, that the verdict is exoeesire. Plaintiff was thrown 
through the windshield "by the force of the collision. She was 
immediately taken to a doctor's office, where glass T^as remored 
from a large cut in her forehead and first aid treatment was given 
her right knee and ankle. The police then took hex, in an ambul- 
anee, to Belmont hospital, where her family physician was called. 
X-rays were taken of her right knee and ankle. The X-ray of the 
ankle "shows no Taony pathology," "but her physician testified 
that in his opinion the ankle ligamenti were undoubtedly torn* The 
X-ray picture of the knee showed a compound, comminuted fracture of 
the patella, "showing one large and three small fragments of the 
"bone." The following day the plaintiff was given an anesthetic and 
an attempt was made to Taring the fragments of the patella together 
and to sew them to a lower small fragment which was "badly damaged. 
The attempt proved unsuccessful? and the smaller fragments were then 
removed and the ligament was sewed to the upper portion of the patella 
with kangaroo tendon and wire. The ligament had been orushai and 
almost entirely severed. As a result the limb was shortened an inch 
and a quarter, which lessened the ability of plaintiff to more the knee 
joint either "backward or forward. After the operation a plaster of 
Paris oast was applied, which extended from just "below the hip to the 
ankle, with an opening to permit dressing of the wound and to allow 
drainage of the pus, which continued to discharge for about three 
months. Plaintiff remained in the hospital for three weeks, after 
which time she was taken home, where she remained in "bed for four 
months. On April 19 she was able to move around on crutches. Sub- 
sequently she discarded them and used a cane, \i;hich she was still 
obliged to use at the time of the trial, eighteen months after the "°" 
accident. At that time she had "about a 50 per cent mo^oility of 



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TJioi 10-4 bee ax E.oni^^sK.'X sxia srsH^ »sicorf m^s^i a«w eria affile rioxxiv 

^^ul^ .aedoisJ-xo no bxiiso'iB evom o.* eX^s a^-*' 9x£a eX UtqA nO .sili^noai 

ilx^. a«v; exia xloxxir ,9r:^o s ba^« bns m^Ht b^h^BOBih exis v;X;fnoixpea 

eri^J «cr^^ axJ^Kco: nee^^rdal^ ^X^i-.^ .d. ^0 emx;^ exl^ ii=> saw o;f ^^siX^o 

10 v-i-Xidoffi ^neo leq 05 . iuo<is^' bad exl« sMU^Bri;^ *A ^inebiooB 



-7« 

extension and about 30 to 35 of flexion," which condition is 
permanent. She was still under a doctor's carej and heat treat- 
ments and foroilale manipulation of the knee joint -were being re- 
sorted to in an effort to iiaproTe her condition, She experiences 
great difficulty in olimhing and descending stairs» and when she 
rides upon a street car she has to allo?^ her foot "to stick out 
in the aisle." Her doctor's bill was f. 549 and her hospital bill 
was sB147.10. In our judgment a larger Terdiot would hare been 
justified. 

Defendant has had a fair trial and the judgment of the 
Superior court of Cook count should be and it is affirmed* 

JTOCaiElSrT APFIRliED. 



S^^liyanp Pk J.j and Friend* J>, conoura 



si' no-tv'i.onoo iiolilisr '^noixeXTi: ^o c£ oi OS ;!xjoc£:- bxt^ RchenQ^xe 

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i-'-Mocioo 5,1, j^oix^ixu &fi.e ,.u ^l iiXi^-:;vxXXS(2 



33643 




PBOPtB OP TH3 STATS OF ILLINOIS » 
Defendant in Error » 



V. 



HAKEY B. EAUUG, 

Plaintiff in Error. 



) 

) 

) ERROR TO MUHIClPAli 

j GODEvT OF OHICAGO*. 

8 6 T 



g^> 



MB. JUSTIC® SCA^ILMT MLIVSEED TH3 OPIUIO]!! OF THS COlBTa 



In a trial by ths court, without a jury, defendant was 
found guilty of obtaining money by false pretenses. Defendant 
Has sued out this writ of error from a judgment entered upon 
the finding. 

The information filed and the affidavit attached thereto 



are as follows $ 

••STATS OF ILLINOIS, 
COUUTY 01'' COOK, 
CITY 0:F CHIGAaO. 



) 

) ss. IH THB MUNICIPAL QOmi OJ CHICAGO. 

) 



"Miss Julia Be Jay a resident of the City of Chicago 
in the State aforesaid, in his own proper person, comes now 
here into court, and in the name and ^y the authority of the 
People of the state of Illinois, gives the Court to be informed 
and Tinderstand that Harry 1. Kaung heretofore, to wit i on the 
7 day of April A. D. 1935^ at the City of Chicago, aforesaid 
Did then and there willfxilly and unlawfully obtain from this 
affiant the sum of One Thousand dollars in United States currency 
"by means of False Pretenses and Misrepresentation. ¥S 253 oh 38 
S-Hds R S 1931 contrary to the form of the Statute in such case 
made and provided, and against the peace and dignity of the 
People of the State of Illinois. 



••X 



IJeJay 



"FTATl? OF ILLIFOIS, ) 
COTJ¥TY OS" COOK, ) 
CITY OF CHICi\GO. ) 



83» 



"Miss Jtaia DeJay Atlantic 2862 

"being first duly 8worn» on her oath, deposes and says that she 
resides at 4433 University Av., that she has read the foregoing 



- \ '"h ■ '\ J 'V ■ -^ ' ■ 

■',• ■ . .■ ' . - ' ... 

( -'^ 

G 1 C.^ *li'l ^ t;^ 



noqu f}e*irj.i'ri£< itnei^sfouf, ij xaoil: to'x's*> lo .•tit?/ ei"ri:t iijo bcuQ bbA 

Jav^roXXol as ©ifi 

( .siOifiLii 'SCO si-Aue" 

• COAOIHO ^0 IHUOD JAS;iorEUM ^iT Eil .ea ( ,.&iO0 ''10 YTIIUOO 

{ .OCADIHD W YTID 

WOK ^isfijco jixosisq; asqo:!:^ foro axii rii « »i^?.a6-xo'tjs Svfijdd &xii ai 

.bsfflC'AOifl^ scf ot J-ti/oO 8££^ i'sevi'g ,ai.cniXiI io «jSfs;*S srlj 'to ©Xqos'I 
adi no :ii«7 oj iHreJoi^-xed ^.euJBJi ♦S tett^K ;t.f3ii;f fof!.«;Jex3bnxr baa 

eidi mo-zx uisido xXXif'tw.<iXwi; &rjs Y.XXirrXXxw eiorfd fens nsH;! bM 

^ofirsT-UWO ««Si:!*G ^>s^iJtf;J ci aisXXob '.:>ax;-BiJO^/T aaO 'to stuja i3i£;> .-fasxIt^B 

8€ do £es SV .noii£j}n9s®^qi?ltBxM feois e«ians;f9i?. ©aX-^ lo s:n.°;»m Tctf 

©SBO riows 0x e^isji-BiC i^di "to mxo't ©ri3- g? Y'l^'^'^r^^oo Xsex n H ebU-a 

•aionxXXI Io s^siS odi Io sXqoal 

XslioG I X." 



,r.i . ,2iOOO 10 YTlfUOO 
{ .OIJ/-OIH0 TO Ti-IO 

as8S XitSa&l$A x,^l»& bXIuI aeiM" 

©Tie iadA BX-^B bxtr. <3t>a<3(S*=i' ^^i^-so isxl no «ntov/p. ^iXwb iatil guletf 



-2« 

information by her subscribed and that the same is true. 

«X J DeJay 

"Subscribed and sworn to before me 
this 5 day of Oct. A. 9* 1955. 

"Joseph L. Gill 

Glerk of rhe Municipal 
Court of Chicago." 

The major contention of defendant is that the information is 
fatally defectire because it fails to aver essential elements of the 
offense of obtaining money by false pretenses. This contention is 
clearly a meritorious one. The information does not allege that 
defendant obtained the money with intent to cheat or defraud the 
prosecuting witness. It makes no attempt to allege the false state- 
ments or misrepresentations made by defendant in order to obtain the 
money. It does not allege that the money was the property of the 
prosecuting witness, nor that she was induced to part ssith it be- 
cause of the false statements and misrepresentations. The state's 
attorney edmits that the information does not ohs,rge the offense 
with the particiilarity required by the statute, but he argues that 
because the sufficiency of the information was not raised in the 
trial court defendant is now barred from raising the instant con- 
tention. It is undoubtedly true that a defendant, by his conduct 
in the trial court, may waive formal defects in an indictment or an 
information, but if an indictment or an information is fatally 
defective a defendant may take advantage of that fact in this court 
even though he did »ot raise the question in the trial court, A 
fatally defective indictment or information is not cured by verdict 
and Judgment. 

The Judgment of the Municipal court of Chicago is reversed 
and as the information may be amended the cause is remanded* 

JUDGiaSHT BEVB3SSED AHD CAUSE BSMASDSD, 
Sullivaji, P. J., and Priend, J., concur* 



oris- biJii'Xiefi 70 c'ii-^iiy oi' ?n&3-.f.(^ rf^i'-? -^jcnora 9£f:t banls^cfo iJirsbnel^b 

~&d :ti .rlJiw ^t•i■;;.q; o i oooubni rsw sxfe ^.arivt '.toe taaaaiiw ^^oicixjoseo^q. 

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-ttco .t^yJ^«^^i. 9^.t gisx'sx^'X siicx':i.'i hBX'XB^ «'Oxj si ifls.bna'Sisfe ^^x;oo I«xi.t 

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Y,£li?i.^\ ax a^iimstotttX as 10 i/tt^jtfljoi.bfli nsi Ix jjacf titoidasiolffx 

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d'oxb-srs'T \;d 5e mo aon £X jaoi.Jaia'xo'txtx to in^mi'^ibal «ivJ:5osl©b xXXr^sI 

?>SisX6V©*E Si o-^A-joMO to vl-xifso X^qioinwiC exfd- lo .tnesaB^'J^t ^ri- 
' .,f)©i>XT:Bm:5a si 06UJ30 sxf^ bsfenaaB 6<f y^m noi^janaOiKl »f!<^ sjb l>afl 

.G;^:ajL^iH £c;U;0 OKA ^^.avm ■msK^avi, ' 



38551 ^^— -■ ^^^ / ■- ' / 

"^7 ''"""/■'■ / -^' 

PBOPUI Oi' TUB STAXS OF ILLINOIS )/ j' / Z'? 

«x rel. JOHI^ 3. BD3CH, -f / f^ / 

Befendant in iirror, ) ^ / / 

) BfiROR TO CtiUBTY COURT 

) QiT COOK GOUF'rY, 

L0UI3 iiATKIIJ'oim, PATHICK FUUTi, ) 

JOSEPH S. WOLf, ) 

PlaintiiTs in Error, } 

ME. JU3TICS O'GOiOOH IHLIYSRSD TiiS OPIlUOiJ OF THS COUKI. 

AagUBt 3, 1935, John 8, Rusch, ciiief clerk of the £oard 
of Slection Commissioners of Chicago, filed a verified petition 
against the judges and clerks of (Election of the 2;3nd i^recinet 
of the 4th 'f^ard of Chicago, charging that at the general elee- 
tion held April 2, 1935, he was advised and believed that the 
judges and clerks -^eTe: guilty of misconduct and miBtehavior 
in the performance of their duties, (l) in that while acting 
as such judges and elerka they did "fraudulently and unlawfully 
make a false canvass and retuim of the votes cast," and (2) 
"were guilty of corrupt and fraudulent conduct end practice" in 
the performance ©f their duties, and prayed that a rule he en- 
tered against them eoDsmanding theai to appeax and show cause ^y 
they should not be adjudged guilty of oonte-pt of court. The de- 
fendants denied any wrongdoing. Afterward the court heard the evi- 
dence, found the two persons who acted as clerks not guilty, found 
the three judge* guilty and sentenced them to ixuprisomient in the 
county jail for six months. 

Respondents contend that their motion for a bill of par- 
ticulars should Have been allowed because the petition filed by 
Ruseh was insufficient to inform theai of the nature of the 
charges made igainst theia. It is unnecessary to pass upon this 
contention because the record discloses that the case went to 
trial September 5, 1935, and Was continued from tirae to tiroe, 



, !r.'.. 'ilKXi ..iOOJ '(j.o 



lease 

{ ,1101; uH »?J 'lilOT. ,X:";i x* 



biJhO?: -siici- la :;i'sa>Io 'l^iiia ,dt>®i^K .3 ctrlot, ,So«?X ,!■! iiBUt^iVA 

-.9?5>I'^i x^i'isufj.j rod. c^:v J-jf^ch ■;^i-iJ.i^'Uu'o ,03^oi;iiO *J:-o &i:»W lii^ *n:ii 1© 
ajiS J^^jlvi- &ftv«J:Iii;:f iia;-.. &ssivl3« Gstiw fill jtSfif^I ,S Xxi<;fA fila;! aol# . 

(S ) .;.-iis '\-]-?,,so a^f^Jov sn.t 'io j.rxsi.t#'j: f,>m? 3Si;y>.i«o saX,?,'! js ©stsKi 

■kaijz'i ,-'<;i-Ii..C;-. ion iJiT'^nXo as Jb®;t3ffl Oi.w sriosi^tj o^J »ri;t fiai/ol ,«on©Jb 

•v;cf fcoXil «oivMj-f3CT ©ili asxwios>u l;9woIX« «©»'/ STrii fXwoffa sxcXJiiOiJ 

aid,? riOf:Jj fi.'-ifjq o^ Y,'^aB«!i?30itn« ax d'l «0»itt 3'ffini«tj>>? 3,bam aag't^xlo 
od- i'a.v; O8J0O ^iu*- isili B&soioalb bioos-x euij asw^sosff noi.J-iie.taoo 



when the hearings were resumed and opposing oounsel exas' ined th© 
recordB of the Slection Oonai'iissionere' oll'ice, so that it ap- 
pears defendants were sufficiently advised of the specific 
charges made against thew. In these eircurastances, it is oh- 
vioU8 that respondents -were in no way prejudiced in presenting 
their defense, Hor was there any suhstantial error in over" 
ruling respondent Matt^j.ieeen'e snction to quash the service of 

the writ of attachment upon him hecause of his contention tiiat 
not 

it was/served by the sheriff. As a .judge of election he was an 

officer of the court, and since he appeared ond presented hie de- 
fense he has no ground for complaint. 

In the Judgment order the court found (l) tiiat the re- 
spondents loiowingly and fraudulently permitted Dsvid Wa^T^er, 
Mrs. Marie Wagner, Charles H, Graham, Todd 0, Maynard, Paul 
Henrhan, kise Mary Walsh, Gerald pRterson arid Hirsan Shaw, to 
vote twice; (2) tiiat respondents knowingly and fraudulently 
permitted Stewart L, Rice, Chris Miehalson, Lewis Levy, William 
Nelson and Mildred Schenk to vote t«hen their naii.es had "been erased 
froro the register, end (3) that the rpsponder'ts urlarfully and 
frauduler*tly permitted Saaiuel Lewis, Charles E. Allen and Margaret 
Sloan to vote froifi a different address in the precinct froj;! the 
address appearing in the register , without requiring theia to raaJke 
affidavits as required "by the statute. 

The evidence sa.ows that at six o'clools: on the morning of 
the election, ^7hen the polls opened, the only laeiv.her of the "board 
that appeared T/as respondent Foley; one of the other judges had 
been disqualified the day before by the Election Goimnissloners 
because he did not live in the precinct, 'thereupon I'oley BX-roxe. 
in t^o persons to act as sler.^>:s of election, and respondents 
Matthiesen and Wolf to aot as judii'Ss, all of •^^V<.oia. were then at 
the polling plaee for the purpose of voting; a number of other 



s 



-"^ sin .f;t*J-:;'i-;);'^-X'| J-h;-; JJ!yT':5':.{Yi7:e i»il aootiss him fTTuno "iii^ 'to isoifio 

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i^ft:£ ^^i:XiAw>*£riJU ^i&'V^-y-vioqU'St 'j-ii iB^i (S ) Sryj (l^jj-al^^i s>rij moil 

h'Mocf oat to "xwdA-iom s;;Xri:o firid" ., fj^.ifsco slinff si^c? xiS'tf": ^aoi'd'oslt? "jrl* 

a-xoWB ^i0Ic':l uoqij&ia;!^ .j'Ottioa-to ;>i-^i iii «vlX JOfi Sib ®K ©swijtjed* 
.j-/- uijAi- s-iaw mo*7 '!o XXs ^esa^i'l at^ ^O-^' ot *tXoW fine flStB9lxiJd-«M 



persons were ali30 thf^re tc vote, Vi/olf was a. jDaaocxat sinci iiattiiiaaea 
a Republican, i«iargaret J. Daixliaan waa tuere as a ciiallenger^ 

Clifford Cr, ifordan, ea-led by petiticiier, i;eGtiiied txiat 
he '.rae &ii investigator of tae :g'raud Department ©f tiie j-lleotion Gom- 
misBionera; taat about tairty daye after Uie electiou he investi- 
gated tiie re^-ister suid poli 'booiis of t-xie precinct, iiie two poll 
"books ai'id 'tlie t'^o registers were offered in evidence, Xne vvitness 
furtlier testified as to certain na^es appearing in the register 
UJider whicli a line had teen dravm indiGatinjj, tLat tlie persons 'rrere 
not entitled i.o vote, cut who iiad voted, as appeared froin tiie poll 
books. The v/itness gave fartiier testi^-ony, ao-.e of wiiicia will 
be hereinafter referred to, 

i'-axgaret J. Dah.li an, called by petitioner, testified that 
she lived in the vicinity but not in the precinct in qae-Btion; that 
she went to the polling place in question abou* S:3u in tiie ffiomixig 
and re.uained all day; that siie had m^.de a partial cai.vass of the 
precinct 3aturda,y before the election, acco.i.paiiied by one of the 
clerks, Mrs, Rissi, w..io did not serve on me iioaxd on the day in 
question; the extent of sucii canvass does not appear except that 
she testified concerning tiie canvass "iade in a few buildings in 
the precinct; that in r.iaicing the canvass she mar^^ed dov^-n the in- 
fonaation she received as to whether the voters lived in the 
buildings ^hich shs canvassed; that elie •'/ras in tlae polling plaoe 
all day except for about ten minutes when she went to her own 
precinct to vote; the Judges and clerks of election were in the 
precinct during the entire day; txiat **it was a heotie day, chere 
was a great deal of confusion;" that she challenged a great 
many voters and i/iade notes at the tluie, whieu sae produced ini 
court; tliat she tnought she challenged maxe than 50 people; out 
that the judges did not pay any attention to the ciialiengeB; that 
Tnere was so much confusion;* that ;3he challenged socie of tikie 



s 



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J:Ioc( s^ i Q'i'i ovx-'^qc.i; 3..y ,.30'j*uv foisii oi'ff .Jw^ jedTjT oO" t^sIJ i.'-a?> i&a 

j*j ..,;) ;nci;ty:-3ij;; az ^toriisiS'ig' :q..;Ur ax ..ton -ti:..f ■^^iiii'j.Lv sniii vil hevti 9M 

sficr "iO ^.>uo vi^ .b9i:i;.'-.5Ci.;co04s ^noliofil;- e/id ^-.sc'iCj.Hi \i^fj*itrtfi-j6 ■*oni&e'xq 
fix x^b r-tiij ;io bxoo-i. .«)i;Ur s:\o Qvsse j'ori r.'Jt.d o.i.t? fl&niil .ai«i ,sirt<Eiio 

ai f!.>i:.Ui)Ii.ij'<.i w^'l c3 .ix 9jj..v..:. as.kTfu>Q ©.rS- jAiixa'i^iociov Jb^fi'tii'-sod' ®ii3 

©lij- iix B'ltjv aoxa-u.;-.Xo "to tj-i-iwlo iin^i s^sljuf, ©rtu i^'ior oi *o:iio(M:q 

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iidii-tii ii .foi^iinaXI^iio i>:-is ^jfa^ "■' jcioxat/'trioa 'to £o«>h ;tA9''.jj. jb 8jsw 

ax Jb9»i..boxQ 3i--.-i i.ox..v.? ^a^su:? ajiij is aJriToa oKiiu btiE aaad-ov y;ixaar 

Jj;;rl.r it^&^,anlLs,sio Si'li oi- HoiiTad'^io vjOsi %sfi &osi bit R&:^bul &di d«xit 



persone becauae she wsb told by the ownt^rs ot' i;iie fauiidiuge eQie 
eatiTassed tJnat they did. not live there; she specified a nurflber 
ol' tae persons vhois she challenged; that she chalXenged Stewart 
Rice hut he was given a ballot; that ahe did not iaio?' ■•where he 
lived; "I vi'as doing aocut seven people's work tliere, * i^ater 
Bhe teBtii'ied as to a number of persona whoiu sha challenged but 
apparently thejj were oertaitted to vote; that "the board seened 
to be quite new"; that eometijies wlien the voters cstcie in to 
receive their ballots, respondent .j-^^atthirgen , wno wss hajading 
out the ualiots, did not announes the na-fiies of "the voters, and ®^® 
Vas unable to l^arn their names; that, ahe had some arfeiuiaent with 
laim and tuat he li^ade insulting rexi>&rks; that "I h-j^b onlj? one and 
had fceven jobs to do.*' 

On cross exaisanation she testified that she made the 
canvass on i'riday or Saturday befcre Jie election; she put in one 
afternoon find ftent tc the hotelR and, apartments end spent four 
or five hours r-uiing the carivass. 'fhe ccurt errcnecusly refused 
to perniit her to answer the question a.a to how riajiy buildings slie 
had canvassed in the precirct, bhe furti'i.er tfttified as to the 
nacies of a iiux_Ler of pex-aox^B ehe challenged end ti.at some of 
them "wouldii't iXi&ke an affidavit;* that fer. ''.^uffun from the 
Election Uo...'^io6ionarE ' office said it was done by the wish of 
tlie majority o:i' -she julfe,es; "it is G, K, for tnis man to vote.* 
She I'urtner testified taat about 6:30 in the morning she tel&» 
phoned tiiS iilection Comdssioners' office and stated tiiat there 
tras trouble in tne precinct arid about seven o'clock Ax» fuffum 
carue to Uie polling place and stayed there all day; that waen 
she cnallenged a voter rsBpondents i'oley and Wolf would exaaiine 
the registers and would tell resi:)Qndent iatt.aiesen that the voter 
was qualified, and the latter would then ^.ive the voter a ballot; 
that she ran for alderzjac in the primaries before tne electioa 



»t'i.s5V'&Jv-: 5'3?;,i'is;IX>u"io sis J-JT..*":..? ,*.?'.-9j.'ii-i©,iX£piif.i o.f'?5 uoi:"-?' aaoa'x??^}; 9ri.t lo 

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ii;ir^t ^ ■:i0iA u^,%.ii afflOS i:''^;J' s^iU: .";*;.'.lci ; s-S&'-f^fi 'ii'^jlj' t'i'Xi',*)! t*J -ftXtfeftii e«W 

'to Oivioa ^,fs. wf i3as I)o;!i|iK?i;.t'.uio •!>;[{; amoiJ'XSq lo ■ssdiuijn « 'to 'a^Jt&n 
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;.to..Lloci « '13*0 V 9.;y- .2>7X3 iiarfd- bXwow wi'.Mfi i>ili bar.: , feoiaX-awp aisw 
nc.i%tov:X<;'. odi s.-co'tod agiicjjfaliq sxi* <a mi.«i9;M£s lo'x ofc-t siia ifi£l* 



^: 



an^ told the voters at that time she ■belonged to the VoteSs 
Information League* 

/ Respondent JFoley testified that he i!?aa a colortype 

pressman and had done such work since 1889; that he served on the 
Board as an election judge in Sovaaher, 19 34, and at the primary 
election in JB'e'bruary, 1935, and on April 2 (the election in ques- 
tion) he served the third time as jud(.^e of election; that he ar- 
rived at the polling place a few minutes before six o'cloclc; that 
Mrs, Dahlman was there at the time but none or the old Board was 
there; then he picked out the first four jnen and swore them in ae 
clerics and judges; that wiien persons came in to vote they a»- 
nounced their namee to Matthiesen; that the witness and Wolf then 
examined the two registers and if the person was registered they 
advised Matthiesen, \uio gave the voter a ballot; that Mrs, Ddalman 
challenged about 90 persons during the entire day, which was about 
25% of the persona icho appeared; that when gjie challenged a person 
the two registers were consulted stxi'x if he was properly registered 
he was peiradtted to vote; that witness had charge of one register 
amit Mr. Wolf of the other; that on account of the challenging there 
was muuh conJ'usion; that he did not understand wiiat was meant by 
underscoring a person's naiae in the register; that ?fter the 
election, when he was taken to the detective bureau, he found out 
this meant that the person was disqualified and not entitled to 
vote; that he did not apply to the Blection CeiEjEissioners to be 
appointed judge of election hut was called there some time before 
and qualifiedj. that kr, Ealin, who was a meiiber of the old iioard, 
did not appear on the uomin^j in Question, hut witness did not 
know why; that he studied some of the instructions sent to him 
by the Election CoMaissionere. He was then asked hew he would 
eacplain the fact that some names appeared on the poll book twice, 
indicating that they had voted twice at the election, and his 



1.a 

'^ai- do .l)^>;'•1?i:'a s^in j-^;;J J <?BS X m .iL^i ji-io-'y :i:i3iiB ^mol^ hBii hn'^. .n#!<TJse$^rs:<t 
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jii'ijjoii !)Ig oxut 'to "jadja::^!;; .■a asv? o:lw , rjxisK .-i"..!; J-ijxiif j&fiii'iiiBwp bos 
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reply was, "The only vr&j 1 can acoount for tliat would be tli$ 
stupidity of the board," including hi:. .self. He was then asked 
Tjy the court what experience would ise necesoary to find out 
Whether a person had voted onee an'" then cmie in later ix. the 
day Bn6. voted again, and his coiswer was, "^Teii ^ tixe tur^iOil i^aa 
so great — yaen a man carie in to vote vThose name appeejred as 
having "been voted the judges refused to let ^ai..^ vote»" 

The court then asked couiisel, who, during one of the 
continuances of the hearing had exajninsd the records in the 
Slection Commissioners* office, '♦.How many nataes do you have in t.irii0 
case that voted more tnan once?" to which couiisei for two of the 
respondents replied, "There are six, your Honor, arid t'-ier© is one 
nsuae , Uioiaas Maynard, that appears as Todd ii^ayriard in one- 'book 
and the witness said he couldn't tell whether it was Xhoiuas or 
not in another Tsook, * Mr« Johnson ( couasel for petitioner): 
^Yes, six of them," I'oley then contiauing testified that vfxi&a a, 
person came to vote lyho gave a different address fro^si that shown 
on the register, he was not allowed to vote hut t.bat in the con- 
fusion, "persons rB±^-j:it have "been nerraitted to vote from a dif- 
ferent addreBB;" t.^iat he knew affidavits v/ere required where, 
sine© the registration, -eople had Boved tc a different address 
in the precinct; that no affidavits were taken in four instancea 
where people had BiGVed within the precinct; that he held no politl- 
©al office arid haA received no promios or inducement and had only 
received hie daily wage for the woris: he did; that ha had never 
1»een arrested "before and was never in trouble; that when .*% person 
Vhose qualifications were qu-istioned cane so vote, the registera 
were consulted and tlien the three Ju-iges decided whether he was 
qualified to vote; that respondent Matthiesen had nothing to do 
with the registers during the entire day; that Mr. Grace, one of 
the judges of election, did not appear •'fueii ihe polls opened, iOid 



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r^fi^ ad t«x.;^e.r«. hscxoai. asjK^4 ^9x..^ o;ij a^-^ ,,^ he>iXmac'^ «i*w 
0^ oJ i;fil,-'cl-on bx-^.n ai)a3J..vI;f,t,8cJ.' *ffi>.r nocfsst ^.%x£d- :.=:dotr oi biVtlXsup 



that he first learned that Gracs ^as not to appear mien lie 
arrived at the polling place on the ffiorring of ^h*£ election; 
that he did not know Matthies^a until he laet hiru at t-^e polling 
place on the isiorninfr of the plection. 

There ie ^Ino in eTlder.ce a letter dated 'flsrch 27, 1935, 
from Judge Jarec:'-£i, addressed to all the Judges nr-d clerks cf 
election, in iv-.ich it i? <^tatec! f^at it is the duty of the judges 
axid Gierke of election to see that all votes are counted in ac- 
cordance -^rith the ?ray they -were oast. "5'or your o«rn protection 
you fthould read and become farr-ilisr "''ith all of th.^ law and the 
rules and regulations prepared for your guidance, l^o e:ccusc for 
irour failure to ohs'srve the la^ fill h^. accerted»" Kiat in the 
past the court had found it neceesar^' to discipline sloctiou of- 
ficials and to conrdt )?ci:'e of thern to Jail for r.iseoriduct and isis- 
"beharior in offic« and that the lavf requires nnd the Court e2q-)eot®a 
them to perfeim thfd.r duties free froa partisanship md in strict 
complif-nce with the law; that a police officer ^rho r.-ae under the 
judges' control ,ind direction would he detailed to the polling 
place ^nd would carry out their orders. 

Respondent Wolf testified that he ^'n.s a waiter employed 
at a tavern and that he had never served as a judge of election 
hefore; that he got throu^ work at one o'clock on the morning ©f 
April 3Bd, "went orer tc see a party and stayed out all nifcht, 
so he figoired he would feo o-^er to vote.* When he cot to the poll- 
ing place he was asked "by :?oley to serve as judge of election; that 
Mrs, Dolman was there at the time and some other persons; that 
Foley told hira if he acted he would receive eifiht dollsrs pjid his 
duties were to check off naiies of persons voting who were on the 
registers; that he told i'oley he f/as a Democrat; that he was 
given one of the registers; that when a person caiTie in to vote, 
if his name appeared or. the register it was ciriecked off by hirAself 



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■0 



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':^^iy- no 9'X?^w otiw sni.J-o'? aaciriocr 'to ao^flu 'tto sloaiis. oJ' sf^w aei:^u6 
.isJ^ov «.^ ;ti ^-iao no«-M? ^ iif>iiw ia.ii ja^daeigd-s o/!>t 'lo olio lififl^ 



anH IFoley, who Un,§L tb.Q other regii-tsr, ^.^ut notii.inei \5fa,B told him 
that linf5S appearing under nar-ies indicated tiiey were scratcuied 
and the persons not entitlf?d to vots; tiiat s'<i1b:j tola ^j-ia if a 
line v?r%a drawn through the na...e, tucli persoii could not vcttei, ilie 
respondent was then asked, "Is there . ny way tUfct you o&n aceount 
for a person's name B-ppeiiTlnQ tvrice in the poll 'books?" ^iswer; 
"1^1 , sir, I did not reiaeuber, There vas not-ing £aid to me 
about afJ'iflaYitp; •• that he did not receive any iiistruetions re- 
garding, hip duties except to "be told to citck oiT the naiies ■'/•hen 
Persons v-ere jjiven "ballots to vote, 

Barah Rissi, called by the Court, testified that s^e Kb 
was a Eepublican clerk qu-ilixicd to act in the precinct on Uie 
day ol* election "but that, zhe did not serve; ti*a.t sne caiivaesed 
t'Po rooming houses on the Saturiay ..:.ft<.rxiOyn mth ^rs, Dsujliuaia at 
her requeet; that "I cot roy feet and ankles v/et su'id ;-ot l&ryngitie 
very hsdly and was in bed all day Sunday and i^-ondayj' thar. she 
notified Mr» Jones, the Rer)u"blicari precinct captain, ionday a,rter- 
lioon about 6:30 o'cloc-: t/at ahp wcul.;' not "be aisle to serve at 
the election; that she did not notify the Eoard of Election Goia- 
l&issioners "because it -was al-^ays the cuatoia to notify the precinct 
captain, and that Mr. Jonee stated he would tajce care of calling 
the Election Cordiaieeioners' of rice; that nobody asked her not to 
serve; that the reason she did not serve was tiiat siie had larynf^i- 
tis and could not speak; that -tlie polling place v/as "cold bnd 
traugiiity" ; that tiere were some 500 regiEjtered voters in tne pre- 
elnct ivcid some tretnsients in rootling houces. 

Counsel for petitioner bhen stated to the Court that i.rs. 
Brown, who vfs.3 one of the qualified clerrs of election hat who 
did not apr)ear, fail ad to do so hecause she %'?as ill, and the Court 
when BO informed said he ifas satisfied tJiat tlie reason j^iren was 
m valid one. 



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Mr, Grace, on? of tae other qualified judiics, as above 
stated, "'"AS rewoTei ty the Slectlon Co-aiclssioiifirs at atout 4:30 
in the aftv.rnoon on the day "before tiia election "becauee iie did not 
life in the precinct. 

William L. H3hn, aallei "by the Ciourt, tsstifie-i wii.at he 
was ^ qualified K-spuljlioan clarJs of trie preoirict in quaatien 'but 
did not s9rv« on A^^rll 2nl """cx^GcSW&e of j./ job, t,.ie siestion doming 
at the l3usy tine of the itonth, I SL'd -in ■j.cejunt.ifit, ''^■*'«- The only 
reason I .ill not serve 'ffas t^iat I iid^it Jeopajrdize my job;" tiiat 
hfe notifiad the pracinct captaixi Eunday afteraooii prior to tae 
election, ae he un-lerstood tliis ras th^ castcu.arv meti-,sd; that iiv> 
one approao-ied him snS told hici not to serv@; that he had served 
at one prior .lection; that tilliam R. li^hri vras his soa aiJd lived 
at the sac-e addresF ?iti,. hie lather, - "There should be taree 
Hahns in the regieter;** that he Cid not vote at ti^e eltctioxi in 
quc:stion; that he l^new resoondents i^'uic;; .-X..-! Sloan, tne l&.tter 
tein^, one of Uie clerks, but thi-.t he .Ud uct huow v/aetaer uioan 
knew ritnesB. 

Jack Clifford, called by respondent a, testified 'hicit lie was 
a police oi'ficer acsit.ned to uib preciuct Oii tiie day of election; 
that he f.rrived there a few minutes bf:fore six o'cioc^: suid stayed 
until the polling -pl'-^ce cl^ossd in ti..a eveniiig; that \7hen he 8j:-rived 
at the polling place is-rs, Diniiliaan was therf?; that during the day 
there was loto of chaJ. lending; tr.at he did not see ajiything, 7?rongj 
at ti-'ies -eople Tcre lined u.p seeking to vote; ths.t hrs, Dshlwan 
did a great ieal of chall'^ncing, and t.hat the xioard, aftar satis- 
fying itaelf that t^ie persons -^ers qualified, allo-.'ed thea to vote; 
that l^ve, ^ah^irlan told hia a lot of people who ;:?ere voting i^ere 
not qualified; that, he told 3ier to find out who they were and he 
wiuld loo:-: lliau up; that h" di:l not notice anyt. .ing unasaaJ. or 
ille-;al; thut ho did not Jcnow any majnhera of tlie Board, nor any 



Q 

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10 

voters; that neith.er mra, Daaiiaan nor axiyone else eompiainea to 
him about anyone ixi pciTtioul&r attempting te vote wiio was aot 
entitled to; tiaat responderit iiatthiesen 'a dax,'/ aas to pass out 
the ballots; that ■when & person cawe to Yote oiattiiiesen wouid 
call out tiie naiiie and tiie o txier judges would look at tue refeis- 
ter and tiiat tiie person would wien vote; 80uietL>.-es wken tiie 
voter was challenged by jure, Daiiiiiisua tij.e judges wuald tuen decide 
whether to peri^it the person to vote. 

Otto A, \7ui'ium, called by the petitioii^rs, gave his aaaress 
on "the Jworth side ©i' Gnicago, and testil'ied he t/a.8 seiit to the 
preoinct in question, as a iftatcuer, by tiie Board oi' i^lection Oo®»* 
misBioners, arriving taexe about seven o'cleoic in tlie morning; 
that Y'hen he arrived tnere wae a lady ctiailenging soiae ol' tiie 
voters, and he asked the judges if tne challengers :and watcxiers 
had credential*, ^and tixey didn't seem to know what it was all 
about"; that Matthiesen and J'oley were handling tne registers and 
tMe olerkg were writing in the pell booke; "Xhere was some ques- 
tion ae to whetiier or not th« judges were required to aave the 
challenged person icake out an affidavit, and the judges requested 
laforiBation l>oiu m«. 1 referred them to the section in the 'blue 
'book* that covers the point, I believe it is section i>, artiole 4, 
fhe Board asked no other questions except as to enallenging; '' that 
during his stay oi all day he did not observe anytniug that in his 
opinion was illegal or miusual, except that there was much coni*u>* 
sien on account oi' Mrs* Daali&an onallen^ang; that when a voter came 
in who was challenged by Mrs. Dahlman, Eatthiesen would -^alt until 
the other two juQges onecked the registers, and on several occa- 
sions asked the voter where ae registered the last time; tnat "I 
submitted a report to the Slection Oo:.aaiBsiGners» " 

Eorris ^snk, called by respondents, test ii led that his 



place of business' was at 1353 East 47th street; that the eleeti 



on 



01 

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n 

in question was held in his shoe store; that he ?fae present nearly 
all day; that he knew a rapn nfme<!i G-lena Parks -^ho ?ras one of his 
eustomers and lived on Laice Park avenue; tha^ hp r'ici phoe re- 
pairing and hat cleaning work for him; that he '^id not eee Glenn 
Parks at the oolling place on election day. 

At the conclusion of the witn«sses' testimony?- the Court 
found the reepondents Sloan and Stephens not guilty, Slosji v&e 
then called hy respondents and testified he was a "brother of 
Margaret Sloan » whose name appeared on the poll hook, ^nd. that 
she and witness lived for more than tiJ^o years at 4723 Kernvood 
avenue; that he wrote this address down; thst '?hen she appeared 
to vote sne said her address was 1357 East 47th stiset ''f-d that 
he wrote both addresses and otruck out the wronil one; th-t he 
did not know Matthiesen before election day arid that Katt.desen 
made no entries in any of the books. 

Two witnesses were called and t^eflfied, one t'lat he had 
known reepondent Wolf for 25 year? and that his repute„tion for 
honesty and integrity was good; the other tes-uified he had i:nown 
respondent Foley for about 25 years axid that his reputation for 
honesty and integrity was good. 

Respondent Matthiesen testified thrxt he went to the 
polling place about five minutes to six o'clock of the iaorning 
of election to vote arid was asked by Foley to act as a judge of 
election; there were some 15 or 20 people then waiting to vote; 
that Mrs. Dahlmaa caused a good deal ©f cominotion by challenging 
persons Who ca^'-e to vote; that after about half an Hour he called 
ttp the Election Commissioners' office and asked for advice and 
about a half hour thereafter Mr, Wuffusi came and said he was froia 

' the Election CojnraisBioners' office; that the latter stayed there 
all day; that nobody asked hisi to act as judge until ne appeared 

} at the polling -nlaoe to vote and that he gave out the ballots 



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»i:!.;!"ooci' Sfi;J 'to \-ai-i rtJ: gsiidnflt on ©fesia 

■ia': ;i:;'i:,:r...di/s;;»i8i.'.-: dwfiJ- ^-iv;: sri.feOY eS juoi^'is ao'i y^Xo's. drt^faxioqssi 
oJj aJ J- now :;ii 3iiJiJ- o^i'ii^sijcr 0©f)»iii;Jii'a^ la^tbaoqasfi 

;::J-o7 oJ- aaiJJ:,;jv^ ajsilJ sXqo^u i;S fl^o c2 X 3:t:o^ oiavr &l^cLi •,aoiio9£9 
;rjr£,r.:g..'3.i.X.£i.io \£cf .aoi>?-o .iii'co lo iaeS lioo:^ « bsaiino asi.'.-XiiaC ,aiM i'Sili' 

bna ftoi.T.bii ao't .e>i>:i8.c bos syi'i'io ' a^saoia-ivVa^oO noitosXCi OiU qji 

uci'i a.fev, fu"! I)ii;;a bxte 9iff£;o jku'I'I/^'W .tIJ i;f»;ft«eT:sil^ tsjoik 'tlBd & iuoda 

!5-i-',tlJ •,.e\;.s,^a T-jj-J^I f.i.dd ;>fifiJ ;&oi:"i;*io 'ais>iioia-?i.3imoO noitasXS an'* 



1.2 

when tixe otlier two judges stated t'ae person was registsred; tliat 
on ApriX 30tii, after t'le election, he .pent to tlie iileotioxa G01&- 
mlssioners' oil ice and signed a 'written sta'ce.ueiit ad to wiiat had 
taken place on election day, 

CounBel Tor respondents tlaen introduced two ejliitits 
showing the naaies of" 41 persons as Lliey appeared i-^ tiae registers 
amd whicli -were erased "by f1ra.wing lines tiiroug".! tne najues instead 
of under tiaem, Taase exlriibits saoi* the navies of txie persoi^s and 
the lina on the r^frister on whiG.'. they ayo-jar, iliis is Buutitaiu- 
tially all tlie evidence in the record* 

Res".ondent3 eontnnd that to T^'Hrr^mt the Court in finding 
thdia guilty, the law requires %ost conYinoing evidence of the 
truth of the charge" arid that the e-videuce. not onlj' is iiot con- 
vincing hut, Oil the contrary, tl;e f±r:5.in^^ of the Court is aga,inBt 
the manifest vfeli^it of the evidence; that the evidiaixce ail shows 
there was no intent on tlie part of the rt;3pondeiits to act fraudu- 
lently or diahonestly in pcrfor-dng thtir duties as ei«ctiou 
officials, 'but the xaost that can he so-id ae,i»ixi8t -itliehi is vaat 
they made some excusable idstaKes, 

^^ Peo ple eg_.rel.. Busch y, hotwas ^ 27& 111. iipp, 406, 
Which was a oase ■nh:'X& charges were i^ade against election offi- 
cials similar to the charge in the inst,,*iit case, we aaid (p. ^^1.2): 
*In a conte-ipt case of this kind, we taink the petiti„.ner is not 
required to prove the ;iruilt of respondents heyond a rc.asonable 
dou^bt, hut is required to .oroduce ♦j.iost conv-.ncing evidence of the 
truth of the charge' "before the respondents could he found guilty, 
the proceeding being quasi criaiiial , Oehler, v» .heT.v, losJ ill, App, 
41." 

I'he trial Judge, in deciding the case, aaid, suuong oaex 
things: "TlUs was not an attaiiipt to steal vutes, Ihis was what 
we Would call an attoHipt to staff the hallot hoz, if anytuiag at 



-:.;:0 r.r J: :);.'} IS, ^djis o- ^i-..'^-v ^i( , ?io.l. Jo-'X-;' -^rrf- 'tii^'i£- ^tfOi: iiiiiA ao 
&«jvj;uix s'^^-.'-ti :^iw ..-wvxJc 8?;->J;I sKiv^^!--!/- \rd b^i:i/.ire sift'p ifoiri?? .has 

iB<ji»j;J'ai:.(fi ?)I>f^ffliiox«» oatos 9fo««i x^iiA 
,ovJi' ,';q^> .XIi; c:V':; ,t:^£i^,0^:l,Al^,.:^dfi<iJ^,^j,lin^j^iJ}l^ rtl 

iou 3X 'j;>.f':. i Jio' I,: s>x{J Jfni:;^ ow ,^isi?i ??!«:!■ '5:0 »>?j»o cfcr ecJ'fioo i; nl" 

.iTcti. .XIX sax jij-jjL^i.„s»L„^;Li::ii2.ii . .C«.axudio xsiiijp saiscf jjni'Jh-'^^jooio: 9>.r{i 
zm^io ■ S«"'^ ,J3ij5^-^ ,&iS<.o 0x14 ^alhio^b nt , »sfcul X*iiJ arix 



all. 'Hie significant thing abeut this particular precinct was 
the atsence of duly appointed officials on the day of the plee« 
tion. The preaenee of the two men available, one wh© left hie 
place of employsient at one o'elock that night to "be available 
at six in the morning without sleep, and the other one who h.aA 
appeared at the polling plaee five minutes before six; things 
occurred in that polling place taat should not have happened 
there, fio doubt 8om« of it was provoked by the actions of the 
challenger. £ie official can assurae the position that he does 
not know the law because every opportunity is given him, and 
they testified themselves, we sent a nian down froEi the election 
ooirunissioners* office to assist them, to help them out, 9nc\ we 
have i»ritten books of instructions, we have written letters of 
instructions and wamingi to the officials, and what else can we 
do for theja, try to help every one wlio is called to serve^ give 
him instructions so that he may know his position when he is 
serving. If he is in need ©f help we win do everything in our 
power to assist him,* 

We have above set forth in considerable detail the evi** 
denetf and while some unfavorable inferences might legitimately 
be drawn froiXi the fact that none of the old Board except Foley 
Was present at the opening of the polls, and from the circumstsunees 
UBder which some of the new persons appeared axid. wer?* sworn in, yet 
We are of opinion that the e3(planation given by the new officials 
and by some ©f the old ones called by the Court, ou^t not to be 
Ignored, 

Donald Grace, one of the clerks, had been removed about 
4:30 o'clock on the afternoon before the election by the Sleotioa 
Ooamissioners because he was not then livin/:^ in the isrecinct; lire, 
Rissi, the Republican clerk, testified that she got her feet r/et 
in assisting Mrs. Bahlman canvass part of the precinct on 



^■B'^y ^:''i^::'j'io y.j?> u-iiiix&(< sl:£i i>.!iy:i& jiai»sj- jaKox'i/fia^a ■liili: .Ilia 
axri ^-'tej: oii>' s>ac ,sXa>XlivVjR asre, ry^cf ^x^j *io '3»fR)®-;-tf!: &ii'^ ^n-&i^ 
Ii.s>.,i cixiw isno is/iJo JUivJ- !::asj ,g9:vi3 j-y^/i;- J;'w giiiixiiioa aj5d' j;J: xi.g is 

o?.'0?> e-ii d-isxi3' .act J £*otT »>i-i' auu/aas iw-u ,Xii:>i'rio o^l .i':^^"*-*^^'®^'^ 
tjar ^'■at ,ii;o K'-^i'o crX^iv. o^ ^/vJSiiit ^^iJ^sa^- oJ' ©sillc; ' a-!;<5aoi3Hi:K!?^& 

■j:.uo s-is. grjiiij\;'i:sv© ofc I.ix'ff ;m ejXaii 'to Iiwaa ni ax ^:i 'tl ,3r!X"!rT«?? 

■'^'iXai'ir^isiii'xaeX ;i-ifcii.i.i aryoag.'xj/isix ©id.s'xovfc'i:a*J <5aos aXlji'sf feiis? ,'^oa<*f) 
v:3lcva. iasox-^ b'ljeoa^ &Xo o-is t© snoa ^r^uit ,tK»^3't ^ii4' isoi't awAt-jfe ^d" 

h's',': ^i-'ii irio"*8 ;*Tyw baa &K7.s<icrcf*j enos'xaef wsa ®iii in iv:i:-.oe il&iifw 'xs>jb«u 

aX^'i'oi: i:Xo '■van <vxld' Y,cr n-'^vJCii ctoi JViH/-. Xqx© siii' i&ii^ iioxaifjo 'io ©1.3 9W 

flif c^ if on Jxi'niio ,j'tx^oO ail* vd bc^XXjp.o e&iio hlo srld- 'io ©js^oa -^^ £>«« 

fioi;^09X^x eric?- -cf cioitofilo p<ds &%o'tiiO ncoxiiJ'-'te ••..xii' ao i:aoX3'o Oi^-ti^ 

,a's:l •t?)rilo9ifr ;>x*;t a^ ^a^viX naxii ton o»\t 9xi ^aso^sotu axatnoise littfoO 

^9-? jso't -x-oii -JOB ©ixf! «-r^ri* baiact-aecf ,.3ii»Xn jmoiXdwc^H oxl;^ , i:a«lH 



14 

Saturday afteruoori "bei'ore the election and Yfas, oom'ined to iier Tsed 
with Iroryrifeitis Sundaii' and ^oriday, and tiiat she notiiied the iie- 
pulallcan precinct captain .^onday al'ternoon tuat sne would not "be 
atle to serve; that thia was Uie custoci on i'ormer occasions* 

It was conceded taat krs, ;bro"wn, aiiother judge of the old 
Board, ■I'^ras unatle to serve on account oi' her physical condition. 
Halin, the other cleri, testii'ied tiiat he was eraployed as an ac*« 
oountant, and t.ae only reason he did not work was tnat he -ras 
afraid he might jeopardize his Jot and that he notil'ied the 
precinct caotain on Sunday ai'ternoon Lei'ore the election that he 
would "be unat'le to serve, iind the evidence also is tnat respondent 
Foley 3i\A the persons sworra in by hiEu were unacquainted prior to 
that tine* 

^e think the evidence that live persone whoee names had bees 
erased were allovved to vote» Bhov.s Ui&t tne judges permitted tnem 
to vote through an excusable uistake, liespondent woll had never 
"before acted as judge oi election, iie did not icnow what the lines 
under the naa.ee a.eant but understood tnat the aaiaea appearing on 
the register tixrough whion lines were drawn (and there were 41 of 
such names) were the na-j.es of persons who were not entitled to 
vote, and there is no contention that any of such 41 persons voted, 
Mfctthiesen had never before acted as a judge ol' election, he had 
nothing to do with the registers. His woric was at the T^allot "box 
giving ballots to persons when i'oley and Wolf advised him they were 
properly registered. Tne testii^ony shows the judges coneulted 
together to see that a person presenting himself was qualified liefore 
he was given the "ballot "by id:atthiesen; ©"bviously, iaattiiiesen had t© 
do this; this was the proper way for aitL to act. i'oley had acted 
as a judge of election on two prior occasions - one in the fall 
election of 1934, and in the primary election in i'ebruary, 1935, 
He testified that he understood a person's name was scratched froa 

I 



y.:;o r;?-;i:'I,i.:fo;i O/i j;5.(id ■•:.u:.. dot S-*^-^ 9;iiJ:.Xi:iqo«5 1 JXljii'*"' ^^ biiHttB 

d'iieij;iOQK3i j'.i;.!iJ- si o^L-a aoasbJ-ve oil;;- Jifs^-. ,9V',t«u oi i>lii^asit acf t ,fJuow 
y.; tots.:' i/©,h'-.i,Si-po.'?Kj;; e»'Xiaw ivdii -vj-d" ni mowa aao'-iia'; OiiJ' Rae \eLo'i' 

diviiL oji juoiJu.^Ifj 'to ':>';i^'iJi a Si;- .5J:Kto.5 o'lo'tsjo •isavaa fijisxf HeaatiiJ'^j!:."^ 

oJ &.'«xi a[i?ttsxiiCF^i!i.(«i ^vX'iXioivcfo jixsa9ii>,:f;ri;A; '^ci ;toXii,^.a 'Ji'Id^ ciovia a^.w axl 

*aJo& b. ii issslo'a ,J-oi: 0^ .uii:. -xo't x^vj tsqoio Oil* a^i?? aiJ^* ;Gidi ob 

' Llsbi OiiJ- ..U one - arioxa^aao iciTcq owj' «o ooi^o^Is "io ssbi;{:, b (?«' 

,S£3X ,\;x:s,j'3.cisu ai aoi^o^'Xa v;i,s.!:iii<2-' »;!:*• ni fens ,^ceX Io' aoiJsfsXo 

,i-.fi-i'i: ?>« iiji.t;io3 i5«iw ©jvifia «'noat9cr is f)cola*x»I)rm s-ii *iixlj ijax't J:;}b9* •H 



15 

the register yflsien a line wa® drawn through tt and not under it, 
anfl, as stated, there are 41 naraea eeratehed from the register 
by drawing a line through theai and not under them. All the ipit- 
nesses agree that tliere vas considerable confusion on account of 
the great number of ehallengea made by Mrs, Bahlmari, So witness 
was asked how the 41 names eai&e to be soratcshed by drawing the 
line throu^ instead of under the names* 

The three person© who were permitted to rote and who li'ere 
registered ia the precinct, but who had moved after their regis- 
tration to a new address within the precinct, ■^ere peascitted to 
Tote 'witliout requiring afifidaTite. Matthiesen and Mrs, Bahlman 
each testified that shortly after the polls opened and Mrs, 
Dahlman had challenged a number of persons, they called \jp the 
llection CoEimissioneri' office for instructions and they sent 
Mr, Wuffuia to the polling place, where he arrived at about seven 
o'clock in the Biorning, He testified the Judges aslced him for 
infor^tiation eoncerning making affidavits xistiere voters were chal- 
lenged. But instead of telling thea that affidavits were required 
in such cases, all he did, as he himself testified, was to refer 
them to a section in the "blue book" i^ieh he said covered the 
point. Obviously, this was of little or n© assi stance. The three 
persons were duly qualified to eas^ iheir votes and there was but a 
mere technical violation of the law in not requiring then to make 

affidavits, which did not affect the result« Blattner y, B i©tz,» 
311 111, 445^ Siedachlag y, Ma^!, 363 111, » ^38„ 

The order also finds that there were eight persons who 
voted twice (their names appearing twice on the poll books) whose 
names appeared but once on the register. One of these nasses is 
Todd 0. Maynard, but Mr. S'oMhan, who was connected with the 
Blection O^iamisaioners' office, as above stated, testified: "Both 
Todd 0, Maynard and Thoxaas Maynard appear in the register as 
eligible to vote and that the registers show that they both voted 



ex 

"iiiy^st ilsdi T:9#Tr.s bsvoat fejsxf ©bw iy^f , d'snios'tq sii^- iii h»1»i9i:^9*t 
aeffiXiieS .a*rM;:itiTc? jawa^iri'ci-i'fiM .fj3-iv,«.bi".M« ^alttvpQ'x tssesiil'vf ©#or 

&©iJ:it;pr4'j: .oi^w «^li?^..fei't*t£i ;^fixia- iasx(j ■^iillli^i 'to b&ai^al J-oS ,i5»ai;»X 

^®t9i oJ c«'«' ,fesiliv*-«sd" IXiaQv-iri taxi 8« ,l)i:x> «a XXiS ,«»8bo ifojJB Hi 

9rfJ fistSTOo fcifi^ »iS f;exj£t«r '':^.oo^' dwXfit*' fftiiit ai iioJfcJ'asa js oi? smsidi 

« d'jjrf asw 9i&ds btm eacTov ti^ilv Jajg© oS b»i'ttLsup \;Xi(f> o-ssw anoeisiq: 

oSSe ,.ill £df. . v,aM ,v SJPXxiOBfcelS j-SI^J^ ,1X1 XX«" 
oiiw- exiosi^cr dfx%i9 »sow «T£9il;5 J-si"!;^ ubni't o«Ifi iclrxo extT 

eX aamjBjH ©asii^ "to saO .leJaXs^t axid ao ooho *i/cf i>«i*9ci<j« asiHca 

84B iscrai&ai Siii- fli nesqqa fittsa-^caJi esaioxiT fetss frxexn&eM ,0 JUIoT 
&*;^oT xl^ad" -ijdxi* i«ii- woxia atd^Tsisai OJ^* Ja^^ i^i'Lts 3;Jov oJ ©X4fisi-t» 



16 

at tl;.e eleotion, *' Moreover, tas evidaace aiiows thau counacl for 
"botix pferties, daring an adjoarn^ient ol' tiie iiearinj^ ( tu* case 
halving been ^n lieariag. a nuiriToer oi' tinues) exauia^d tlie records 
and in response to a question by tiie court it ^^aa agreed by ooimsel 
tlxat it appeared, fro^^i tiie poll oo:ijks tj.at siic psrsone ixud been per- 
mitted to vote twice, one ol' y^lioni was proloably ji^aynard, ioley tes- 
tified, "TTlisn a a£ja came in to vote ?.faose najx^e appf.v.;urea a,y haying 
been voted, tlie judges refused to let iii-u vote," Ilasre were about 
500 rsgistered voters, ajid altuoUiib. i.rs. aJaiilxuaJi chaiiengsd about 
25^^ of tae persons ^iaO appeared, no'.v}iere aces sue tfjstify tiat she 
ciiallenged a voter on account of iiis huvin^ praviously voted* 

^Uhen counsel for respondeiita anucuxiced taat ae would call 
character witnsssea, counsel i'or peui -iouer said ixe '.7ould stipu- 
late as to tile good oiiaracter of Uia respondeiits, buc oouiisel for 
respondents then called two aiiar;*cLer witnesses axiu trie testiJ&oBy 
was tiiat Wolf and i'oley, ijaoni witnesseB ixi*d kiiovfn for 25 yeara, 
were laen of ^ood reputation for iioxissty and integrity, i'oley 
testified iie had never ueen in trouble before uud had never been 
arrested, and txiere is no evidence tu iiie contrary, 

S'tqjXx a careful coxisideratio.u of all the evidence, we are 
of opinion ttiat tae evidence is not of t^iat convincing character 
required by tne law before one can be found guilty of a cuarge of 
eonte-i.^pt, as ia the inst^aat case. But in any vie?; of the case, 
we are clear that Mat thieaen sliould have oeen disciiarged, axid txi&t 
the six raonths iLiprisorii..ent as against f-'oley ajad V.'olf is gieatly 
excessive. 

^" -^^eople ez: rel ^ , liuaaa. v, .uroenaeit , 277 111, App, 479- 
437, it is said: "Under cection 13 (jiax, 267, chapter 46, ilii- 
nois ::>t\..._.e har L'tats« 1^35) the court undoubtedly nas the power, 
in a pioper case, to punisii aii election official for carelessnesa 
in the perforMaiice of his uuties, " In view of this holdinjj, we 



;jJa.i;v^-i.■i■ uft! 5v»x-.> j^f.^T S::_.::. ftjy I'V QcJ-^v o^ :.i OMi..o ixaii £ nefl^** ,.t£sx'tx* 

*X'.".;c.s;.'.i..yi':;- iiaXvj~.Xv*iOu J./iXtJ 'xo -* ofi aX ooris-^jive 3*id ;f£fid' jBcXiii^tO aO 

^..LJ&ox^ ai XX.v3«» -i.u.w,i. T{;*ifXX ,^/5Jtxi*>i5i4i a^ 4'it©,';.it«3X-i^ftiJt. atijaosi: xXe e^id" 
. " .svXesQOXsj 

-*SVy ,:;Kir^ .XXX V^^S; ,iiSiJi|&ai£_;8X,.ilgXiiJd.-^£21«^ 

-XIXX ,5x^- i--.jc4.«i-i0 (Viii ,i'i.>cj:] SX )ri0X<?o©fi -'isbau* •:X>i*!a «x JX ,'?'i3f' 

,l*»w«<;;. 9irlX a*ai >4Xi>eXtfjJol;tt:3 d'iijsjo .^M i^i£'' i^i^it'V, -"xm-'it^i^^S aidn 

:^>Y .ijxiXoXoii «x£iJ 'io sv©xT x-u «,«i-9XircX.' aiii 'to »oi^aiax0^t^■'^i9:■■9■rf^^ aJ: 



17 

thirUc the facta warrant a small fine against Wolf, f?uc^i as a day's 
pay he received, whicia would fee sufficient nunishBient, *3n(i a 
slightly larger fine is all that the law warrants as arainiet 
Soley. We would enter aueh a judgaient against Wolf and 5'©iey In 
this court., liut probably have not that power, OLBrien t, Int, 
Ladies' Qara e nt 'Workers' Uuion , 214 111. App, 46; same case re- 
ported as Ash-Jjft.a.ciden-h.ae Oq« Vy Xntemat. union . 290 111, 3oi. 
The judtiJ^^exit of the County cuur^ of Oook couuty as to 
respondent iiatthiesen is reversed; and as to respondents Wolf and 
i'oley the judgment is reversed ana the cause r&uanded, 

JOiXiiffiiiT SEViiRaEK AS 10 MAlTHliSSEK; 
REVSRSaD AKD BEJiAiinBD Aii I'G WOLiT AO> J^OiEY. 

Matchettj .. J, dissents, (dee next page), 
MoSureiy, J, , concurs. 



fx 

(iX Y.SI0U bite "^10% d-Qai-ftyi; cTno.rjsljjin, 45 iioiia "Xi}:?/!^ i/iijov sW .\;sIo'S: 

, (, 3;>L:i;r vJ-rft'.ut o9tO ♦3^iig»3sii. ,'^j . tidtiaifod" iiM 



58581 MB. FHSSIDIMG JUSTICE MAfQHlfr MSSMf IS&. 

I have not "beer, able 1;o agree ir&th my "bretliren that tixie 
record shows only unintentional wrongdoing* i'oley, in particular, 
had experience, end hie cross exaixiiiiation disclosed tiiat he kntsw 
a line drawn under the nasi© app<staring on th.e register indicated 
that such DMse was eliainated and tlxat the person did net kave a 
right to Tote. sSuou persons were penaitted to vote, notwitli- 
standing. At least six persons were perndtted to vote tiriee. 
The oath fm6. affidarit envelope of this precinct returned to the 
election coiMiissionere.wlien opened in court , was Tound to contain 
no affidavits, altlxough. three persons mio voted had, since last 
registration, moved 'ffithin tne precinct. The e-bsence of the duly 
ehos«a officials at the opening of the polls placed uoon Foley 
the duty of elataining and swearini,; in helpers, li^ ohoas A..«,tthies«9a 
and Wolf, and. they were Bul)Bervient. These recpondeiits were not 
so stupid as they pretend. I think the punial^»eIit to he inflicted 
ought to bs laft to the trial Judge who saw ani heard the witnesses, 



.t^u^mmid 's^mmAM rnvmi^ ^m<!.mMMH ,m ■ xs38« 

ai/J J,&ri;t ii^til^'S:(^ sS'i ifefi;'^- i^'&'Si'^iri o^i >^l^'^^ li^iufi .tort Qred I 
;ici.a?avO ri.j i^i-iwo'i sew ,d"xiioo rii: S-f-yci&itQ isaii'?S',e's:*nol?s!.tv:u;.oa a&i^Gftls 



/ J.-" ,i if 

33S18 • / / I ^"' 

THE PSOPLiS OP STATE OF ILLIITOIS, ) (^^ / ,,./ ,.#^V 

ex rel. Alice Hoffnan, ) "^-^^ ■- " | / 

Appellee, ) / * 

) APPEiiL FRQxA MJi^lCLPAl* UOURS 
T8* ) 

JOiOJ JOSEPH COURTS, ) 

Apoellaiit, ) 



im. JUSTICE 0»COKNOR 1>BLI¥BHBD TFJ) OPIlflOK OF 1105 COUHT. 

tay 29, 1935, Alice ..orriUaii, ari unmarried woman, liied a 
complaint against defendant, Dr, Joseph Courts, charging that ori 
May 8, 19 35, She w«s cieliverevi ol' a ^ale calld and that Courts "Was 
its fatlifer. SoTexfiter 6, 1935, there was a trial beiore t.ie court 
wit-^iout ajury; tht court I'ound that dercndant was the father ol" 
the child and he was adjudged to pay ^1100 in installuients lor its 
euo^Dort, li^aiutenanee and education, in accordance with the statuts. 
To reverse the judgHient del'eiidai'it , Courts, appeals. 

Pursuant to an order oi court, a bill of particulars was 
filed in which it ^vas stated the conception of tlie child toois: plao© 
"between July 20, 19 34, and August 20, 1934. 

The record iiscloses that defendatit ia a dentist and had 
"been practicing; hie profession in Caieago for a liitie over three 
yeara. In Janu^iry, 1934, Alice Hoffman, an unmarried woii»an ahout 
19 years of age, hecarue a patient of defendaiit and tiie dental worit 
continued OA'^er a number of i^ionths. The doctor was uniaarried. She 
testified i.at she ha,d been introduced to hiui in 19 33; that in 
Jajiuary, 1934, she was at defendant's office for soiae dental wori: 
and he then gave her a glass of water which made her drowsy, and 
thereafter defendant had sexual relations with her; that aft©r tnis 
time she called two or three ti) es a week at nis office for dental 
work and on these occasions the sexual relations were repeated; 
that after July 30, 1934, she "misBed Iiqt regular menstrual period 
and was aeared aljout it," a^id told defendant she thought she was 



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pregnant; that hc: told hpr net to ''orry, that lie would giya her 
»ome pills, and asy?d laer to f?o and see I)r, Ketoan, mxrl while shrj 
was in defendant's office he called a telephone nuribpr, talked to 
Ur, Redman and made an appointment for her to call tmd aee the 
doctor; that some time afterward, tlie first part of 3«pteEi"ber, de- 
fendant gave her some lirown pills and told h!?r ts tak<-; them -^jid, she 
would get rid of the baby; tiiat she took: the pillg cut they had n© 
effect and! sne told defendant of this; tliat thereaft-sr she often 
talked about her condition to defendant during Septemher, Sove'n"b9r, 
December, January and i'e'bruary, and he asiied her why she didiiH gc 
to see the two doctors he had najied; that one of t:e doctors called 
her on the telephone in April, 1935, and asJiied her to ccine dcwn, 
stating tliat "John (defendsuat) called xne about your condition;* 
that she went to the doctor's offie** mid while there the loctor 
Call*;d defendant on the xele-phone, and the doctor toir; htr that 
defendant said he would not do any thing atout the mutter; that 
May 8, 19 35, the hahy was born; that she talked to defendant ahout 
it and he told her to fceep cuiet an^i he -would marr;- her. The bottlft 
of pills which ahe said she had received from defendant waa efferent 
and received in evidence, 

Ihe evidence further ghor-s that Aliwe Hoffnan lived at home 
with her parents, not far from defendant's dental office. The ■ap- 
pointments made with defendant tiy relatrix were usually at about 
11 o'clock at hie office, and the evidence shtST^s that on a number 
of occasions after relatrix had been to defendsint's office he walked 
with her on h^r way back home, Relatrix testified she had never 
had any relations with any other man, 

Eartha Hoffman, mother of relatrix, testified she had known 
defendant for some time before January, 1934, and that he had done 
dental work for her, starting in December, 1933; that kay 8, 19 35, 
a baby was born to her daugater w'lile on the way to the hospital; 



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»aj$!s. 'X3i(jo v;*^3 iiJiw Qitolialsi xa^ bad 
a'T-tost^ fi.^R aria b^i'tii^,^:^ ,x iiJ.^iX^-x to i*ii:toar ^nsal'teH sdii&M. 
snofc- ^^Gii s£l iiidi fcm. ,^i5'^X ,scic£uu;:t, sio'tscf stuli saios 10't ln«fen9t»l> 
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that she afterward went to see defendant at his offioe and wwited 

him to go to tiie hospita.! to see the Taaby and .he said he lid not 
have any time - "iio he pulled out the marriage iioi^ns?©, h« is no"?? 
married;" th&t he aaid, "What are you going to do -jbout it^" ^v.d 
he I'urtiier said taai. 11" Alice had listaned to him and iiad gone to 
Dr, Kedinaii for an also rt ion neither of them -^culd "b® In difl'icultyj 
that ahout five days l-'.ter the ag«dn went to his office ar-- asired 
him to go to see the Brother ef tht tahy, that her lungg< w-ere in- 
fected; that he refused to go, and eaic^ thst relatrix had called 
him up from the hosoital and tk'at there raf? r.otfcin-; iirrong with her 
lungs* 

Br, Pehorsky testified that he we.s a phyBloian and surgeon, 
practicing in Chicago for 10^ years; that he knet? Alice for three 
or four years t-jid had tresited her far ily; that the latter xsai't of 
April, 1935, when he wag in hie office his telephone rfa?g and h*; 
answered the call; tha.c the person talking said he wae Dr^ Courts, 
that he was calling "in retuni of a conversation he had with a 
friend of his "by the name of Dr, Redman whom I had sooken to oon- 
ceming Alice Hofl'man;'* that in that oonversaticn the witness told 
the person who said he was Or, Courts that Alice Hoffman was preg- 
nant - about ready to have a baby - and that she claimed C^-^urtf? was 
the father; that Courts seked him when he thought the bahy would bP 
born and he replied in two or three weelcs; that he further asked the 
witness what could be done, and witness replied that he could marry 
the pirl, send her to a hoepitsl, or have the baby sert for aaoption 
out of town; that Courts said he would call back in a fl%j cr two 
when he had decided what to do, Ihe "syitneas further testified that 

two or three days later his office telephone rang, he auiswered the 

again 
call, and the voiej/said he was Dr, Courts; that he had thought 

over the matter seriously and had decided to forget about it; that 
he recognized the to ice ap that of the same person to \vhoffi he had 



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talke(3 a €ew dayp "bftfore; that he took care oi' Al:lce Iloff.^an when 
the taTby v:'as born on May Stli. 

On cross exaa-ination Dr. Potors^cy tf^stifie'l that he fioA 
never ir.pt Dr. Courts T>rior to t.i-ie telephone convsrs'*tion :md >:i.ad 
never seen jiim; that ^iie Aad "been a phygielan for the lioffiiian fs^ily 
lor two or three years; that ae, vrs.e not paifi acy aaone^/ for delivsjv 
ing the baby; that he did not ex?i-:iirie Alice HofiYnan prior to the 
telephone conversation; tuat he s&r her in person "at 3iy aooratep 
about two weeks before I delivored hpr. " On riotior of coursel 
for defendant the court struck out the tr^o telephone conversations 
above luentioned. Counsel for t.he People objecled to this and said 
he woul(3 bring in some authorities at a later date, tJU'-l it afieras 
to be conceded that no aut^iorities were suhseou'n-'.ly subruitterl. and 
nothing furtuer was don© in refarsnoe to the piatt'-r, 

Defeadaiit testified, deuyitig any impror; ':-T rHlt^-tions witl5. 
the relatrix, lie further testified that he met her about Qecf^rnber 
of ]i93S; that sVie oa'ne to his office for dental ^^orV: in January or 
February, 19 54, ?»nd that he continued to do -worl: for h^-r for a 
nuiBber of months thereafter. He then ide^'tified a booi: ^'hich he 
kept, 3ho»'ing the appointaientB with hie patients, and it was 
offered and received in evidence, but is not in th° abstract or tlie 
record. He further testified that on occasione h« ,5a,ve her niiia 
for the purpose of relieving pain which -vas the result of the 
dental work; tltat he did not give her pills for ajiy other purpose; 
that he never saw the pills w lieJa relatrix produced fu'id, had not 
given them to her; that she never talki^d to hii-i of being pregnant; 
that he 'iid not tell her to go to ae© Dr, Redman or Dr. JPohorBJry; 
that he did not call Dr. Redxaan on tne telephone in her prespnoe* 
that he never called Dr, Poborsky; that he was married June 1,1955; 
that he had one or more conversations Tith Mrs. Hoffman, 3ioth'=r of 
Alitse, in Kay, 1955; that he talked to her out in the hall adjoining 



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his office; that the mother then asked hit:: what he Piad done to 
her daughter and he asked her what slie was talking ahout; that 
the mother replied that Alice had a baby and accused hiaa of 'being 
the father, ,3ind that he denied it; that the mother than wanted him 
to ^0 to the hospital and he refused, saying he was too busy; 
that atout five or six days afterward he had another conirersatioH 
with the mother, smd she asked aim what he intended to do, and 
why he did not marry the 4iirl,"and I says, 'Ihy siaould I juarry the 
girl?* and she started laughing and says, 'The 'baby looks like 
you;'" that she then e&id they had a rich aant and were going to 
employ a good lawyer and ruin him; that the mother then said the 
daughter was "pretty sick" and they were liable to lose her; that 
defendant then said, "Well, ehe csui't he Tery sick hecause she 
just called tro'ih the hoepitsl and asked me to coiae down and see 
her;" that thereupon the mother left; that at the ciae in questioa 
he lived about a block froi. the ho ff mans and that during the time 
he was treating Alice he walked home with her about ten timesa 

Pr, Redman, called "by defendant, testified and denied that 
defendant had called hiia on the telephone and asked hici to perform 
an abortion on Alice uoflman. He further testified that he did 
give defendant soae pills but they *wer@ not exactly like these** 
(Being the pills produced by relatrix, as above uaentionede) 

There is other evidence in the record, but we think it 
Would serve no useful puirsose t© discuss it further* The question 
whether the defendant was the father of the child was one of fact 
for the court, he foiind against the defendant, snA upon a con- 
sitJeration of all the evidence in the record, ve are unable to 
say that the finding is a.gainst the manifest veij^it of the evidence^ 

Defendant further contends that the court erred in admitting 
evidence over his objection, (1) that the pills which the relatrix 
testified defendant gave iier "to get rid of the baby" should have 



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"been excluded Is^icause there was no analysis of their contenta, le 
tiiink ttiere ie no merit in this contention. Inhere is evidence 
to the effect that defendant had been intiniate with relatrix on s. 
number of occasions; that she told him she was pregnant; that he 
told her he v^oulii see a doctor and give hev some pills, and tiiat 
later he did give her the pills which were offered in evidence. 
This would render them clearly adi-issibi« regardless of vfciat the 
pills contained, I'he weight to be given was, of couree, for the 
court to deteriiiine. (2) it is said tliat the court erred in per- 
mitting the two telephone conversations between Dr. Poborsiy and 
the person who had called, because Dr, Poborsky did not ioiow the 
voice of the person calling. Whether this teBtimony, taken in 
connection with all the evidence i) the case, was admissible we do 
not pass upon because the court atruclt out tlie two conversacions, 
(3) 'Chat the court erred in adaittlBg receipts given by defendant 
to relatrix for paymexits made between "February 17, 19 34, May 31, 
1934, and other irrelevant dates," i\nd the contention seems to be 
that these receipts should have been excluded beeauee the bill 
of particulars, filed by the relatrix, specified that the "couoep- 
tion of tae child took place between July SO, 1934, and August 30, 
1934," And that no receipts were admissiblie nor testimony as to 
acts of intimaoy between the parties that did not occur between th«se 

two last mentioned dates, There is no merit in this contentions The 
evidence was admissible to show the relation of the parties from 
January, 1934. The trial Judge should have been apprized of all the 
facts at>d not limited to the p-riod between July 20 and August 20, 
1834, because evidence of such prior relationship might or iiagat not 
throw light ©n the question ishether there had been illegitimate re- 
lations between tiie two dates* 

The judgment of the Municipal court of Chicago is affirmed, 

JUDGMSi^T AFJ-IRMSB, 
liatehett, P, J,, and MeSurely, J,, eoneur* 



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38839 

EICHARD USWTOif, Adminietra 
of the Sstate ol" Josephin 
IDttceased, 

Appellee, 

vs. 

MlTROPOLITAiJ LIFB INSURAKCS 
eoaPASY, a Corporation, 

Appellant, 




/ 



/ I ,1 

APPEAL FROM MUBICIpiL 
COURT OF CHICAao. 



* 28 6 1X616"^ 



MK. JUSTICS 0»COiIliOR DiLIVSRiS]} xHB OPIlflO^ OF TEB COURS, 

Richard Hewton, as administrator of the estate of Jos€- 
fhict® Kewton, deceased, Isrought two suits against the Metropolitan 
Life Insurance Cofipany on two policies, one for #800 and the other 
for #468, issupd to Josephine iiewton, vho had been his wife but 
was divorced from hisi about a year before the policies were issued. 
The cases were tried separately and plaintiff had a verdict and 
judgment in each ease, The defendant appealed to this court where 
the judgments were reversed and the causes reiisoided^ 'fhe cases are 
numbered 37044 and 37045, Pureusnt to our suggestion., the cases 
were consolidated, again tried, and there was a verdict and judgw 
ment in plaintiff's favor for the amount of the two policies , 
#1592,47, and defendant appeals. 

The facts are set forth in the two opinions filed by this 
court, and tile evidence being substantially the same except as 
will be hereinafter noted, we will not analyze the facts in detail. 

The policy for #468 is dated J^anuary 9, 1928, and the one 
for #800 is dated December 1, 1923. The premium on the latter 
policy was payable monthly and on tb.e former weekly. All premiums 
were paid to and including Maroh, 19 30, at^d it is admitted that 
both policies had lapsed for non->payment of dues. 

The evidence shows that the parties were divorced in Chicago 
in 1927, end thereupon Josephine -feiewton tooJc up her residence in 
Toledo, Ohio, living with several ol her sisters. Her forxaer 



\ v3 er.s85 

( 



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z 

husband reiaained in Chicago, The two polioies were issued t® 
feledo to her, payable to her ©state. September 17, 1930, 
Josephine Kewton -wae taken to a hospital in Toled© and operated 
on the next day l"or gallatoneo. She died Septeaiher 29, 1930, 
September 19th Sewton, ^^ith Mrs, Rose, Josephine BefWton's sis- 
ter, ^ho lived with her in Toledo, called to see Josephine at 
the hospital, he haying driyen from Caiicago the day "before. 
The next day about noon lilewton and felrs. Ross csdled to eee 
William Davis, an agent of the defendant in Toledo, who had 
forEierly collected preiJiiums frofii Josej>hine iiewton on the two 
policies, but sonie Eonths prior to this date the territory in 
whim Joee^iine and her siater lived in Toledo had beexi turned 
over to another agent of defendant, Davis was not at home and 
they called again at about six o'clock that evening, 

Davis testified that Mrs. Ross represented herself to be 
Mrs, Kewton arid told hiai she wanted to reinstate the two policie% 
which had lapsed, by paying all back pretiiuniB; tiriat tiiereapon he 
figured out the amount of back premiums which was about #22, 
and that amount was paid, apparently by A-ewa.aB^ Davis giving them 
a receipt, which is in evidence. In the receipt it was stated 
that the money was tendered to revive the policies which had 
lapsed, *Ho ebligatien under such POLICY is incurred by said 
Coflipany, by reason of su<jb tender* If each application is ap-» 
proved by said Cosipany, said POLICY will be reinstated and 
3^1aeed in full force, otherwise the sua so tendered will be re- 
turned," At the tiaie tors, Ross signed an applicatAen for the re- 
vival ©f the policies by writing the naae Josephine Sewton, I'his 
document states that the policies, iiaving lapsed for non-paynient 
of premium, the undersigned applied for revival of the policies, 
"and to induce the Metropolitan Life Insurance Company to revive 
•affie, *** represents and declares* that Josephine Sewton, the 



i'.s ®nlji«re-«oT' »&« a* .f)«IXi?j> ,oS^f!^Xoi' al ted ridri?.' SvarlX os'w ,TS* 

text (»i-i.?? ,(ii-i-t£oT »'.ii ia&^ii'?'t-«fe Slit lo j-jOiSigs «s j»iv^.<X (asilXiW 
ffWJ aa'^S' ISO ii&a'^'Aii 0xUih>!^ai)Z: ^i&'tl umt'm'it? li«*0'3lXo& ■'^li^aitdi 

Ai3»'i |!.aao.fC Is ton a jk ■5? sivi''€ .vtcMs&xi^tsJ^ Id JitJ©a« tftxi^^oiK? o;f T»Td 
e4 0* 'tiSsiBft' jj-^iui^ss^^a'i: 3«©H .aiS i-iuU Jssi'sij^g^* eivjsQ ■ ■* 

ail i5!)e-u«>l9iia i'^i-iQ- } ajujalats'it i4©B^ XX*> sui:t£i«^ ^'^ tfeaaO^sX bad. flslitw 

l>©cfs*e a«w #i ^qi&o&'i 2r=i aX «i&oQ*!feiV9 I'll: ai tiaidv ^iqtso^'t i& 

-fS"! ©cf IXiw b&tAt)£t^i ba ^'siuis ^ri:;^ «Hi;*^«i#'d t»»a"«'t iXut'iJl &99<s£^ 
->«* di^i- to'l ae4#j9olXQq.K as Is0«i;-ji:8 sasH .a-xM ^iRiiJ 2>fij *A " »fcssn:iJ-;^ 

,a«5loJtit)C: '^fi^ 'to X^e'Srxvs's i^'t ^•»1X^<?« fc9iisi8'X«»««' *""* , «iwa-''^»t«? '*«> 
add- ,aoitw®a »fe{i,e!4&<3ot. i&iii "»s*cfiX&0»j &«e a-Jaea^iqa^c «** ,©1^090 



insured, had not b«en afflicted '»ith any iissase, met with aoci» 
dent ot consulted any physician since the policy was issued "and 
the undersigned expresaly agrees that said Company, hecause of 
this application, incurs no liability until said Oo&paiiy shall 
have approred this apnlieation for revival," 

Davis further testified that neither Mrss, Ross aor Bawton 
told him at that tirne JoseTshln^ was in the hospital, and that he 
did not know anyt-iing ahout it until some few days later; that 
after they left he hf-caiiie suspicious an'?. on Monday norning fol« 
loving he called on Mrs, Ross at her hoiiie and had a conversation 
with her. Otjection was Eade "by plaintiff's counsel to witness 
stating the conversation TDecause plaintiff was not present, ^hich 
objection the court erroneously sustained. Obviously, the conver- 
sation was entirely proper and should have been adi^tted, After- 
ward, in rebuttal, defendant again called Davis, uho testified 
he had a conversation with Mrs. Ross at lier home September 22, in 
Toledo (the saaie conversation.) Thereupon couasel for plaintiff 
objecting, said, "He testified he had a conversation. It is net 
in rebuttal*" '-iyhat was said should have been adudtted. Thereupon, 
out ef the presence of the Jury, counsel for defendant offered to 
jprove that Mrs, Ross admitted she h©4 ii).personated her sister 
Josephine at Davis's home the Saturday evening before; that Davis 
then said she should act h«.ve done that, and he offered to return 
the premium (|21,37), but liirs. Hobs aaid that IJewton had returned 
to Chicago, 

Mrs. Roes and Eewton testified, contrawlicting Davis's 
teetiisony as to what took place on the evening in question. He 
testified that he lived in Chicago; that he rind his wife were di^ 
vorced in 1927; that there were three children aged 9, 11 arid 16, 

and apparently they lived vrith tlieir mother in loledo; that he 

former 
arrived in Toledo on September 13th; at that time hie/s^ife, Trs, 



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i&di ;t&&s.I. B\~£it' w^'i Siiios llieas it iwadst j^ai.,'3T2aa wojxi ^oa fell) 

-^is^'tA v&«i^i'^'-'>«^ «3'-^«i' »vjsjti .i^XifO^ia jjiDi^ ue^QXQ i;£ail*rn© saw aoi*aa 

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OCT feat&'t'to jiiij&asltyii' -tot Xaa^jwoo. «^.^i<t »^* '^o ©a«9»»i«r sr* 'io ,Jcd 
•ta^al'A. i&xi hr:iS&a^^-x^Siiiii $>SJi em Ai«^c!i2«t,G a?.oR ^miM l«ri.t 9Vo^q[ 

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fcsuntj^sx l&^ii ao^wa.iii^.eiiJ M«3 aao^ i»%li lifd ».('Ta;,,X£»|.) . MwifiJS'iq ®jrf# 

~*ib o'iff^ telXw axii bm.\ *ri ^-a-rfj ;o7i«t>iiiQ ai Jb«viX ©if J:«fii^ fesilidfa©* 
»d tefiii ;al)0Xp'JC a^ i o iid- om '4Jt«f I*, rfd'Jtw JfoftriX Tj^rf;* x:"£^"®^'^<^!<l^ ^^* 



SevtoB, was in the hospital; that he saw hex* the next day at the 
hospital; that he and Mrs, Ross went t© see Pavis at the latter 's 
heme; that Mrs, Rosa introduced him as her hrother-in«law and 
stated she wanted to reinstate her sister's policies, "Mr, Daris 
asked where Mrs, lilewtoQ was and I said that she was in the hos- 
pital, sick. He says, *Well, I hope she will get all right in a 
few days;*** that he then asked hew much the hack premiums amount- 
ed to and was told one was |9«45 and the other $12.42; that he 
paid the aBiount; that he gare kr« Bavis his Chicago address and 
left the next day, September 20th, which was Sunday, lor Chicago; 
that on October 8th following he went to defendant's insuranee 
office at 47th street and Wahash avenue, in Chicago, and talked 
with a Mr. Harrington, and told hix,i he wanted to aake prooi of 
the death of Josephine l!Jewton; that proof of death was made out 
on the "blank form, filled out by the agent, and signed by Iiewton; 
that It was dated October 3, 19 30, states that the cause of death 
vas "Operation, Gallstone;*' that at tnat time Jiarrington told 
him to eoHie back in about 10 day a or two weeks; that he later went 
back and on October 28th he again saw Harrington at defendant's 
Chicago office, who adyised him that the company refused to pay* 

Mrs. EosB, who was called in rebattal (she was not called 
by plaintiff when putting in its case in chief) , denied that she 
had iippersonated her sister; she testified, "I told him Q>avi"^ 
Mr, iiewton was Josephine's husband, my brother-in-law froEi Chi« 
cage;" that he had collected insuranee premiums from her for 4 
or 5 years; that he also collected from her sister, Josephine 
fiewton; that Davis had not been at her home for some time before 
Josephine went to tiie hospital; tnat she had never been to 
Davis's home before; that she did not iiapersonate her sister^ 

Mrs, Davis, wife of defendant's agent in Toledo, testified, 
corroborating her husband's testimony as to what took place at 
their home when Mrs, Ross and Sewton called* 



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to 'loo'xg 9i£ii 00 ^sJitfjw *n .idjtii! hlisi bos jXio^-iiriiTijeH .•s4 « .dilw 

^sXXjbo 00a a«w ©ae ) !«,*;? M»'i al feaiXsa «,ew ^xftr ,a»«^. ,txiS ,; ^,.,w,^,. 
^m $sxl:i t&iit»!!> „ ('ieiaa ni aaiis s^Jt ai ^alt^Mq s»4^ 't'tltsit&ld xd 
^iv&'T) tsld bloi V^ ^b^jitiiQei ©da ;iad-«ie •x©4 IsSiJano^to^i; &*il 

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9 

Defendant also called William 11, Bell, who did not testi- 
fy OB the former trial, tie was agent for defendant eompany witM 
offiees in Toledo, "but was not connected with defendant at the 
time he testified* He testified he Icnefr Josephine ¥e«ton a&d 
Jire, Robs, her sister; that Saturday morning, Septeailser 20th, 
Mra. Boss and Kewton called at his office and there was a conver- 
SAtion at that time; tnat krs, Hoss stated they wanted to rein-* 
state her sister Josephine 'e two policies; that he asked Mra, 
Bess how Josephine was and she replied, "She is all ri,ght»" I 
says, "Well, before I can accept any raoney I uave ^ot to see 
her;" that tliey then left .and never came hack, XhiB was denied 
"by Sewton and Mrs, Rose who said ^hey did not call upon Bell, 

There is other evidence i: the record, but we think it 
obvious that bo recovery can he had. On the forriier appeal to 
this court we said: "If Davis* testimony was true there was 
Obviously a fraud attempted by the posing ©f Mrs, Ross as the 
insured, JosephSrte Hewton, In such a case plaintiff oould not 
recover, *** 

"i'laintiff in his hrief repeatedly asserts that Davia 
and defendant knew all tjie facte as to the insured's phyaios^ 
condition. The record before us does not supoort this* At the 
time Mrs, Koae interviewed Davis, Josephine i^ewton had undergone 
a major operation threatening her life, which, with a failing 
heart, resulted in her death ■v'/ithin a f&n days* Lrs-, Ross, ac- 
cording to her testimony, told Davis only that 'krs, Sewton is 
sick in bad* * litis i3 far from imparting to Davis all the facte 
as to the condition of the insured. It is inooneeivable that if 
defendant had known that the insured was in fact on her death 
bed that the request for revival of the policy would have bees 
approved*" On the record before us, Hewton, in responss to a 
<|ue8tien asked by Davis as to where Mrs, lewton was, replied 
■that atoe was in the hospital, sick," As stated in our former 



• l\tj?f:;S' ton htb Qirs ^ilaS »B, ss^illX^ ht^XJUio tt&lM itwkaa'ttiQ. 

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-"tisYfios fe; I3*.-* ©"xstlt fja* soi'i'ro sjixf te i>#XXso aisi'wsii fins sfioH ^ei'H 

*-iil37. ©^ ifc.»i^.f4aw -t/^@i.y' b&iM^H sifa'Si.v ♦is'iii!!. ^^ij? jasij^^i' i'lZdi -iB aaXtmi 

1 ",5'j^i:i*£ iia sx ©iifi'** ^fe.tsileftJ'j;, 9*» ijn*; sjs^w sn^^qiss o'C woxf asoS 

b^lit^b ««3^'5' aiifi^ .^Cis^d" ^.«a34) •29irs.« fefia, if't®.! asii^' Y.®it^ ^•JBitJ- ''"isri 
♦ IjloS ncgJJ liso ;J-oa; hik -^^sx, hi^iB orlw gjjoil .sxti^' tajB ao^ws^i ^rf 

aaogiefeaw ^*i apiw^i-i aaiiicjssev «s1y«g fewairxeJal aaoii »BTi!4 dmiJ 

Ix *«xiJ' oXcfAiyis.oav9nx ai. «'■! »i>'aiiy8iT;i a^ld- t© aai^ifcnoo ®jLd- c:* sb 
m&'i ©v-sil f;X,MOW AjoJLIoq ©fij- "io Xjevire^ lo'i isai/p®^ ©it^ i«ii4'. b»<i 



opinion, "This is far from imparting to Davis all the facts as 
to the condition of the insured** 

But counael for plaintiff contends that ther© was a V^ifesp 
and that the policies were rerived "becaase all of tha facts as to 
the condition of Josephine, the insured, were disclosed to the 
agent Davis, and the preaiiim having teen paid on September 20th 
and retained by defendant until October 23th, defendant is es^ 
topped to contend that the policies were not revived said that in 
any event, the question was for the jury. And further, since 
three juries found in favor of plaintiff, the judgEient ought not 
to be disturbed. If the trials had been without serious error, 
there would be much force in this contention. But we held in 
our former opinions that tliere was not a proper trial, said iii the 
instant case a great deal of comisetent evidence was erroneously 
excluded. And the jury was erroneously Instructed on the theory 
that Davis was authorized to reinstate the |kolicies» which is ®on» 
trary to the evidence. 

We think it obvious that no fair man could say that Bavis, 
defendant's agent, knew at tiie time Mewton and krs. Boss called 
at his hojsie on the evening of September 20th, that Josephine 
Sewton had, two days before, undergone a major operation and 
was eonfined in the hospital, and that if he did so know, he 
Would be perpetrating a fraud on the Insurajiee company in 
reviving the pclicies. In any view of the evidence, we think it 

clear that no judgment could stand except a jud^pient in favor of 
the defendant, 

Juoreover, we are of opinion that the court should have 
directed a verdict in defendant's favor ae requested. The written 
docujsientB, the receipt and the revival application above mentioned, 
which are not, and cannot be, the subject matter of dispute, ex- 
pressly show that Mrs, Ross and ilewton ^ere applying to defendant 
Insurance company to have the two policies revived, and that the 
policies would not be revived until the application was approved 



ej a* 8;^ OB It sMt 'io ll& sesMui^d i6.«STiv»"i #'x«i'»? 9&iv,lloq ejcj* #«|S* fiae 

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"by the company, KHIbt v. Met. Life Ins^ Co^,^. 236 ¥. Y. Supp* 136. 
In that case, the court said (p» 127): "Action -upon an Eccident 
policy I'or aoutle inderimity taeed on the theory that an expired 
policy bad been reinstated by the company's acceptance of the 
premiim after the expiration of the period of grace. The d^cu*" 
BT.entary evidence disclosed that the payment was fci&de ir connection 
with an application for reinstatesnent, signed by the deceased, whioh 
expressly provided that the policy ^ae not to he deeded reinstated 
until the application had been flavor ably acted upon by the home 
office, and there i''aa no vTooi' of fuch favorable action,* The court 
there held that a BUJtsnary judgment Etould hri.ve been exitered in favor 
of the ineurr-Dce coTips,ny, 

She judgTuent of the Municipal court of Chicago is reTers«d, 
but since no recovery can be had, the cause will riot be reEiEnded, 

tatchett, P, J,, diBsente, (See next page,) 
Me&urely, J, , concurs. 



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jjTfasfaroo ^orssiifani Qdir 'to 



t:vc:-^v t.1-3 f* c>:!^ft5"isvn.'i.;' 



38839 l«S. PRSSlDIlit* JUaflOl ItAXCHSTS DIoSSisJ'XISG. 

ThiB consolidated cause was before this court upon former 
appeals, .Sos, 37044 and 37045, 274 111, App, 662. In each of 
these anpeals a judgiuent was entered upon tne -verdict of a jury, 
which Was aporoved by the trial Judge, The defense interposed in 
each case was the sauie as was presented upon the trial of the con- 
solidated cause frovK which thie appeal is taken^ In this caee, 
therefore, a third jury has returned a verdict in fsvor of plain- 
tiff, and for the third tiu.e a trial Judge has entered judgrrient in 
favor of plaintiff upon such verdict. Ihe opinions of this court 
upon the forcier appeals said: 

"For the roasone that the verdict is against the manifest 
weight of the evidence, that the verdict should have teen for the 
deferidant, '-ind thiit the inetructions tended to x..islead the jury, 
the judgment is reversed and the cause remanded." 

l»ow, ©n substantially similar evidence, the court, reversing the 
judgBient, says, "Since no recovery can be had, the cause will not 
be remanded," a& the prevailing opinion now shows, there was an 
issue of fact upon the foriuer trials, and these i agues were sub- 
mitted to the juries* Xhere was an issue of fact ©n this trial, 
which Was also submitted to the jury, l"he judgruent of this court 
now entered reversing without reioanding, in lay opinion la erroneous 
in that it denies to plaintiff his right of trial by jury. ( Mir ida 
V. gprschner Opntrao t ing Go. . 31S 111, 343) and also disregards the 
rule laid down in Jtierkev. ich v. At chison, r, & St^ £", Ry» ^o^ t 363 
111, App, 1; In re Jiistate of Swift ^ 267 111, App* 224. 



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38914 / ^'"*" I 

WILLIAMS, WILaOH, Administrator f) / ^^ 

of the Estate of Alexarider VK Cx^ 

Krauohunis, Teceased, ) '"v 

Appellant, ) ^ f / 

) APPEAL fROM 8\JPiRI#iR COITRT 

) Of COOK cdu'jSl'Y. 
6HICAG0 & IBS'IJiRIJ IIxDlA£iA 




EAILROAD GOiviPAtJY, ) a 

Appellee, ) q, ^ ^ . ^'^ 1 ft 

MR, JUSl'XGB G'GGiiiiOR EbiLIVEKiSD i'Hg OPISIOl OP WE COORT, 

Plaintiff brought an action against defendant to recover 
daaagftB for tiie wrongful deatii of Alexander iirauoJaunis, There wae 
a trial "before a Judge and a jury, a '?erdict and judgiaeut in de- 
fendant's favor, and plaintiff appealed to tHe Supreaie court on the 
ground that constitutional questions were involTea» But upon con- 
sideration ty that court it was held that no such questions were 
presented and the cause was tr^isf erred to this court. Wilson t. 
C. & W. I. H. R. Go. . 363 111. 31. 

Plaintiff's oontention is, and his evidence tends to show, 
that about six-thirty o'olocJc tlxs evening of September 29, 1930, 
Alexander Krauehunis was walking west on the north sidewalk of 
113th street in Chicago, and as he was crossing defendant's north- 
bound track he was struck by one of its trains and fatally injured,, 

Ihree tracks crossed the street in question in a general north and 

&cuth 
south direction, and a short distance/of 113th street they curved 

rather sharply toward the east. It was dark at the time, iliere 

Was a tower at the street crossing in which defendant's eciployee 

was engaged in raising and lowering ordinary railroad gates, but 

plaintiff contends that the gates were up at the time JKrauchunis 

entered the railroad rig'^.t-of-way and were not lowered by the tower 

»«n until just about the time defendant's northbound train struck 

Krauchunis; that no whistle was sounded nor bell rung as the train 

approacned the crossing; that the locomotive engine was backing 






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I 



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t_/ ..^ w eilsX 1/ O .«5=^ 

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SHiM^Bcf saw saxjjas SYldoiB-oooX sxi* ^'Bxid' jgnJcaeoio ariS i)©xiofioiQg» 



2 

north, pullirig txiree passenger cars whioii were unlighted at the 
time except tlie souta end of the last car, where a part ol" the 
train crew was riding; that there was a box car atti^ched to the 
north or front end ol" the tank or tender; that th.ere was no light 
Oh the north end of this c&r; that the train ^urag running at about 
30 miles an hour. It was charged in counts ol' the declsxation that 
ordinances of the City ol' Chicago required defendant to maintain 
and operate gat«9 at tiie place in question s-ni to have a light on 
the front end ol' the foremost car, to ring a bell, sound a whistle, 
and not exceed a speed of ten iiiiles an hour across street inter- 
sections unless gates were operated. 

On the other side, defendarit's evidence tended to shov that 
the man in the tower properly operated t.ae gates at the time in 
question, "aaving lo^'ered them t Afore the train reached the crossing; 
that the tiell on the locoiiotive was bein^: continually runf, aiid th« 
•rhlEtle was sounded; that there ■?aB no box car at the north, or 
front end, oi' the train and that there iras a light on the north end 
of the tank or tender, and that there waft other evidence tendinj; to 
snow there wae no -riol&tion of any law or ordinaxtce, 

Deferidant also ol*fered evideiice tc tae effect tnat Arau- 
chunis was not etrucjc at the crossing by the train, but th.at he was 
about 15o feet nertn of tne crossing, sitting on the east rail of 
the northbound track; that he waa under the influence of liquor; 
that he was struck by the tender, v/.ach threw him to the east and 
north; tnat he was pioiced up in his injured coridition two or thre« 
faet ea»t of the east rail cf the northbound track. 

Plaintiff also offered in evidence ordinances of the City 
of Chicago which required defendant railroad to operate ^atss, 
ring tellg, sound a whistle, etc., at croesijiga such as the one 
at 113th street, lie also offered in eTidence orders paseed by the 
Illinois Qommevom Comiuission which tended to reinstate sum ordi« 



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•nj ,dfioti Q.U tis "liBa xocf on hav btsAS .lAdi ;bshnif:i^ a^a^ ■sid'alefw 

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nances, the Supreit® court having prior tlicret© handed down opinione 
which vould invalidate !?uoh ordinancea 'beeause the authority to 
regulate railroads, in such & aitaation as the one In question was 
taken froa the City Council and .::iven to the Coomserce CoiT'jxLiBsioia 
by the loassage of the Public Utility act of 1913, 

Counsel for defendfint ohjected to the ordiiiances and orders 
on the ground that the orders of the Commerce ComEiiasion wore void 
"because they had been entered -f'ithout notica to defend?int, the 
court sustained tliie objection o.nd the ordinances and orders were 
excluded. 

Plaintiff contends that this ruling was erroneous and preju- 
dicial. On th--; other side, counsel for defendant contends that 
plaintiff is in no oosition to complain of the ruling of the trial 
Judge in refusing to ad. it the orders and ordinances in evidence, 
for the reason thB,t at the close of the evidence the court refused 
to exclude the counts of the declaration whicii charged a violation 
of the ordlnaiicee, i^ut on the contrary gave inetmctions at plain- 
tiff's request b?:.Bed on those counts. And that since plaintiff of- 
fered evidence tending to show a violation of the ordinances, as 
alleg-ed in certain cf the counts, the exclusioa of the ordinances 
and orders did not in any -way prejudice plaintiiT, And in ep^ptjort 
of this, the cases of The^ Lf^lce_ Shpre^^and Mie h«^ H. R. G^,. y^ 

Bodeme^, 1:^9 111. 596, ?uQd Elon6.y6ki^ , .v<, .Crescen t ^s^ per 3oa: G ,q,». , 817 
111. App, 15(', are cited, 

^^ ■Bodexjier case was a suit by the adKiinistrator of the 
estate of the deceased t© recover for the wrongful death of de- 
ceased, strucx and fatally injured at g, street crossing. One of 
the countB charged defendant with aegligenoe in running ita train 
at a greater speed than that lisuted by sjri ordinance of the city 
where the injury occurred. Another charged negleet of the railroad 
coiflpany to ring a bell as required by ariocher ordinance* I'he 



.6 
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4 . 

ordinances were adi&ittecJ in evidence tat afterward the court witii- 
drew such counts fro^u the jury and the ease proceeded under other 
counts, Mo aiotion was iitade to exclude the ordin&jicea anv it was 
held that since they were properly adid-tted at the time they v^ere 
given, no co;r.plalnt could ce made. 

In the Klonowsiwi case, (217 111, App, 150), which was also 
a Euit "brouilit lay the administrator to recover for the wrongful 
death of the deceased, in wnich tue declaration char^iSd the de- 
fendant laegligently violated a certain ordinj?iice of the City of 
Chicago, whicii was set up in the declaration hut of which no proof 

was made, we said (p. 159;: "But appellant urges very strenuously 

no 

that although the ordinance is set forth in tae declarationj^yproGf 

was made of it, and that since tne Circuit court does not take (judi- 
cial notice of city ordinaiices , pxl since the declaration was oased 
solely on tlie violation of t-ie ordinajrice, the case must fall for the 
reason t<.at the allegations -were uoX. proven," "^'e there held that 
the Circuit court did not take judici;il notice of city ordinanoas 
"but on the trial witnesses were interrofcjated as to vuetner the pro- 
visions of the ordinsince had been complied witix, and both parties 
offered evidence on this question. We said it was error to exciud« 
t le ordinance, out refused co disturh the judgment hecause the 
merits of tue oas« had "been tried, 'Jn this psiiit we said (p,160): 
"In tiiose cireuiustances »© uiiinJt appeii.ant is in no position to urge 
that the ordinance was not offered xn. evidence* i'ha Jury a'ere sup- 
posed to "be fauiiliar with the declaration and they were instructed 
that the plaintiff was required to prove his case ^s laid in the 
declaration. We think that oince both parties assuiiisd that the 
ordinance declared on was in force --ixio. effect, by the aiaj^ner in 
which the case was tried, end since plaintiff offered proof tending 
to show a violation of the terras of the ord&nsince and appellant 
OffereA proof tending to show the eontrary, there is no substantial 



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5 

error In this regard." Tiiat opiiiion was liaiided dowix 'by thia court 
in 1920, and certiorari denied by the SupreiDe court, Siijce that 
time the legislature, in 1929, chaUiged the law so that now trial 
courts and courts of review are required to take judicieJ. notice of 
"All general ordinances of every uunicipal corporation within the 
city, cpurty, judicial circuit or other territory for which such 
court has been establlsiied, or within the city, couiUy, or Judicial 
circuit frorii which a caee has heen "brought to such court by change 
of venue or otherwise," Par* 57, sec. 1, chap. 51, 111. otate 3Bar 
StatB, 1935, Since the xiassage of that act in 1929 , it is not 
necessary or proper ir. the trial of a ease to ii^trciuce general 
ordinances of a city, the violation of whici;. is the "basis of euda 
a case as the one at bar, any more tuan it is necessary or proper 
to introduce a statute of this State where the basis of a suit is 
the violation of sjucl'i statute, 

Ik the inst-vLnt case, the court at the requf^st of plaintiff, 
instructed the .jury that if it found from a preponderance of the 
evidence that Krauchunis was walking over and across the tracks of 
defe-ndant on 113th street arid was injured, *ae alleged in the deela- 
rstion," then th<=: deceased ^ss re'-^uired to exercise only such care 
and caution for his own safety as a reasonably prudent and cautious 
person would exercise under the aaiiic oonditicna in ?.p or caching and 
passing over railroad tracks. Ihe lury was also instructed that if 
it found from a preponderance of the evidence that defendant rail« 
road had erected gates at 113th street and -^iras operating them in the 
custoiBsry manner on the approaoh of trains, as a warning to persons 
approaching the track; and if it further found froai a prenondi- ranee 
of the evidence that Krauchunis ^as walking over the track at 113th 
street in the exercise -f ordinary care for his ovm safety, and the 
defendant failed to lo»rer the gates or to give reasonable warning 
of the approach of the train, as the result of whicn decoaEisd - 



a 

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•was iriortnlly injured, then tiie vp^rdlct sjhouid tjf^ for tlie pxaintii'f. 
^xnd by auoth^r inatraction the jury was told tliBt if it found from 
a preponderance of tlie evidence that defendant operated the train 
in question oirer 113th street crossin*^ at a speed of 2u c:ileE or 
more per hour, sn^l that such speed was clangerouB and unsafe, and if 
it furt ler found that defen^^ant r&ilroad company did not have on the 
forward end of a certain box car a conspicuous light on the front, 
or norf,.i, end of the car, and dsfei.danc was thereby xi«giii,enfc, 9iid 
deceased "'•'as in tne exercise of due care for his own safety, laid 
that the gntee were rot lov/ered as the train approached the erosB" 
ing, ae a resulx of ^hicVi deceased ^s.e r-iortally injured, then it 
ehculd find defendant guilty, 

iYO'U the foi*et:oin(- it appfiare "both plaintiff arid defendant 
introduced OTidence tending, tc shov on the one hm.'d that the ordi- 
nances hud been violated, and on the other hand th.at they h-i.d net 
l^een ""iol'i^.ted; arid since the jury •v^as instructed to passer; these 
controrerted qu'^stions of fact, on the theory that the crdinsnces 
were in force and effect, ar;d eince the court is now re.Quired tc 
take judicial nc .ice oi' such ordin;i,nces, we think plaintiff is net 
in a position to say he has not had a fair trial, Lypri s. ,T.t j ^-anter ^ 
285 111. o;56. In that case the court eaid there "as ?i^ ep-sential 
allegation of pleintii'f 's Bt^.teuent of claim Cu^itted, t.ur, ac this 
elecicnt v'as brou^^t into the case Tuy def ^i.tiar L ' s pleading arid the 
issue tried cut, the judfiCent would not he diBturhed, The co"art 

sai^ (p. 3-59;: "Ihe i&sue was introduced by the defericarite instead 
©f the plaintiff, but we will not, with the whole record before ua, 
reverse the ju^Ijsaieat for the purpose of letting the parties raiee 
in a Toore foraaal way an issue of which they have already had the 
benefit of a full trial»" 3o in the instant caee, if there •«&& any 
error en tiie part of the trial courtin its ruling, both parties have 
had the "benefit of a full trial," and the judgment will net be dis- 
turbed for any such claimed irregularity, 

I'he judgiiient of the Superior court of Cook c .unt;r ie affirn.ed, 

Matohett.P, J,, and MoSu rely, J» , concur. 



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38921 

bllawilsoi, f% ) / / ,^ 

Appellee, ^ ^ ) / h^ t 

* i/APPSAi: J?R0M|1ft/J>i|CIPAL COURT 

TS. 

TH3 UATIOKAL LI21 AHD ACCIDEliT 

IliBURAIJCB COiiPASY, a Corporation, ) ^ 

Aopellaxit, ) r% fO /* T l?\ .-sS "t ?%' i 



J'J^, PRSSIDn^G JUiiTIOS kATCifBXT 
DSLIVEKED THE OPIivIOl^ OP 2HS COUxHT. 

Flaintil'f , Blla Wilson, "brougnt suit as the tenefieiary 
named in two life insurance policies issued by delendant on the 
life of her trotiier, John L« iiobinson, liie statement of claim 
alleged that the death of the insured occurred September 15, 1928. 
In one of the paragraphs of the atateruent plaintiff averred that 
the insured was legally dead, in tJtat he had disappeared from his 
laet known abode on or before September 16, 1928, and had not re- 
turned nor coaimunicated with plaintiff, his only relative; that 
inquires and search had been made without avail, etc. 

Defendant in its aaiended al'fidavit of merits denied that 
John L, Robinson died September 16, 19 S8; denied that the premiums 
on the policies had been paid as provided therein; and affirmed 
that no sufficient proof of death -vas furrished to the defendant 
as required by the terms of trie policies. 

The cause was tried by the court, liiere was a finding for 
the plaintiff in the sum of ^321, on which the court entered judgment. 

Plaintiff offered in evidence the insurance policies and the 
eertifieate of the registrstr of vital statistics of the iitate of 
Florida, for the City of West Palci Beach, showing the birth there 
•n September 16, 1384, of John L, Kobinsen, who the certificate 
stated was a male, colored, and 8ini;_,le, and tuat he died September 
16, 1928, £.6 tne victim of a hurricane. 

Plaintiff testified that Joiin L, Hobinson, the insured, was 
her Ibrother, and that there were no other relatives; tnat she last 



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saw hlpa at 3451 Federal street in Cnicago, where she iiTed with, him 
and ■which place vas his abode aiid domicile; tiiat he left there in 
AugUBt, 1928, sjid that she had no vord I'roia him at all J or seyen 
years; that shortly al'tcr he went away she nad a post cari Irom 
him fBom Pellican Bay, iflorida; that she lost the oard when she 
was moving. She also identified the premium books and stated she 
paid the premiums, and that she had the two policies, whieii 'were 
for the total amount of i;321. She further testified that she beard 
of her "brother's death in October or the last of Septenber, 1928; 
that she notified the insurance company and turned iri the policies, 
the premium book and the death certificate; she =?-l6c had an inves- 
tigation made througii the Red Cross; she went tc the office of the 
Eed Cross on Midiigan avenue; letters received by the Hed Cross 
eencerning the natter were identified and offered in evidence but 
were excluded. It i^as admitted that the presiiums were paid up to 
September 16, 1923. The witness said that after her brotuer's 
disappearance she lived in the house at i'ederai street over a year 
and then moved to East 54th street, Chicago. Her brother did not 
return to Chicago and she heard nothing from him afterward except 
"by the post card, 

Roger Moss testified that he Jsnew John L, Robinson in 
Florida during his lifetime; that on September 16, 1928, he vms with 
him all day and particularly that evening until a hurricarie came up. 
At that time they -were in & shack in Pellican Bay, a little shanty, 
and a hurricane cane up and blew the roof off tht shack, Lefcre 
they could get out a heavy beeJE fell clown and hit Eobii:iEcn of^ the 
head; the ?'itness ran out; when be came back the shack ^as dilapi- 
dated and he, v^'ith others, ^ent out ai:id got refuge in arxotner low 
•hack, "But John never showed up." Wlien the atont was over the 
police caEie and the place was blocked off. Witness said he 
eouldn't get work there and left the next night and came baok to 



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fjso'i'^ tioS siJ:.^ T.i 5jsy/.tn>yi aisjji-al jssEi^vc jftaj^l/foii^ .ao 8?3©xO 6efi 

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,'r,+ n«i£3 fSi.trxI « ,-^«a im^iiXist ni toJs.!<.H .a nl ©xtw' v^ao'i sm^ cterid- #4. ■ 
^•so't'Ki .i3*;i.ur: .j.i^ Tio 'iofn ^)r£d- -vsltf J>0^ f-ta s-OiO ai^oiiiwri .ft has . 
sirf* JO noauiJoi. S s.ii hnx-, H^ron IX-al ii«9;f ^5y,>;^.i; e oTuo i-s^ i'liiou x&dt 



Indiana. The 'witness also »aid that John L. Ro'bingon tal&ed to Mm 
al)out his Bister in Chicago, and that she lived on i'ederal street; 
that he had "been there several tiuies, so whei; he cai.e Ibaci: he went 
there cut couldn't I'iad the sister and afterward hsispened to meet 
her at s. danoe at i^'orum Hall on 43rd street. Plaintiff testified 
that she did not give the name Johi' L. Robinson to tne officers 
who made out the certificate. *'e hold tais evidence was prima fagie 
sufficient to show the deatJi of tne insured on September 16, 192t3« 

Defendant contends tnat the court erred in adidtting the 
certificate of death and cites Henning;gr t*. i».!tigyoc^W ^ -iSualta; 
Cempany. 217 111. App, 542. Thft case cited does not sustain the 
contention, 'i'he court there did not hold tiaat the certificate was 
inadmissible, but only that it was not sufficient to establish 
certain "mere conclusions based upon hearsay." ^e nold tbat the 
certificate? vaa adraissible and witn other evidence was jsriitia f ao ,\g 
sufficient to establish the deatii of the insured on September 16, 
19 23, The evidence as to continued absence ©f the insured for seven 
years, ar.'d of unavailing search by his only relative, stroDiiiy cor- 
roborates the certificate, ilie defendant offered no evidence, 
althougji the hearing was adjourned to give it tne opportunity. The 
defendant argues, assuming without warrant, that plaintiff's case 
is based entirely uiion the presuiaption of death, arising from an 
unexplained absence of seven years; that tne preiidums ^ere not paid 
on the policies up to the end of these seven years; and tuat for 
this r=!ason plaintiff as a matt'^r of law could riot recover. Plain- 
tiff's case dees not rest upon the presumption theory, lioreover, 
defendant cites no autliority hol.5inf5 that in such oases the jsre" 
sumption of death do^^^s ijot arise until tlie expiration of seven 
years. However, we think the general rule is that the presumption of 
the duration of life ceases only at the expiration of seven years 
from the time when the person was last known to be living, and only 



g 

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8'"i*;®\; a©Tfl8 'to noi:d"*r,rx<ix<:> sxi;j- i^« '"i^iXno o^bjbso $'ti:I ^o aoiJ*;^ub ftdi 
•i^Iiio J^iijs ,j.iu.lvl.i: ©cf e.1- iwoa-a. >ta*5X ii«w npsifxi *iiJ nexiv? saii* f>ii;>' woi*! 



at the end of that period doeet a presumption of death arise, 

Bouvier's Law Dietionp.ry, vol, I, page 777. iio^revcr, there are 

well considered cases ^.tiere it has been held that a presumption 

ol' rieath may be raised i'roia absr-nce for a shorter psriod, atns the 

period in which the p re sump t ion oi continuevd lil'e ceasee aiay be 

shortened by -proof of facts and oireoitiEtances as submitted to the 

teat of experi^'nce, which would produce a conviction of death 

within a, shorter period. The authority above cit^d sajca: 

"Though there is controversy on the point, the better 
opinion is that there le no presumption as to tiie time of aeath; 
I)Qvie V. Eri/ijgs, 97 U. 3. 628, 24 L. M. 1036; Glisunb. Best 3v. , 
30~5; 2 Brett, Oom. 9 41; 2 k, & W, 894; and the onus is on the 
person wjiose case requires proof of r^eat'i at a pa-rticalar period; 
H oward v^ S tat e^ 75 Ala. 27; iJVhiteley Vy Aaa ur aiice soc iety, 7£ 
Wis. 170, 39 h, W, 369; Sp en c er v. Rpp er , 35 iN, G. 333; a U.C* 
Q. B, 291. •• 

Here, we think, the court -as Justified in holding taat 
plaintilf had proved by a preoonderance of evidence that the in- 
sured ■iied in jslorida on t»epteniber 16, 19 28, ine eviaence shows 
that ^jfter the death of insured plain ti if took tne policies to de- 
fendant and Kiide claia thereunder. Defendant gave ner a written 
receipt for the policies and retained them, We t>unk tne 

proofs of loss were sufficient under Ande.r6on v. Inters tate Busi- 
n ess ke n'a Ac cident abboq. , 354 111. 538, 

Plaintiff urges that she is en ci tied to recover interest, 
citing Ktiig ht lempla re & Jaasorf a v. ^ Clayt on. liO 111. App. 648. 
Section 2 of chap, 74 of the atatutea. ijee illinoie atate Bar 
Stats, 1935, chap, 74, sec^, 2, page 19 39, i:^laintiff, however, 
did not demand interest in her corapiamt, and tiie Jud4pBent as 
entered is therefore afiinaed. 



AFFlsmi), 



O'Connor and M.c3ureiy, Jj, , concur, 



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.hid ^'iiqj'. ,iS.l Oil , no $vjiliL.^I ® £iP Ji^'Ktfi. :'i^ B-xfelgiaeT. i(ife2a§ gni * 1 o 
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38947 

liCSTROPOLITM TRUST COliPAiJY, a 
Corporation, as iidoiiriistrator 
or the Estate of KAZMl&Z 
Qh&:^^'iUi, Deceased, 

Appellant, 

E, LlCiUATTE, E^JuM HOPSIiAB and 
Appellees, 







DBLIVEHED THE OPIIlIOJsi OF THE COURT. 
Jiovember 21, 19 33, plaintiff's intestate, a boy fourteen 
years of age, died as a result of injuries sustained "by him in am 
accident at the intersection of 47tii street aad Racine avenue in 
CDileago. This action ia "brought "by the administrator for the 
"benefit of the next of kin atiainst the defenaants, Lequatte, 
Helen and Linton 0, Jtoffman, and Quy Riciiardson, receiver of the 
Chicago City Rail'way C0BiT)any, on account of whose negligence 
plaintiff avers the deceased received t^ie injuries from whiou he 
died* The oowplaint contained the usual material averments re- 
quired in such cases. The answer of tbe deferidants de^iied these 
allegations. The cause was disiiiissed as to Guy Ricjiardson, re- 
ceiver of the Chicago City Hallway Coi».pany, Pla ntiff presented 
its evidence against the other defendants, arid at the close of 
plaintiff's evidence the court, on motion of defendants, in- 
structed the jury to return a verdict against plaintiff ai^d in 
favor of the defendants, upon which the court, overruling plain- 
tiff's motion for a new trial, entered judgment. The controlling 
question upon this appeal is whether the court erred in instructtng 
a verdict for defendants and entering judgment on the verdict as 
returned. It is not argued that the Hoffmans are liable. The 
question is, therefore, whether the instruction was proper as to 
Lequatte. 



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TnUou XIUDrtIO JiOHa OAJi'WA ( 

( , ■ .KV . 

'A'AiuiOTAM EuIluU't. iJ>ilGifciigS''i ,Si;i 

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S3f-;j- lo •sfJvisQst ,ao2.f>i;A;iio in ^wi; f>fiB , asiaTioh ,u aoi-niJL tsrw nsX«E 

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Tiie complaint was in two counts, the I'irst oi' Thich charged 

(iel'endeuits -/ith neglii^ence generally, while t'ae second charged 

that they wsre guilty ol* -.vsinfcon -mi wilful negligence, The rule 

applicable where a motion Tor an instruction is requested in 

I'avor of •% lefendant in an action of this character has "been often 

stated. The question of wiietier a defendant was negli.^iignt or 

whether its negligence has been -"^ilful and 'ffaaton is ordinarily a 

question of fact to be Ipterr.iined by the jury if there is any 

eTidence frcn which the jury caxi reasonably fii/d for the plaintiff 

upon the issue. Plaintiff cites Brown Tg« I.llixj.9ii^ Terrainal J^, , 

319 111. 336, 331; Streeter v. aumrichouse. 357 ill. 234, 233; 

gnedd en v « Illin ois Cent. H . _Gq. , 254 ill. App. 934, 242; l^^aritonya 

Y. Wilbur Lumber Co. , 251 111. App, 364, 369; with siiiiinr cases. 

Ihe cases cited state the geuerax ruie^vrhich is not, hov/ever, 

without limitations, isis will appear from an exauiinution of 

Bartlett y«, Wabas h H. R. J^. . 220 111. 163; li^Jii._3:jt_iL.„_ii0jt,.j73, 

Q 'Oonaor . 139 111. 559; uaTurnik jr t. „M.\J-.Ag t 233 111. App* 472; 

in which it has been held taat where after considering tn.e svidene* 

in the light most favorable to plaintifl', there is no evidence froin 

■which the jury could reasonably find for plaintiff that a siotion 

by defendant for an instructed verdict should be granted. The case 

last cited recognizes the rlifficulty of stating a precise rale ..s 

negligence 8 
to -wilful and wanton/ n.olding, that wiliul jior-ait^ence is as difficult 

to define as negligence itself, 

the evidence shows without contradiction tiiat the deceased, 

at the time he received tne injury resulting in his death, vras 

stealing a ride upon a truck of defe.ndar.t driven by defendant's 

servant. There is abunfiant authority in this and other ^^tates to 

the effect that where t]ie deceased is uuch a trespasser the only 

duty owaA by defendant to hiiti is tne duty to refrain froHi wilfully 

and wantonly injuring him. Bartle tt v. Wabash R. R. Co .. 22u 111. 



( 



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i 

163; I,, C,v,R,. T\. . Ccu_ j^^Qj^onntrr , 1 69 111, 5 5& ; Repa xC v. ^'abie , 
98 111. App, 543: ilerine v. .Anders9n^ 175 Hi. App, 377; 
Hasir-ag ▼. ChlcaKO Ry£,.__Co»« 223 111. App. 288; KcGhee v. 
Birmingjaam Kews Co.. . 90 3o, Ht-p. 45 S; Gar.ble y. Unci Sam Oi l 
Co^, 163 Pac, Rep. 6^7, 

It therelore becoiJee neoesss.rj' to exaji^ine the ericlence 
ir. order to aecertain whether the jury cculi reasonatly finfi 
therefroei that the tervsr, t of clefei^ciarit , at t'ae liiie aad Just 
prior to the acciderit, was guilty ol' regligeuce vhich as a mat- 
ter o1' law could be found vilfal and -ws-nton. 

There is praotically no conflict iii the evi'lence as to 
Hiaterial f?.cts. ihe accident ii^ question occarrcd on the Biorn- 
inp of iS'oTember 21, 19S3, at the intersection of 47tl- street and 
Kacin* avenue in Chicago; 47th street is a public hi^;;riv/ay extend- 
ing east and west; Kacine averue is a public street exteading 
north and south; each cf the streets vrae about 53 feet vvi-'de from 
curb to curb; two street railA'ay tracks were laicl in 4-7th street; 
ea,st boun!5 cars ran ever the south tracxi and west oound cars ever 
the norti-i track; just north and to the west of these tracics rere 
the Union Stock Yards of Chicago; street car tracks were slso laid 
in Racine avenue south of 47t'i street; northbound cars xaxi o"ver the 
east traeic and southbound over the weet track. Th® accident oc- 
curred about eight o'clock in the morning; rain had beaien filling 
and the streets were wet ar<,d slippery; tne intersection was a busy 
eomer both in xcorning and evening, and tnere ^as an officer sta- 
tioned thpre to -'irect traffic; there ^vpre no li^ihtE at the inter- 
section; the paveirent was in ^.OO'^ condition; it was a brick pave- 
ment with granite stones batween the tracks, 

'defendant iequatte, who lived in Iliiiiois City, liliricis, 
is eng|.ged in business as a livestock broker ai'ia in general 
trucking; he owned a Dodge semi-tr-aller truck; the tractor of the 



{ 



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truok had a three-man cab enclosed with doors and windows j the 
trailer was oalxecl a ''stocii. rack," tiie aides bein^, Gompo&ed ol' six 
inch slats or boarcts spaced aoout three inciies apart, i'h© height 
ei the truck was 11 feet 6 inches irom tiiie groutid; in hfetck ol' the 
cab was a glass window but witn a trailer attached ^ on© looking 
iroiu the cab tiirough the window could see only the board front of 
the trailer. Ihia truoii, louded witx^ hogs, was sent in to 
Cnicago on the day in qaeetion, driven by one of defendant's 
servants, Bay Thomas; the truclc was loaded witn a doubie-deck 
load of hogs and was being driven east on 4?tn street. -H'ov eev- 
eral lailes west of ilacine avenue aonool boys oi various ages 
cliiflbed on this truck; they were on txieir //ay to sciiool and were 
stealing rides en the truoi: Aod rode on it wxtnout tiie knowledge 
or permission of tixe driver. Xhe deceased, ulszowka, boarded the 
truck at Oalifariiia avenue, axi intersecting street about two miles 
west of iiacino avenue. A number of boys were riding on the truck 
whioii approached the place of tne aocident at a speed of not aore 
than 23 miles an hour; ae this truck approaeaed the intersection 
at a distaj'jce of from two to three hunired feet, tnere was a 
hacine avenue car stiiT'ding on the south aide of 47th street for 
the purpose of disahaxging passengers, after which it, as usual, 
proceeded, turning east onto tiie track in 47th street. Mrs. 
Hoffman, one of the defeiidants, at the same time approached the 
intersection froK the north, driving a Pontxac automobile r;oing 
south on .Racine avenue; she had driven her husband to the Stock 
Yards that morning and was returning to her home, from which she 
would go to sieet & social engageiuent in the afternoon; Joseph 
Cadigan, police officer, was stsaiding in the middle of the street 
intersection, and Mrs. noffman, as siie drove: her automobile, 
W&8 on the rignt hand aide of Hacine avenue about in tne south 
bound track, Uadigan says that the automobile was standing right 
on the- nortn curb; it had moved past tne gates; it was between 



sJK "to foso; oqiiioo jjOiscI 3^l)i-ii sjLiwT '\ slops'! .iooja" s b^:LJjiO s«t? loiis-^d' 
■j'fc>i53iC 9ii'i' «o'Xflcf* 39ii.oui !ji)T.i:;<3 cTfjOda b*s*sqe Qi-THiC'S 10 aJ^i^ia :j!oai 

B ' iixijcas'tfsl'- lo bJio ';;( .r;?>vi-ib , iioJ.J'asup ux x^b edi no ©eiioiiiO 

-yea -xci'i .d''as-3Ljii Aii.-V>- ao JaA-is* uBYrxb «iufr-a aii'?? baa sgoii 'to fceoX 
aaa-e «0Giii";V xo ii%od Xoor-oa ■^isfieve ^■)ax»£J'l 1® iesw e3ii-ffii jjsas 

;ia.u"i:;i' «»iy no ;:;jnJ:,&xT aisw axocf "io •xtsdis.ua A .^uimvs ©r!xo*'>l 'to *e©v' 
s-xo.ia d'Oii 'i-o !:-;?.9q:i a ^'i? tiis^ ihi yo*T suj to ©a^iq Qlli b9i:iOMO'icq& xioxxlw 

,.f:,(!?0Si/ as ,J.r lioxiivr TJ-'i'ii-; .(a-isjuiSAjaffiq ^niglJEsXiOcic 'to ©eoqiwq »xii- 

giixor oXxcfo- ioJjJ*> 0B.t:r;:u.i';l i's r>;.(ti^-j."i?' jilj-ion sxio n-oi't ifox^^oaa'-CscMtl 

lioo;!:'. ^>di OS biiBdofjd 'Xt^ii a»vxif> Iwil .'.ixIt t^uriavii ©axox^H ao diuoB 

iSils sCoxife' laoi't (Saior? xaii o.j' 3«in'twi'-i cjsw bxits ■^.ilatozi i&iij sbieY 

.t3>«n.;j'K &iii 'to Qibbsm "fnU nl ■^-^iiibruiis aj?sr ,'x»oi".t'-to soiXoa ,fij?3Jt.5aO 

AUfoa sn:? xii ^jJod"e ftajn^^yx; srixojsii lo shla bai>ii ^xi^X"! ©xiJ- no 8«w 



. rfTtirt ilt-T.-in ttW# ffffl 



the gates arul the north curt of 47 cL street i-iiul w&e standinji' there; 
there was xo irai'i'ic goiuii east in i'rori.t ol ic, aiid -there was no 
tral'lic be-weeri this autoii-obile axid the truck, \f?hich vae then 
two or three hundred i'eet away; the -ray i&afi peri'ecxiy iree suici clear 
and open frc^u H&cine avenue lor two or three huruired feet to the 
truck; the truck csune on eastward wituout Blaciceiiiiit iis speed; 
the policftHian motioned witn his arm, indioatint, to Mrs. hofiauan 
that ehe enouid come acroBB, wuica sae pr(>oeecLed to do; tJae 
policeman did not watch her go across hut tuxned around ana walked 
soutir'ard to tlie curh; at the same tiiue rtppa-reatly the street car 
moved an,' the next thing tiiat happened vae. a orasii in Wiich the 
ri^iit rear I'ender oi the trucA. scratched tne autoi^oiiie; tne truck, 
in order to avoid a craBx.., h&d swerved to txxe noriu about ib I'eet, 
aaid Cadigan es^e ( thougn otxier wirn esses i=.&y to tiif: contrary; that 
the truck hit tne Ei;ret;t oar; at any rate, the trucic tipped OTer 
onto ti'.e fcastbound track, iaid plaintilf ' b ii. testfete received i;n- 
juricB resultixig in hie death aLuost iuiiiiedicitely» 

flaintiil- argues that it is apparent txiat the driver for 
defendant did not nave he truck under control; tiiat ne totally 
disregarded the approaching dar.ger, and as xie approached the inter- 
section took a chance tnat the ii^oftiac ear would crosB tne intersec- 
tion before he approached its p&tn, ajQd that taking into coxisidera- 
tion tne slippery condition oi' the strerts, the fy,ct that he 
swerved to avoid hitting the autoJiebiie and continued on in a 
northeasterly direction si txi such speed as to overturn oiie truck, 
was conduct froxa -tuicxi the jury uii^t reasoaahxy infer waiiton and 
wilful negligence. 

The difficulty of defiXilng with precision the conduct which, 
from a lej^^-ia staixdpeint, laay ^-iKiounit to wilful and wanton negligence, 
hat often been considered by tne courts of this atate, in atreeter 
T, iumrichuuse ^ 557 ill, 234, our buprease court said that ill Till 



a9iij ii*i--i doxitvf ,2^0 wad' ©ilj' .!3j»ji*i wixdQ.aacJ'iJfi aiilj a#9w?«cf oi't't.i'iti 
'msl^' hiliS- aaic i^iijoa't-iisq '/i^ii v,avif aii;- 'vjaw^s jsa'i h-a'ihaiJii sa-xiiJ 10 uT?^ 

^XX^iJ-©3- :v<i ^jKxi^l jio'i-Mioo -x 5>.fo«j^, atoiji*, &iiJ: sr&O- tea. hiSi ia&ih^i(i't?>b 

~^i:®£) ie cioo odtil r^juxijiicr d-£ijid biiji; ,i-U-jB^ eix fes>.cidA>oiq(i« dd aio'tacf npx* 

®^ w&jrU ;is)s'l ©xi^ ,9a;:-fti.ls ©xi^ io aoxiX/,)aoo •^TC-itiCiJiXe «ni** ocdX^J- 

« ni iu.« ^»uux3TiCio &««- »Xiu«:->^oSJi* 9tii ^niaili: X;iove oi £>9vtc9W8 

,^0ii-sij ©m irxxsaxGiYu o;j as fessgs xlojuc iiiiv* aol<toi»'ixi: •<:X'i©;te^»r'J"ion 

tsxB no^ttfe-ft 'js'iiii v,XuSiiosx;a'i jxa^i^i xiui, sxio xioixi* woi'l .Joiibnoo saw 

,©oiisi,xX'ij9n .XiJ'tXiw 
^iloifiw ^otj,|)aco: oiiJr aoiaXoa'xq aJxw j^aiAU 'tsX; ■-to .ijd'Xi.'Oi'i'ix/' ftii'X 
, »oi5aaXX3»i-i ao;?^*;^ i)fKs XJvr'iXlw oi tuaoim xmi ,ialQtibiiMii& Itm^l & a^^r't 
^l&^jiS sil ,&;ifyjQ siiii ic eJiooo &iii i^q |}»^ei.iaiioo aaeo «®^'ie «fixr 



6 

was not a necessary eleraent of a wanton act, "but that **to consti- 
tute an act ^'anton, the party doing the act or failing to act 
Bust be conscious of hJEf jion duQt . and, though having no intent t© 
injur*, m ust ^e cen sciougf. from his knowledge of the surrounding 
circumstances and conditions, that his conduct will naturally 
anrd prohably result in injury. An inteiitional disregard of a 
known duty necessary to the safety of the person or property of 
another, and an entire ataence of care for the life, person or 
property of others, such as eahihits a c on go jpu b in d i f f e r en oe to 
consequences, makes a case of constructive or legal wilfulness,*' 
J eneary y. Chicago and Interur"ba n T raction Co. , 306 111, 39 9. 
Ih Heidenrj^ofa v, E renin er, 260 111. 439, the court also said tiiat 
it was not necessary to prove ill will; that 

"An entire absence of care for the life, person or property of 

otj'iers, is' such as exhillts indifference to coJn.equences, makes 
a case of construetive or legal willfulness, such as charges a 
person v/hose duty it -ras to jjxercise care \7ith the consequerjces 
of a legal injury," 

In Ero^n V. Illinois Terminal Co.. 319 111, 326, the 
court in subBtaiice said tiia . wilful and wanton laiaconduct ''im- 
ports consciouaness tliat an injury may P rob ahlj result from the 
act don« and a reckless disregard of the consequences,'* In 
garlgy v. Mitc liell . 282 111, App. 555, this court said: 

*'A great deal of language has been used in Eany cases in 
the atte^,pt to define with mathematical certainty the difference 
between ordinary negligence and wilful and wanton negligence. 
More recent cases have iipli that c.ais is virtaaliy impossible; 
that whether an act is wilful said wanton depends uprm the par- 
ticular circumstances of each case." 

^'i .ii toGaire v. JJioGaimon . 283 111, App. 293, the court 
said that courts of last resort have indicated generally that the 
subject of wiifui acts is to be considered froic the standpoint of 
the evidence in each particular case, "but analogous cases may 
"be anplied to shed soiDe light and to be helpful in determining 
whether the defendant's agent acted wilfully and with wanton 



"to xJif^co'tq •10 itoe'issc Sii-t 'to x^r/t^a aiJd" od" Vii-t^'aeeoea xiub avoml 

.'"96 .ili (3:j6 , .i.y'j noi:i-o^-tt_ cuidriJ^B^i^i'^ hem q^£>,o li^ , v ^ ^^^ i&em'^^ 

innS fi.'sa o3l«» .t'uroo 9«d- , '?iSf^ ,i.il UdS . .-xe m'a Tg , v doijjisbiph aX 

*x::'^J" ;.i.ii:vr Hi «jtc-io uJ vriisaaaosa ^on (}£>'■' & z 

'ho 'itt?.i0C'i€r 10 ■'"fos'-isf..;: ,?rij:I arC^ i©'.t ^'i«o "io ©aiisacfs til^fl® ml* 

Slid- <og<i ,111 yiS t '9Sl..l3.B^37:2.%^MA9^^J;.-^2i~^*.y'„3K93M: ^^ 
-£u:'' ;tSPi.:baoonia nojciii.v hn^ XijlXiw j aiii hisa sou^iQiii^s nX iruoo 

uX " ,ai?M««>iips»aaoo srli- 'Iro |i,;i«ga'ai,jS.J:& .g^aXxagT; m ban »aoi) Jojb 

:6Jt-:<7 j'tjjoo si;ri;:}- ,366 .Ciqa .XXi SbS. , ll&d oiik ,v \:ii£%&'i. 

ai esiri^o Yi-^''"'- ^-^ best; i-ta^tf s/jxi 8^i«i;i>rw5i 'io X.tisL cf,fi©T;^ A* 

.9oa*>;,.iXX:j5a'i ctod-tisw bi3«-< X«/iiiw Jbtte Boa^^^llu^a \i&axb'io asewd-scf 
;«?£tfJrj3)»0C(ifii -yXXsii^t'iiv sJfc aic-ij l*ji-c i,'X«fi 9Vi*.u asa^ic iao;:;®'! saeJf' 

",aeji?3 iioi^fi '.to ei®0fiA!Jadii.i3ii3 ^«Xjj6j:J 

i-Xi;oo i,i:ii- <^:5S .q-qA ,1X1 £2^ , n^i\nRCg u ^^ y_ i6>t: 1 t<£)o^ nl 

Oiii i^eii:^ \;IXan;-?ttfj|% &sci-«oihHi 9y,uu'i J-xofi^'^ ^«f:l 'to Biruoo isi^if btMit 

iO oa.-oc,l:'aAi!,ta ^n-J ,x;oi;'i fci=)i8l?i,!iiaoo aU" o«i eJ: aioB lu'lilvr 'to ^oetcTva 



recklessneee at tlie time of the accident»" In Gajurnik^^v, 
Killer . 283 111, Acp. 4 72, the A.pellate court cf the Second 
district quoted with approval the opinicn of this court in 
I'arley .t> .M t_ghelj. , 282 111, App, 555, and rerersed a judgment 
entered by the trial court where a sixteen year old bicyclist was 
killed '*.en struck by an automobile which overtook hiE; on a 
slippery highway in broad daylight. It happei.ed that the reotcr- 
ist, driving about 45 miles ttfi hour, saw the deceased toree 
hundred yards in front of him, on the rig'it hand side of the road, 
and when about one hundred to one hundred and fifty feet froiis 
him sounded a horn without, however, slackening his speed, and 
turned into a left lane of the highway in order to pass the 
bicyclist, who swerved over to the left side of the road in front 
of the motoriet, who strucij: him. The court said that a more skill- 
ful driver might have avoided the accident; that a more careful 
driver would have slackened his speed and sounded a warning rjooner, 
"but that a failure to do these things was not, under tiie circum- 
stances, more than negligent oniission of duty, "and do not fr-Iiow 
stn indi f f erence_to consequences . nor ar=> they equivalent to a 
wilful and wanton act," 

We believe it will apo^ar from an exananation of cases 
that a judgment for a wilful and wanton neglit^ence will not h& 
sustained in the absence of sho'w'ing of intentional n^glijence or 
an indifference amounting to recklessness and indicating conscious 
wrongdoing ©n the ^art of defendant l.equatte. Bucii evidence is 

absent from this record. We hold, therefore, that the court 
properly directed a verdict ^'or the. defendant ;ind the judgment of 
the trial court is therefore affirmed. 

AFFIHMEJ)* 

O'Connor and l^cSurely, 'T-"^, , concur^ 



fcnaosiii 9ii* lo 4'tu>?^Q £j-«.i:i«iq.:;A ^iii ^SVi^ ,q-3A ..tii 588 ^igXIJLM 

nj: J-iJjoo eliii 'to aoisxqo -^di Sj^votqqi\ xiJ-iisr &a^oif|} tuiiiaXb 

^vsa^Sal;, « b»sri?)?d3: .-.i^iU': ,353 «'^<|A ,X.I.l 3.^2 j, Il.ai.'io J', x.-^i , % , v. ^tE. ^.^''tt 

as-^ ie.iloxoi^^ via 'Xejso'/ t3(s*©^&-is us Q-is^civ^ ^fxu&o .Lfs.lii eri;/ \;tf &sipd-a9 

;?iioi"i .il, [)Bo':- EsxiJ lo p,t: .1:3 >rtsi eii,<t qJ' -xsvo iisivsuvro oilir i^eiXo^oM 
lii't(itr,o s-XDiii 4K ci-.ax.it ; i-visfjioor. f-AJ' t&blQV& .s>T.6xi, J'jv.gia "isviafc lot 

3 1 9onsfciv3 iioisti .siSsiiJpaJ ^cuibL\s't9b to c^ascf mii no 7^aio.&saoT:w 




38826 I ■^.^'' ^^^ 

,f ^* '> 

MICHAEL BISRUT, ) / ^ ^ 

Appellant, ) f ;' .f^ 

) APPEAL ?ROM CiRdaiT COURT s | 
TS. 

) OS" CCX)K cooiTy. 

WLAIYSLAW fSglXAE: and ) 

MARY SETLi^fi, ) ^ ^ ^ -^ 

Appellees. ) 28 6 I. A. 617 

MR. JUSTICE McSURELY DBLIVSRED THE OPIElOU Off THS COURT, 

Plaintiff filed his complaint to foreolose a trust deed 
signed "by defendsintB purporting to secure their promissory note for 
$2500; defendants answered, alleging that the execution of the note 
and trust deed was procured by the fraud and deceit of plaintiff; 
they also filed a cross complaint alleging that they were aisled 
into signing the trust deed and notes by the fraudulent misrepre- 
sontations of plaintiff and his lawyer, and asked that the trust 
deed and notes be cancelled; the cause was referred to a master 
in chancery who took evidence and reported, sustaining the allega- 
tions of the cross complainant, recommending a decree in accerdance 
with its prayer and that the bill of complaint be dissiased; ob- 
jections and exceptions were filed, which the ohaneellor overruled, 
entered a decree in accordance with the reconsmendations of the 
master, and plaintiff appeals. 

As reported by the master, a number of witnesses testified 
to the transaction, and the testimony of witnesses for plaintiff 
is in many instauioea in direct conflict with the testimony of 
witnesses for the defendants* The transaction centered around tne 
imprisonment of Tillie Wasik, wife of Julius Wasik, in the Rockford 
jail under the enai^e of shoplifting, and an attempt to have her 
released. 

The evidence offered on behalf of plaintiff was to the 
effect that he was approached on several occasione by Julius Wasik, 
% Mr, Pionieik aJad defendant Setlai: and requested to advance ap- 



1 \ '■ ,, ■ s ■ 8288?; 

I * ( ,icmS.loQ(iA 

( .ST 

I ..4= ^ ©H* J^ '^^' ''■-.'' '^ ■•-:■:: : '.• - 



;'lli^axs,tq to ^xoosi! i?u& bu&tt «iEi^ ^tf fcs^uoo-xcf s**.^ I?69i5 5-Pin;:^ fens 
SaXsiiH ©'xa?? v;»ii.c!- j.y.rii i;^."-^^^-^-^^ i^jaJ:«.I<5:6'x<?»o s-'Joto e. S^Iil oeXij y.sil# 

t'US^axaXfy lo'i as«a»fiui'iw "ie >ffn>iii*sj<v^ &£i.i hem ^aviiosisaBtSf ftn* o*- 

■Qca bauo'XM |j0*xt5.3"xitjo aolifaaaaart;? !?^ ,eitmhnet>eit) ^sit •sot Kdassn^lw 

%sii Bv^id Q<i ;tqxKS»lJ^ iis bn^- ,^jKid''iiXeQi£a 'to s^^i^c-o aii^ labtiu Xx>st 

»r53«4B8Xe1 



proximately |2000 to secure the release of Tillie Wasik froiH jail, 
Plalntii'f was an experienced real estate broiser £Lnd a I'riend of 
Julius and Tillie Wasilt and cuLro godfather of one of tueir ciaiidren. 
Plaintiff says he fiist refused uo help Mrs, Wasik, l^ut on iiovesi'ber 
15, 1931, both def '-^nclants, with Julius T^asik and Piontek, came to 
hi 3 home and offered to give him a first mortjiage on the c»«tiak 
property in consideration of hie advancing approximately |S000 t© 
««cure the release of Tillie Waaik; tlial he agreed to this and laade 
an appointment with Frank Rata, his lawyer, who praparad the papers, 
and on Boyember 15th the parties raet at liuta's office here the de- 
fendants exacater! and delivered the trust deed and notes in quastioa; 
that Kuta explained to defendants in the Polish ianguaiie the nature 
of the doouments they were signing and advised theiu that if 'they di4 
not rdpay the |2000 to plaintiff the ciort^a^e would be foreolosede 
The evidence of plaintiff, if accepted, bended to sho?? that defend- 
ants un-leratood they were signing not&a and a mortgage. 

The testimony offered by defendants was to the effect that 
Wladyslaw Setlak T'as a brother of Mre, Piontek; tiiat the i-^ionteks 
and Wasike were friends; that on isovember 15, 1931, Julius Wasik 
and plaintiff caBie to the iioroe of the Pionteks seet^in^i to obtain 
their assistance in procuring, the releaee of Tillie Wasik from Jail; 
Mrs. Piontek told them they had no money or property tut that her 
Tsrother, Vladyslaw Setlak, had some property and migrii be willing 
to helia; thereupon plaintiff, Waiik and Jir« Piontek went to de- 
fendants* home; Wasik asked Setlak to bail his wife out of jail by 
signing a bond for |1200 for sixty days; plaintiff also joined in 
the request, telling defendants not to be afraid, that he was a real 
•state man and would bring their papers baek to them in sixty days. 
The parties then went to the hoiiie of plaintiffs attorney, ioita, 
irhere plaintiff told Euta that Setlak would sign a bond for ^1200 
for Tillie Wasik; Setlak consented to this as plaintiff assured hiaa 



8 

,llsl sio-i'i iisBl 3iXIii to 3r;£5'I'?ii r^rii sijuoss o^ OOOSt «^Xoi-emlxo*!c? 

:i(5ii'®& #ii<J' iio a^&iii'ioji'. J9^.f'i a mi/f ®Trij=j o.3 JE)«'j*'Ti:o bc&i dnioxJ. eirf 

s&i'je ^ae ^tM 0^ !?e»T3« «»ii J^^sry ','&k.ng'^ «iIXH? Iti »e pelt's s/U- &iu09» 

^aust^-fiq «i^S fr&lfe (5^1.(4 oji^ ^t^'^iri gill ^^fritcl ■s^t^t'S: rf*lw. if:n^£idf«'ioflrq'ig file 

,Ma-oX©a'rtJl: (&«f felm)^ fe«^»<i;l-Tofef sri# Ttii^iSxi3Xq ot OOOStf oxtt Y«cf*i *o« 
~.fei:t2>*£3i> tuM -^fosfja o'? ■l-3»feM?i>r ,l«j;tq©t^-a-fi "ii' ^Tt-ilxsii-^Xjg: to 9-o.a9&ivs ftxll? 

«aia*aoi*i SxiJ J-«xi? vjfS'd'ael*? »31EM to Ti^sUotd a ««*? :fe£*®3 -v^lsxhAH^ 
^^xe«V ai^ilAJt^ ,XS@I ,<}X •ssdsssvoa xio *«iit ;a3a»5iT'l arc«» fi^if-fi^ feos 

;Xlst '«©■>: 'i a;i«i5VV axIIi'C to ©saaXs'x arfS' g&Xtfj&oiq ni «©fseial?.ea ildxIJ 
itaii ^^iii i'0if x*'5E*«S«»^'^<J 10 -t^&ii-ois ©a &«-S 't®*^=^ smtli f>:l<yt Mtnoi'l .atd 

^a.ti£lw ^K3 iiiaixa lyxw? Tsft^q-o-sEcc smo* ijjBit ji.®X*«S w*X«^fc«fW ^t^ri.to-td 

V^ li&i to iTL'o »tiw sJtri lificf o3- nsl^sfi ly^Jis* :fl8^W ;«B7off ^is^tmbn^t 

ni ,fc!?»niot ofS-Ca ':tl!l^fti«X<5 ',9^1 ^JxJte -sot OOSXl itot !?,Ho<f ii s^irtsia 

.ais;ji*i) Y.i^xia nx ixisxirf o^- Ji:^^^ 8iisqi5q 'xl^x<c^ i^iiJcicf f>XjJ07/ fcar, h^ct b*<o*8« 

»ad-Jia .'^arrro.tJ^; 3»Tri:;^aliiX<3: to amoii/^ff^ o# tam^ n«il* B^ii-XKCt srfT 

OOSXi 'toi baodi £ agx? fiXwow 3£)3X*5>8 *«ilt «^«a: Jblol ttJ:*:..L*Xe sisriw 

aixi ^-ii/as« 'nxinxjaXq s*; cixU' oo bi^^sme shoo 3teX*©0 ;>Iisi3* 5iXXlT -tot 



he would have no troialDle and the papers would lie "brought "bevCk to 
him in sixty days; E.uta then said it would "be necessary to hare 
Mrs. Setiak's signature, and ehe was "brought to the lawyer's office 
and. defendants signed the notes eztd trust deed. £ either defendant 
can re%d or write Englieh or Polish, They were advised hy hoth 
Kuta and plaintiff that they were signing a honi fcr Xillie Ws,Eik, 
fhe evidence tend* to show that the following day plaintiff 
Kiftt two aien named Irown and Horowita, and a Mm, Olaxewski, a 
friend of the Waeiks and Pi .ntaks, and plaintiff delivered to Brown 
and Horewita |1500 in ciirrency, and Mrs. Olszewski gave them $500. 
The 12000 was to be used hy Brown and Horowitz for the purpose of 
making restitution to complainants in the charge of shoplifting 
against Tillie Waeik, There is nc evidence th&t defendants, when 
they executed the notes and trust deed, received any moneys or othop 
property. They hoth testified that they did mot know Brown or 
Horowitz and gave no instructions to plaintiff to pay them any 
money. 

Within a few days thereafter it a-Dpeara that the efforts to 
make reatitution were unsuccessful and plaintiff and Mrs, Olszewski 
went to Brown and Horowitz to recover back the |20G0; Brown and 
Horowitz claiEied they had spent 1500 and tendered hack |1500, which 
plaintiff and Mrs, Olszewski refused to taiif ,deiEanding the rsturn 
of |2000; thereafter they had Brown and Horowitg arrested and ©n a 
hearing of the case apparently restitution was promised and ^$800 
was paid in open court. There is some dispute as to hoT? this $800 
was divided; Tillie Wasik, who was at this time out of jail, tes- 
tified that plaintiff got |50C and a lawyer named Goldstein |30Qo 

It was also in evidence that plaintiff gave a lawyer named 
Konkowski a check for #500 which was to he used to help get Tillie 
Waslk out of jail. Setlak denied that he ever instructed plaintiff 
to pay aiiy money to K©nk©wski, Konkowski testified that -when he 
received tnis ciieek he represented one Fodraza who, with plaintiff, 



5 

ar^rl ^i x^«8g®os5K »cf j!;Xj:icv Ji bls-a naxSiJ" ja;^uJi jsy^a.^ Y.*3;ia al siixi' 
S3x'.t*io 3''i«i(;wjRl ^iii oi iii^j^fjotd ajev siriai icos j^-xt/jjan^ia is'^aiicfsS .ai-i^ 

,:M;is.i=r* s.t.£Xil'x Tol &;iOw « :^alnji,la s-r^^jr Y^i^* v*.si:^:* 'f tx^aLaltj Jba« «iuji 

iR ,ji:^©«»ssXO ,ei:€ J6 bas ^sd-iwoTcoB ISa® rxwo'riJ fe$ia«fj a&^ix ©w;^ J^ai 

.0064 ^9nt sv ■« ijiRW3s»X(j «dTM him , '^o a^ii . s» k1 30SX;| s:^iwoio5i bna 
lo ^sjOvT^iiq axicJ 1.:/!: stiiw©i^>H feas nweiE '^ef l>«ietit ad oi a«w OOOSf. ©/JT 

narfw ,eiastxw'i'i'i} &S'-ci r^anebiv^ oa sX «)i«rfT .^[ia^W exIXXT Jaxixags 

»©r.j- ,Xx£t, to ii^Q mili nir.'J ;t£ s^w o^ ,?ii:ssW ©iXXiT ;6©!)i:vift a«w 
.4)0£i nl»j-3?)XoO bsi^xsci •x'?v:waX iJ bxm 008| *os VlxJ'nlfiX«t ^sd* be^ktU 

©iXXxT 3^93 gX9ri oi ftssij sd o^ aaw rioXcfw 003# lot xssxio is ia£aweiao2 

'niial^Iq b^ioisttnai «9ra 9rf d'«ri# kftiasb iJBX*»S ,Xljttt "io ^^^o Jliaa'S 

9xf nofiw cTsili fcsitxiesd- tAB-^O'ItasM. .i3iBWo^H©3i ©* t»«Offl t«« ^«<l o^^ 



was interested in securiHii, the release oi' Tillie Wasik and one 
Joseph Cozlel from jail, and that arrangements h.ad laeen made to 
have a surety company sign a tond i'or their release, and that the 
surety company required $1000 to te deposited to indemnily it 
against loss on the bond; |50C of this was advsunced hy Gozioi's 
wife sind 5^500 "by plain till", and that some days later iillie 
Wasik end Coziol were released on this bond* 

The master found that plaintiff was a friend of the WasikB 
and a go4fat-ier of one of t>ieir chil Iren; tnat he was an experienoed 
real estate broiler; that del\?ndants were unable to read or write 
either the English or Polish language; tnat as requested, tney 
signed the papers in questioxi for the rsiease of 'rillie Wasik froBi 
jaU.1 upon the aasurai'ice of plaintiff that taere would be no trouble 
and that the papers T/ould be returned to tnem within sixty days; 
that at that tixae plaintiff knew it was contemplated to pay |2oOO 
to Brown and ilorowita in an eifort to make restitution in tlie case 
of Tillie Wasik and to secure her release, but did not disclose 
this fact to defendants but led them to believe they veve signing a, 
bond for the release of Iillie Wasik, axid. tn.at def eiidaJits gigried th« 
papers to secure her release from jail. 

The master also found that defendants did not at any time 
direct ©r aut lorize plaintiff to pay |2000 or any other suia to 
Brown or Horowitz and did not authoria© plainuifi to pay #500 or 
amy other s^om to iionicowsici to obtain Tillie Wasik 'a release^ !rhe 
master furt-ier found that the signaturea of defendants to the trust 
deed and notes sought to be foreclosed were obtained by fraud and 
aiarepreseatation, reoommended chat xney be held for naught and 
that a decree be entered in accordarice with defendants' cross oom- 
plaint ordering the cancellation of the documents. 

This is a case where conclusions must be based upon the 
credibility of the -witnesses. It is axiomatic in such casus that 



®K0 fens iii.&£i^ »ilXi:T 'id sseesl^i 0£ii gaiTifosB xix .baiaaisd-aj; stiv 
siiliit i«*«X ait-;!?/-: *£K>* i^iBrfdt fcxiis »TU^aJt«i«[ \:cf OOS^' ■&n«; r>ti\? 

is'i^ 'titxlii' aiA$x-ff ia.i»At 6i h&texuSz't »d tlvo^ tT.aq&q etii ieiii ban 

seolpsii Je« Mb iipi ,»QSiQju^': lexi siwoes oi bos aiia^jW silli^ lo 
©iii- Millie »d^a«jbiis't»£> -t^iW fciif; ,S[l«i?-W ftiiXi* I'o ©a^aXsri ©ri? '^co'i 'Ijaorf 

%Q OGSt -^^q od- Tliiiiisiq »sttoiiiiii^ iest tiP bem s*iwoioH ^o nweiii 
sxil' ,9930 i?"x «*3£18bV siXXx'T macfffo cj Isiawojlfio^ o;J iai;« ^®*lJo xa« 



the master, wlio sees tiie witnesses and Hears tiiem testify, is better 
qualified to pass upon their credibility than is the reviewing 
courtc While tua report of 4 iaaater is merely advisory and is 
not given txie same effect as a verdict of a jury, yet tne facts 
found ty am. are entitled to due weight. Ji^euper v,. J^^tta, 239 m, 
586. Tiie cases c-ire nusieroue wuioii hold taat where uhe m&ster heard 
and saw the v/itnesses a court of review should be slow in disturbing 
his conclusions upon tne facts uiaess it can be said that the 
master's conciusions were clearly contrary to the probative force 
of the evidence, aruenenf elder Lumber Co. v . uoiden^ 260 111, Apo. 
313, and cases there cited, iiee also ^ahn v. ii&sof , 253 ill, App. 
^^^« Ar■£^s ,i- r e ss. Inc. v. i^indiiout , 268 111. App. 465, and We eh si er 
V, aidwit^ ,, 250 111. App. 15b. And Uiis is especially true after 
the chauosllor approves tna i^iaster's report. 

Jrom a consideration of tne entire evidence we are of the 
opinion that the oonclusions of tii« luaster and of tne chancellor 
wer« justified. It ia evidei.t uiat pxaintiff, because of his 
friendship TiUi the Wasiks, was active iu seei:infe to obtain iirs. 
WasiJt's release from Jail. Appareuiiy ne Had funds of his own 
which rai^t be; uoed to effect tnis, but he soug^it to protect himself 
by securing, from defeudants their not© and mortgage. Inhere is no 
evidence that defenda^its were especially interested in the WasiJcs, 
and they received no money or other consideration for signing these 
papers, ^rs. Piontei, sister of Setlaic,was .a friend of the W&giks, 
and it was through her and plaintiff tiiat defendai.ts were persuaded 
to sign what they thougnt was a bond for tn® release from jail of 
Tlllie Wasik. 

It is significant that plaintiff sought to recover from 
Brown and h.ro'^itz the ^2000 he paid them, jie prosecuted them in 
his own name. Ihere is no evidence taat plaintiff considered any 
part of thia money as beion^^ing to def e;..dar,its. 



ai .ana ^oaivl;^ \;Xs^Si-<i ui. isiSiiMi. ^ l-o tic^^-x diii* eliaW ,#'u;/©3 

^atd%^daib tsi voXa ai tlvox'^ ■svoiv.i>'x "ro j"iwoo' a aoaaei^iw 9if? ij?.eB j&ne 

.SfqA .ill &3£' ..';U»<8£^I,,.y„..«i%;i obIb 9-:iQ ♦^©iflo ai9xf« a^s-sjso ft^u »SX5 

|5Xari;o9t? fen^ .^<i^^ «fi<*A ,Xii iUn* . J-x;c).cifct^x^ »r ,,pnX.,,,a6»?"l aii^x/l jd,^5 

rcsiljs »jtnc^ \cXIiixoacras si; alrij foisA .ci«;i .qqA ,XII OSS , &$..|Jlfci£__,_2 

9£kJ 'to oix) Bv scj^rafciv-o 9'xI4'at> sii* 'io }ioi.irA!'i9l)Xaaofi js i2C"J*£ .■ ^ ■ 
ioIXt>o^ii:i:;.3 SiiU 'io t.i'iii TfiJ'ai^Jit sxiuJ' io Bijoiatloaoo i?xlj *jsri;^ rtoii"ii?o 
8j;xl 'lo as-uaoQCl' ,'i'Ex;/-aJ;«l<r ^a^.J Ja9.bivs al ;rX ,bQi'ti^&hX si«w 

.iT?fQ a in 'to sl^ruil .fjjeii sm •^A^nsiiiqg/i. »Xi*st ffloi'i 0816,9 Xsi a'-4li«£W 

Oil si -^"SSiiT ,»sj^€iJiOii ijjHU3 e;?o« ii»;i«' a|i-s,?3bii»'l©,fe mot't: i^ai-xjjooe "^rf 

®a«iit ;§aii'jQi8 ^o'i HClid'«t9,?^i*ae^ i-ni^fa -so •'^saoiK ©0 6svl'9a-J'i -^fiiii*' f-.fui 

,5:iia^W &rli 'to feiwx'i't «i2.e«w^i*ili}-aa 't(> 'tirtsis^-^iaoi'-l .axid .saaqjaq- 

&9l)j3tfa-s»u ffl-x&w aiaxs))n^'tsfc *iui3 'lIxcTflXfjXc/ .&ii« x*txi rJasetxf^ aa-v *i .5iia 

'1© Ix^t ffloT:'t asAsaXei axi^- 'xo'l SnosT iS a«ir txi^iioii* t*-^* -***J'''''^ ^•^^^ ®* 

■ ;alxaA¥ sliXlT 

i:ix msxiJ jo^^i^soao-jq ©ii .meriJ i;Xjtq «ri 00024 «£ii s^X«'oicii Jbofc mtot^ 

\;aa fcai^j^ienoo 'iliifaxaXq; i-«XiJ aonajbivo on ai »isxiT *9aext iwo ei. 

»,li3'fi«f3&AS''i©Jb e.J-- ^ai^sixftXed" «'& Tc»nca;j telii^ 'to #a«-v.. 



Tillle Tasilc teatiflM that she paid plaintiff #300 for 
going on her bondo She also testilled that plaintiff told her 
that if she did not "stick with him* in th(» ease h# weuld "thre^f off 
my bonds, " 

Counsel for plaintiff make a vigorous attack upon the 
testimony in behalf ©f defendants and upon the findings of the 
master, l.ut thase criticlsais are not Gonvinoings 

The decree i? affirmed, 

MatchPtt, P. J., and O'Connor, J,, concur* 



-^ ^skii- .feXo# T-tiiJ-jaisicj ijjrti- .fesifti^S'^d' 08i'« ado .fciiod" tsri ap ■stii(?8 
Ho woTJ^" Mirow ®/<: ©gsa '^iii? nl ^sfikxi i<*l>i? SolJ-^" c^ot &i!, ^de ti .;Uri* 

" .sfextocf \J« 

.■■:■■'■''■■■'■■"■■- V i- 
" _, ^ ,^ , , •^,,^,, ■ , .;, n; ■; ;//{^f.* 'tiiyr*?' CrilS' 0t 




38843 

WALKER W, lAGKSTT, ) 

AioTsllee, ) .if ^isteM^ 

) APmU^ mojfBVFmiQIi C0UR3# fe^*" 

"VS. ) '"^ Z' f 

) of,/6oge: couety. r 

WILLIAM C» TACKETT et al., ) | 

Appellants, ) f 

MR. JUSTICE MoSURSLY UELIVBRSD TPtS OPISlOii OF l^HS COUJiT. 

i>laintilT filed his complaint seeking an accounting from 
his older brother, Williasi C. Taokett , defendant; the master heard 
the evidence and reported, recoxumending that the complaint be dis- 
aiesed; the cloancellor sustained exceptions to the report and de- 
creed that plaintiff was entitled to an accounting, and defendant 
appeals. 

Plaintiff's complaint asserted tiat he inherited |32,000 

from his father's estate; that he was entirely unskilled in lousiness, 

Was 
•while his brotner, the defendarit ./experienced; that defendarit suge- 

gested that he could hetter manage plaintiff's affaire and urged 

plaintiff to permit him to handle plaintiff's laoney; that on Mareh 

5, 1924, an agreement in writing to this end was prepared "by Charles 

F, Hough, the family attorney, which was signed hy both parties; 

that in consequence of thig agreement the distributive share of 

plaintiff in nis father's estate was retained by defendants who was 

administrator of the estate; that plaintiff's share in the hynds of 

defendant was #32,000, subsequently increased to :i^33,300; that after 

defendant took possession of these funds plaintiff took no further 

interest in their management; that from time to time thereafter 

I plaintiff received from defendant certain moneys; that in 1929 

plaintiff requested tnat defendant render an account of tuese moneys 

f and finally agreed to accept the «ord and assurance of defendant 

'j with reference to the account , and on iiarch 13, 1929, plaintiff was 

'' told by defendant that all tuat remained oi the trust was #755,13, 

ft and that it was necessary to terrainate the trust and execute a re- 



\ \ ^ ( 






«.!.«. de Ttf&DDAT *0 MlJJtV 



^^^rs Xl9Bg 



.„ ■^'■' >^J •'::5S 

jacril i^jixijfljjoooe ris gnijiasa j-ai^Xcvsii^a alii, kelt't I'U^aiaXI 

-exli 9d iiii.*, Xq-xaoo sd^ Ji;f;v N.xix,5n%iiaai-03?ua ,i>»3*ioqeT. fciiB aorisLiys sad- 
-sb t.uJii ^'lotfs^ C'fJ^ oi aaQXJ-^ci^xa |js-igLA,<si.jfiUi# -^.^iXwaiWiXiO ®jci^ ;b&Bnim 

000, ee# ^?jd^iae.:ijni sjii Ji'r.J' fcs^isaajB ^aijsXqiiioo 8''i;'iXd-aiaX*I 

rioxBi* iso ;tB:ii ;x;«>noffi a ' i'Ud-aJtsiq ©XJbi'UjXi' o^ mid itlvn^q ocT I'tijaxBX^ 
9S«XTCi~5rfG X'l h9i.Mqtriei ajssw &n?5 aidJ oi ^nijXiv? ai. ^n-sjisoisij itji ,r^SfiX ,3 

t© *>i«iijB ©YxJifOfx-xd-si:.^ Qxid- ;tne8£a9Ti>.s aiiij- 'to som'wpoaaop ni ^Jsxiit 

'to alinsii ©it^ ni ©xeila s ' 't'tiJ-ai,sXt;; ^saii iB^^eJaB ^:U '.to ioct'*?iJ'aiiixax6« 

te^'lis ;fjaxU jOy5,5Sc; oi I-.«3tiQloai: T,X;tn9Jjp®8di;a ,000«S£^ saw ;}-ajafca9't9fc 

lefiS'iiil Oil Jiooj 'rti^rtijisXq ai>iU.''t saexiJ- 'lo aolBSPssoe? lipod d-njsJbn&1sfe 

•a:«>.^'tffi6-x»i-id' 9£iij- od- 9tai.J- aoi't ^jsxt;^ iineiiVii,fiaBm. -liBiii al ^aoioinl 

QSeX al iiidi; i^xBaQui alsitBO isxshits'l^b aroil foavx^asi Ttia-axsXq 

Bicsaocj easi.id' 'to iauoooz cm n©l>iwi dTisIiiK'taf. JBaJ fcftJ-ftSijpsT TliiaxfiXf 

^J-ajBiiHs'l®** "to aonjsai.Ra*s ftac; fci.-J's'/ sxto ^-qsoaja ai bemi-^ii Vi^Xjsai'i &n« 

a«v^*- Viiini^lq ,GS9X ,?;X xioTBid xio bat; .jrtuooojG siiJ ocT soaaislsi niiv 

.ex.aa'^t sjsw Jsm^ eriJ- '£0 b&i-iiaim-i i^ni ILb i&jii ia£tna'teb td fcXo* 



lease; that 'believing def eridarit's statements, plaintiff executed a 
release. PlaintilT cliarged that defendant did not manage Said 
trust funds for the benefit of plaintiff, ut on tlae contrary made 
use of tixe rijoneys for his personal gain ajnd for the entichment of 
himself and his partner, Harry L. Drake; t^at plaintiff first knew 
of tiiis in July» 1932, and retained a lawyer; that an iudit was 
»ade hy certified aocountants of tlxe books of lackett & Drake in 
conneetion with certain property purchased by a s-vmdice,tc coi&posed 
of dfcfe: iai:t, Draxce sJid Hough; that this audit disoloeed a net 
profit to the s?yndicate of |550,0O0, arid that taere .-as due a 
further profit of $200,000. The cou^laint :;iso alleged that the 
Sinaclicate had received a loan of |375,000, secured by this prop- 
erty, -sfhici- had been inyested in other deals with great resultant 
profits; the complaint charged that defendant U)ii6e no investment 
for pl&ir.tiff but kept snd used the funds of plaintiff in defend- 
ant's ovm afffkire and for his pereonal profit. The coinplaint 
prayed that the release executed by ■plaintilf be ej^mulled and that 
defendant be required to r? r der a true snd perfect account. 

The sc-called trust agreement executed karea 5, 1924, is 
attached to the coHiplaint, It recites that Willi an: Taokett was 
the administrator of the estate of the father snd that |32,00C is 
in his hands which descends by inheritance to Walker Tackett; that 
Walker is 21 years of age and has no business ejcperience, and has, 
by Garr..iesf.neS8, tiistake or fraud on the part of outside interests, 
placed himself in a position that tie etandc to have a less, and 
that it is believed his bEother William should bsndle his business 
affaire; it recites the turning over to Wiiiias' Tackett, trustee, of 
132,000, who shall have full power to invest it as he may deem fit, 
William agre s to pay to the beneficiary, Walker, montiUy, a suia 
not to exceed the rfite of 8% pf;r arinum upon t?ie fuiiount in the 
trustee's hands; it provides that on or before April 1, 1927, the 
trustee may trnuinate ihe truet or continue saaie, as he sees fit. 



^ lbSf$i:os>X'^ TtiJni'tilfi .aj-aaa'sJ^jsiJ-rs a ' ;l'>uRt' A^'i©]^ .^nXv^xlfid iscif }ej>a.««iX 

'to &^x^<niiakt.i-i€^ «.&i' te't fae aiu'g listicv^sic'^tj sxn' ^^go't ?jAr;in.o.a:£ s-iii "io saw 

•ti t»:&T:fI a!f ^v*!'>.aoaf 'to «s*.ood n^iit 'to ain^v- n^oooB fcai'iij-iso f£cf eb^n 
fcoaasjiS'SO p^^^QsiiiX)^ s \u fesRcsxio-xjiff ■^-Jaeqisi^ al&:J[%eo. div)? aaX^OQnaoo 

. ... -5a#'ta.f) ai .'.t'ti^aMXq 'to a.5:»«t 9i.sij i^^a/^ j£i;^-.,t<|*9Ji *»ji, ■Itttui-siq lo.'t 
d'aiii .&iu; M^XXfc'iTiajs scf 'ft ist-, ciitsiq ^^ S^OitiJosxsy sasaXa^ s£ic^ i&tH !i'^-%Miq 

ai QOUjSf^v J)"..'4Ctj'' .&*s-B i8xi.j,j>'i &ii;^ "io siS-jsJas sit;? 'to ■'xot^'xie.ialisbja »tii 

^asii Jt.iifeB ,s»oiioxiagx» aganiajud o,a a,ail ,eiu^ «5}.s, lo sajseij IS: el isjIXjsW 

boji ,aeoX ^ ©v^sxi oi ai:>.ts.;n sa s^s.^rf^ aoi-tiBoq « xii 'iXasiKiri f)90fiXti 

BS'^axai'Ci' }sii^ plt^Bn bluoiia imilir^ a».Ll*oascf aia' tSTsiXorf si ,ti: ;^6jii' 

'fo ^©©tax'iJ ,..;t;t53,.jiod *ws.i:Xi.tW oi? -savo --i-j:! raw J ©£ti' a«;i-.fOrS>?j; 3"/- intli&'s'Xs, 

.ji't H»9'ij "i^ra 9x1 &,& 3l J-a&'Tixk o# -iswaq XMt ^7Md llMde. qxw ,OtX>jS€<^' 

^sii ,VSax <iX XxiqA 9'ii;o'i6;f io ao ^iJiW a©.fcivoiQ #1 -^siiaBii q' »9isiS%i 



8 

The money received by tue trustee was to be ideucified as the 
"Business Timst of Walker W, Tackett," it was agreed tnat xhe bene- 
ficiary phouli. have do oower or control over zhe trust Tund, "bat 
the trustee sliouisi licindle the iuojiey as h© .siiouid see lit, without 
regard to t'le ieaire ol' the Isenel'iciary, It wag also atjreed that 
any bark account or fuu'is shoull be carried ia tae narne of Williaffl 
C» Tackett without reference to tne trust. There was also a provi- 
sion that upon the death of xhe trustee tue #32,000 with the accrued 
interest thereon saall be payable to the beneficiary, 

Befendant'e ar^swer in subatatjce std-itted the receipt of the 
$33,300, admits tiiaii lie and Drake and Charles hough fonued a syndi- 
cate for the purchase of 131 acres of laiid, in whicii he permitted 
plaintiff to invest #4000; ne deni--8 that he ever delayed giving & 
Statement to -olaintiff tnd states that he gave plaintiff's attoiTiey 
ft statement of the truat account and furnis.ied a coiuplet© ace unt 
Showing the debits and credits of the trust fuBd up to imd including 
January 1, 1929; that plaintiff's attorney called at defendaxit's 
office and exaoiined the account ajid also bxi account covering plain- 
tiff's investment of $4000 in the 131 acres, aand alleges tiiat there- 
upon, on March 13, 1929, plaintiff executed the release referred to 
in plaintiff's complaint and received the full balajice du^^ him 
under said trust agreement. Defendant denied that he used axij part 
©f plaintiff's money for his own perauiial gain, states taat plain- 
tiff ha-1 full find coioplete icnowied^e of the accouii c v.-hen he executed 
the release on karch 13, 1929, y.nd alle^ies th&t plaintiff always re- 
ceived his full share of any profits arisin^y, out of the purchase of 
the 131 acres, 

Xhere is considerable argument as to the nature of tne agree- 
ment signed by the parties on ^aarch 5, 1924, plaintiff aseerting 
it is a simx)le trust agreement whereby defendant was obligated to 
account to plaintiff for all the profits accraing froKi the tirugt 
funds. Defendant argues that the documant was primarily executed 
t . .... ... ■ , , 



■'J^H'odiiw ,H"t »^n b£f.iGM arf- ea t®a©« trf* i>I&iU;ii biwoxia *ifi):?8w-i:?- ittlt 

Mi^t^sas s^jij' rfiS-.cw 6)-/0<!^S# «Ji^* sstd-exr^il^ sfi^ 'io ^if^eJS) Sif* rtoqu d-fiff* aoxs 

MiJ{>'irf«&i5 9ii iioiifc' ill ,1?imJ: 'te s^itrs l^I 'I0 ^'d^iiaiuc &di tot •d'so 

xi ^cuvijv iiS't.cIo^ *ii5?7© sift teM a>5i;«5yh «ii^ jOOOI-t i^«»v^i oi Tti^^nxjeiq 

y:9.a-roiid'>iS e ''.£'i;iiJ'uir.*sXcr -sv^-^ »ji .|-«snd aa^jsi^a ^^rtr^ '\tkiaielq ci in&t!H9iss99 

Sui:.b.uXosi feae? od' qis titu'z #a,ij'X.t ©it? 'io i^iib^'io fine siirfsfi ©rid ^riiworta 

s' :.hfe,fcvi»i-si5 .Is 1^0 .£J:i5a ^anie-JiJ J iil '■t1:ljriil:'flXtf j«il^ :^*:^X ,X '^tstfaB't 

'•.liBlq -^iiit^voo j'aj./'aao.s «« e^'X.*:-. J^iis ij'ffi^oooif wild- .ft^jaxtxisxsi ba& so ill© 

oJ- 6yii"fi5'i?!>T: ssjasiXs'E aiiiJ !:■>. i^ijco^ts "t"tita.riiXfr ,8^' OX ,>;X liQi^M. no ^aoqti 
isixi :;.fe 90iS4»Xi^d' XXiJ't sj15 lifri-^osTt 6as JniaXgatou e*'t'ii^nij3Xq^ hI 

-alBlti iBik;!f sft'S-si^a ,0iss X-^itoaisq aw<^ slrf io"!: •vjsiioffl a' "iliclaie'Xq^ 1t« 

«'?-i aY.eT?Ie Txia \5XsiQ' J,Si.jj asjisXXM xuife <^'&X ,SX rJoisM no aa^aaXai »ii* 
'to asBiit)iaq &£ft to ituo halaiia &:iX'tx}'£q -^ise 'io si/o/is xXl-1 aixf fcsvi©© 

-^«*S3« »fi* '.to 6TU*«a »di 0* M #«9£autrgtij «jXd«*i9fciBfloo ibJ: a^sriT 

oJ XvM^salXcfo saw #a*iX>tt)»'i:©b ^(fs'SSirlisr ;)-H94Jt9@'X3i« iSirsi oXqiaia jb aJt jl 
SiiuvcM ^sii iaat'i a^xiinoojg a^x'toiij &di XIc lo't 'iTticfaifiXQr 0* itmoooa 



to protect fro!B creditors plaintiff's share in his father's estate, 
arl t.iat the tra-asaction partook mors ol" the nature of s loar^ to 
defendant. 

Plaintiff had received $a0CC from his father's estate, and" 
had expended ^4000 of this in furnis'iirg an apartment I'or hiveelf 
aiid wife whom he had just married; the "balance of $4000 was invested 
in a "buTDper 'business with the Ward-Jones coiapany, which businese 
proved to he a failure rjad there was apprehension that the credi- 
tors of the ooEipan;/ would have recourse against the interest of 
plaintiff in his father's estate on the ground that he was a 
partr.er in the Ward- Jones comp-oTiy. Plaintiff's mother testified 
that he talked to her about this unfortunate invest'iuent and she 
told -olaintiff that if they could £6t lim out of this trouble she 
wanted hira to let deferda^it handle plaintiff's money; that plaintiff 
eai-^ he ■?'as willing to -^o this if defendant would oay him .3 oer cen-^, 
thsat if •^■?fen1gjat would do so he could do "'h-itever he -ol'^asad ^ith 
the rroney. The mother further testified that after tiis conversa- 
tion thejr met ?rith def sndaritj telling him sh« and Plaintiff had 
talked over the matter and plaintiff wished defendant to handle his 
money -nd pay pl'iintiff 8 per cent interest. Defendant at first 
objectei to paying such a large 'anount of interest, sayin-j he could 
get all the :r!oney hs waiit^d at the hanlc at 5 or S tjer csnt. The 
evidence in-Hcates that botii the mother and plaintiff ar,i,ued at <3ome 
length with defendant, t)la .ntiff sayin^i again that all he wrxnted 
was 3 T)?r cent on his money and that defendarit could do whatever he 
pleased ^Jfith the money, as he, plaintiff, -wanted to go ahead ^ith 
his srt ''"ork. Plaintiff arid defenriaiit told their attorney, hough, 
of the prop'^^ial and Hou.ih advised defends/it to have nothinj-j to do 
with it. 

Plaintiff had in the laeantime brought suit against the 
Ward- Jones co^-apany to recover his $4000 investment, and the co:;Apany 
set up as a defense that olaintiff was obligated to the extent of 



I' 

o.> itool V-; 'to ot-^.-jca ^ds 'to I'xam Icoia^q; aoidOi-.^n^EiJ siiii -iBLJ ksus 

&a.j-a0VT<| a^vv .00®.#4 '£a ©snmX^jd' f>iirf ; bf> Ir'ncja vsiif, ^^'-^"^ ^xf ijiofj-ar s"ii.,T/ bus 

"Jt&soxs sxi.t lii/i-^ iiO:i::?;ii^.jLl0it|g,K e-aw e>^S>/^^ £)£u: sijulis't ;« 9cf o;r fc%vr,iq- 

£: fis9v -sii j^iij x:;'.iic^^ s.n4- ao si^'s^sa a ' "XRjii^ist aid ai: 'nx/Ji-f-fcelq 

sr.« ?jidwr/ti' GJiriJ io J-i-'o ffil-ci il-r?;^ LXj-00 Y«r~^ 'Jf- j-«r;.t /llitaijslq bloi 

.Ssxi: 'minxs<;lc- hnB ^m mxu s^uxll'ss J vi&ti:^t't?ik ..rjlw ts^u ifS^J noi* 

all;! sXlriiSfi oiJ' ^n:t-/;ns't!5l-. J^aiiisxw 'nij'.ax.sXa .fe^ii:- li^iism 9oi lero b^.Sl&^ 

iTsii't jfc ;;fn&,&ns''t©G ,.ta'3'3:«?'j>-!l. ^a©© log. 8 't'iici-nMXq iEi?q lifu-- ■^SKo:'^ 

»/i'i; ,.tvWO ':i.»'o 5 i« d Jx s'nMCf »iU J*5 i;?#i<*?w f-n vfflccft Q^ llM *|i,3 

iy3*ni?w ©fi £L% J.-aiiiJ rij:.s::iB ;jaXvfi3 Tiiu'nt.fjXij ,:tn£',f>«s'X9& rliJivr r<:*ga«X 

iiiXvJ h^-am OB o;? .C'livtiwjw /nxj»il#xq ,©4 3« .-^©nora ©x:^ I'ily fcftsfsXq 

oh pi sniiWoa yvi^d o? i':i.&bm't9b 6«i22vM i-ij^yoH fcm X£5eocjo'io erJ "o 

.tJt.ili'xv 
Oil* J-saJCBS5>, #Jt.us ir^isoid ami j'jksci sxid" ni f?Brf rtl&aXsill 
Y,ru"QVico grid- tan , d-fi?'rt*aorn.t 000*1 uXil xavoftst q^ -^ncgaioo aono^V-fcTi-i ■ 



#25,000. Al'ter rliacussion Eougn suggested that a very siK;ple i'orai 
ol' trust Tbe drawn to keep the vVard-Jgiies compaiiy or its ci-erlitors 
from garnishing or attaahing ulaintiff 's money, ilough teatified 
that the agreement was drawn for the purpose of protecting plaiii- 
tiff from his creditors and also to protect iiiitx a.gaixist his o*ti 
inalsility to haj:i'.i.le raoney. 

Counsel for olairitiff argue triat there was no 1 ^fe:al reason 
vThy plaintiff should a^jprehend any prooee-Sing hy cre-;itors of the 
Ward-Jonee coiripany against hii/i, whetiier or not tj^is apprehension 
had a/iy real baais in fact or la,w is not iiupoxtant, xhe a^r^eaient 
migiit well iiave been drawri for the parpooe of avoiaing a^iy such 
attempt by creditors. 

It is difficult iio characterize this docoraent. In one 
aspect it apptjara "oo o^ an ordinary urust conveycu^oe, bu.^ ti-e ftiot 
that defeadant "uiei-eiii agreed io pay pliiintiff a vtry la-rge rate 
of interest, togetaer v.'ith otiier provisioiiB, tenda to n&gative the 
simple trust idea, iiowever, we do not thinJk it is necessary uo 
deteriaine definitely the diar.icter of tne agreeuieiit, icr t.ij.e 
decision of this case tunis upon what toojc pl-ice after its execu- 
tion and the receipt by def endaiit of $35»3o0 of yluii^tiff 's tioney. 

l^xe master fourid t -at after the execution of this agreement 
plAintiff received from def endorit nionthly a suiu in exoess of a 
per ct--?nt, -ind that tne amounts paid over axid noove this 3 per cent 
•were credited against the principal sjaount of ■•■^^^fOOO. TaiB is 
amply supoorted by the evidence, Plaintiff daring tails time vva-s 
living: in Europe - in Home, XUce and I'aris; he made frequait deiuandB 
upon defendant ior advances, and defe.^aaiit, by letters dnd state- 
ments, called plaintiff's attet.uion to the fact that ais withdrawals 
greatly exceeded the 8 per ce^.t interest defendanx, had agreed to 
pay, and re, on st rated with plaixitiif about aia extravagaiice. In 
one letter, dated Juii© 1, 1927, defendant wrote: 



ciDiia Y/si; ^ni; biovs 'to eBaqij.^ &di tc'i. fmjk-'ib nxsi&d srsii Ildw Hii^im 

~jJ3'^i5:.9 s'il "s.&^'Ui ©o.?Xg jioo^ ;fai»'^ noqo auTtiJ'd- »«5*io aixfc) 'to noxuio&b 

ffj©o 'ifjfjC 8 teliij j>¥oiJ*J .ba«- "!t«»vo fcxx^q Bicmomi ®iiS 'iMiii bam ,"*afi>o %&<i 

a,«w aaixj sXilJ a'ii'^JJ''':- TxxJiiii-;!^ ,s;.jL{9bJ.V9 ena x;«f I5»dit6qqi:;a ^^:XcIBlB 
s^ftaiasi) 5ii*.yps-x'l alweiji ©xi jeixits"! him (?&t^ ^saoH hi - eqoiw2 tii jsjnivxX 

Blf^^iii'ibiiiivf axrl cfaxi^ i^s't ^ai oj aok^i^x'jjiiij G^'fiisalM-lq b'^lLao ^aiasBi 
oi bieQ£g& £is<xi i-i-ifcI:iK-"£e£> ^aexe^ai. ii-^&o isq 8 ©xl* bBbeoox^ -tliaofQ 

:ad-oiir Ji:jj8l)4ialai> .Vt;eX , X ©awt' fe9'#^ ,t9l*«X iad 



"If you draw any mor« drafts on me, I will refuse to lionor them 

an 1 Til?, turn your tnoney over tc the Chioajjo Title &. Trust C021- 
pany to hajadie, who will give you fiT© per cent interest insteail 
of eiL'"ht tnat you receive frori me. •■>-* I am only handling, your 
account &B a faTor to you because I can borrow all the money I 
Want from the baiiks at five per cent interest. **,• 

I do not like to be hard-boiled with you but if you are 
going to continue to be so foolish, somebody has to step on you 
along the line," 

Xhe evidence shows tliat frora the year 1924 to 1928, iuclu» 
siye, there was a yearly withdrawal from the principal of aciounts 
in excess of 8 per cent, atigregating #32,234,65. We do not under- 
stand that these amounts are questioned. 

The laaater found that on iitarch 13, 19 39, at plaintiff's 
request defendant gave him a statoaent accounting irx full for the 
#33,300, plus interest at txie rate of 8 per cent per annua., and 
that plaintiff, being fully satisfied with the statement of ac- 
count, upon advice of hie attorney executed a release, stating 
therein that he had received all moneys, both principal and in- 
terest, required to be paid by defendant to plaintiff under the 
terms of the agreement executed March 5, 1924b 

Plaintiff's counsel earnestly argue tiiat when plaintiff 
executed this release tie did not joiow all of the facts. There is 
abundant testimony to tne contrary, A niimber of witnesses, as well 
as plaintiff's own attorney, Earold ii'ein, gave testiiiiony tending to 
prove beyond question tnat plaintiff was fully informed of all the 
facts at the time he executed the release. 

There is an Iteii; of #4000 cnare,ed against plaintiff's ac- 
count wliieii is significant. Defendant testified t/xat he, Drake aa.d 
Hcugh had purchased the 131 acres called the Westchester subdivi- 
sion, ie testified tnat plaintff in January, 1925, ta3.!k;ed with 
him about this, plaintiff saying that inasi.uci:! as another brot/ier, 
Marvin, had invested 14000 in this purciiase, he wa.ited to put in 
an equal aiaount; defendant told plaintiff to consult his mother 
about the matter and expressed a willingness to let plaintiff coiue 



-CioO ^iBiriT yj n.[j-j:x oj-;.^;; inO f>.fi;J- o>-r 'f'Svo ■\,«!no-:i 7.aGv rrcuj- xriw f-m-^ 

fe«sjsiii is«'3:*;f'£ii 5'ft«p 'i,»<,T ©ri'i s,;©^ ©vi:.^ liir air's? .v^lijtsaii oa t^watj 

■SL'oA'; itiiilbii&d vx'iio ais I -■'^''- .fvv ifrccl eviaosi tsox d'ffid' 3-jrf>;i9 '!:o 

irov no gf'.ta oJ" i^^fit '\:f;ccfa>j;ioa jflsiloo'l oa s;f oi «? uni. taoo od' ^nioa 
fjOi.; ^iJii^/ii-ffi asQ Jivso 'xaq- 8 'to «J.«i sxi;i- iii t&»%^Si:i.t ei-'Itj ,C>0£,££| 

©.dj Ijjts 'to ijeiirxo'iai %SSi^'i aiisy Tii^riiiivslq #iuj4 aoidatujp baex'^^ »vo'tq 

.saaoXai alt fesfifioaK® ©a aisiii^ oxij' is ajoa'l 

•'itih<Jiu9. •seisdi^la©^' sad" l)sii.*p asT^ij iCX ©ri^r taa^iiiaitiq fcjsxi xis«0li 
XQxidom ai£l #X.ua!i'£u0 o^ 'nuaijuxq^ hloi iaj^bmJ9b jliiwoaia X«up© as 



in u^on the understanding that the inTestment ?/a8 a gam'ble; ac- 
cordingly, on karcb. 13, 1929, ur>on advice oi' ^5lairitii'3' ' s attorney, 
another agreement wae entered into Ijet'reen plaintiff and defendant 
^Therein it -was recite'^ end '■greed that |4000 had been ■•■''' ithdrsim 
frora the -princiioal sun of |33,300 and invested in the Westeheeter 
subdivision, -jnd tliat olaintiff ratii'ied, confiraied grid approved 
this investment. This Westchester T)urchase was profitable and 
plaintiff, uo to May 31, 19 ?9 , recei-vr^d over 125,000 as princit>al 
on his $4000 intrestment. June 1, 1932, plai/itiff placecl the man- 
agement of his interest in the Westchester suhUvision with the 
Chicago Title ani Trust Com-nany axid since t-iat time he has continued 
to receive an income on his $4000 inveatffient* 

This tranpaction tends to supioort defexidant's claiia that 
plaintiff was not to participate in any profits from the use of 
hie money except as to this speoi^^'ic $4000 invest' ^ent. 

The master found that plaintiff hrs r'^ceived frotn his 
#33,300 turner! over to defendant a total amount of between $70,000 
and ^80,000. 

Plaintiff also fsayp that this sjrndioate consisting: of 
Willi,<i3) Tackett, Hough and Dr -ie, horrov^ed #375,000, secured 'by a 
trust de^d on the ^eatchestsr siihdivi pion, |65,000 of ^hich v&b 
used to pay a purchase money mortgage, $37,500 to pay coffffliseions, 
and the halanos went to Drak^, Hougli, and ^illiarr, C. Tacl^ett, The 
evidence shc^s that plaintiff was not a meaiber of this syndicate 
hut had merely a "54000 interest in Willinri Tackett's share, arid 
ip therefore not entitled to an accounting of the proceeds of the 
loan. 

liSoreover, the i-.aster founds i^nd tne -3Vi:'-er:ce supDorts the 
finding, that upon invest ic^^t ion by plaintiff's attorney it va.s 
found that the investra.mt of the share of Wiliiani Tacicett in the 
proceeds of the loan was a total loss, said that if plaintiff shared 



ffw^thxi'^iv-- n?r«j(f .&<3i-J OC-O^f #.©a,$- ^<>»i:gff hm^ ^sJ-iofti sew ;ti nle'x?*riw 

|!"«»vo:3:cfcijj .bxiff. I:)*ja;"3:i'tnos ,&sj;*ti:;t.fc\i 'ttli-VLlsxlr; Ji'm-J baf? , no.tRxviAcfji/R 

£fi!(T±onxtcj ^'a 000,dS:« xe-vo J^^viposi ,0??.i?X , IS 'yj^jStl o^ cu ,'rti:;lni.(sX(y 

&!l^ .!::..r.l'.7 aoi3i;v-.t^iffiSi 'le^rasilorJ's^W ftrict is:! Jiastsini olrit 'to ^taojHss* 

000, OV;^'. a«swd-*»c;f 'i^ ~!taucpm Is^ios e jiXf',.^Mi5«lT?h o? i»to jbamwi' 005, C£t 

.000, 06 1 £>n* 
1-0 snmt^ aoo f?iHOS'::VTB fiiiii ■t.Si'J' '!xr,B oqIb t1t.ia.lBl*i 

^£iixol--!^i0«n:oo -^Ci-.q. o:^ 005, Vf.f ,i!h3e.:'*'X0iH -k:;«oojec $a'?rfo'i«g a X£^ Q* ftssu 

?.m1T .d-Jei-lo-'J.S .0 .;i.';-.xl/.x?v .5rfj?, , .'^^woiT ^ 9':Cf.a'T o^ inBV eor.i^LR<S f^di has 

©^,?;oiftn-..53 slrld- 'io xtni-iiru jj tco' ».£%- TI j:,t 1:1x^5 Xcr d-^xW a^'^'oris sone&xtrs 

^dif 'lo sbtioooi^ i^iW' 'to 'QiiiicwoooB a& of h&liiia^ if on ©lotsiarf*' ai 
■■'■■■•■■- «n«oi' 

sf'j {'.iioqQ'iie sons: Iyo siii^ hcia ,l!m;o't isJaain gril ^-ffaroSTCoM 

fes'Sifffe liltaiju-Xq '.tX cS-auU f-m-j .SffloX X^i^bl Jb jjjjjw KfisoX sxfd- to oJbf^ssoiq 



8 

such inTestment made by defendant, plaintiff's loss would l^e fcetweaa 
#13,000 and :|19,000. 

Defendant in handling the Weetcliester au'bdivifsion made a 
written contract with Walter iilo* wherein defendant agreed to pay 
him 20 per cent of th^ net prceeedi derived from the purchase and 
sal* of the property. The Blaster found that tnese payiuents to 
Blow were proper expensss dtiargeable against the Westoaester sub- 
dlTision; taat in majcing up the account plaintiff's interest was 
not charged with his proportioiiate share of this expense, but he 
received a credit in exoeas of what he '^as entitled to in the 
amount of |5000» and that defendant was entitled to recover this 
amount from plaintiff. The master also found that there were 
three iteias aggregating ^2300 ia the final account rendered by de- 
fendant to plaintiff on March 13, 1929, which are disputed, and the 
master found tnat Walker was entitled to have this amount of |2300 
set off against the fSOOO found due to defendant on account of the 
Blow exoenses, 

There ia some argument with reference to aji item of :jlOGO 
on the so-called jSewell checic ".vhio:! plaintiff claims was given by 
him to defendant, Tuq preponderance of the evidence sho^?3 that 
this cheek was not received "by defendant. 

Plaintiff made Urake one of the defeudarits to his coin^^laint 
and argues that as Drake had iinowiedje of the existence of the 
trust and the useof the trust funds in nis business ventures with 
William Xaskett he is legally liable to account for the same to 
plaintiff. Ihe evidei.oe snows tnat while Brake was a partner of 
defendant Williajaa Tadcett frois July 1, 1924, the arrangements for 
the investiuenta under dispute were made hy plaintiff with William 
Taokett alone; that plaintiff had no contractual relationship of 
any kind with Brake, and that 'vhen Williari Tackett acted on hehalf 
of plaintiff in any investifient he acted as an individustl and not 



eiii 'to juwosofi jsc in.<sl'.a&'t.i>|5 oi aiwl'. ijaRfo'J 0©O§.i| , *>!■{* ^^!sai/i;g/« Tlo d-na 

,««■'««« f^x© vroxa 

X'^ fa&Tia 8£W Siidiiia 'fll^fiXfsXq noidw :iiSi'kiQ Xis^su. fesXI^c-oa s/i^ no 

Qit 9fiUK3 arli -io'l in^^osi.A^ oJ sX^fiil. \IXjss-sX al *i'i ^J02C»aT KmJmi''K' 

'io f ^'i*^>5Ci ^ a^'^*» •'^^'■flivf oXiiiiar iBiui swoiia »» i!?.Mvsi oifi .■x'llvrriljBXq 

•jcl ®jngfs..9;3Xie.1'S.R --stiJ .^SeX ,X ^li/C MOl't J-if^ftiOi'sT fli8iXXil&' iJnjBfei;9'i»-Jb 

to qh-isiivi^Bl^i l&uioe.'x^iiOi) ou bad 't'ikialalq ij«a,t ^nmste fi.9:ioet 



9 

as a partner of Drake. The ui'ister found that Tivake was not ac- 
eountable in any jxanner to plaintilf in connection T/itii any ol" 
the invesraents in diepute, 

TiiB Riaster found that plaintiff was not entitled to an 
accounting lay iefendant Taelcett or DraKe, and t.aat plaintiff had 
received all moneys due him under the oontract of karch 5, 1924 ^ 
and had given axi acquittance and release of all liatility for 
the principal and interest on the invest.;>ient of #33,30j, and that 
plaintiff has received more than his share out of the inveotiaent 
of |400L in the Westchester sutiivisioia, We are in accord v/ith this 
conclusion, w/:ich is abundantly supoorted hy the evidence. 

The master further recoamiended that inassmuch as defendant 
Taekett had apjreed to release and waive his right in and to the 
^5000 credit due him on account of overpayment to plaintiff, 
arising out of the Blow expenses in connection ^itb the "'i^est Chester 
Bubdi^'^ision, 'ind providing nlaintiff waives any controversy con- 
cerning the itei^.s in the account of March 13, 1929, afegregating 
#2300, no order or decree he ertered respeetin,i; these amounts; 
and the master further recomtuended that the complaint of the 
plaintiff be disciiased for want of equity, ^e are ol the opinion 
that the evidence justifies tiiis recoBiniendati©s and tnat it was 
error to sustain exceptions to the report. 

lo note in detail all the points made by rc-spective coansei 
would unduly lengthen this opinion. In brief, the record ^oreaeats 
ths case of a young man, inept in business, inheriting aoney and 
persuading his experienctd older brother to take his money -xnd 
guarantee him a fixed incoiae - a situation potential of danger to 
both parties; the young msj) .-pes abroad and regularly receives the 
income agreed upon, but his extravagance requires withdrawals from 
the crincipal of his estate until it is nearly exhausted; one 
special venture rr.anafjed by the older brother resujtis in large 



-QB ^pn 'j.-p.^? 9;is'i<j. t45iiJ bciiio'i Tsj-a.(?.f;i 3a'X .^i^.-xG 'to i^no xccr i3 ei? 

{lie oi' ,foy,IJ-i-tm> .toi'f Bjsjw 't'iio'-sii.sXg J-e,ii.J- |?niJCr't "iscS-aaiti; .9ifl , , ■ , . 

jl'^l&X ,S xio-Si-^i* lo ioijTi-aco Slid' t^JriOU said Siiii e-^»riofix XXai fc-^vxsoaT 
'ace'* ^J-iXidrfiX I-Csi 'to fSeisaX^t X)0*i »sxs«j i'li/pO-B fljs aavxs J^su Jbae 

•2Bite3roc?a,oW ^sd^ iiii^ aax;1os^3fi«o xU ©-sana^ixs w«Ict sxi;}- 'to ^00 sn4:8lT;ja 

^;iiii,s-'oi3t-.>,,^}£ ,SSSX «i"i;i ao-Siii'. lo .1-aiwi>ooB «>iW k1 Si'.i©*x sdi ^ttiffxeo 

•a^iiija'ijs SBSiiu arixJ-^js^asn: ijaTE^iiio s<» as'iDsi? xo 'xelj-xo ©a ,00g2| 

&iii 'IQ .taii5Xq£So& &ris j.axij £>9j>n3tia£00ivi 'xaxliicjj't 'i«l34«t &il:i hOM 

iioxalQo aiij- 't© ©IB aW ,7,jiygn9 'ic i.isisw ^o't &988iiaaib, ad ;i*ii:5'ni.fiXg 

3*T ;fx J'i?!'^ -brsu- aaxcfBi)«©iiUiiot>«n aj;;ji s^i'tij'aizt »3;ip|)irs adi i^tU 

Maanis^ ®?l^©eq'S3i 'z-i «>*>*!■'« sicioq QXii Xi^i lij&i&k ai ©c?on o'X. ^ 

sja-9«.rxf M©s»'X,«xiJ /.'raiicf isi .aoiax??;© sJtii^ aisi*A3'2iiTt»X Aj^Xtxiaju feXwow 

: , »fio ;to^sx;.A<i'k;9 \£l'»,e*ix si jx .U:^ny d^fi4ss» aiAl'to XfigXoax'St? »X-{* 
©S"^*!! £iJt citX.uae'X uox,ycts^ il»fcXo <Pilt x«f J^^Sfi^JS*'^ ©TW^fnsv X^iosqa 



10 

prolits to the younger; encouraged by tnis he iniagines his "brother 
has also etiisr large profits ir. wixica he can B^^are tmn. ooinaienees 
suit, although, ritli full kiaowledge, he has released all olaiffis 
upon his brotaer. This litigation should never have 'been 
ooiam®nced» 

i'he decree is reversed ai)d the cause is reinanded with 
directions to enter sui order in accordarice with tiie recoEimenda- 
tions of the master's report » 

KBVSRSID AI^T> HEMAl'.UED WITH DIHBGTIOivS, 

Matchett, P. J,, and O'Connor, J,, coneur* 



01 

.Jb90it9iS2a03 



S8913 /"""■ / ^■ 

JACOB MICHALIK, Adirinistratoi' ci" ) 'L^ ^^.^.. 

the Estate of STANLEY MICHALIK, )/'\ ^ J 

Deceased, / ; 



i 



TS« ) OF COOK CGUMry/ i 



CIIY Oi" CiilCAGO, a Municipal ) 

Corporation, ^ ^ /^ ^ .^ a>^ ^ 



O 



MB« JUGTICl McSUKELY IffiLIVaiKeS THE OPISIOM 0? liiis JOUii'I. 

Stanley Mi clialiJs, liereaTter called plaintifi", eleven years 
old, was run over ty a trailer used in hauling waste and junlt 
attached to a^^Eaotor trucic or tractor owned lay defendant, and re- 
e«iv«d injuries which resulted in his death; the administrator 
"brought suit and upon trial had a verdict for #2100; defendant 
appeals froa the judgment entered. 

Defexidant was engaged in filling in the lilinois-iiicUigan 

canal at a point ixi the neighhorhood of 36tu a>treet and lloman ave- 

and 
nue in Chicago; trailers drawn hy motor truokg/io aded with garbage 

and junk would come in the morning from various parts of tae city 

to this dumping plaee; the junk would be dumped at tiie canal bank 

and then forced "by a levelar into txie canal; xuen and boys caaae to 

this dumping ground every day to piok bottles and other articles 

trhicii they Biigiit find among the rubbiah, and at tiaea, ?/heri the 

trailers stopped or aoved slov/iy, tuey wuuld get on top of the 

trailers. 

On the moming of the accident a track hauling three 

trailers stopped momentarily at tiie entrance to the dumping ground; 

it was to?t'ard the end of a line of tiailers tii.at were slowly aioving 

torard the canal. Plaintiff climbed uo on top of the last of th© 

three trailers; he ^as not noticed by the driver of the tractor, 

although he *as seen by the driver of a following truck. 



.. — . — ,, y ■ ex ess 

\ ■, "*• '\{ iMOAUOlM 'mjJ'Ui^c, 'io 9S&i-s'K tulf 






y'ifciUOy iiOOO Uo 



l' i ^ silo Jl 






-ti»£fctT'/t.?jfc- ;OQ.C"^- 'xo'i J-oi&-ifj/ 4^ i>.£ix£ X^iau iiOQXJ .?>tuv dine .tifguoi:'/ 

r5£.aijbi-'.;'---3X 'jnj.j;,i.'i &.;ut ai: ■^aillx'i. <:i.L {i"2iis.o;3i3«- 8*>is i\Uib'M>'i^ii 
fins 

siii" 'to tjO;!" ISO J6)§ IjIjUow v&uci ,'^-Xv/oIs b&-?i)&i 10 b&qMoiet at^litiii 

*&'.iriJ >.,iii:iu,«il a.oij'xj £* #«£>i.x»o& sui 'to awxiriuw aiU aO 

gHXYOiK y.iVoia 3"xsvj- ^■fii.uf etsiii^'id "-^o &ail Ji 'io b^m xiM . bta-^^oi a^^"' i i. 
adiT io i!2>eX ^it-j- '.to uoi ac oii JfeocIii-iXo lliiaiAl'i *X£,a»o aiiw fe-nx-^ocf 

.-iot'-xJ- s^J-^oIIo'i « lo ■t«i)i/x'i,f' Sii* Y.a" a&6S8 asw '«>xl il^xjorliXjs 



Plaintiff's (Complaint alleged tliat defendarit permitted him, 
with otliers, to climt upon the trailers and did not order them to 
get off, and that the truck drawing the trailer on which plaintiff 
urns, suddenly jsrked aiid started in motion without any warning or 
signal that it was about x.o start, and "by reason of this plaintiff 
was violently tnrown to the ground from the trailer so tiiai. tiie 
wheel ran over aim, crushing aim, 

Sven conceding tiiat plaintiff while on dsfendaiit's trailer 
was a licensee rather than a trespasser and that tne defeiidant 
would he liatle if through its negligence plaintiff was injured, 
yet the STidsnce fails to show any negligence lu the operation of 
the truck and trailers which resulted in injury to the plaintiff, 
So witness testiiied that the txac^ aiid trailers started with a 
jerk. One oi plaintiff's witnesses testified tr.at they were etand- 
ing still, "it staited up to move slowly, not jerked." The only 
witnees who saw the occurrence wa.6 a trucit driver fcllo'iTing iaamte- 
diately after the trailer irooi wnich pi%intiff l€ix» -^e testified 
that when they stopped he saw seme hoys en top of this last trailer 
and when tne truck pulled forward the toys started joLBipinj. tc the 
ground; that plaintiff appai-ently did not try to jump off hut laid 
down en his sto ach, threw nis legs over the side and started to 
climl) off; that apparently his foot or his hands slipped axid he 
fell to tne ground and was ofider the wheel, Xhe evidence deiuon- 
etrates tna,t plaintiff was injured not because of any jerking of 
the trailer or of ariy failure tc Bound aAi^y warning before it 
started, but solely because as he was sliding to the ground over 
the edge of the trailer "he lost i.ds grip and wait off," &s the eye- 
witness described it, 

Hhe theory of counsel for plaintiff seems to be that the 
driver was bound to Jsnovj of the presence ©f plaintiff on -uhe 



g4 imri:^ -iotTO Jion f.ui:- biw ^•xsliutj' i)rli ao^u d£,7.ilo oi ,8t©ildo n'^'iw 

,au-fi -fit Mi :i Si; •aw ^silci 'iBvo trnt Xssiiw 

-.biviia f^tay/ -^sxi^ d.i5..j ^niiilvtssw sa.'jis^iiii.v a»'.rixJiUi>I<j- ".to ^xf-' .ilasi;. 

's^Xae -uji. " .1 .•i.i'.feM:, "^O'i « •^iXv^aliS i^TiV'i o:l fi^ fc®ixiJ3s .ti" .XlXi's ^^sxi 

-SiiJiSi;: gax-^oXiol 'c^viii? iioij':£0 jb e^i'-?? ©aiis'i-ix;&oo o^i/ KW^a o.aw KufrnJiT/ 

|i«>iXijr;j.:>i^ a.U .XXjX 'IXiJ csX.,v3.u^ i'yX..i-.Y ^•iciX liVlijiiJ' sal a&j-'li:: ijX^J-^iij 

:K)Xi,o-si >J'.ii*jI fcUd^ 'to q^.^ no aijoc o.iaoa "Stea i>.d fc^-qoJ-a '^Sii* mdX? taud 

|>Xei *j:;ci' 't'ivi qaj^t &^ 'l'^'^ ^'^i* j^i-' ^iJifeiBqc;^ 'nt^alnLq, t«£ii- jfe^xj^^g 

lo :gaXix3t 'i^--' '^^ 5;!i;£!0^<U Jca bs-%uini saw 'nXgrnX^Xq ,faiiJ esfijutia 
J'x ^xoXi^cf 3;'i*^^"i"^^ ^^^^= i^Hj^Oii oJ !»iiiXX^'i \^5^ 'io to i^liis-ii ©£f:>- 

»aY«* Sii.; ;.''• ", fid iityft t'O^ qi-x-i sL- d^ol Si:^.'' -xtrtXiBliJ i»Xu5" to •sl>© &di 
siia- ao "X'ti^TnXijIv-i "X-a aof«^fti:^'te[ fn.$ 't-o wotui ui' ijowod saw rr»vXa5 



trailer and should not liave moved forward uiitil he had alighted 
sal'ely. CaseB are cited involving railroad cars pieced, where 
children were accustomed to go under the cars or in other posi- 
tions ol" danger, aad where any moveraent oi the oars would aisaoBt 
inevitably injure them, I'his is quite different froai a truck 
with trailers flhere the driver, un&ware of the presence of a youug 
toy on the traile-r, slowly jixoves forward. In Ka8ima.a.^y.,.^Uhj^oa£,q 
Railways Co . , £25 Xll. App. S68, \va«re a boy "waa injured while 
riding, by permission, on a street car as it was being switched 
in and cut of i.he car t^irn, it was held tuat wnetner the boy was a 
trespasser or licensee, tiie defendant owed him no duty except to 
refrain from waiitonly and wilfully injuring him. ihere was no evi- 
dence whatever of such negligence in the instant case and, as we 
have said, neither was tt.ere rmy evidence of a laei. of due and 
ordinary care in the operation of the truck and trailers. 

Plaintiff's second covuit was drawn on the theory of an 
attractive nuisance and charges defendant with the duty of iencing 
or guarding the duaping ground and of guarding trucks suii trailers 
80 as to ox event children froiu elimhing on theni. An attractive 
nuisance has lie'sn defined o,n things which are of such a cliaraeter 
as appeal to childish curiosity and instincts, and, left un- 
guarded, are saif' to hold cut an iBipli-ad invitation to children 
who, without judgj&ent, are likely to he drawi by childish ouricsity 
into pliices of dangsr* The evl ienoe in this case negatives the 
attractive niiiaauce theory. x'he witnesaas testified tiiat their 
purpose in entering the dumping grounds or moanting the trailers 
was to pick bottles and otiisr articles frojn the junk which they 
mifeiit sell. The brother of ;>iiintiif testified tiist they were not 
playin^^ wheii they went on the dump but went to pick up certain 
articles to sell and make money, and that his brother, the plain- 
tiff, was there for the same purpose, Xhe element of attraction 



^Liirf jjQTSiui.i^i a>vv 'coi -a -•■•xf.^nw ,aofi .q^A ,iil SSS , .t.}-j iiY.Byf lls .f:i 
a s&^v? "^0(5 sij'iu 'x^a.tftriw J".'.-.-!.* i?I;:iii ears j-j, ^irti-:^ '1435 ©.rlj 'to ;l"ti.:; Lrw ni 

.fs^ftli^-ii biSi>. ;ioiri:T 'jtrun 'to rioi^j-'x ?q,o art ax ^isio y,%i$aiL''CQ 

ei9li«'iJ f;:a^; s i'.o J.-'s J ■'^aitisiju 'to kn.-- ferijuois SOii<jj>tui> exii ^aibiMU^ to 
&YX'sz>k''it:lP> im .stiflui I'io .j'"i^-*-'-^*J'^^o isjc'x'i o■^".1:^.XiJdio J-.ai*T»ac! oi a.B oa 

-Jca ai&v;- Y^'^fiJ ^'-'J i;'J'i:'t.iJa>>;f XXXlaifcXcj "lo iftii^cicf gxil «XX6>a in^lm 

aiB^'i^^ts qjj s'uiq oi icif.>fi iuii qms^ sii^i" no jjasw \;siii nsiiw ^inxY^^.Xg 

-niidcv- 9xr:t ,^t»i{ioitf sx£f ci^aS btU} ,^©ao«u sa^xa .bm; Ii>R o;^ a-^l-oiiia 



t^srough chilriis?! cnriofiity i-> corupiet-^ly xacis-iiig, 'X'iie boys went to 
the plnce for the punosQ of salvaj^ing aroicles A-iiicii luight. be sold. 

In lanny o^seg it has been held that maciiines aiid veiiiciea 
in actual use at the tine of the iiijury are xiot ordiriJirily reoog- 
Bised by the courts as attractive nuieances, aiid that tae loctrine 
of attractive nuisance haa been restricted to thiiieS wot in use, 
to things at rest. Pur cell v^. P®tf^?^^.^.At« *^'2 111. App, 61x; 
Pen aide OB t.,,, Spring Valley_^.Coa3., Go. , 175 111, ^-ipp. 2ki4; ^.cott_v. 
Peabody Coal Co. . 153 111. Apo. 103; Kemaaxx y« fcarber. Asphalt 
PaTln£^Co. , 190 111. Apr). 636. JTver, If t ule rule were not appli- 
cable to the irritant facts, tli^re r&e no eridence tending to sup- 
port tli€ attractive nuisance ttiecry. 

Counsel for defendant says t':.&t in reiaoving garbage oy the 
©perfttior of trail prs the City is engaged in a governsiental func- 
tion which is the exercise of a police power, coiieecuently the 
doctrine of reBpondeat au;.it-rlor dofs not apply. 'le are aaired to 
reconsider our fonaar lioHings on this questiofl. lu Wasiieyi ts^ 
T« City .of Chica^q, 280 111. App. 531, and aohmidt v« Ci ty of 
Chicago, 284 111, Ap-n. 570, we considered this question at consid- 
erable length. We tlipre held tJmt in iiie reiuovai of garbage and 
the operation of trucks and trailers for that purpose the city was 
not engaged in a goTernsjental function ^nd therafore was not eseiapt 
froiB obligation for negligence of its employees. We see no reason 
to depart from that ruling. 

Defendant complains of an instruction given a.t the reouest 
\ ©f the -olaintiff fflnfeodylng a statute lixaitintj trie length of trac- 
) tors and trail tb, --uid telling-; the jury that if defendant viol».ted 
I this statute the jury should consider this in determining whether 
I defendant was ~uilty» The evidence showed that tiie truck with the 
three trailers exceeded the length prescribed by the statute. The 
Instruction should not have been riven. There was no eugKeetion 



cv SviB'-i Hvcjd ©iu «iuiiiyi-.i ■••<;i >,:J':'i(i.n:o'..' f.i TTCf ifiQl'TJio rCalnXJ-fiO rfef'oi.'fj- 
,h£o^. ad Aii^iiK i:loiiiiv ssi loi j "i:i; ;r:-il's^vX^ia 'to SfBco'tiity si-f.j' 'co't sonic? srfd' 

« V ..,^^..i^*> y- i i^--' -^ • ■■■* CU-" ♦ - ■>■ ■'■ 2 " i 4, . x:L..^;^~X!^JJ!-^iJ. b^MPxt. «^.„ floa,,&,If^,go|!X 
l^:^<^fil^-a,^'?;*.i^>si:\..^X,-.i^ ;SvI .qCiA ,iil -'la-r < vCO _I«o(i_j;;l)iOrf«95 

*/!i.,.is^i3-.,j?X..JfcjjJia££c. ^■''■^^ t^^-* ♦s?:iA ,XXJ OSS. „ pa.fi oiflO, 'to v;t,lU, .Y 
«.jp;i,!5riou d-fj i-ty.j;«.'-s;:>w.fj si:^.,: I-jiF^^'^w^ianoo •s'^v ,0^?* ,;;;<:fA .III &6S . pg ^o iilO 



6 

ix. tL.e eviJ&uce tl-at tue leu^tla oi" tiie unit iaaci any reiatiori to or 
conxiection v/itL \.he accident, 

iiiere was no cvideiice to f^o to tiife jury tending to shew any 
negligent operati&n of tue truck ai^d trailerB and tiiere was n© 
evidence supporting jlaintil'l' 's contention oi' an attractive 
naisaiice. At the close oi all the evidence the defcnuar.t tioved 
tlie court to instruct Uis ,iur__^ to iind t-i-K defen.jcjnt not guilty, 
iliie was Jenied, iLe UiOtxon snouid iib-ve bein al i-owed su'jg its 
denial was reversitie error, 

Jf'or the reasciie above indic&tec! the judgment is reversed 
without remanding the cauee, 

Katchett, P. J., and O'Connor, J,, concur. 



r 






•«■;.!;,?. ■§?or;« iji ■.■^i'JJ,i:.4.!!>5.1- 'tiwt *i:vo ;>it uy oJ ec-.i^slvrvs on 8«5W s'i.^.i.ri' 

.■■!.■ u 'a !'i a.iiia'xo'/si B.iin Xoahtab 



,o:^i-a<.y ,.L ,iOiij:cO' Lrff: , .,t .^ ,5^9ri:a:^.u^ 



30924 







vs. 






U 



MR. JUSTICS M«SUS>'I.Y DBLIVBRSD mS OPlllGfi 0^ THl C(«Hf. 

D«f siKiant appeals i'roc a jud^i^ent for #1900 returned on 
a Terdict for plaliJiilT in an ^etiorj brouglit by x^er ok ar. alli 
oral promise mad© by del'endeait to plair.till* that ke would auppsrt- 
an(5 maintain a cnild "bom to her provided plait;tilJ' wotild not 
inetitute "bsstardy proceadinga ag.ai»8t del'eadaat, alleti«'d to toe 
th« father. Defendasit de..:i©s lie ^.^de fUiy aucii pr&iuise and deiii«ss 
that he is tiae fatlier oi' the ciiiid, 

X'hla case h^^s Ijeeia tri«d bale re tiire® juries. Jhe firat 
trial reaultsd in a Judr^ia^nt agsdnst defeiidant for #1000; ajjpeal 
was had to this court and on BeeeaiTaer S4, 1934, (ease Ivo, 37529) 
a& opiriioix vaa randered reversing the jud^«t£it and rasianding tka 
ease Tor ariotner trial on the gr and txiat tiie verdict was jjigaiBst 
tbe manife«t weij.ixt oi' the evti^iicft. Upon the seeond tris^ plaitJ- 
tiff had a verdict for #935 and the trial court granted a ii<&w trilO. , 
in which the verdict was again I'or plaintiff, '*^'e are asked to r®- 
verse the present jud^ent on the ^ound, among otiier things, that 
ttte evidence for plaintiff upon tiiis trial is substantially the 
same as It was upon the tristL »*view«d by u® where w» reversed 
the judgjuent. Ijuuaination of the reeord aho^vs that the present 
testimony lor plaintiff is substantially the same ae in the prior 
review, and the testimony for defendant much stronger, 

Briefly stated, plaintiff saye that in October, 1928, her 
name was Nellie Young; tiiat she was 18 years old and unsiarried; 
that she was troubled with pains in the lower part of her abdomen; 






|\ IT p^ 9 p ^ .jafsiX©iS«?4 



tse vj'^fvsx&j^r^d OOSJ;^ ■ta'i .y<*3«>^itftji?.wt ■« soil fi.CiSi*«cj4i ^m;?>as?1;»CI 

:^ea I'XiJ;;'* rii jwlii.ic fjs&iv-t'-icf -xsa 0; irxoiff hllsk^ m stsiai^ss. bits 



that a viirl I'risnd. reeoreaaended dcl'eiidant ^s a physiciarx said ehQ 
w«nt to hie ofiioe for trcitments; tliat he treated tier on taree oc* 
eaelons; that on tiie i'irat two visits notliing improper occarrsd; 
that the laet visit was on Uovsmb«r IStii -at 8 o'clock in the even- 
ing; that she wsnt with her little sister to the Doctor's ofl'i©«, 

when 
where there were otUer patients in the reception room; Uia^ahe ^eiit 

private 
into the Doctor 'j/ofi"ioe he had eemial intercourse T^^ith ker- that 

about tiiree days thereafter she telephoned hija that she had not 

menstruated, and he subsequently gave her aoma pills to ta]t«; that 
about January 39th she told the Doctor that she was pregnant and 
that he then prouiee*? tiiat ii' she woul-l not tell arayon© he isrould 
take oar'=- of the baby when it was born; t-iat the baby was born July 
187, 1929, and t'lat ahout two Bonthe thereafter fshe ca3.1ed v'lta the 
baby afe the office of defeniant, •\7ho adtiitted h- was the father and 
proraieed to aunnort th« child; that defendant gave her no feonej at 
any time. In June, 19 52, elie was marx'iacl ;md her present name I0 
R^eey. 

Befendant testified tiiat he was a married jSian, a praetioiag 
l^hysieian in Chicago for more than twenty years anl for twenty 
year* had been aonnected with the Board of lietsCLth of Chicago as a 
school health officer; that plaintiff first caaied upon him in his 
of fie* ©n Oeto'ber SO, 1928; that she oeaR5li*ine4 of pains in the 
lower fart of her abdomen; tixat he isade a vaginal exesmtnation <m^ 
fo