77^5-2-
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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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»Jb»Itfj«?.xi.'^ B.r'T ©no .'.'"Cf/j 4fcsi:;fiild st"»^' .o^-t ^t^jilt^ nmi tBa^iO-d ^lii to Sixe
BwifKt-S -'!^ ii>S<2X t(t-*tx ffOT^M ao ^-irii ,??© i: 1:1 tigs # filtntnl'l
l^iJv'I I0 riid ■• &5vi'>^-*??- ^5 f.seri* bar- ^x^lO aosfl-R^ moil y.^wils^
^a^b'=S 1:0 iXid oxi'f ,Y«VR muO Y^^Xis;'' i{E.ocf^r orf^ fifo-r"! 9flw?e @rfjf trot
X«wJ;.t«K Cfss^cf-s ii6i tm's."'c tiTvSr-rT^iie Sfid" fosvisost xn&qtbOG i0#d*aX rloX^-
brtw liStef'sllo fJT^vv ^Ttirf-axx-Xs' ''i>.'iJ od- affile Qd:f b&t'ivlL^b Jbrrf? ^tOa'^mei?
; s.fi'i;'- fcstfio^T 4*?;gx ,,&t^l rfOT.f?M' ito tiffjioeeiM ^^txO. e»«n«S ts X9n
,iooC t? 1:'ii^nX.fjXo,- ftsii' 05^ TfTftviXob fcxi.« Hoi^ss^^oqeia^'K* I'Ot ^Jo^l*-*
■%iS |i3n'j?.le eew ^i-':?.y,x to liicf siif-C ♦:^d©d'i! »viX t^aitJtJbt© es? ^©aisiibnl
to isi8*«>T«© a.f^ ttXitflXi^Xi* 9G^ lifjs! iji3!aq5«©» '^jBwi^isx a4* t© #«i*ii« frftf
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;
.-^jcf© bnn o.titx *^oo•'^.•:■ e'^ii 3if5 f5«oi.SjV lut'i? ^?>al i'ilt^^is ,'i-'l;ii?ai:.cXq %silii,$^m
. ^:Vii ?r,f 3'iol'yo i-^^i J&ii,':' ,;?-*«!»c:.«» bis;^ ifci'r two aid #& exao ssi^^ to
I «;^#i^ei ,eioj>C' *k ^Ji^eJi. *»J&XS ilo-K-sli ^o^irl; Jb«>'-; ^fcsnijiEaoo sf: 3'*Ji^£fi£lq
^t iie ^li;t0X/aq o* los-roKit v^atrxlsi:; srfS' e^^o^iB fens ^di-^OSIt tc i$is&
H;^ Hil^^&t ?ft::i? 'io to9K:ifc»i-'"ro«;^0'-- 3x:i si ^i x?cq.y orts ,«*^i) s#i !ito Y^fs
'^^t <^M^ %»■» ,l53fo,(?€sX ax©'*- a^sfori oaj- a^div Y*iw ti.saiii:-'^ Jb tui^^mq »m
iikm-t ««{# .ii0 "nbsyx. Sin :l:ff;i- tSsuj i'^di ^s miilbaof» ^Uo i^sfmffit stX &t!»w
''0di S«t».cfe7 49XJ/o«I •rra tSi'S .t«5 tail's-?? i3«® .&«»% "xqI ifia«0t# ai Jbwsiifloissr-
Sift to iitsda t^ CCijIi Si? £-€>/..!?oX- aie',^i« Bttis^/ ,stjy>oft xXs Si^tui^ &««J««»i
i«<>p J«^ isavKOlfii..' ®";9¥3 x^if^' *:"^^ {ffi,f5d «Xti l)»4Oi0ei« '^dit a«jiw gefgtco ©iff
iij^n 43«iit©v© an:t ai S le© 8 ii-xfod.s, t& flisM ®M* «0«1 ^aXx«! ir.? , nl
i? ^k.^1^»Xk?/ ?»rfj |^|Jfe„..^^X-«>fl niii t©. difj^ ^^;4* ^^^fc «-^' • ^^
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
|>aje4&&ff*jE!*"K» 3'r«>:T S's^tor; &/!t ^iYT'^-ti ^d^" o:^ ^"e?^ ®f4 xserf:? tsdrf* ^ij-jMvicf
te ®f!f?:5 -^i-SYia ■!^X^^-s/j :fp^'l Sf5s .l)f3f:j;y^a ^^r®^ A^eriiC- ^^'-df bsssjtit &sw ^jl
«»v.m m^fl'f "to ®i.'f!0;'- f -if? ;i'---o &'Jt rrr tita t^TST,' ^ax'i- ®!»M^ six^w \»si^
t^t'-cJ' ®f3d c* •fS€Ji"'t: fj!!: rt'Dtt? gffinio« ^Si^fi ftrf 7 ^f^n^ii^l" 4*':3:«^ oi?»rf &ii -^Miei
»i^f «tit|© B.'^^mii ^<- if^b^si: n^Av 0??lf ^fif-rc^?? &'■*? t'&^ojt sJii^ ^?^.ii(# has
Tsnt* jfC^iif? b'sLltT t-macf £i«if wicXo toqo^o «d'*' ^KXti £^MeIi?c?i#i5 srad bjsw
^filiX^&e 0i s'l .?n n>- ifo 3p: to fc.oiit«q -^ g>Ki-£Ssv»« ^i^fa^XrseefX® isjeri jbjs4
Sffi^.Toit? tej? *^^-<1: 1i«^'i^'' .«t' IX'? <n>3i'7 iiofi;^' ^asit -^i^jfit 3^» isfM^ ba^ ^b9\
st«jgw ^■»XIl'ts'««e A» e**si-©;£' srit -as^s^s #0H bib bd tMt l^oi «^i' feawoitK"
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
i^r^m x^i^'f ^^-li^ Jt^'T ■•■• *!i'.-* oj' iwo-i-Xi.-.;'! Qi'.-j .sj©*?"?: ^iae'sorr !^-^ ■■5T/©'r^ tSdss*
9maii'x 0 ^y^ff^qimV xs^tII^b I,s-tiasG XioY -^^^ s»«i;3^ 1* ^«%fs »fft ' '
&rf^.- ,£,tji*,is>'i:l: f>ri,1 t«»l ^f7is©''>i ■' &si.af^JtT? haft tsfj^listl «i^i1- feieq '!:ti#
^a^-<4«d0 ■^rj»li-s>' If:.«*.0eC ItcY ?/®<i ^fut ipl: tosT-sitftq-o MBit « ««;'ir isrf f^rf;*-
»fJEf4e) «/f* is^o-^ .&siI<>v..-?-rvJ' sc^s-soii adi' #-,(d§' ;s«ifc»a®M^«q <»iiSi?r ftrf^ was «x{.
fj-s:©?? x^dt ii'M smaSi^v f>fi# .fcXo^ 3S¥<*«iiXi«W *«ll^ Jfetts ^t'S**^ «*** ^^^-^ ^««
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*
^?-.41 ;te*5iBqias ixofi;"; Ic 0*,^^ 01^3 ^-^S^I ,^*fii iipirsM flo ^iii^ »/^««^I **
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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~Jfe«©l@x) 9ji^ "io i^iio ^toiiitoO**:- ,A ,H od" tMeri tXajjoivaiq fc.'5ji \:©rf# rioiriw
,>' salsaXariXiK lo afsaa^xesqQ^ ©ri* »^£ex ,l)iiS8 xioi^-^^U nO .8d-n.£
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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.
,>I i?«i;.ffils-iilxvv' \d t^.X.fi gat*. .kx.rXc xsiaxjoo b.^iB is»s?ene. £ts bQlfltti^
•i0fi\te;tjo? ,!■;»* a.^-\;3i.fr a ei •?::'' is-ffis'ioifi .u rtqXoJbA lo if*.sa.b arfj- rleirfv; ai
to tc9fi^\:.«ci ^di iti iXt/,s.tfiifi uits rxsacif s.*?£f 9i:®i*^ d-.c^t^t I'/a.b ,tR6x^;^rfi has
rtoiscTS^xn SiLt ;>'-?:.r[,7 bstio^.t^ ^^diixft n^ fi taismm^ot &£&i sX #eeX0!t
"M>tq tf-'-SC'X tfi'd-I^I •v:f!l:i no ot^ii .fensts^'itts ^ssif^mj ^fitd- nssir^'it'^o' faem&STgs
jd^i 4i^:!f-Jii T^lii ®ifS! BmmBC' ij,f 00*000, Tt lo »oa,«X«d '^M bns ^SCQl
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xi;I^SI \;^M c«.s .d^cl xacTfgevoi-l r/c aXcTsx^-q »OO,0ilc',?.t 1:0 mis M^ ao ^B t^-
iito b^ilvfci* SKf o* OC'.vOOgI x*:fi o& si iJrcl^r ^rTaeo fii 00#SJC7| ^asiStifiXtimos
to sojK.<?X^d' e jjfii-s'sQX t-bsxircf-Sffi lt©ft:^ 00*000*3?^ ^c saxe XsqioalTq orft
©{J;J- fBdi %mma.^j »idf ffi fess^firfs el ?I .JdroXaafaartOfJ s a,fi ed«£XS;<^ Id'
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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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|-tc»^cfo T©rf:}"j:ij'5: ;?iJOJi#iW tbxi<'.m&t Y^i^^'C rfoye Ic asKao&cf Ti&^as^. auj ©iclsd"
bxtP. ^K3ja'!i3^3fi .ffGl-«n0.txa ^li©©!".' ;^»if'l;.1■ jS^on 3d* a^.-^fi;} Bftyol ti-oq©-!
h&£st,cx[s- ^QT-oeb arid- fen.t-- ^SsX-^'tT^^TO a-xaa? enoi^qsoxs J&ii.s snoid-o©i;do a;J'flj?-
sjff:?- sir.-sd: o.t bzlfi&pA s»56w \;©ri# #.Krt^ -atB h&^iiu iRB^ovsn to^ sSuirjOTa ftd*
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.
tHUoiJ wm^msB
MOM .UiJ>BA I ^0X0005 cISl AifilftiaDHA STSIJSMG
►V
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arl* ffiTolrct o^ 'fiiir^tnlq j.}f(i-w©II.ss .D*i: SeTxa .t-rwoo an'rf vT-ffC^ ^©viaftftoxa
,S5@X ftS Y^-BJO-n.ft. ti*' *ifgls-i erfs- /ra t'-.fl'iJ- s;»80Xs!>Biij! .&td©«'t ©iff
lo A&zosi t£sA i? Jb£Ls ^tfoolcf ■& taod». swissvA m*>XTeM no feaiiifooo aaouB
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;
s
Mdvjsd M,;-- ftCfeS'b ^^$1; ;?i@ .bs?. sJjxiP .tg^el ©Tiir 20 ■:j:0Gt rIo«^i£^ « st^-v?
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gaial^^^y '3-y.s-^ri YQis'it ascsii- lis #,^ ti^^slii %a ^jt©rft "io S.«©rijs d-^al xta&wi
^LIM ^Ofi.ife i^rTi^- ;i'T3X 'i:'ii;fai?Xq- i^&t t''iot,ea ,^wKfcVA assiT^fitH ho tiwm^v&q,
'C^d ^:la-# q;!- £>si;i-KSTr oil?; tOeBA;S ^fl^lSi jSa'tw iiol^Mtf^Tiso*? .?, Md hM ©.d®
fic^ii;' OS hlismi Qila ''a\vs?«>: :^','i,ci:t- jJoiH tloi ©43 ,3»iicfo«*^.aj5 fl#. ifU &m&d
«««©tf 0^ oa- .fe&:hf«'# '1:'3:is>-f;iBXq mf/d b&A eda li: .sviaA .feaiei-; SiOiJi .Q/illixi
fiXd buB 5[o-tH rf.oirfi» fii 'i&o 3dt han ^-gaolB ^^at^lm i^iiifA &it£. ttltnlalq
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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rmo'Ld'i s,'5w sriB taoff-jrcrs «.«',? 'iJ. Itnlnlq k©^w ^i'Hx.itf- feonstJbi^^ a1 si ^I
d-©Vi a^it :^ir/o^fi•^ lo yos.'.itsii) .?^ &fi.3 siiis ?)rit otnl *se^ ©'S'x'i; ui/ocf.R
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bio'^. A l9i>oxE 'zoob xtscJ. oS e^-^ c!«©fc.u;«>B &il3 ai. bfsvlo^al 9ii'<Joaod"ws
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^msc'Ewq 9rf.t ^ol 16g eAt ivJrjx j^og 49O0,?!.5 ?Ji:f;f bebtis^^t-ii bMd od^ BitOBr&<i
tXXj?B' aomsfe i^niy- sax'l sz/flstrA rasXxoK' rto dd-woe bto'i »fiit sto'j:* rt&^nl^cM
Ji XXcji ®oitr'..b silrl 'to ri,t;iOE :;fooXcf .«? &m<ii'>. *miri to tiJSSsd'K 1^0 9«o
»ffd- lo isljX.uor;.)? d-gvsw GiKt ££0 ■sj^o 00 8*7? s^x^fit .xwofo «foIa 01" xiajijecf
b^Biisi 'XG-c ©ii;* n^xiW •be-i'XiTCOo ia&hloo^- BUS oi^dv tisloq Bdi .t.s bmox
HA ^liJT.^ff, "xXi?d J" iiO.!? jTooXcf K to 'iaolcf b asffJ rrsaoXo rftx/os 9x1^ jaosl
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©lid- ^acald" Jsii^ rf-s Ms t^£ro£t as eaXias o??:!' tS"Js»^* *£;ocr;? o^ feeeqa slrf
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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*
Sii'i' an im4 fen ■ « matt^ie v'«;q t^iit no ^ao ^-nba&n -gitlblod f^Jblh t«' *^J^«
Oit '§iii:;^■t wr.?i 3tol&€: ,sifar«>i&ifit msIxrE "io alii;® ©sf^s dtfst ao *!is#j{:fe »0"^
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s.Biff 0'd^?f cJiio ;S/id- gf:Xi'3-.tri a.xcvs c:i- -isiJ'XO ai ^•.»xi,t ^jfia ^teasasTiSi »a;l-
»if"i(i7 ead" s& fcii^ Joan's ■?>&& o.t /Jsiil^esiJ- tas,<?o 9fi# "to ^aajastf-a*'®
fcarflf.T? ^iitTTOl'/itCi'v fvsinl &ao bnz Vxi&ixlBLc^ ^Mihul-Oai ,fe«fi<;.iiJ-ii'sMa aX'xi^
Ssii'o- iui? ,;iS5«f-=:r balssi34 .fe-aafi'fia^ .£?II&ql'0 i[0:i:!l* s/so biw sa^niim ^lif ,;f^»Ijs
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
T©rl wo ns^sbnp.d s h£ii i^m ;t;^-iri bap ^felfTFt l>rj.ft 2iE;s9w ofeXxiq ^"aif ^ixoiflJb
d^ij^'a- sgsoi eft.c.oax ?^: 'io :-P: troo^:^. ^m.-os liaOei s Muot @rf *?ii;t jtestf
ill £mts.m.<^n rts >i.f--.': ^ororf;* l'-ri:f jaoiio rTf-rffjS- "^tf ^sdJego* .trfgx/oicf esw
io ©fi/ise ■ST*''?' ^t'W^"** *"^i^i^ jsisaw a^^^rf^f 'xel: i.«*i;q8ori ^,s:^''if ai Mfjia®®!;
!s,«i9Gtiw »!^^ «?ii59"j:.s/*t3i€[ YS-s-x 9s9d;f ic;ol'5 •iloxlBfljtBiBXO sill rii (&# i'SiTsla^
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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S'?5;v«I sif;f- i^f-'if:- UrM rloifs s.3« iroijl-ifenoo x^A ^L^l'ti 3il;r 'to 9kX^ ad*
«;5ti5- i- lit bf^s <i;i3i>5'v M& m?o.5 diX o;S- £>9XX9q£fiOO ».•■;? &4e ^i-cow 'to *icf
-sawvfi SIS08 3:io& bort «'Ea t^^M ;=9ixiqa l5«^ :^Ofi.;r isri nt uilm fcsd ©Ac
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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Ivefi ada .5jt>'^ ^fiieoMoi 'Xivdairl t^^^vcI "to aSoX ^io-JcT tew©! lo otiSiji©^
'to ?|i3ti:n-»3-troria l-^-astaitf^i b '-i-mB t-msot erf .trrid- ^cssXr? ^eHoita©3:iJb XXr
•rsif^o anojKJK ,;h«i>ol e^^ ^rtx&^s^ eue;^ K<:)i't *.©ilt ^afiiXll t^T-3t lo gaXiiBd^
iH. 'r,&ifoi-oo no 'i'tl*ax-Xq ?icli b^aXmf^.^ odw 10*00!; aari^OiiA
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
a'ol&utixiio ^&?ilus.(i on srw Of'xt.tit s^a$ {iiozd ^ndtr to ^ttflcj y«-^ to Baoiis
Sixxfd i)f)/iiit5jsx0 er: «S)i:i> sx©.&Iwori« ©nit" i:9oXDcJ fwsxfwtets 10 s^ifi ©s^t
TO jmssB^'^ir ycJ' 'iftri^tie Moi/fec-xtj ^oi^lb(i<to Isns^oms a.B si flO^#Bfi«c.«?I^-al
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:
B'r''i):?;n-:?0 ^d:i- Vtil-^- siv^x;? d-n;; ^o S'-'^ c^tw ^nbl'i^idV^ su «"i;i5 •" iia^fiises^qs'X
'^•jHiiaoasd' lo yto' ■X'.rc. orf:'- */.ol iT:(;i.ti:-/iiii\'?.?:& ar;^ 9i,sm c^ b^x^^iq
'^iiiivt-glQ 08oqiiAf oi^;J lol .tex! i.mi^tM£!SSK& &iit ©a[,3iii o^ i:)^,eq
; I; i ;•■•'« J'li/oo si/It o'xan'^ <f:;M
Bons'xunal rfGi-ryS 3it#* ^^o-rsvaits I^rtn aaol'i-'^ss Si5* lol Rilfl tis<i
asrlcS" arfd- J-^- essK^ as^cf oy^ir? oi'- gxf;9:;qe; noirf-pesi^'O ©8 *»i[:f!«5qi3{cO
V:n« -^Qs '>■•■'? ii'"'0 "soa ;^"''' i.-uv; Oilrt- o:f nBii&& a.\.-:liqfiOX& aa eB?-? icn
#0-Si?ffidA ,S2S *c!CiA *XXI 0£^J tiiiikSMil. ''^ ^^t-^^'^^T ai ,oelA
^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
jJ©.^, ©ox^ost'*"-! IXviD ©ricT
"•OKT^sKi; add" ^©Bnif soiiei^x'rsi s»if;f Eaorxl ®TSi;I»d uo-fj II •♦
exf^ sa ijoictseyo fll aoiasGot' ©fid' ao ^facl* *t»oo s»0t lo afioi*
^39fX«:rriJt>oo 3ri# 'i'O no^Io »ri# ib©f;0.«»otqqs sXi'd'oao^uft 9'ia,«tiJK6>'!t9l>
bmi£t>r^x^ mi fcXi/O'*' e-jR imm^Hiit'^ :t(!)^^'mq nmsB £$1\^ *»ii' r^onr i'iJb
Sffi" d^rraRT^iwr ?fsfsfi ©a'j esiotcssr^i .o^ rteq sirs' «o stirXijei iNwiiJ
s®oi> d"os;i: douc' ^tn&vi^'r 9f^^^ 2©;tla /5©^:8j5£8fi(oo issife sxsjbaa^ sseo
<t£T.pMsts,e> m\t jf*!rf* G0J39.fcxv9 ot'^ uJoiE* 9V9il9^ yet tl"
t.n ■',.&«« ".;»:& i»ri# t;?Dt;t ©ff* ixd oij- *i STsiXacT yot li (issnifs^e
?!>ei;jte»S f'ls.-j*-?! ».tt!f ^.ih'^s erf b^ti'Mpsi ad Joa feXi/ow xB'gal'Sf^B »iiB«4
gi ©rE^i^t ;,?ssi!w !?.* itK&afs>,jfei:j(; tea sasaXc-o© «itoi:e-f«>s«®0-1:I©S lo
"«S6i3f6ijjxIa9X)C to xilXiug sc #o« Mi/ow sii
seoXo OB &'xo'-'' saoBrm doim t&sit ^©.usstA mlt^h to tioitx&q
©ri? qovE d-orx Mxroo »d '^^^ild BLMoi&otuB bIr ^o Jscxt &ii^ of
£to sisosTsq Sixes 5iovo o.t ■^*5wii^xx{ foi.."a rxo M-^xt 9di oi sixut ton
a&Ai BJv^ BiL ii!>Mxv QlMomcAiw sfU ^o softtSssTq scf^ to i^auoooB.
■'^isJ^^Vll(i Rl tMiS ^oaBbir^ edit mo-xt ovelX-3ti .iS0% li bas ,g£jis«Bq
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*
yC i'6onoii0©ss e;:-',^ ml ^&££ lo d^KOxl xii ces add- se^sq oJ #wo l>a.fia'i;rf-
!sa'*^ ^ai:?!!"^:;'*; bar algtTA ^rf^Rii 6 *.<? x»o airi gaia^fiuS ax hsjttiiJ'sj:;^
^^ai^^Xsw etrsw oiiw r<SBSS>«*i:?j o??d- Sif'f ..ftsci €>.ff# to •ssfeXi/oilB ©fit lo
ba<p. ^.tsssftre Eiaoiior/siJ-aiti; sseit^- a^ mid ©Tolisd Ut-saq f£o£/e oat 1?^ titB
&^m ^^i *T^'i/£ ®di 0* iTiailiJ giTivig .ax S-firco 'M^- T^lifeiit fcXi?o« aiJ
sd* t0 n'i^ Br iii&^SB Baoltovi^unx s4;t vjiQ- flai;3-£iiiiiia}X«: ciJ hnoft ban
Xi
^-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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e;:-w ■^'ii^^i-?'!*-!; »"S&X ^sii^-'" doiBl "lio td^iflf 9rf^ iSo i^oXo*© OX 19*^^
d.-j-d^ -brfp ,"rroiafisc«o.fi® «i YlsJpiup*"' .fysas.^t':! ^fitftoa saxog 82s0 o\y# tgwoXB
rl'jrfiJ' fcfi.-i «»irf efc'S-.^^oi!" ©'^;eo cM; tiro biiowfcs i^rfJf 1:o B';trfaiX »if# WrB <atff a.*;
t'-aftnst ifnott> Mi to 3ff>f?cf 'J-gwc t^o s'lliifni^Xq :fc>i:/i-j8 rtso liflcnaa sirf*
t£-'r.sc-d ^£i:!£fxrr acid" no X©«xfe i:b9TC 9if# tsf i^^e^t 9£;y b%mi&i fiis;*.?. JSmxjs
otni mr. l5Jfr=? nel &d^ od- ^a^iog tqa:jf «bo exri tMlS" 5n^ ^Ti^o Bdi qo*8
.neX ©:{:!■ ct t~o i®a I)»fixtf5t i)«fi «fl*«on a«i®3 ^^ttsMol-sIo add- «d-«3f)i:ooj3
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
ii&l^ &a,p^nc'.> n.v oroo b-rm. &1 lerte bnf^, ^:>iOi.iri Sifif fcsResq: fowl tbo
JIlAairlir t^Si llsd^d no b'}>x]:t&B»-i aoxriij- "^di 'to i.&vi.Tib anT
taBx iV fen.? ^ffol tsr^J. "C s'-0Od.p stS'is x«L(;;f ^^tfjf ,fiSO'rj^ ©teuoq 000 ^SX
^ttd" 0;+ ^axffico <if.i>l B<:^ Mb ^ito5gCi:^ij3W 07 xsw aiii 00 ri^ion .b3lxe;6irf asm
(tf?o .«*tti>;Gi>iH<"i:®.b) E»qi;oO .b"Jo'^. .b £r«rf« HifXa ©i,sJ xo sJifflJLI fiisoa
©fid- o5'' t.-:oi drfo'- llo ifiQv; sXssife sii to tss c^«o .tp-ri^- 5ii,« «;J-1:sX srrj
beilits^i ^^cjj-ijj'i: esvsi^^xr sixlT ,i;.iO^ axfd no :io,fiCf tes^ jH9fC;r tas^ ^^aX
808 .ton bib -srl ;]■■ rid' l>.ai' j-be'XBSqgfieX-O ^lyxo'^ .r, s^tv xtoi/fw ,iaXd isoseaq
»T..«s> 8'lli:«!ril.':-I':! ^o/'.iXi&^O axfit 5ar. fj-ro"^. ^rf-J- naais-JscT ftoiaiXXoo add^
©rf* tid-i-'Ar i:-8l>XXX.50 aBd^ %bo o.^llihB'd ©.a\t ;i-«i.i5- Mt/'iQ iQiii-tiit sH
"iiislq lo 0*.rfs.Ui3.fi9ff 9a^' wjse ©d ?f"^f tlXxrf ./? lo qod" Srftf' o* ^rzXfi^oo
fcXi/oo (^)i:'' aiolao'" *Jia 4ssii<s-.ti:a aixi no tvc \l9i.Hit'Qmmt hsm ■x.i:-:p B*'i.lit
■Jo ijln&Br .8 s.e .t.^'.rf:/- ;itid iM -s/so emxd-xii:.'»iq «go#:S h^Bb b ot ©laoQ
.5n.«? ^bflfile/jrae !sm' t.MO s'11:i*HX«X0 lo fin© ^trots't ©rfii- di^coiaiXXo© &fi*
xo X-3^0Vi<Tl:. li'j'xca od& lo 9.5|s i^rfs-^'f ^^* ^^ '^^'''^ ^»®''^ ^'^ ^'^^^ '^•^'^
e to ^ .-'■o.o-'r.t 3x0 .bSBSisq *«.*•!) flat^fe fijld- lo -rso silt it il.t ;fc,«©:c erit
'to 2;a0'rd' sff^ i;/is o/^XliiJ^jO etf^ asswfecf rioIgiXXoo Sit^ ©lolscf sistoxiias
J'.'.ffrt !;«.? «:b/^o'j: osii l:o ©£>in ft«fo B*X no a^rr >?i; ,io;j-xd- ©ait l>98fe."g &sfi
,2[oi;'xt p-id cAl-i?^ fioisiXXeo ©fit ^e*liB Xxijmj fli«3B tx sse to« fcii) »ri
^iouTJ Grid- crtlT," .babiXXoo nitni^sXq &At to %bo ssU ai»dP: &^di bQisii® sK
liQ baQ &di i-.td ;?! j^sxfe vt-.;.rfd- ob aswrol: ^TflsiaXllue rftfX*!' 3<?io3 a-sw ti
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."
jj/tjiDi-friJ^ Y'Swrfstf'' Ofi^J' f.o T'^^s^o ^x;;^ xsvo o^j &i< i)iib ?)£sx;f Oft :f0 c?..3fJt
4iiv->i8j;i.ie>© a£l« lo sifli;? ?m"J d-^-; fa'^iiife ^jiCWT* ftr.'B«ff eftd- t®i:ii.s3^€- soiot
"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
^il o-t 3-oei;do I :J;93oV *-j.M"
siqofiKi .SfJOi'^'i' .aassQg-i f! scf oil- ©a-js^o liiw xs^ti'gir. sat xxo
gci'/i'xfe no Oi&&2i <>i i^nsQ^ ai if«.-#Jbiiej:«lii eixi'i' *9«axi;t ^•©©ffi y-^®
>','£onoH siJoY ^noi3-g9o;:e fia ©;i-on o;:^ ifxiaw X *X&|foV ,ii:M''
hcLrj-rni: si; G'fi:w ixst, adit -xol: m.Xl-^sneqA^tio tlaiT^ fji^S' to l5«© &,rft_
UOY. oa bX9iriaf)nl-r ad* ,D9#e.t.rio«3 daldy^ nticfewoffa r: sf^potd.i
as iiii.s <iJi tnoxl -toXXo'J: aoofe Jne^^iooe «.«? ll JttjS *woXXol
ai WOK. ex ^aat-Xoo.*, «xfi;J- X^iiij ,*X sm-x'! woIXol l>ib ^ssbxoos
rf5«v' doXdw D?.i(?EfiB 1:0 ^^rasjasXs) ©ri'j b-t-.b seorfT * * * ^Bbn-eiJ ttroY
bt^^B oS ^sxmd-gid Bixt flo x^^'i-SB lot agtsqpiRO 9M& lo koxJt:©^
§itti:3fxiXTfc !S* tn-steel:©!) #eri* fto2*iasB§Jws jb ift ai 8<siS jiT-«a»9i BH&eauoO
l^n&t IJiiaiMLq xol sa©fl*Jtw ©jtO *d-cts£iX0Oa sdJl" rf*xw ofe o* Si&ti lOJtrpiX
3/Id- xol b&Oisbot'i Yi3-«?»fci:v® «'.tlX*/iXsXq -i-o't eeQetfi^r leatoiiA .lowpiX
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
-a'l/s tm; i&i'x.q ■ijiaiJ-Kif^effiE.i: s'sao o^tr-t atit lo fisxtiieoq »/>'* fiiiS- ss »bis
jHoid'o.o 00 ^sei *mK till MB tSMlI •^'' r^^'^x&^a^tMAl al
&ti:f to 6's^nrfo Mi noqu .baesd se^sHi^u!) •sol- .EmMgjyrf e ^' *rfs£fO*cd 9j*w
;fci?.e *?!;/(; aria- ©^ ^a^iwg-xs ®flxeoio
sJbiise ;^'XJLroo sjlif <a«so arid- SJSisxsras ci noiai-qo «d-^ aX
»Xd®«»i.XtTqs W3i si:?* M-.e ©».■»& eri:}-,ni ai ei®x£3iDiv9 ©fl* i'Mw
3xx(* fio S5,eo >« arx^jvs's o* &©*.a#iB9/l 3'©fi ss'VA^.ri a<s,s8 ©iff* o.#
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*
M>K ,ifvsX ^o BQiioMiiq ^di as: Bca'elt&qx® ttui a-QS ^xtXiid^
'^{*i'tJ; ^Oes ,qqA .i.«.« ;.«.i .
-fi^.-iiq grot iJ/BsiifoD esxs ,:¥ ,s ovx (,t-) jtam:^ .^h: JLIM «x
;bX.fie fc3!.«;/g!Cfi ©jtii; ni 1J.it
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i.feXs8 ;^'t:j7G'3 &S;# ^itrrj-tarsbsxi: ^]a\t iiKX^'iaViSS iiX isiie
^ * * * ^^ccoffi oif Jvtf 4i)»iti3,;f»«S ^IX.SJ?,ta,^; 8es;;.6Kr.r sa;!' lo^
-isX fens i«3 X-^Iq Qi feeagXs^b ^Itea.tiJ^^'-fi s-i-; fi?!i:riw t.:oii3-£-.»s:/o
Xiao tBmsas .dX0OC'b as ^xf^dtuaz B^y.a'p"U jt'iis #^ie§.xX,i^»it ax
ttr^if .£>XiJ0d5i t'titoo' Ir.tiii fiCii :^pdt ss&yXeaoa ®.^ y^-JtJ®^'-^'^'^'-*^
iirfJ i)«ii!siHOfls.5.i5 M,e 0ij**®'XSis£iJ' i!(oi#s&i.ao *a3'a,si?n.d't'S5fi bsmtstaui^
^' til TaMarioo o;t ^o« \rMl
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
,HOEm ^/^iiSEH noajiAi. mhot;
-5£< fiXiioris aai.^isi/a orU JbisJ- Ms ^v^nX oii- -^i^aad-iioo sfeBia- ©"xsw ,00,OOX,XX|
'io d-uc£r?j3q orid" si.iXai:'X0ii**/.5S i^biB U'S ,i^tn&XQ exm Sxia^ ,101 tf'ii/oO ©d-stf
•ran trnd^t'^ .MsiW &tlt to m^^Boal^s hmy ••^loqqusi sdi lo'i milbtin^ ©fl;f Y«f
10'i &bivoici o^■^ sXru/t eXcifin.3 iJssfi soi:*'i*s»j} en;? tql:riaii>til!'i3ifs lo boin&q
chnul o.£ft ocf 3^xd"^cae-i tu&iXiJ-^ bimf ©fii* to iici;J-BO0i->«> J&.0.3 d"zo';rr»»0 9^;t
ib^rbmt^jXQ aii 10 9i^.-M,a ■vjXX.'^sigJiio Sis jJoidur .,aflj5oX as^sa^'xojH s-J-is^ae Xsen nj:
fiK.e , ©Ilia a i-ea ijiijs Do-^oo.'-r ed .J&ii*w erf* lo ^JxionxK ^ao'- Snovscf bensri-Qsi
lo raws odJ- rla^^o nx jbijsw axlo 0* -^isq ixto 10I *iiwoosf! Uijilj^jsijs ©rf^f :}qs1^
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
rf-iXtfoiiL;- Ii9*o^ vsil,! lo .txtJ-foeo;:; at) tico-x^ l)0roIX£i s><J xiisllJiiijyB ®^^'^ ^s^* i>^^-
"lii: II3 i:i.rui'us>a:©'X(.xe'i iiffi-joaa m:-; jMb?/ 9ifd OkJ f>i:,:.c ©d ot Iseiefrii: Jioaz 1c
®|-)i:sB ;tj:)a ibxti, .&«<}• .no tiV !9d Mi.r^,f Sfii« ^G .rjoLtixcxTfj© Ijiib ^^tcx^qus ^^ "lol Mb?
to uiuz Slid- i5ife?; srfv o^ -pi<s &a/* ''i3>'J; ;)'^xiio^a,3 mmlbxmj:^ oAi ■^sd^ bm
as&03:e ai: Mr. v. eri* 'lo i»3i.^aosJ:'S- finr. ;t'iouiqi/s oili" lot Jfc'sow aJ^ "to nifjiis^
fyit^ %Q t':ibzo Qflj imTi ,mlii ossb ©■0" eit kiis^ol a^^aaoftm Sjiidres^ QiiJ s"\jijj
-•xeXaftE .a X^teC tfM^ ,s;^t:ti& i&Aio gaofiLs ,i>mfo'5 ^-^woo ^M^- ,srU:tJ89i
to €«S'r:«'-e© ado 'io s50aa.o aii'J' 'to T^ojf.aevftx tis MXx'i l^ieif ,x£»i:iiii£jjg Ui
-Od haii •Siiioqi^% i'QlIl: ssi&t,B^? e^iJ &m.U o4 a'El* Eoai'i ^afli" :{.#^UfoO 9&m
^tisol sxtiib-XifS^^ ^iigiti&cil X5i.&tis>0 0£!xus: xtsdd' #nt/oo sff'i? .00:.005,5X<| 1«
Oil* Sii-Ssiioxiiti/iJ ^e^xo no -zot ;f^jJco erf^ o* beiXq_q,Ai besi jRiiib'saos ©ill
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
00. oar: Id Mtse. mt bixm od/Ji lo 3l)iufi epU sucfi"! M^q;,^© q^ anlhi^-n:^ arlj-
oat iz aatfjs ri&i'Jv? ...itoJ:tr.'0i>J3i> £.a.o t'lO'icrus r^iri 'lo tawoooc ao d^xiom i&q
©rf!- ".to iK>i«.0Di/.&9 i/fu^ t-ioqcisra iSiCo ao"! A-xsw o^xfti' to 'ahtiu'i. ©At aicxl aoixrt
lo Lei^oJ /3 10 (d^aois isc 00»ciS4i; j:o Kseoxe sJ: eo oii io<i ia^e «i to Inm
;s-.3i^J' ,00.005,5^:; lo Ezjt e-d'S £la^Q s-u t-i;2r-r oiii 0-& ^n^t Jhn.'i 'y&t isisJOoOR
.Cos's aXiiiJ'i^jO xd Jied'0®e9i(jc^-i gaJ'Oj: I/:5q^toixl'xg oxJ^ *ic ct-HwO^as ^dt ^iJExeti
o;J- a/jXiifi cii-f iO tao.'a^soral: ij^ 'lo 9i-t5& eu^ ■gQ'x'j: sxiiioX xiti^ 'io imiomi
;?x.c;o'ii:0 c/i;}- z^ Seiaii-xo '£orI;i".iii"l 3i^T? i^X ^iJ-XiW siu o;? feLeng: ;t^sxe>tJSi: to.
-im jvJiycO ocfsd'o'x'-: cx!.i rci iJe'Xio^;x© oio'ioa&'iaa'-J- e'J.ftMo e£f^ iiB^^ ^a«oO
$ii^' ''to E3.&.a£;'i' Bii.i i^o'xl esi.yv'-xM&'pco o:iUi£i oJ tiailnsng s»ri# anisi^ojfi'S-
d-^e fine i)etno_3v oii tji'x.sw ®/;fJ- "xo aoiixioirhe him f'soqqxfa ari.# tol binm
X^q oi f.>s'xe£)'xo ©o' £f^ji.5JX®xi^ Qilt c|-.?xi:.-; J&.iif: tte/oooi; rioue ao OO.esa^c;^
aB mid -fcf I)Xoff sd o;f tti:oo n^qo itx fiei5'xxx/s Gil;i" -;;d smod^ tiiuosi^ &d^
-€&cmi sixiecf si e-isii X©0q:g:-i sxiv ,5-x©£:'%o aXxIi^ mo^'i *p%n'*i mii 'i© afiiml
-SB ax i'l ,i)rcBV7 ai-j yo iiaaCBif a@&(J axiii X^€«|q:3-aaoi« a ,&aXA .feeteo
-xot i.L&s'io •\i;n.s SowoXX;:. sd -J-Qxt I)X-Voj^» %mUs.1 9iSLa^. ■>^:^^ silA tj^ fit94"iEsa
,trMovoB 3'xioa fiid rxo , xfci: f>^Bi»g &"• .■isataJ qM ^cf l)sS£ce>qra ax^isoa
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
orW -iO'i b'iisu o/ia' lo 8£>iUrl odd- ia-o'il: ix;jii:/i''2;;;i;s 9i1v ^jiJ i&0£!i?c©qs8 tiwoME
sssb bWKil. ;tnwoi\t0 oji;^" 'i£> assoxo nl ^i.?,*; edd- 'io xxol d-^.C'irSe £>«£ ^'soqcji/s
-«?> e'lB d--:.rf.t ;?©s'i 'So axro iv^JiSi/n oeiMv' rf-yo s-ii: otti)if ;!• '■' d'su-W ^^leii loi'id
{jrf^ gitliJ/b eon,air&';iEi:j:}£r rrijo ui.ii aoi -ssaiiJsl ©itt ?cf &eiui ibu^qxs 9Si1
-Hi ■xsd-lsnis'xeii -ii ts^ ,s^*od'B t-icoot a.'f? "'.(jli-iazmlMiaiJS mii lo fioi'seg
Bi iiotiBMlffnc-i-Qb tax-, i-ioid-B'xsbxsxtoo -lol 30 ©lolod' rwi-^soxrp -^Xjaio eill
%fiq, ct ciBlb^i-im o/id- siTi'il^^pa^ rJ; .-Ss'tia .trijoo IbI^* ^il* ton to nsil^-sriis
lo llrjri s^o diart -iisxed alil^ ,.0Q,5agi,S4^ lo m/e 94^ jo-xj&w ed^' oi' isto
lo rl^fsefe ©t(;i- oy"- -ml^iq, oMti ©aoc Jar:* Jiesoloaii) ®©xxs&J:v© sdT
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
airi' 'CO \7*iec|0ic{ eif* ic} #{1© ®iit «£ii\sr ®o' Xiirv*' «stv«*#oIXs on ^elni
issro sir? "io -^xto scEsiiif l.«j e^Cr© s^kJ &4 ©XtJ.6 ai sri 'iX ^^o-nastBt
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.^&
5KS" ^KL'ra fx?j'rMxiid e»iis^ "to ^©©^iffijii Sua s^ittisw ©ilT »^^l-©qqae
ai. to eXo^'W ni: %o!Xti:& ^^imaotsilBSi aiexTJ- act 05- .fc0;J-io8&'i ©cf -'i-iTia
^^j^o.iBjBiaiyo's.to ris?o a;fi iio^^ '^Xss-^bX BxfsHfolJ IXJcjy ^ess jdOiiii .;faB{j
SfJ XlBxla xcc'iiiXXj^o 3x15- 'io sae^se exfJ- isxfd'aiiw gaioiaiiS'-J-ei) iil
.lisiUGci six- richjif e^:©ffJo ""ro aMi^Xo ;^®0{; oi?;? feiJC t'3^e;ti4'»l oisiis- 'xo • •
-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 ..■■;.,
.e-isfi' 3«lXXo'i#aco M;.- a-viatosfi ax seBS- siMJ- vodtf xrolclgo sxld" Io ©is. «•<
'io BS^onl. Qdd" Mc Mivfo od& "Io .'saooixl: sda^ iJi^ocf xioiteisfclsxioo od-fti
*I'ssnHliB si j-:i£vi3gf>i.r(; Qxiii- iSTco'is^siiS* . fesdiAfd-a jti> ®d' filaoiia. ^iifo(
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,
> ''''^^»^A ^ ,5LiaS2J)AW .S. .H
•. ( ( \
( -'lot a 31AIM00 Yi'ims^Kiiii saojo
[
, ^'^/JallSGfQii.
■ti P *^ f'
chxacC' lOi'io^jiiS fsitio to tsssiSiQ^biil 3 mo"J.'X IssiM© fits si ai;iJ5?
to'i 5<JS€I (£i;l^IX t£i>% rto fseiod-n© < *ii6Mel«j& ^aMs^s -^^xafoO 3[oo;< lo
Ydf sc¥X£- Moo" lAiejffqs aa aofjsr ai aoid'OB sri'I' ,8I.^i>8eIX|; ^o fss;a oil*
Y*©-x«a ss xiiuiexi ta«l>rce"J:©b axiS- "Ctf Jtef: ^Isqisisiig as ,i3€»l$$ alaod oho
X^eX.tl fle0<5f ^silriid bm^iS Bisa .-.Xj^, 1© ,»gJtl ,v b,Iw:Mm'^.. "^o sas© sriif tii
siicj fiix-o ,ii€-J.iJ8av Kiif tsxxi.oS/3 s\<isi«g&wf; swfv ©vofl oir ^ui^iees ,B3XH "^tf
BXili' aX a8itei^«l) *j ©£• fto^xu aX ©uxiO *i?4iv -u noX^X^eij sjfi* Iw y;p£iBbao<t^
,t'x.uov BXdi rd XSi-SS .oH saso ,97eri isstirosao^q
,iiXo'Xsd iioJ:;ii:go ©i^r ■:to a^sXIXl ©rf^ xl*X^v YX3x;o0«3Toq[ise;?fioC
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,
£iG:^65 .oM
-«A ©JiXtfiH lo io;MIwA as ^l^feJgTf' HA080
(
a.^S'm/L
"H'MUOO ;i.joo
> *iJ *ii* A 1/ ^
, #-i3:MXsjj;q.:'.
.©eXXsqq--
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
.M^IG8Ji ^o SiB^t 0di- orf ei .a^aijoeo.:, saeiio- no J'rfso i) b^^tsuLloo leva
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
' 'z^&Q %uo1 ao |JSYXovs>.b tl i^i. "Sjsq q"J' &l€£iWJ saw ©H .sa^X
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
Bliroxta ,loe-X0.ri;t ■j.&riziom ^At -io .sdxi^d -axU vfCv; iioeBQi o/j; s^s n:;iO ©vv i>no
.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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tp/aoo mmmm
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essss
♦TTHUO0 1000 ( ^mttsxQqi&Q sr. «:
(
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O ^ #« ^ oAin
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
-s^sj^axTi-et X5e:}*ci£f!.^;r^j^ ©ifj to hks&.bq-x tcT T;f-jtlid',all art xsAasir
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. QOn 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
'ii^"i.gA;i;.Kt<-:fO ©fid- ©* «,3-j?;c»ifmKr«ot> of i>©ij;5l i3.Sii ©ii ^s*t# i^aMmiJ
<^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
GQit-a^xsp ®M flcoqw sfrSv^I^fx^la!) S9:i?:,t xd l>«^-$tto ssriaifivs erf* too gujtSiiTJs
"itQO ae»fi s-^rirf iJi'aofig; baa aafi-o Bi;lt ai ©iftai r.aiq&rq ■' saw sisEff *;tj[i»ic
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 '(iytujiijAiu 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
^BOSl jAf: TjXtfL no «X Is^o^;. .->':; to sli'^v Ans s^atG ,u :^xt>f:3f* 'lo ijassi) ©xi^
lo Sffis/r ©fin'- d<-/:f? £«.e ,fi!e.tis.?:'i:g s lo S3ii30 ed3- jiisSn'Cy;> 3^o^ ⅈ 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.
;.tr!e,;.!-i a *t::i:oi-i.sXcf la g-iewssni; saff r/i/G' ®i£rs'«ra,fi.-; -ajjfi ifoa s-xe alstaif^
Qd^- ri^jxa o5 b'^sxts^ui $>iii i5&&ivi>£ lli^.al£!X<5 srii lo ta^'ga set S'.QfiS'
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
©IF. 5^ Ims ,'.'r,1.'.i:J'ni'Sxq sari if' ^cf B«*TR'':t'.tf/8 acvr .tfrsrirff eji ;f'i^M%r rjjf.;aci^<t.*? blifow
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 Ginsburg 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>
iXo
!
YTHUOO JIOOO
i
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^£ifg) «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^£ rxaoD 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<jx j.3ji ,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 '-) 0 r i t*£jS X '^.'
\ ■■■'■■■'
^ A a1 f. 'i «i "-? >v
0 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)?oidp.^;f;aei.; osXb ©sS
|ysot^.<*TO titivf-o* \e9x.i4tsT:f fci'F-ss lo ili^ea e';f<-.ui &i«B fto «*-G/rtf
;fXi7Jc/ -^XsaoXo « ifg^o'cffJ- I5?5)sr;^'f5f ■4a.«r£T«''^i-: s^.sjririxA i;0.e 9a#«»irj^
^^i-o'ffe tXd-ii&^iiX^sB Br« i£X£«?aX©-i.30 a-reii^.t .ok.a cojSf &a^S3a9t9b
^\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
^■1 tzar's ^&smlxo'iq bw. ftisrth .e ;g.s t.Bd.^ bujn «&a&Xve'xq fo-is e5.c;^
loutt !SXi:doiso#0/5 bii??* t^ii,el>a©t9l? :E>x-:q lo 9©il§'glX'.'§«n: siii to
^i.<?, ^dil- o^i-ni iQii ^xxii'A'O-idii' xX^naXoi"/ liitfflislq ©fii" los.!%^$:
'UawH'&'ve 9^x;-d-Xffi*r4 lo
fjE soXiit* SX l-o asso^'s a.c ft^rsga lo 9;fi;^; b .texU TJ^wt ^i^-'^^ feXXe-tf iM cf^-ii^
4cf-flx,f;.X''jff;00 Uij lo sd-niiOP e^ilO '^o aao nl ^jXasiqo'xqffii s-ev? indmo^fi&s aXriJ 1:1
jjctsKe t Off di tMss"s«>q R.f SXl- nftss >jfl:Jv,f?tl (ffieftn^ts© *gjiits««l miS aiolroc
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
£ii: -feSTrts .ti-wco Xfii-Xu 9,fit -iz-u-f;*- s.ai.piqa;too xmlpiisJ. txt.BhaBl'^^
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
-ex/s B©£'S0(;r£x diit mciJ i^-diif Sli^■■^i■8 o# 3"f9a,s9 fflftsf* o* tftl'^-s Jon lltm
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 futiare 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«
3rf* T-cl' fbijil 0.1 X^xirl Biii ioi^'xintii o<t need svAti M.vcw tlolzitsr lo
^.;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
^ ™ ,fv ^-^^ ^ ( ^sOBZIV'^ui M.Am S14 X&IA lo »at; o4* lo*?
(
(
i
( ,,gs©Xl9qc{A
XcS ^tmn^gJoijX. iSBii^iiitP.'g ciTis^xsft'i ^r- fea^ iJ«i»J:r{;>'i9i;j J«9i:jte93:n©0 «
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
80£t,«;y8S£ 8jM ^jUifi:i®»uoD ^#i;f;t■^J;^8 ^.di^ "io snoiaivox:]- sxfi- t.?;ilBv erf itaa^i
^fL^t!^?:. y:lal, b93-I,cy?"5:9i5 g.*w eH »^?sq-Q-,;; ■?v;Ki:d- TfiTB .tB #©ft &ii) l>n.e .&®v?©s
^Bti^lni^g ©rl3" sio b'&rt'^B a\s>v ^,fi-o,gl c? i xds lo s-xr^f k ,a«if^ixn,s3 arid-
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
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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 0 )
(
-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 0 '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 ^gositrfot.
, \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 .ander the
terme of said lease) 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
aoiiifuxco fc;>03 -vji'-^*--Ci<-'-'s«-.J^ ni 'icoi '^ii^-a j-ift ,:iii^:;..-ii.':Ka h^-^ g©a3f ©ajBSl'
-gxsii; teftji' srfsJ ot -■ilisaafeSii'ja .<57.j£ ■«'xii':f/0i ^x©^^^c>^.^i'■y ©Ism ^©eastjxa awo
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'
«ao.ftoiv^) ayiifEiu'xJ.-jxiCiO 'to i»css%iooii axij ao \;I9^ si-afj'jifti'iail ,;;®a«»X
:, . . ,dex .III Od^s ^ .!&^^iBAii..jil^M...jtS~*SlLjM^L.MM. i^'^ *^^^ <^*
-9iv9 .'3VJ: jowi^i'i'iaor-i «o(4ii .tii-dj ijXo*; iaesiso oaoiid^ Jsui Ti;,^s »*.tifci5a»'t«S
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^ >IiXlf 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*
Patterson v. Grahamj^ 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-jagL
'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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hap ,x^aiiitsiy:^ exij ^ni:>f.&vs-i '£'U*ni.;?Iq flo poison. & fesvioa lesY i&di
Sfsii-ai't ©ai Jiirj ..iaii'c , ijtisic; vs-'i lo'l 36nft;fi.too t'tld'ulaX'J
«iij i^grtx.ri'jj;; 8X 'i'ii3-;fXFlq ac bBVL^ie s/iv? noxj^ooTSa 'to soicSon i£.Ai
soiton 1,8x1* •iaxuiiRB^ .bfiooes ,&[X€ ,9o,TPoi:vs '>x/.+ *io j-ii^xsw is^llcoim
nso'ti'xv-,' sxist 'to e.n;:ia* ^s:i;i •t©r~.ii0 bagsIXB aa hsrxae -^^XXew^Jo^ a«w
.'^sl 'to i?^JJji.iT £ 3.3 Xi^;if:Joe'i'i9ni viioxbr as'v eoxion lioiJa ,^i-aei£:.ua
X.^3^o.tc^.a'>l Jixiv^l TjcwciXA iu'iJ- 'to i'3vx*ii;9"x f-JTiJ til 't'tl^ais,!^
fi^J .liK'-.tsaiip nj fioxo o<s3.ruieT: J oj''-,' oJ -xolio" sxaay &moe lo''^ »>tned
ai gaiLsaft r.l b^r/s^n^* ,aolis'/ton'iQo b ,.oO s^iixii/oaE -^ j- .£/:!•> H eoX'xl
t-coci'^i "10 no bii>> 3in#d sxij 'to i?).ao.h:;fJO jm ::i;v>- ,s*» xJii;joo5? s.tiSvtR?' Ijbbi
T.o't aecfon YiOvu-i-L.iJoiq o?fd' aoqjj' beiosbni emcoed' ijjEri ,OE<t?X , OX doxr.
bXvo'^' Rin-rorf a:tx y*^^ ef^i'oxi ©a'!>iij 'to fsno ,ei*iIXot^ bnaasjodi .i^iovtk&
».:'x?;os»S 9«'X' ,ceeX t*^ X^'-^ 'XSiiJo si-d' bit« ^OSSX , XS rioTti-ii ©wb aiaoosd
-9J'- 'io •.?©rto©;i , ii;f xwitii b-ii^.woti ,noJ: ,■>>?;-! eel's oo \;Xxiii«'t a fs«w ,oO asli
,o\'B« sii 8Xi .Iv^itvo him noi, Jx^ioq'ioo ■B.a;t 'to xrit-it© -30?? 8 saw , Jnt^-i^rsa't
ai-io*- 'io i-p.si ftxlT .5i-.-o.t8 X£*xc*-o o^i to ia^o lac; 3X oJ- OX motc'i
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
:av,oIXc't a.e ssoa£tj-acf;.T5 '^iJ: ■^jas^aua
'io biiB ,.oO «os8 "v;*!*©?! ©sii^ od ogr.ciiiO 'to -'g£vsq.noD ^BtrrT &n»
'to eiBije Ilii haa yJ*^ y^nsiqiHoO ;t^eirix Zifis jiimS. Imtoiixy/i a£m^ y"-®^-!^
tiito Siiiio.u itoijs nw iae'sec^ai: ilj-iv; laxiJsgoiJ ,8'xv3lXofc fc^itniili svXI
~ss'i &&i5ia nrs^iCT ^T&ii 10 , 9J)SJi 9ii3 ©ia.<?a gd^ a.vjtj gdj iuott't aeoiisvfejs
,£)i£:q XidTiw .ss^warcfc ifccf ^a-vo I6cr d Io aci-jii-x e>xid' :^s ,YX<»vit09q[
IX^ '.to Jasiiiv^^q, ttii oi saiX^qa 9<».t:w;i:jfjjj\s fca^'. *£i9fafi(!»Tajs axilT
o.t , »;)0 .oQci ■yt^jE^*-''J'- ©ol'x'I .ti^e x^ ?»i3..iia 9cf 0^ aaoii'fijiiXcfo fens 8s;ton
-ax Y,ae t}aii ,-i^{t«c:-:oO d^ajj-xl' i>rfe stiLsS Xfiaox^sA aiii?''! ^i-islXA bxjs-s qxU
«i "10 XXwl iii 'X9iij'»iiw j'c>f-i-,B lo »soii<Biifii4' lOii to 'tositei-W aXisran
■,t'i.t,j-fiifjxq i)XiK; jiiodTaxij a»fe ■^ainL.:\-'^'X ^^i^v L^o-jqast asouaXjecf ©ri* "xo't
'to iSij'^i axi- 'lo'i ^►.ao ,a33'on X<.«^e'a«?-x •j-'e'iJ.aJ 'to ow;}: filjHq,iiU sblori v;ooj
^xts ,Xf.eX ,0>: xlo-'iaM ^iij:- i.a.3 ,QS(?X , ef- lydasoaC fcojefe »86,S5XI|
0U& him. <«.)f.eX 4^^ '£f>'iaifi»vosi. £^9*i5fe »0d,S^i:,XX4 'to xsma 9xi>t tol i^diooM
.ft.^cTjjarsB Maw a9.ita't?)fo ©vlirJ.i-xx't'U'. six: ,'j,r(i ■i'-oiq 'to a^itii-'of 9xiT
0* 'I'UJTtXiiXq nQQU saxjoa i>9-ns5 sx-f X.ir.xi:J ssti* «0 . Jxie&iMlef) ^rf
3[£i.fecf axit od- iaxri ^jtf f)5>i3vi:X>& xi^acf e^vssti oJ- ijsasXXs 'xect'd'fjX « ssufeoiq
,. * :■ gjaiXXaoiXBO b»?w 3x1 aiSflM jLtjucI ®xii ^rti^'t-i'^en ^Of.Ql jX i9(fo:J'oO «o
j-Oij nsiYr i8j-d-<9X sxiT .» iaij d-»)SXi;J lo aa y,*»"»'I^W3 aizl ani^^j.ax&i'isd- ba&
Te;tJ9X b32oqci.XiB aixfj 'io v.qoo s fosutifcoxq aaxfi ;tns.t>it0T:»CT .Ijsoxjboxq
e.BW oxi> ,iexir,xxa©xx3^a aid oi 5x £)3d-is*o£fe t»xi J.exid' b»i'liia<=>i bm
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;
f^l&di iou ami 0^1^ ,-'^nftd mii 'to i«s,'>ies>:£q~'9oiv a , Jisj^^'S'^ .'^^"■i "lo't
* Oj "Xti^.i-al ej:iS 9YCg ©H »w9ni sii -AixMd ^.di 'to lao-f't'to ^i-flO 9sii
f?.i'ts 2(iirtd axW ierx't rvijsett ■xavr^a hiu-; i'3J"ajy o oii-t 'to Ao&d i3«w oilw neoi
;f;3i-td- i^iaa TSi-f^iwl ^iwifeas't©*! jiff's' Ja I <&•:!,;!■ 'to xq.^o iasstioo fcftf. ©jji^
©oii'i S'M -'^d Jfeaxt^ia »J"oti to hjsoX Y-fS'-^- 'ii^ «it!fe'!> l^orpl »v.9rf jOxi .hjtfj ©a
oi' ^noli* &V(>'3;1> aii ;l-j5U-iCf ?>ei'ti3"ai«>j' ail uoii'j&a.hiisai:® aaoio aO- ,0£C>I ,X
sjt!:;}- ,.ni: i>a3iXi:i>-r f>ii ae isi'J g^^JB aK ,sXi^tof-o-:^jLfs ^id ni :isTsd ©xii
04 gnioa bjsw 1 iiii.f.( cXoi' I .Sfflid" #«xUl- *x» ■^m bloS &d smdw Tc?»ifiu«-,i»a
vd-tjjg lecfO'xq 3j:I^ i'jsrij s«?? felixow sii MiiS ?»xl bnus 'utx-i ilii'<^ airUt dv<?'9l
".Si ^os
Mb II* j 5-*RMf. fuscj ffixii" f-^rss ©»tisa eiii n^jsit e>iii isa ^oiT bit sif a^as »H
'.fo't &»:cooX T-->v«>ii a«?xt ,»»«i9 .•iifi as-^s i!5V?vn e<Bxi &t! iBiii jscuf.ii airi
fiioat^S-tisiM. ■:^'Xiii iR'on-i i-oa bijs eK ,ml£l xaoi'i J-'x^>9n leren esxf fcn.;« aiixJ
^<;ii« iiisYioosi -xavsa «OoeX tX tujcJoioa 'to d-teiv sidJ ricfxw aoi Joennoo
iqlaa^'i a toa 'con lo't .!j9>'e:« ^svMti buii slnjfjd' ©rt:^ AiO'rt itn9ais!:'.9Xwoxia£oB
.idJt&X Oilj 'Xo*i
9X1 -istfoiou '10 .fsxiq i^XrEso Sill* 'li te:^l ; 91^x1* aasiiiatrcf ofa od" 69aif
^S'Uino^r. *«xiif ifti.*'. f)^J.XBo orfw ^j:i,?-i:«iwK ,it;i xfjlrw itUid 9di oi „*-fiow
j:ri'is.&IS9i<j-&oi:v i9xI.toA« , (J.itujO ^I'lS d'sca ^sdcf itouBcT sfi.^ ai J-^nJ c/ifl
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
\Y*it^-itBUiii sxW 'to ■^ai.-'m.tk ^iU iuod» quu>0 .id ^-i -Alsi stun ^i^dt tsdd
oj Si bowo^ie bim iser-ai^.- iissi.-. old iso^'t •ij»^^*l e jlooj qiaeO *x«. JjBifJ
-grid- Bs -giiol BM 9TUS0 x-^'^i'-^JJO ' '^'^"-•<J >^o« J^ifc < (J^^.leO ,'jji ..^ii *.fut* fjjd
0iicf 'xacfiu©i-ie^ joii •■■ifo »ii .'i'io fciscr sBiecT o'x^w arsd'oa gxlJ- q« SHoI a^
»««>■ seXa jjiU-dj-o*!" ,»©x'ti^a'>j •s^iUij;;'!; soonis'^I .-xa ^il iL^iv oh oJ
-isua ijuadj^ gixaXM i;.i:i£.by>s.:i s-xai'.' ,, 4's^io xlhaiS'i'X't js, li^jiit iaL't fli^' ♦.&i«8
*i;i0w esxil wenal fciM
^vj-jfK^sua ©x[^ 'to Bi&h &iii Qi xox'iq ^.Biii- k9t'tiie'Jii *ni8.fHS®'i»fe. 'iii; 1- \ , oi*
^Bodfi lo't "ixttjcf SiT^ liiitr ixfe^io X© saxX « fesixs. auxJ^-^rtoo-xo© ^#XA©ii s>iii
'jtii oJ alisaoo'xq, Sii;J iia..Gq .Oar. X*'-iJ#d-*:XiOv'3 ae %"xi a*9*oa ^^B-gitoM 6ao»»«
a«* •\;'^'J^-'"i'*^^"S Q^id- 'X^c!"']:*: osX* aaiio^iiff 94:^ ojsw nMt i&sli ban ^jituni
s Kiii iswoiie qiTuO .i.* d-^uiJ- jf»oa..ur'^ *^'i tWiw eTioii;^- j-u-s-ir ofi fcoB alaarf
,1-j ax ji; wsce oxi J*4Xij iiiuE j-fix5,f:ns"X9b mo'i't ijovieoai £m?xI 9xf traiJ'i'eX
♦■^qoo ii -J 'rxr 00 brt^ i^isii s ax \qoa nocl-xxso 9a;t ;J*uiJ ;,aoi.8S9seoq e'cjomiO
inxwailixl^x^ @ox*ii a'xM lo isLaini wov ofo ^J-fixT**'' ,J5siH4e> qaj»0 ^iM 8-^xr.a i»H
,2lyi'j;vf z^ith & ea^ Jx oVu^iuonv)- sxi fe^xXqd-x ®xi xiaixiw 0* '^'^xiasit&ir% eixi
©d itasv,' XX<3 iQ-AiBiii^i^ie^ Xsai sii^ iioxir; ^sXdi/ortJ ni 9i»w ©w n^xiw*
J-^f^jxic^ ,iioi;i's. y^®''' '^'^•''■'-' <J'''='^'Xi! -sxi hl&e qaj»0 .aM d-ex4^ ; .0^9 ",8SosiQ
o^«rf.t .&©<?oii i3xi fciUB B8©udiw »xi:r 'io jn?^K?i,fci/t «ii* «^ sbfjefcilnoo Iwsxl Y»rf^
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
;a'.=^/o.iiQ'i: b^^s hx f>af; ©oae&ir!> ax.
nad iitiva i!.oi-30i>naoo itl iaascf xvov; oj da'xsvilyb ,05yX ^iiiOJ. iioi«M
'to Y'*^^' '^^ iioje ■isci'.xa 'j:c; Xs'^aan ©xic!' o^ ^aaiinioz^ sofi iXiw I
gni?'o 3aox^£.,jjiXdi"o XXii ao ;?fiSiuTifiq ,f>iiit4.i;>.al! uq-i Saii^' ;fai:snx bos ,.o&
YX^fi.-'iX&U lid ,o La*' K a;:fxcix;;a.© a' 'Hi jaijc.X'5 ^-raw rfoifiw a9#on ovj
:^?qf3 Jon ?>ib 3j> a'ji^.'Dv; .or^itrld' "lol i';siid" ;.i£§X , 'ifi di^tssM bwi tltQZ ,2
»*iwe a id J 'te ,^n;ifl
tad ,0f;9X /[s-Tio^oO fil \>;Xi.iif; ffiXii w^s £'ii» ifiifecf S'XtJ aX ajj^ sxl ©XijdW
^,ni.:r&\rrm -*o.(iii *on .bit.-' &il ^«xi.} i^lftfeiijSiJis a'stiiil .aii Xo fiol*«S
^ilvt ni am; igXao »x« ioa sijw cJ-jjcT ,oU &&i-iliiiOBB. vJlBH^-Si f»oix'i »di
b.&it Bcl '3i»X;^ Y/iii ie, ©Xxl edi od" aeasooe fojisd »fi' i&di jos feib ®b;w :Imjd'
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.
XS^. Joa f:.i.h bac a<j^on 'M:f ^eq p:?" slcfenw qhw ad jMea ©KtiJ- d-iin't
nx ,ixlxi vaxXXaJ 5TtK,tu')?'X9fc *);^o'3;w ,iim?.^ biH 'to iflidaeo S-if- ^ f aaaH
tot ax^-^-'-sioJ-d-f^ oct- is-va B'Stni;^ &4 hXuow tiuijjraas: sri^ #fe^.;m a^vy ctag.?rje.q
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;
Ifamerow 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._ ChaJK Co. y. Arrow urip 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
existini^c to the amount of Ji'orty-i)'ive .Hundred dojLlars, .together ,;?7ith
intere_3.t . 9n . such loans ,and advaiic^s from the biike tiie same are iflade,
or have been made respectively. " 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
9d:S^ 'l;o naviit^ 9:v,r.i..'Tv e'ro'ts>d iiMshm^^h X^S nit^'m isii'l sb'^'^ &aa(-:s:^bisi
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
-XQi ■■..■jj siiUjO jX ..>aj'i-.v ilJ'jX 'XflaQo"oO Xxanix aaiiJ' OJi' ©iaid"- aoa't tuiual^
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 flxaxD 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^ ,£e3jir.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. ,>!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-
-i.;-^
.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
^s:di -^uix^ifjb b^t^'fr^m ,tna}:in»t*>£l .Isllat -xf^ijo 'sol ,&ft« , a<»aiiii©T:q
,'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 Peltl 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
S)U3 lo i" .!&;:>•;; »>iij tjj 5ri'3^*');.:'j' ion bxh ia^tsink 'to Isnifoig Siij.no
,%^a: ,uSiK ♦!, ,.; OV si ./pt?''?:'/:* j?;;'^;..'^ nxii' oX t^-itis '-^i^d" 'io "^fsicotwo
•j i/oii-t J. vr ;to.:s 0*iw ©noi tx; Visscfo 't«xi %a£ ^;^-x9q;se a' .^ajBl-o^'t^ft 0& era
s/lj' 'io aoit^sxiaal »il' o* ttpi'S^ sj^iui eJ o;)" dg^w^J'e©' sxi? 'r.o ^n'?^m'',-.-2iffli<?crjB
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 ξjr 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 0 -^'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
;Mvl.I v;^xi:; I'al-fiis-- ax »«si:as-;i.g srii) .ao feoJoatS gnlcliij'-i sxi:^ 'xol gnl
litqA oir »:3J^' ^Jsxid' ix-eix 'i-cii ©;^ «;!■)» a-sr.sq y^'^' ^-ii-i?K' ^oa bxb s>4 *<cf;'*
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
,^;.xx.ri;©j-ic;i? oi'j ii-r^ Mf/ i©J'.iv;,tJii.& ax.ci ,oiit/i ijoii iaixi |>ii;q 15=- von
&Q-'*r v;ISiJ.,>X -ulf." ,:-Xf;c •.. i- ,o;r:. .atiiii/tr- ,;5--i©i i^rJJjKN^' .aexis^ '^^^ t-i'iEiq
,£>x*}S 1 ■■■.ii'S ' (■ii^'xaqo-tg »-!.;.;*■ ai. e^i svx.i ixso iiO'^c ^'^-^•f'-'^ "^^i-i'io exiT' ,JiJi.«8
sso'tsd' cJoi:.dvj*i9i'X«aoy ;-*Xvj>>j.;I.e!T ^ 'xo't a-fojsiii gsw ■3»itav;?5vao3 ©xCi' worfa
js «U! /iSTosx Off /x-^rXi iiuo ioa ax ain;;' ^s ioJxI>?^'xo "xaiWo tavo »0n&r&'t9tq
-soiissdji ititJ' iix e%3xiio -xevo -locfxl'.s'io sao •iA>"t-5i:q et ^ii,ii'x « a/^rf •xoJd'slj
'.J.JSiJ^M I'-^'^^^i *kxX iZo j^six;xct4:,,«V:.;jfe^^?^,,..Xja^-itu j,^^ .fniixvx't 'io
Ttxxrnx^iXSi .SI^ .^^fvA ,ixJ SVS ^lixff.-l^J ^:.v'„XJLgS^ JS3X .xXx «*£■£ . osiaXria
i;x;-i.r iO'x .-^js.lIojjo-v*' «jfiXj s^'i^a «uvf X'; a* a9xi,&«-x9Yfes siasil^' fi^iijBO gaJtvfixt
^j;"Xi5!'xjTiuo o.'t . JSo *XiI 'i'ii'S 4jJ&|L?iS.''i-..i-I_.s^?5~:E.J£lM'JSi:l ♦^^^Xxd'iJbsiO
-sib o^'i'j^b s d'isxij- WQ.5S •\r4'X '.Xrtpajj £&:ji.So.s'.tq r/Jiw S'sapo ec'l'
,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 "'
'L'j:i;^a...olM jK-S'i «3X ascf&4?o»cr aO , o^aXaO Ati hBOH. JX$yeaooi5 ,^
'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
.aslooxi 0OTi iL.ti:"7 gf.v.X'j f»il;J i.p fe'fmgi*a,s1t bxn& ?»gi>y?'j!SO'ro feftSfiic
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 Mpore 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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xlojJP . .;;tlJwjjj3 ai y.viij.j'.o .i-; iiU-^Ukiu o^ i:>«»'xi.iJf^9'j Y-£'X?'i'"t.o't ssxti^tii't
t^aiJ.iuiJnop i?ili^ 4,.tsj.i oyido*;i^ ax.g 'ro stioi;(>xraiq. sirf? 'lo iiuoo
oiu.!- >;(f s::>ix.L.'isJxt.v; :,''U JiUiu - jo-i'i 'io 9110 - aa«o aliij' ni stissi
|)yj>oxoiio'i;-ioo a*; .fuui.i. -.i?* niu 'io Y/i'^'-^'''®®"^ Ji'-^ 0^ o^/iu «©nsfesto
-'xc-f.tfi "tio \-nouXo»:ad axi^ otu-- «vf'i,yco ©iij 'lO ^vili'i Jii-i*; abioo-S'i &xii ;'{«r
V;iiio &'i>J"X5iodo'X'ioG !;:ui;r alujt.dinq:...;. o^iup aJL iwiiis^ ,'lli3-i:xj;A:.Ia lo't sy;»ff
S'i tivo':' Jo*:"i 'io 3-3.e-i3X 'ti ^a'xsJ'.jsj; ois*. jax-iiS'XOiij.Sia .^niyttas-'tiss ^cf
rfsl-j XIV.' ai&j-;f».£ 'iu oo-iii?;!*'''* iti iiol^HLi.b*i aiii'' itMjJo'iXii ijente-iftJefe
■•^i:f si: ^oa«)b,l/a nowt- .t32.sc) « 'io caii tjii** OTo-iq; oJ 'i'lJi.jniitlQ « lo't
~9.i: 0;! |>'3J-..tia-X'r^q. ;3.tj-si-- ,Y,i-^^Jt«'X>^'.iq«i .**-i ..oidi e^ii ;.,f)*<nx wsX 'to ©iwi
,©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 ... ^
-xj:;'^T»n ion s.aw 'xtxXxfid ji.i*3i>aft'i:sfe .istiJ- sisd c^obI 'to ;;ja-tfo*jJ:'t 0 cSiitr
'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'arniturejisusg., 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^
fejBii ^x&h "v;3"*s:ifid' OiS/i^J ©iDfli gjoaia i&s(:^ shi:m:!rnoo 'i'l.f.itdfi£^
noi;^ii'dq; s iriiXi't x6 'io t,i^J2i| SSl'cg. '^ottis "to tiiw ^ *io B-its^sa ^di
lo m)af'B.'im mii' al .esiX^ri TtivnxjBlq jt>.oJ:iiw aoqy ,CcJ: .JtqA ,XII Of.S
h^aolsiaii) a«fO^.'i ■s.'»iij"o ii^i* -icsjiis^ei .sisisy ^a^citiivtfrv** ^Sftri* siot'l baa
'-net iSf^^v sni]iis.$bei, ^eu^tiu 'M ssxti 8i«ftcf'* ^Ixo!?>Xii ii ,.I?Toa^*x &/!' -^cf
-fiiss nl itV£.hi"fX£i asi ea %& ,■«;.:) li^p* tii ili<4 a 'I0 QtuiJia <9iii ax A«
''■'^ *S,-(.Sfe?^ iii§.lM. t«J'3E'i:& "^^1 •it-iiw e 'io ^-ii.^an ^sxi t-.l tToi;^©a « 'io ;ti©q
;SVI' *C!:qA ,lll i;SS t gy'^J[|.^A?.P.'^ ...vy. jy,4^^^^ ^- I*'---*^ •'!^* ••^J^-'- ^^^
B&i i\i q,u ?i9B ac:-OBl: ^fi.'f .022 .«i^ ./IJ^ «£•« t'^aguaarO »v iteiamigQ
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
■.gyB/i as«>xrri£l ni: hlitoxi* ad «'c>;>'^ i*5i4* iix *«9iTu;3"J« a*/o «.ta a^jw o^
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
-^alsuBs.?!:© sao'io -^i dsao ©if;; Ov^nx *i ^as-ta- o* J'cisJja^'taij io5 ii«'.tfl«
.ctisx^o^t-io aixU ^^"■^'■^•^^^''^'"'^ ^'^-J: 'i*^* '^'3'* ■C'i*' ^t'^xjoo ©xCi' .swil
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
©xlS rfi. en.R«!q,qii *i ai^ Yi^O''^-*-'^^^'* ®-^^' fe>8fti ovi;ri ipw ,ftaf»i;a rfJotf
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
#A?xJd- ?5rte^a'xaJiaju ijoic X>M .syifalia jb ©iti aol»i.8q «;ox iXiW ..,. *
,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 prjug 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
,'i*x ■^M.di Bvoiii Q-i vtjsri^ i-liciH>q 3"©h bluovr id.a.Ls etfr ,A
.noxj'a-SJjp 9ji3" Bft.i"x©WEiSjs io*! f>is«.- ii©')^ . Jd'iWoQ, ©liT - ,. .?
.ii,iv:H;»^ t^^iy' jiioia 3Ki>i%'- i^uxdAQr. ex aaoi;i^' :*10«O s/TX.
,9.uic^ i^aUaisw Ki; Oil S^'Xli *^wo
.ij-ejio i-wocjA; ;£;nx 'JOit si iri^iil li'Hs^'O 9X^3'
,aoxJ'^mi;j5AsM| siii no y^ai'wsxt si nx!iii9lc?t-i93 uifii' ; rsfflvH .'tS
. LCI ySS <,3iLtE£A_JtX--Aifi~A!ii^...A^A.-^3t_-fii «<»^xo ^cusfioe'tsG ^ _ ■
,i.XX Sd sS,iaii^u^..»X.JiiJSS ; 5>Xaxjfc&'io c^oa 8£v s-aaxxiiw jp, 'to sona.^i:Tft
lo t^nO^' - ;fa9£.s/;i:.«Js: uiaaalt) ©rid" ©L'^ea^-i^O sgfcjui crxsrir ,18 ,qqA
alii qsftii o.-t ax -^a-^'i-f:- MilS.. i&l« .^ '^^•■- a.&x^Xu&i'i'tlL ;}-as.tJ8Ma sti^
£<ii>t o4- l>go*o«»'SjU> .;itow iiXidv ^^-^/^ul Ijt\liit siri.j- io iitMafi% erif
a'aasitcfiw a^ix tS-xi^eiosifj ci \;oiitftf;.n:pJ' « j-jj^rJ, .,©ciui'-5iv» &fli. to iji:gl&w
^•f.i'ssiti J?i:£B v5.Bfcis^^ iiili ctJSiiw . 'xavQwoK ,^i:is^xa ai;«;»xdo « oi .i^aoaid-aod-
j-'IdX i^s-ii'ifi of^^d S}?.dXi feXycvi' vt I *v.'xwc ^•'•* O'* aw.-.j:T(,fo naed" *tvi?xl
XlT.'i:s 9V, .aXJisa^/s's ,iitxn.t .^^' ,*oft kx icau* ©flv iurf ,6iBaniJ
t&dio
-X*i\toi3TO^ ^aoiajtqo silt "to ffcf^'i.ijiJ^iiq TC«^t:X « iii ;M *Xo >[»i9q[S
,aoi.iV£rs4ii?r 'ieiTiiJ '^Xfto Js^sn. si'^imi©. lJS,a^■X■-
^isiit *j.'.-" ;x®^n:cj-:t« a ' l;'ix^ali-.Xa ijd" firsoxias;.;p ^ixif>«eX axsi*#i!vn»€[
has. ,fi tXo^'- ,sofi-3fcivL'L. ao asao'Cr .©olJbx'l^aiQ, liixw noiJ-e-toBl [■ 'io
; £ 5 a .XXI a Xr. , as. iH^-diuldoB ^ y s Xiyo0:$; ; SM ]^ ,q \ SCfcS' ve® a , . fMr*
x-io^foii^o^^ai .ova ,(^qA-.xxr ^6 xaglg^-.^x^g^,.. '^: -^ ;*^^ ^ f^
6
matters, fmd matters not in controversy, jaay properly te. the
subj'ct of leading questions. Greenup ?, StoXsg. 3 Grilm, 202;
Chambers ,v» ,,Thf? People^ 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, kadden. 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
«"lx?? &?j5>r?.;t 'lec^'tis og.|>i,f^ XiSi'S* qm* ,pi J^«'!: ©d q+ iBlii laasio'l ^itcf
..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
•H»8e&a;Uw J2j8 /..tfjoi l>f.ffi s^vrf•3^^l!)£^fti7 fflo.i;'ti&&q!3i ^iiffi^itaj'iaci ,s.aiti;iai(ij'ii«
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
<h'i»x *<^'^* '-0 iittf^ iiiian 5j:i,t\__b9iioii£j£ sisw iiol.nli?? sd'd^ij^ |j<K>rt
-xl'Ssa .I)»3rI.U xfowa ©J bjb j£.iIo .aoessi sit* lel TslsfA-iCfeiq ,*o0qse>'x
BStisai: rtfeilto iio ;:ini;'^-e??(J »Ji 'to ssiusosd' e^iJSJla> xiows 'to »qh»3(^« ©riJ-
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 Purvia, 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
^l-Ss^go'ic?: ajsw .toaeifti-Tfl qW^ ,'it»vc;)?»ioH .*^3•i^ .III ^©X, ^fij'tkfi^^v-.^^qQ
sriT .•'•i'XJit 6»a^ 'to saodRS-iq- ^d:is ni <9gfijj3nsX ■^lo.^jBaBKeXlnJt bOB Inlt
iBitS sifij iuoiiiiUQ-xxis jjBtU ax lo 6saxaXQ,.-2CQ J-OMfciias^ias -iJBXwaiiiTfijQ
-ni a3fi.aiiift'J!: fiOvtosti^i Si"XJ" gj auii^t iao-i't ■'tl,i>Jaj..sIti loi T£antoJi?« odi
ii^i'iw s>3T»'im aj fos>8 (>^ii; 4 oa ©as ©W #is«rf^ 'i-s rfioa ■^;«i i-aesasvoTq
-aofxaupoXa B^'xu&H'f.lk cvt 'xo a.tfxeiXo ti^fC;}- lo'^: a-^i^a^o*.' « ^^jcf ;X*»s "io
~Xv9 ©itl ♦*»afiot>lv» ©iicr lo cl-iij^idw ia»liajB>n ^di imalB^e si iaxAisr
asrl^ isd:} moi'x iae-i^'i'iib ^(.XXslnsS^se. toA si. Xein* a-trfd" , no 9oaab
.e^Dsqssu aiaos nX s'xoT.f.ii> ^jXcS-JigXXa *i na«otiaX« ,XsHJ ^©mol ©ri* no
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. Carpenter. 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
'-isy ^Miii x;;o*il. ,OoJ,&f]^ - ,fe«/?:i.«jXo ^^4 sy;>,i:ax£' t© ^-luuoiaG llu't siii
.j''.a-*,p0,s't;?)h w^9nlj3:^£ tns 'illSni^lQ, 'io ■xov^z't ai, ifr'xe4"i.>3 S-ii-w OCX), 0*4 lo'i
(B^iS .qqA ,XII IBS t «iISail-JS5i.^iiiX^.S^-4:i^ii^4X.JI^a^^ &ona.tiv59 ^kiiJ' 'to
^ssQlXcxsfli :tafir^iq o-J i<;r«o.r.s o-xa'iicfttfJi: ^on Ilir t^woo tjrfJ- Jisrfi- .baa
bXuow ij&d-;M.(adi.iB ^'J" jOi^ia &sa=o fiXxicf iiQlxfr- o^ s^iii-t ©v-iBSSooiie 'to
-.-^-5) LlUn ,i5jVi>\vori ,3i 000, Ot$ lo'i iLtemihi^l ai'i'X *Ii6iaJ J-sTX't oiiJ
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£
ij' Ji, -J' © itl 'J JL, 1^ O Wsi
{v«3sll^ asi^jsasi: -iavoo!..»'X os in^i^oB aoUo^ sx:l:r "^o 'iliJrii.si'l
"'jtoq G« S'JLJUXi-.'t a ' jri.;j:)ni?"t5i; '.to iniJoooa no •.■Jd vrf fe©niaJ3ua sdT ocf
-fill; aoijOfc *io s*2t.i?.o e ' TiiJ-riX^iq fcei?=tfc'ro i'i;.;oo Oii^ ,fi'fl-ion i"^'i.6
b®Iia"t9vo ,l'oil'-xsT aij'J s-''s-i''^''~'-'^'''5''^d*-'>'-^0^ ini-^'-:t')"t;?'f> 10'!: l.i-^ rr^fewt; 'lo't
^eisb'io s«fi>iiJ ofilgi-; J-93 Ov^ i,.ti>;.r:i^4a noli-:;isq; a^. frsii'f t'ii.:tni.iiiXfr 6'id-s'
I't 1 J' ai&ig 'to noiSotfi «iJ.J t'lB-^'ciXi; lifiuoa ni^.i ,ai§X , OX •S'id'maoeCI no baa
-eif-j ■^#fcMo iU; .!:<©Ti«^n'5 o:,u:.t o/iaB?:^ sxl:.^ i's biie. , X«ii,r w-^n b -lot noxtom
"bmtSfh iisAi bsiahro hn^ '•aol. cfDibaiMiij. 'io 'JfOfiV. lot" fte^^y ^/i.t gaJtsaiflc
'isvwost od- i:TL'u,u«"i:eb Piij " , .iXui^aoa 'io sja^o ra ^iss" J lu? .reject avjsd *n«
- i-xg ^Vi^i l)Xi..'OiV;J ■c'i.ririlBXq iJSjii' aataiqo ^Si aQ<yu LegsXtiaif^ 'in -ist-io
sjsw ftiilT tm>I ixi- aoid-OB as ti "io M^i^aal x-^-i'^P'^ "^ ^^Jtd' « "^^ b^t»«o
e.&vf r;3i:xfw .ijiaXo a • 't'lii uii^Xff lo i^toi^-iaiis a ill lo no /8ti*rfaificrc8liT^
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 jL3tate_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, Sinloch 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
<;;X *,i:«--C!-.aSvoiii {?9i9:?Tis J^iayx-ji^Jt '-^■fi-* *;i.oi'l btiliiSiiq-4S 'I J.i^r.L^il'-i
.aoiJ'os 'to s>3ij^io a'Tii^'
trxsir.TO ^JBoai slicaoosi oJ •ii:«,sa<5>o,aii ji a.aiilJ' «wa oft. 9?
,iol:j&-if;iT BsjOSTi;!) js oS 69l.ti.lns 3fi?/ d'rti.u'^.nalsSi sanBbJ^vfii 6si?yqaif)xio
^aJ;* biMXi uMjjdo S'iu^ jClSI- .XII 'iV I , n&ffls 8 Q-l ^i 't 0, , iii.tf t gl 1. nl »h?>tQt
♦^<?A ,1X1 f^^S , ♦oU^9nq^ki^'/„X$T, riojXnii^ ^v .Ti.j-atijga flx ^nfl^,*s*Tnoo
a«j/ 'l"i.iifj.&lv, i&sXis hSi-rrQiX:i f'losJST; ®ri\t ^tsr^r S^sxti feXsrf aaw ji ,#.0S
j& da'x©v-3*x c;-0K .viXt/ow iniioo '^iBlL&vAk ^A$ tsvoost: oi' BsXiX-tn^ Jon
-xuriTg '*,;}i 3nX;!o*i&i ^ix essRsootg Si^oDnotis 'to ©aajgoed" ^josa^rjljwt
.'xcfa^i c*^ <;taj|.aia»Xiio3, , ^y„.^eXt;titJ^ ha& ^V0<3 .Bat *V t . op__^jjttI_ « «isA
a'j£©5'xo «1XS .fiitl.i-A d'3 < *Gp ,..-„'JS,'^-- ,S>..J;1j^.o^5'^. ■,ff?.!!^^l^'^,<^,^^--,.s-J, 49-^^,^^ "^ -^^
"ha^'i^b 9xiii "lo'l iaB-aabvX &3iajii« i-iuoo Sii;? noicJo-fs no ;al'tlitnfAXcr
^awo'xsi- -ton 9"Xow ai:36'i;o srii ai a»i*Ji«Xi;^S9i'5:X ®«sx-li t^rft frlsri 8fiW
-'■"'■''' €•■;■'-■■- '■ ^ ■'' ♦X*8'X97-*rr tot
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 $10,000,
payable at the rnt<=^ of 50 cents on each radl0 Bismufactured hy
the corporation; under the contract defendant took full control
of the corporation, hvt Burake, the seller, retained poises aion of
the Btock as a pledge to secure the payments rxr.id as a protection
against miy breach of ^xy of the coYenants of the contract, whiah
required that th'' necessary working capital be provi'^ed by Sag<jr,
the defend.aj.t, tho,t a financial statement of the conriition of tiie
coi^pany be issued each month showing the number of radios aanu-
factured, an-l that no radios be manufactured except upon hfiJia fid^e
orders; the contract also pro'idei:! that Sager's rights under the
contract v:ould cease snd Duirike vould be at liberty to deal i,7ith
the etook certificates as he o'.ose in tae event oager vioj-ated
any of these pr'^vicus obligations or permitted the corpQrwtion to
incur obligations in excess of the reasonable snd fair value of
its assets, exclusive of the value of its E. Uv A, (Radio Coroora-
tion af America) license, A breach of siny of tiiese provisions
gave Duiake the right to terndnate the contract, imager accepted
the contract and operated the buainesB until October, 1933; at the
time this contract was signed, the Radio Products Oorooration
owned the K,G,A« licenue, a small amoxmt of equipiuent, leas than
#500 in value, and it owed no debts,
October 4th this concra-ct was amended in writing, changing
the rate of payi..ent on the purchase price of the stock from 50/?r
on each radio to 2S^, extending the tiiie of payment to may 1, 19 3§,
and incorporating a provision that no radio be manufactured by
the corporation except when it ''shall be in receipt of actual
orders from a bofia fid_© customer^''
,000,01$ xo't 5l3o.ta sirt'j s®sf5oar.'Q- oi" iiox:*i:fo aft^Jii'A' s (truR.bne'i
arid' lo itoiti'^aa:-: ^>.i"/.;i- ^.o Jiift.;:e:*a;5e Isls M>iu't e, l^sil;;- ,.;5';:i<3iitt;»"!;'3L 9ii#i.
-0ixs(i aoI-''-«i '^o isa.^ij'n ©fit ^aiwoife ataoai ifo^a fjs^'sai scT -^neq^ijoo
sb.x't sngd' tioc.v .tc;s>o>>.fi Ij!Siijj.. sf.'Jjfja^uii au aox.fo&'i" eu^^rfvt: cute ^b^t-jJt&^i't .
"to ?>s.:.Usv tix't l-'ixs. oX;.Ua.oaa.»T srlj 'to .aa^ptxa. .Hi: «ii$il.;?^}3&i:X<fo twsxti '.
std$ 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 veredicto 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 oJ;;?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 0
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 eumann , 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, Neumann, '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,._..Iaej4^y 312 111. App, 255, to "proceed with, due cir-
comspGotiori so as not to coixie into collision witii other veiiioli^s,
Rupp. Y« Keebler. 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^er &e,
^^ ^£.gcM_.v»-_CM 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-ou„ ^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-. #^
0 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 0 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 sen 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 fide 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 Gg.
V. Parlin. 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 Inoeronata Pi Ricigliarxp. 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 bona fidig 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
'' . *; , ■ . ( . ■■:■ -^ \ - ■ ■■ .■ -
tTgCrOO TFJOfHO UCSff. lAm'U. ( . . .. ,
( ■ ■ ■. ■ ■^,^: . • ■
-|- r ^ A T ^ i>g ( ,3«xx»«aA
„|L J- ■■-•>■' «irls,-i= ''■^''' ''W**' ^
tio'i isoiSoa n.« cii ^bV.Ql <■ cX \i;XirT> sijuI Sarslaji;/^ bs>'i5basi Jnsmgbi t ^
jTib'^. wsiviyviH. t^J'iiBfcttc^eb ^ani/iss mifi "^tf ;Jrij;iiro'icf eeitwt.ci Xeoosisq
,*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- 0 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
,. , ,, ...0 .«ln..X .0 ..a.-- -- --^ -^"^^^-^ -'''^ '
,,. .0.. .^:a. .M .... .^^^ o.^«i ..W.. .^ ^>.^^
^*i.«» •^rnritii'.y Gc. Of:- ©^ J««e««^*« ®^' ^•"'
,^... ,.^i cX.n: 5.ii.tX<fB... .cC:! o.X. .i *1 ^^« « ^"^"^
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)
.... ... .0 .10, ...... . .1.-^- ^- ^^^^ ^^^ ---^^ ^''^'"-"^ ^"
„ .,, ....^^..-^ 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
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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 ■^.. Eavings 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.
' ^J ,....:i.-Z .0 »IXscr.ea ta. «=1>-''^ -*-<"^' »"^'=^'-' "^ ••^"' '
,., ..^^. o=X. .....T .B...t.*™o..:. »« 0. e..K..^ eU.. .0. ...»
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,^, ,. S,„oo «.X»™8 ...rt, .0. ,e«« =^* *o. X...W. ™ .-.«i* -^'f*','
^. .» *««-..... ^^.^ «t ..*-,.-X*.B. 6H« ^«.^^€ .=X.« »« *-> »-»-«
„«* „,.« 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 Hauger v. gagejii 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^.
'■3 £Q '*■"-• *•:■'**■>' v-wJj^i. >-.'■■ r Y
iBjnX
jlftBo:^ ^itA ., *t .-: «rf.STxXXiiH
/ /
#
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
iBcm
^^,..:ismm^. mam. smt^ *^
v( .4 ;■>,*■■'■''•-•■ ^ «■-'■'
. . .Hv^ '^•^.--. '^«^ -^ ^<^ ^* ^^^''^ "'"''' ''"'''
/.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 0 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 0 £ •.■.■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£^-
■ . -i-if'-ij '^c jlun»'i scis ion ?::.:'.' byxusttx
r,j,«^.£'^-?x ilxt.t?tsrLiS- bsnXivSc^Wfc »;wi u/u-'-^ -<^ .j..u-..»i
.„, „*-.. ,^a.,.K. ..««-^.-"' ^-^-^"^ -^ '-"^^ ''^" ''*"''' '"^
.bsisialo
, , ,^.^,. 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
rf,u:o'«-o -X.Io« y:rs.lm X^^^ hoi.i..d.m ^e•.r^:^i IbxC^ .rem oi
. ■ - •» -, r. -r-s rrf* cw't 'T'^fi vSe-niri inJittiw x?a-;?«9b
^,,., ,^,fc ^,.^>n r.rn;^r. r.,„,n. dci-..t .'^nef,.t,o^ ,^^^ ^e^^r.ibr^x.
e!.T .u.,...i .C.onabxoo,. !>n.. .noXoi^. .XBn..;JK. rf^^.^ri. .a^Ioa- bealB.
n«XXi.l e^^ri c?^«. feXirov? ^^^ « ^^'=^^^^f ,^-^:^^*f ;\*"^X ^ff ne^ioTC)- bn..
.^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
.,,,. iXi ... bHB ni.ou 0.0. ....1^.. ^K ,a.B.rfco.. M nl U^hol
X....oia.s.on . .nxb.:...B .11.1. .^^^-^ «^Xn.. ^ol .«o. ^ssii .e..*B
^.,H .ni.. . *Xel ... 5.,aX. eri .^=0 oxl. d.^ 0. ....Wo etf^
^^ ,.o.5x.i.o... ^c.uaoo.cf. o. .....i..^. a.w ....X rfix.o. . x(..eb
©r£o ariibfluoi'xi-'ia nox^i5i.i.>8<i>'--'^=-' «'"
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 '^-"^
.., ,^,.>.,, .,; U « ..^.I. ^^i-^- --^^- ^^-- ^^^^^ rf.... .'ba....U
.,, .... .... .1.00 .V.V.O.. . .M.... ..xi ....b .0...^. ... .4*
aaXs s-xeii^s foK.3 »'--"^i «XAv., fi*. «»»^*
.iiclXfJS'rf o©«a K^ ^^ °'^ oev?^&M.(S*^ »-'• •-■•'
«, ....,.«. 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-
.... ............ -^^- ^-^^^^^^ " *-^^ ^^^^'^^'^^^ ^^"" ^^^'^ ''^'^
..;J -v,jajy i^ifti^ne'te^ i^t3:exl.'^ <-*>^I ^-^^-^ •-^■'- " ^
,, .3S8 .1X1 SIS .,;.^..iHLilMJi^^-5«i2^ •'/^.°' «.^.
-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.ker v. Travelers Ins* 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
'i^xiSfiir.fvIq; ,S:S »aa^TiS 3J.S ^ . o'J > ^f^^.fe?.!>.|gi;'^:?:^; • "" ^.^Mfiji ^I • '•
«©3jyf/^ 'x?>d?o lis 1:0 i'm? tjr,eci&.6fij: ?)«.«?> "i5.CJo's'Sj£fe foi:*^*©©?:!!:© asjiiitnx
i'xlp. iltieui dos-^'x oi ^-ro^T:© f?o rxj ^MTi-l- f>ioMrr<* £f«tjctf XXi esXJtdw
*0H ^i B^jr ^a.ooX ^a to t'ei&x'wlns &&& o>t ©^uffl-x^^noo aon bib ^usevsb
ftsXXs^.9«^ 9T^ £oK bXwc«iv BSMGioxa T^xii 'to"t Sm cioitl'n- inshlooB vai to io®l
s xii tajjojgb rfnfi.ti-i:;;i o>:kj; |:cix.XX '^i'^r "^rf ii;^:«2i'»b Gfrf ^^sir. Y.Bit3 erii) -aixf
saorM o« xaXiSiia afiuxaivtrxq axiinxBocoo YoiI<^<i a ao M'guoiii utiw iisjB
iisrlt mwdiia ©axis^biTs axiT «ixi;--'taxJ bavXovx:ii BSJaiXoQ sti-j ni l>©aiJ3;fnoo
i\ no c-d-iXK-Bec sxu;K.,a saoxl dsiiKfo^a sM tJv* :j£3i.Ea aiK^voscf bQtiSQtii viii
Q^exli .Baxo sii cJn»j:>losi3 di>Mv: xao'x'i , u3t£.iv'j8 aji&X uixi iliiw alj^iti alii?
©ucT xii Sixfei^xabixt A ,n&xlB'i bar! eyl woii i^&oXofixfe o.1 ©snf'txvsi oxx ai<w
xtoxwxqo eifi "h? 92*fi;oo 3xla xtl tbeah^iBva a*^w toir^'S e *\;^«ioi A:jxxtcf
t&ina itstoo ©rf*
>Jj3jcl5 Jo^'i a ad O' baua't set' xXod-.'KiajColsyX bXwoa ii 1i rtcY^"
moi'x Toxfd'i.o tX-siI:> omjiood ntdi ml J.-?ri.r bfi.,? aizo'iiiS,q oAi no cUfo
uixOi^-sXq sdi ao't't Vlo XXel Sixsja ttii~\-ii sxfJ lo noi^oca exf;:^ *£© jsoajuos/r
tiioxi-'iSijp fxi aoxT.ixt'i-i' 9"'*^ beTx;-03'i aiexi* bn;'; 'x.r^ «ricf T-bnxx bn«
samjostf * -f' * ^tiltevoosfx mo'xi b.vfo«ii»a'X(i arf x<i©-xt'iic Jort 6X*fov? e^-xstfoH
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 siokrnggs
of some 3PjJ:0n^n^Bs__apji^jQej!S£i^^
oont'r il3juitee^_^g3.fae'j!i^^^ ^^!£-.J[MQ^ ^^Q loaa wouJLd
nob have baen sustained." 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 Ins» 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 Cozimercial 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
■*-<slM'<i!:niJ2 ia^ibKs'ieiQ. tX^iSAY'z-sii'ii edu lo a.axj sjflJ- -xo'i al
©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 Coles 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 JXick Island Hunting 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 Badger v.
The ,liilet_ Drainage 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-
^ .^ , ,., ..,,„ f,f,p. .^oit^sKl. ii^'5: e-xofi:; i^^-ioSl »ii*
.]...^ r,i :^io.. .100. r.e^^. ^^iicr .^..Z^^in^^ ^^^ ^^^^ Tl^i^*'^-^ ^'^ ^^«
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«
.• .r.^> .»-^,.ori<^re.moo r.«^*sl sa^Bom nev^Is earoa
^"' .,, ,_,.e .^ ..MO .. ..om.«. ..I^ ^^ -^-^ -^^ ^^^^ ^^"^
'" . A '* > !• f-.rm-« A1 a a oa 69 "Soft 0 «>'^''^
l©68jfr/x j3£Ur.,:-..« -WW"'-
. ...r ir ,o-=BH Xi^KU nei^. .^w «oi;lo. x.^*^«^ 0^
- ..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 0 o 0 0
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 Inveatmant
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' 0 0 .,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. (stack v. last St. Louis & 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, (ill 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 (Lurya 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. Hat, ?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
ro riOoXeo • kj. i^-i---- — <- ■.
„.:...- iu^P. cyo (jo^^-i ^5^ ^-'^^«'^ ^^^ *^
w-.n '■ilo^ 'ro'i XIO J" ^ -'-•"'■■'• S-^-f-*"^-! '^'"
, adcJ -3:0 eaw3 erf- '-- ■s--f - .^
If »n@iln. e-rs^? <=;a^.-^^--^- ^^Mn-f^t inn bib ^^
'' " ;..e.,. •..« --*-. o« to e«o, ... .. -H^-^ »= --
S se-ii;^ 5.-1.:-. -' r^rf^ols 10 ac^-o noiX«8
. .,,.. .oidincf ^o jsif.::.-.«f s oaf. lod.-oj...
. , ^.. ., f^ro^ sixU cn.r won:i ;fon PXb efi.. .V>
..., « 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- _
li c^pri,-; noi.:;fiXonoo ^Li ;t .>.oq..r. o.
■:!:o ©oneu9-'q eiiJ , T-.r^sjA
;fj.;co c oris nx ^--^0 s^--* -"
xoo<5 9x£* 'io 9sa* t^^-- ''-^ -" -- ,
i,3?na,f>x(
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 Traction 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-
MOO.C .d. I>.rio..o. B..^ .^ ".nwob .^i.^^< .-oXoa exli ^o ...3.. .d*
^. In. ,io.. .0 .oin«co ^.BXI« B ^^...e.q ^n^noM B'^a.cfno.n .o
^loxlll ^ricJ nx ^es^^« .-^6^^ "OoX^s .. ^.^^'locjo .ri ^arf* «ol*-r*a^^
i.«.. erl. xC,..o.l.I. .^.e.u;,xB ,«i.uX.n.o nx^ .1 ..n.....^. -Xx.l.
^^.-^.nsoAS .n^ .nob neccf t>M ^^..mt .xl. %a bu^^^^^ x.r^n tM^ox
.a ...I .III .ic^ ..ii^ - ^j^.miJmm.M^^ - >>- «-
:£.8I .q
10 a^foe^l. XXI ^H,* rT"^-^''':^ ^l^rf^r .S'^^o^i^ ^^«^^^«^«^« ■
,;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
#^ i
I ..^i
^ 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 • ■ •^■'■-
;,i.r.nX:.. :iooXXcs. lo 1cv.<^l ^--^ ^"^-^"^ -
;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 and^
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^ -^
♦ 0 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; Henry 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
.0. b.XX... a.w .... ..^^ ^o.L ,....aXXi. 0. ao......... --^^ ^-^^^
!"-.' .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. '^
,.„« ..u,. .« i,.*,tX<ir.ooo. 5„B hn.d ».j:.r««.o., boos ^ .^-.. n ,«.eX«.
,,,.,.„. ...X.,* .™- .» »'- -*^^'i»-'^ --- --• "™" ■"'^' "'"^'
.: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
,^ .,,f,,..,..x^ .^li"^^cf eiU l:.m ,bfsoif 5V.M ric^&oo a as boos
. « - • -^7 4 (.^-•. -,»,'+ rfT> vcT'-'exij »* -i ''>fi^
.ill .a- ^X^ ^-- ^^^^_. ^^j ,^,, ^^ ,o,x .M^
m'l .U«.-. .Tea .1X1 »:"-^=,,.;,«'«f ^j-: "brto^T. .«. "f-^"™^
.. , ,w. »^: t^'^'^'^ »° ""■ -'"^ """^''' "" "^
ion sgalbaeoom jqrjiw^ ^ .. _
<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
(
( t.i.K ^B KOiiAao<*.ioo
ti. r Ai |\ T ^ ^:> <* J
-^ _4, '--> e A -V f- Ji_ '--^ ^.-* W. ) •
Xaai'-jixo sfi>J tcli./ bus asY'^H *W fcifswoM obassi sllidrjifiX? v -
beioviXfib &n« efor.ifi ^©ll;v Bxrl «Bsy;<.'H *9i:-:?:T:BH bxis asTtsK .W bTawoH ,a2yX
-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 (
e£6:^-.XHii t i-f jjfiTuf ■. 'tsq; i'.~to '^-^q, zia ;}.b ^^aeioini rfiiw s.tisb i©;!'!!:?
«e^ab GiVSrta sfi? •^xsi':;:; .vcf ,iN5..aii i?sjifrti- xxsaj bci^cTitfa^XQ ■>i«i>.fi^ sei^on iDlJSw
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'
<Sva&':f Bii^: ;>.n;.;- t'^-fc'^^&i^- .byvlovnl a*is;igsi;ia Siiv fioq;/; nexX sni^^J^*^-
airrf ts;ft«wrfoe *?, Binivsi-l f-cs sd-xevrctoi ,9. seXisxiO osm; foQ^cststsw
bii-^x&is-id hiim ob^JXi c^^'.v .ro£i;^HOa s, ..di-'CX tUS *3in>ij-' no b-saC. xh-:^itsi^
^ayyimc-'iC£ £)i.o3 iO £.5^^a'ox;J^q &ft.r -colt t&SStI *or' iriw^^xxA. hSoBb «.;e)'^j-iH[
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 •<^" ^ """^^
'a i-.r cUft'i ^^Xwi. ba^jsb .osaP 3^J«J^* »•' **'*'i'
%.bah-iooeti iwu? ^i-^.*- ^^'^'^-^ ••'■^'' ^^^^
,^. «... ... . — ^ --« ^-^ - - ^'^-"^^ ^^ ^^^'"" !
-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,
,nre..xfv. .oil. aixi ,^,^a^^io ; .. ^i^uv^- ^"^ -^'^^^'^^^ -^ ^^-^^^^ ^''^
6..,. i.«J W« «" v.« :«.^o=« b- sr.x.o ...!> *«.offlB ,^S C-rti «">«-£■
Fj. <.^ .. i-<;n, a! 'Hi'iiisa Bt'^i moil hQtosjh9t axjw"
.. -.^Pov.S 8;i-n.'^bne'i6b ^.«xi.i aiiti 9^^^-- X<f fo^^solosio-i sd
„„clor.l-» liBJ-=.'= .«■« '^-^ ^■•■^"'' "" ■'"" "''"'°°'' '''" *"" '"■^
,e0a»\;ftH aims
„« ...t-nu -.:cc.c .i.ri* fc«oXo rtilinlala .SS« ,V2 rio^^M nO
^„v«> =,.K, ..-^.. =no ..« .««, I * * * -^-"^ ^'^'^^ ^-' '» '"'""" "
sKj iuo6?^ ii> -0 Reaxia&T.'? ©soft, 'to &J.sa ^<»
. . , „,^ ^int^ ^. «^«w .BflT .&Sex *ii.dJB«*q^f- ^^0 eXhbl^
.,.,, .™ « .=. ^n« o. .X.« no«- ...en «M I *"^ <«». 5e»»looa,.
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:
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-.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 that 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, Jiliiams, 112 111, 91, and
r.ig;:leston T. Morrison, 33 111. 'pp. 625, •* "(west Frankfort 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
?■».
=!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; Vieat Side
Trust & 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' 0 >.::!;* 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 /
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(iSsIXetiCX'A
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*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 City Ry. Co. v. Smith, 226 111. 178. We do not so construe
that case. Moreover, the question vies passed on in Fitzgerald 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^
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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:
©ijvjeiioo oa oon o& 9'/ .SI'X .XXI d'XS, tdiisti'-:. ,r *P'^. ,' X^ "^^ ^ '' ... Q^^.?.-'^f^,9l
»^ '^Ja'xsaaj'ii'p: nx «o basasQ 3>w «ox:)«pjjp Qiirt ,T9Vos'roM »er:jeo isdi
".X£Oxsxoebi.-'S.5-j:i;.~ c:; ©-"SXILvo 6V'/ bxi.o ,88*^ •q;qA ,XXI VSS (i.sxTj3CE
c'x[-gm Y.ixfr, -2 , ■i-svcs'XoM .gnxXx/i i'-mo ridi':r £n:ooos 9ix.tno nx sxjb sW
sxio hsiTww 3cx-ix;i,fix li: C'.-.;jrId xfoi:''ouio"v;0x tdi moil ba.stritBbnu llBvi
oinl •xeiae Jon .'jX.jOo aeX'Xi/t^ix rfoxre I'iionx.pXci. Io eonf.-i.csqqp, Xsxiociisq
^X ,'i'ixJnxaXq bsirxBvrB i'd oi so-gSi>isb v^roxauoeq, to noxojsijirqinoo riedi
«^bX sxLS e'xeuv iioua 'ix sxxx-i^oob e'sxuztis b ocf bXtfOw
od J-xi6ioi:''c'xx;s ax cLt fcsBJj'le'S ; noilOiJt«^snl bnoosn erf* Cit aA
■<iIcf^irOBi.9 1 bXifOo XT^'o B jKoxrf?; xioq.tf &on:.)bxv9 on bail xt.30 sv/ d"exic e^sJJa
t©noX'-. iUisbloosi sien B o;* eub s-xar fix jx-.x.nXq oc^ 89X'rxj(,nx od.i tr.di bnxt
-acf Giil nx easnct'x.v- sXoa erf;?- sbv; iasbneisd .doaXgan rlJX'.v- osX^aioo *OJti
oi osjb asv ia^bioos 9ii«'t isdi sonabxvs sixl iaoil: nxisXq ax cti bn-c < "iXBxf
inxx{ 'xo bxjCrxfx^ o'XQW ^BXiS ai.'^o 8a.3g[ oJ baninrtoSsb gp,w 9x1 isdi ioBl ©xfof
.«oa o5 oi BQXi£:l bxisjodi'coe edi ni biBv:ic,o\-i lorsxi oi ojai sxi Ix nsvs
-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. Humrich0U3ej> 357 111. 234, 244; Peters v. Madigany 262 111* App*
417 J Mississippi Lime & Material 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'
^Isj,?1 -?;n.e iisodiivr oeTi-uooo Jn^)bi:oo.R ©lic^ ^iS^di Bv-gir. oi Blbi. at il
Xiiw be-^'£SJ y^Jnioq ag-'idJ' afLi- 'so anon nX iinr^bnslGb 'to J-'ueq S'rfct no
blvo\r a nolniqo tiso itl .eonsgils^" -'ij3 ■^jIIws ;^on a-ew (JnBfcnsl^b
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( . SdS
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txai'ttf B£ii ni aeJscJ'r?, Xaefii/oo
9£i* "io saolo ©xi;t i'jB t2--6X ^2 \:X;jT, to g.nxnsve sd^ nO"
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sa^ise sdi ixdidzze o:f X&axu/oo x&d so 'm^nLslq add' y«^ sfcsm tavs
'xei'la aasX&JcId^'iSTeti * --^ * »&isixi xub is X'ns'^ i^di oi bBedaioJ. &di no
flolci'.la'jmia XijioiOjj^d'iq arici' woXX^; fans ^^csajji^a q:^ i>n£ se^o exicf
a'^-xwoO erf* 1:0 wsJcv kx t8i:iio lo ciootlo sdT ♦KCidoot^o sfJ* a^xqasb
d'.sxio ao£iMs;fi& 'xaXisoH'iBfi s\tL% bdi o* XXjs o iVXxjou <a^i-C-'^^ euoivaiq
^-VidoiuxHT^E .gsrJCii^&ffioa vHbqm svsxi i-ewia I>i3£jd©iOx sxi^ no a'XBoe ©ili
•* * -A- ,-xo'i'r& aiiio lo sluaet £&oigol odi ggw soiiu^s':':? fcx^ noieRsq;
-r.'X s-xsw Y*s:t?t -^^ d.eitv d-ua' esvsxiecf ©w xtioiivsisp on so nao s'lerfT
xf'o i-yod-sra ©rli iiiiiaf^qorjx xix ij^bvZ t,di lo ioubaoo -odi v.d' b&on@sj£l
fsoqjj fesofiXq; ©cf ii:ii0i£iX<i &di d-.srio gnxd'asssira ftfis acisoss nv/o aid
;t?«Ii'i' »a'x.Hos 'ivd "'snl^s^^i^i^aoivt h "±0 eaoiixiiq, e-di loX hnsie aesnoxw exic^
c^ fl'KBD I'XiJ 'to gnifxsqo'o'x i?>xi;} ^d fossiasxf^xnr;* 4rioiiB'xrf8rsox!i&b js xiows
* * «■ ,^n?bx v©-iXaa edf o^ sraeea ct-oxbiav scfJ xtoslli: foXixov? <;?! egB^fa
tflE^ 'lo .i.t1:exj&d' sxf;? fol r/Gxie s snisi?is nx aoxd-os aM ■(jrf J-nci/oO ©rfT
tnoi'uost nvfo airJ no us^j^ios 3ri>"^ lo x^Siq-axb edi ^atwolls ax Bxorul
seeds noxcfs-xat-XRcoo bna noiSti&iiB s'totxtC exU o;^ cJ-xfgjJOTcf YXcfxoTO'i
", arrsoa
s^fiq 0? Sittls'-i: Xsenuoo XQlhis.\^ o-gbuZ noqu 3&'o?.Jds ahii lo Jfioqqwa nl
Sii;f bait sw saoq; J^rf;} od' emtet'stsx & x^- > broo':' -x sdi lo QCl
. - laxxiwoXXot
.5SCX ,£ ^rXx/t** ,.., .< ,,•
■■ ' - ■ .M .AjCooXo'o 01 ■ ■'■■ "' ' ' '' ■' ' ■■' '
^ .^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.~
^d^ II.SO o-J mid wolle ot %aJto^. i&s I «T?^COO SHT"
Ytiitti'ilv: Qdi nwob ^uq fjiyx ^isvl^ 3fslwoI.nol bOB teiaufi toii no
fcfi« li/^I.'svi'' -co bKOo&a i'iii fisaexjail) 1:li>f0iBX<I .iJOl.tqsox©
"iXriJl Qsi'j 'lo noi.t.e.'xt DxanOD srl* moil i-nwoo nod-rf>:;w
^a&Xxt fijo'i't cf-xfrno ©Mi oi gfxxtjsstiqa 51 fens t'?:o9T6ri.t soiior; sisb
'(jXIij'i ;Jon a-sob ©air-..-.o Qtdi ixx bslzl ©to xocfst&li asfiibssoo-iq to
xij b;-x'i;iv:;&o fens l/axiBia #Tc'i3*evsfI 5snib;^sootq: lo dnoq^^i bl.as
5aW <&'S5 xliST' tV.aJ&ssftbeW '• ,-.;'.• ^ ..,. ,''...'. .^
;?xi€*jaHT:«0£,r:i-. oc? ;tns0e'i«f<T &9i£&vno'j ixuo^i'Z ' ,^.' ,'
.®S0x0i's'fsi£ ex; t^c©8S'XS leaiiwoO ..!, ,,.1''\'"
axslJidxri-'-.s lo s£Oo;'xifCi; ©xid x^l teBiJc effd' od- "i'licSisislcj s^d- XXaoes o*
\';sn'xo Ju.v a '':l:^:x^7^ii^RXq siiT » aa exist ol trail rioqw atjsoa oxfJJ" Y,'^ut sAi 0:;
a£[;f ssx^axQ .&Xx/05^' ©4 ijsri^ c-xuso ©il* o;f fes*a*R s^sxC^ baf? nsxU oaXe
nsj'tl ifixaXqew! 0 r * ixi J'fix.r^Iq ©lij- '^o d-.fTuoo woJ'firsr brus Xx/'iXii'*' 10 P>noos8
• v'sai^ s-i^'- '''-0 Kex3'.B'x&&iaKpo oxi«
tSv^Ki^o miott:- ^,■e.%T^.i\■i^^^^oo•l^^ 'anxwoXXol: ©x£i JEloxfr.-/ od' ^^aswa o:!:!! tifteas!t$
tlxJ£ii4;;X^J' jswob dixq jDo'-c; (a'xscl-xoqst oxlci jsCiaas'xiJM. ) «v/oliI , .^
&0*3eo:i& B 10'i noiJoM 8 'c^fLfibasleu' ^nwob cjirq xro^ nsxIT '.aiabi
1:^i:aKj\aX^j;' ',noic^qso>JI' .baxi %.fo9i:«9b al iov,e^ aixl ni itoibasv
-xioo sxf^ croil jnwoo no«n-HW bxijs XxixXi,/ 10 hxiootis ens' aeaeisiBli)
^.-^liwi, 9X1* lo noxjfjstEs&xa
(.bsXIfioei tfeXaal XseTsM .axM) ,
©SKXtic-soo'xq; \o c^'ioqs'x biea ©d^ Ow ^nsactosfiiA^ s^xosfiiol srfS
sflcf xfcrivr sonabTocojs ni beXil tix^. bs'lssa ^bsasi's , bsTOTqqo ax
*a5ex .c: sA i^'LiAhmi-.l. 'io Y^if> Jti^^ eiM;f ©ctwie^a
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, (lalsh
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
nk&y-eihv tX.sxT,i wee 3 xo> noi^c-u n?««ftf '.;;.■ eriar iCTO'xl s'z&Bqqs y.X';b©Io
«Y,£'-C->-r'''-^' esbi-iC, noqif s:^ weirs X'^-^^ vtiJayii c^' Y-C&'ciJns bsILol!: , e..sw
iBfiir-^ixo sdi o-i jr-sncrieizfA- sriit So :trucv3 sirf;^ x^x y^ili-Zi ex-W sonxS
sSa-ios'scrg-G ,bm-. i-yofijl Tstf briij jflor^C'd grij .tn;-. <.1-'U»oo sirl;t nx bra: xioneo
tSVo ,qcfA ,1X1 J>VS; ;::;f:i'-T .t ffOi;d;js'/ Io ssbo Sfll .lXt;oil d-'^c^lnxsra
• d-'X0oo s£ii
wolle oi' Jijfco ©fi.t 'iO^ To^'ift 8.^vfi• ;tl' JsiS.'t Rhjri£'*fioo in/:. b/ials)^. ; ''
jSJ^S ,.£XI 035 i^9il?.-t"£j. " ^ ££S£Liii ^^ ^ .i£Oi .tn^Snoo siiii as iii^m on
srf* ^Ltsn^i c-5 ^G'X'ie a^w Ji ir>xfj ©usm fji noxitne-^noo ejtf!?"
^sisfl S.3 ,Tii'rf"<^ ''S'^j^t s-i^'^^ 0^'^ ^s^ boT:utixx ain' xsXq&xb oi B&lXeqqs
i\rxr/i,iix i-ilc' 'So oiXJJi-.n .'.•li.c; itoe'i &x{j oJ a.s sAsjq_3ib on b.^w sTorfi
oi tsr,;; riox^icfixixs ns rloua to svoq^ruq e.rf* ;t.3il,t bsffllaXo ax il
noeS-xt^xIno c^ riGXiw ■.csxiitoi noxp.e.::q Ln.'i ^{:riijsqrsY5 to sBKXIoe^ s^ioxs
stf IXxsxia fiocvcecr sxlo o>t asi'xntxxi isd^srlw noi^aewp &ri't: .^tiri, sxi*
Xjvjr-ic siiJ to xioid-^iiouib bxzxjof; oilcf nxxl^xvr aJaerc xtL'l edi Qt xrwoxfa
TO bnuoR- eri^ 'to ^Ke^x© 9x1;^ 0* afl ax iioi;tp, sx-'p sxii fDSilf/ .^awoo
ijHJJos- all;)- cixcixilx& ©S coi'^'j..j';q ?o:o:i-oo bm; noamoo stii ct ix xrulai
del£-W] »G®rli-ie.m3d.i 10* sss ^^0 -^z^di i'-dt os xtisl odi oi X'^^^l^i "s^c
"^ETTTs Bnxyi^rc.-- nl (.a^£ ,0?^- *IXI COS x^^^..^XSlliid_9Ilc?i^ '^
edit t'3«>''?oXX« scf 0* ©isw ssgsittsb "ix jasasetsb «& htsq scf o* ^tKxJoiOE
a'aaXXocfas srl;> to :tno;fr-s fcxi:: oisjii-n sxfi enxinx-.+sb o^t ©Tscf tXi;o>' rTrirt
«&3.&eonoo 9i£>w Tjixitt^x exl^t 'to Q7.ssis.ti bns ioat ssi^ d-ttiodi ns7& eeirrxitnx
saXXocjiie sfio Lec?*h-;rxoq ii xteriv? 'ro-^-sis cfxx'imvoo *oxi bib ixuco X-ii.^ 9xfT
♦'♦^•xi/'t srf^ 0^ y&j-xirjtnx siri x-«Xgaxfo 0?
irXs'xijiJf^ C)9:t.3r(i:Ki.cXs s-xew bsaxfo'iol t>x{;t nogu "Sisoa e££? Ix ,nci:nxcio tuo xil
-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
■^d" bBV,Xif :}KXO(.r ,iasl i>nx;. , btirW r^ifv nx cl'i'xeffl on bni?: aW :
c'»70"X£irf' 3.SW l;:xjfxi,BX'^I .svxas^oxs ju cfoxfjaav edi ijisli tinsibtteleh
QBVf sff8 .itoi-aillc'O s-ifv*- iG eo'iox g>ri* x.^ bleisiebasvr edi d-gkwrxii
KSTi'^ em.' r^n&ssc^aeTC)- bis ^aiirTr bijjB basifeio'r -ifjd jKi Jijo ©§isi: b iso'r.'i
-XsjciiSB n.« nx t7.sii lic-oi ne\iJ soiXog saT .sitoe 5ns ©scif c^n'si'i Tsil
mii 'to %Bt-'Z crJT .el5in6 bn.B {)®n>C ix£j?*"i- ^sii I'o n^-iB^ r^i^iw b^jsx-'
fefiT iftiort vl b '■;;■• air a. r>f;ir e-xp?/ esfagiKB'giX olaiini:-: asicf noin.tiO eiA ni ^sx-u'
3:© o'liiioB'x'i b'isusxdmoo «fcnifogiaoo s Deworfs .-yen:-* sxiM io a*(x;joxq ^i-^i-J.
, &6g,3i8^: b -yiXbBCf sBvv ,tio ixi'v/ .J-fjeins^'rxl: Ilaaa -reK-ci xj o^f fitexCd- wo a o5 htm
"io i©;^9£Xc|, a Koxd-B'C'r.qo ©£?* tsit:-- .b'XBWTOx TO btTi^K'^iosd' ':ex£*xf:' Snxot
s£f5 0^ qixJ ®rf-j ^?oIs«f *a«t ^"O'-J^'i befofisJ-x* £foxxfw »foe.xXtj;c[-^. sbw ;Jeoo eitii'S
woXX.-^ od 5ne bnxfOT erf;? lo ^ax.:iBSXb ^XK-xsg od S'-nxitaqo hb tlii'^^ tBxdt^.s
^eilR ,e2f9©vc 9&Txfd- ^o1- X.Q.*i:qBOxi srf^ nx bsaksmoz •ni;iabiZ1 .3iic?xioas
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
-sx ^.nrad" stsi,"' Jniof; sarra exivt lo f<0j:.?.c>.J:i;ci:i;r£!3tsf Qld'Jotc'i bna sctrfsm
33onsx'i;.cx:--:s exfo ,noia'i£'fioo 'xaxf SYO'xqKi 07 oioltj:.- as ax oi hsizoa
i'/xo jfyiJ-s oo" ioo'i: 'i:s.il ■a-oXIjs o;f asxi axia xBd j'^&'ic^c: b noqx/ asbii
xxosd" ev£;ii' fjlixo^f ctalb'xsir •ro'ji'-oaX b ^i:wss.-^.bsil xxxo nl «CI, V^Xf^ e,3w
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 ■ -^ ' ■
■',• ■ . .■ ' . - ' ...
( -'^
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noqu f}e*irj.i'ri£< itnei^sfouf, ij xaoil: to'x's*> lo .•tit?/ ei"ri:t iijo bcuQ bbA
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©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*
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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
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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
\rXjiwIj,i'-'i;,o'i'r hat', v l;.uti xvoxj.! ai-.-va^no'^awrc .tjsild- (!') i&ol-ni ^*ot
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
a.aiT:t:?i';v 'Ui';: ^-^saohiv?-' r.i .jjo-i^lio fx*?? e*l&Jf« J:i;iS":. ov-j' aiij- .f>i^5 gj^oocf
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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
9*x&i{5- ,\;,«.b ai;3-oi-»ii « sj^v; ^x" ^sx!4' ;^5ss£> s'xii'xt^ sri^ sai^J^-^ *onxo9iq
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
".aJov o;J ax;,rx sirJ- -lo'i. »ii «w si ifi" ' ;3;flat>*Jf". »'■■»' •'^'J i^ii-xot-csx oiii
nsfiW Jjerttt ;\i*"*i> IXfi JO'i'SJd l>v>v;«Je fcii^ fiSJStX^ SitxIXofj ox^ oJ' 9ia£9
St«x-fti«x:0 .fslLic/t llo"^' &i'-i?. .,',">^-<>'^ 8;J-n-3X'>no«;58*)i i^i;;''/ ja fo9sn9XX.exio 9il«
;.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$^rs:<t
vi.:' .^i■Ic: ^'^J ^^ ts'if' ., ^''-^^X ,ioU-L-f:-y-;:^a nji «:;pj)jur. ii<>i:^o'i £^ cm a.=3 ??Tsoi2
"•xi- "iii jji-ii.;!- juci.'Joy I- "SO ^^:;,^/Jt e^:> St^ic? ii'sliid- f!:i& b^vi.'ss erf (ncii
i-ai 9 ;t 3x^0-1 'iX'i; ic;o-xc: a;5vr ^a 'i:x u.iv? .t?»J-Ii.'3JS':>o «>'£is>':/ ©■x-^iS-aiBSf o"!^o oxlt
Skt^xfj ,«xi.t:j.,.'"i:.->ii;-.v,'l.y sxl^ 'to J-ax>'oor>/-J iio ianj- yi^vkio Sfdi 'io 'tXo^? ,•x^.i baa
o'J b^lix^:ni'f .toil I'iiB .bc«i:'i:xx/i,0poi^^ swavy as>9x*tj' 8/fd^ J-^ildf ^ns^ffi -jjtifj
9tf o-? c'X'iiaox-jaxxis.Os; iioxJ'c>aXii ^nJ" o>} "^iuC.s J'Ois ,&iib ©d uas/iJt jftJ'ov
jii'ijjoii !)Ig oxut 'to "jadja::^!;; .■a asv? o:lw , rjxisK .-i"..!; J-ijxiif j&fiii'iiiBwp bos
^on bli) aB;i>avJi.« d'Airi , nox J^cj^ijp ax ,;>x!xaiei~:T »itj' ao 'S!!s;:.q<iX! *on fcxft
ixiii oJ ;l-n©a saoxd-Oi;t.y(j!.-ii sxy '-to aiuara feaxbxiia ;^ji tiiiiii" .•■^.■iw vroai
,9oXri iioori iXoq sxicJ no .fes-x^ecq^ ©era.': ,i smoB ^J?i« ctot-'t orCJ- xxixjXqx©
reply was, "The only vr&j 1 can acoount for tliat would be tli$
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
'' '"^''^ '"^-'^ ^^-^-^Ua,.^ ,,uu..U^oo ^.^^^^li x'^ic^ %^ar.cf lo :sx. ,«9Y"
-•aft « .;c,'x-t .^„v oi- ,b.^jj-j:..^.,cv .:....! ov,«xf ^^M ^>,:>^t,.c- ^nox^^'t
r^'x-vx;.- f.c.nx;.;.9-x --x.r- «^x7.jftn'c... ^sxix 3i^ taii# ^'.BriB-xbb^ ;fnoi6-t
saou=:j',.:tx -xiio-i -x ao..si^ '5:xsw aj-iv..fern.3 oii cf^ifj ;^o«xo9-xq axicT ai
BT;=-.J3i:ii.5-x saj ,a:rcv 00 fi.:,*;o MayiiS' up .r.^tsw a«oid-i^oi-Ui^jjp oaoxlw
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
;,ai-j:,:.o" ^-.'.J J£. iiiJ:^- :'^-^T '^xf IJ.Simi myi'jeMt&Bsi 'norvf tori bib sii j«irfj-
^v.' :X t T:' iiC'C;--.:^ ^)'»;>i;'> 'ir-./J'si jS ;>y..:a,&iV;^ ni a».fe S5i !?^9d!I
■0
,• ■■ <-
'i.^- 11 t-fr'l ^\\ci)t!i-{ h^ii^ bP'st bliJo:^8 li-OX
-Bic^i l>iJ*; Jaii!;no:js.: • To'!: I.fiU, o:> .JSiric;- 'to o,.:o3 i I moo e^ ^uu B.D5 J:o it
':^^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 0 , 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.
mix., iilo; \;.,; V.' .\ii.i;;;jo.:> wv^; ^'■t.-^:}ns .■'^,% ^-oe-Jo ;>..\.i ii^•^ri 0::iTv , vslot ^n,?
jri;j;:ooi. a.;:;:; wo^ i.„Ui;i -.-y: ■^■■n:. ?:Ti 1;r ?!!;•' ,^<5:;rQ/5 nwiid savr 5rxaf>no(:{S?:c
a: "siir; :s>:\d fe xc i;::; i.r , .;? xj^oO ;>;iJ vf b'^il^o , xaaiH ii^>Tj3d , ••
bia^sa.'flvaut) riAe J.:^.:,; ;-'Vx;-.o c^O-" M^^ :i:^n r-^wtji' 1;kI aor&o'S-x:' 'lo \;fi5
•^/ia ;.^uJ 'Jv;..?iLao-^^ ^^u:^ v^tiiijl- ■^/^i) lis iba^f ni ^i^v £:as YJCf>''^<^ ■^•is-y
~--iOv. iioiJojXi 'io ri,o;oc.L ^^i -{:1i:}-aa ^oi.; i;JtJ> s-il^ :l-BAi ; ao I ;i a 'i^ lo ■dxli
ej .ton itai.; ::)!j.i^i2,3 ^&o<Joa oai:.J' jfjoi^'tto * siyftoxiEffilituiioi) JMolcfo^I^S ©ii*
^-ya-^'tpj. md t'dii ^^cj-ii aav- *>v£SiB a'oo M/:> s'.ia n&sjsati sMJ- cfsisJ' ; onaa
brta i-Xoo" a,i.-v/ •^OKlq af^-i-t-^ofi "^^^ ^■«^'''' ;5i*^'''fi'5 J-oi;; Mi/oo fcoe ax*
(3j:tw j-?J!; noiJooi^v 'to jni-ialo JtoxxiXsix^p orid 'to '/;mj -B^vr orii«f , awo-ja
i-iuo'J orW (>fv. ,XXx e.>t: viilB asixaoad" oa . o^^ cj ivsli.>;t ,x«!^cf<jB &on hXb
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
;*e':. bl'- <.:. v-u.^s:j;'J neJ JO'v.;.- r^ id sio'loi' 1^/=*?) ^i.:; f-o i:i0o\vi--)i'Ui vdd- ai.
^.loaloatq 9xf;t rd 9=^ J: I
gni':fet; -^olocrj ■ o.iJ ^dr,l ■;,...;,. ^io ©iv;... oi^'d** bi"S- Xi'-xoA no eyii-a ion bib
XJi,:i.o '>^-A ^^^^ .^.u ^■::.ij: on . n:. ■ v I .rlJnoiS! 3r-;l 'tc s-ala -siatia sxKi is
J.v_ J ";.'o'j vy.; ie;:iX-:;ti:0-.iyi, J-;:.;i.:. 31 Jjsi^J- n^DiV ■sv'i''^ toi'i tif. I nc8«9T
f>S4Tii t.ij ao;; au/. ^.w'> iij:-.;-^ ..:•• .:.u.!.;illi:? ir.'.::i inolioiiL-. lol'iq Oiic i'S
■^'rx.::~j sj .jIjuokj ■-■i;.!!'!" ~ ,'X'iiAi::.'i alii x\3ir sa&i^'b.s o^a^ia 9ifc^ ^jb
ii.gt.iX;.^ja. ,s-3:.-.i J-oiJ-jJ- ;3cfcT ol v.,nX.:if''^s ujj fesi'iiX ai^w aXguS' adirrij- J.
-.,,Ui;G t^yiH 5.:-:.'X!;o-- sjiJ Jj?.aj ,;^n.fi ^'^ni-j.v^LiB^io 'io X«*5 d-js^'ig » bib
f^t^vr jjii/:i-':T vio;^" o;.v oXqoDr 'to :^oX -R nX^'j bxvi asBiXxicC .aiv; d-XiXi^
10 X*;.,i:!.;i^iJ sjaXJxnr eolctofi :}oa M; oxi J^Bx,.i [qu woifd- 2C00X hXuor
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
ioa -■:-!;' oiiw ^doT o^ iuyxotf.as^vt-j.i.^ x«. I;..ji..:)'X.iqf iii aacYits d'no'J'a isiii
~ai:,>iti-i -V'ji^^ i& :li-'ol bxuj-i: a^;,,.hi.it 'i-sitvo '^li^ ^:':ii. »i;jj«u Sil^^ jro £l&o
-a'?i:up «i!;i<sa ©b'w siiS ri'i'* ;?ii;aoo«3 Hot: ait;^ a.i jstii-i'i;'!^'' 91 jw 3li«Xo (^iii'
i:;,til ^.:.-'J h-'i'^iiead' , acj-ae&aoqp^i y:ef i>''J:XA'0 ^jfittaTcU aix-soJi ■ ..jv.
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
ff„f.i{ ^i) ■■•>)X.:-i -;.^:-)? Olr-- ai'-XiiM Ua» B> liSiWm flHtJi JB TWai ^'ll .'■JBjt;'- ;y,6?') IIr
-0"!: ')0'-^ hs.h ">.\1 :iH;-J- [^iifispy.^ '^iiB'-i ^jCkvL no i-avxX JSos aismotswo
■■j;:«Iy ;:Ki?,i Soct hi'-' ?id ^ ■•,d'i i^d-- lo'i .-i^o*' ^)iai. >iKfi- I'j ^^xi hfU:, •gntxxj&q
;:?■■■ -joo ^xi^^ ^v-nuiJa':;;)- ^ 'S'm^^nit-r' art;/ 'to aoieijloaco sii;^ iA
8;v:/ .tcoXo ^i^^iii: :j-oo: rja-^atx^^i:. nijij n«oI^ adri^baaaan'-i ©rid' hnuo't
'to 'i-^cTiJ o'lrf .B Qisv" »j-i ,D5ii.'lx;;'aa.t bsifi avasijfcaoi'af- 1 \;ci' hf:>x.Luo tXBdi
I)-s-x>33q/,-^ :->r(^ nsii/ rt':.rd jn^of:. ^.Q.yxhbn sli-;: ■^j-.-)i?; ^jl d.RiiJ ;sjunsvfi
J\:;--'J ?...:.:. S&st^tB rlJVl'- A^S'.d "!'a<tX ei?/.7 aaoi&fca ^Ofi hiss »ila s^ov oJ
»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,
^^ People 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 0 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, Bi©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' Qaraent '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
A, " \-- ( ,8lO?iTjjT to ^TATS %0 dvHOi^^ 3311?
( ..*aT.
■ i^. r ^ #» "•?- f^ Q «
CI X O ^liol O 0&. : :.
g*i TO? s«+itariXI,.?;f3Ki: ui UUXX-j ^^iSii oJ- ^'^s^tvlbis a.eft' eri Ta^^. &Xliio sif*
.t.?;&X ,'.;:;; i-a^ai-A Sfte ,JS^o€i ,o£ -^Xi;!. ass^Jecf
aric ,&&j;'i'X£:Ciujj i2,:.w ■loiooo siii' .eXi^J.aoto 'to aadajufi £ i;r!\=-o ^©Uitiinoa
ixx vTirULS- ;i,i:.OL ai j..Xii o^ i)S'j0i;.oaliSi a&&<i bsiti s.fi2 t^.J £;si'J::,;.sfltf
iliow Xi^i'ii'^b Siuog •xo'i aoi'i'lc a'' iimtns't'>b ^x-j saw f»ri5! ,^r.3X ,^1*^^'^^
Cildt 13d- 'xs ;r«xi5- j'i'.ui iij-i^'/ saoXit^lsr X^jxsr>»! je!.i!i{ ;>■flef5^9'l:o^ i9d-'i»©a'?rfi'
Xiiiasfc 'xo'i woxl'io alii *Jr j^sew *; eaid;)- '^»Tr.;i- 10 o^-J fcsXXeo sris «iti1J
;{.)Oiii-Kr©i 929W an&i;J*:)Xsi Xfiusaa o£id- eaoXe*i50o ©80xi:f iio fins ■JftO'w
feox-soq JiBUiiesxBUi iJsXi;;;^©"! tsfl { f > s '^i te" sila ^^IQl .OS? x-^u^ iv*:3'"ii' ^«fi*
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;
'£r,d arlg iXfiow nil :j-jb;'J- , riTO"' cv^ toa xsd Slot «x^ .+sjdd- ;^fl«aa»tq
s/if: »Ltfyr bu^ , iitJic^sH ♦'rC 9«>a bciss. 03 oi" toil ft«:ifis ^na ,aXii;0 enios
srid- 3S»G Jf>an Xxs-.o oJ- itni 'xol' j^fifl.-:^-;* axo^q-jg ma «fes»i fens riEsifc^H .■rS
■"©.':• /rs-n!-i9l<j;o8 lo tiBq J'Sfsrx'i ^^-^j- , ?;t.«^xaJ'i£; «»aiit «atos ^isini ;-iotooS
rrsd-lo ^.a8 •xei't«si9u.t d-.«xivi- j^lri;]' "to .tnji*t>ns>tsii bXct 9rta bus ^o^'^'i9
o:b :^'ri.ci.fc S'i'ifs "^il'sr IjBiJ i)S':iiafl »rf iHtt- ^'^i-^ii'id's'i b£t& x'^^^'^^^ ,t5(fi»99sS
l^ils'.o pioJooS' Sili 'to ■»i):o j^rJ :S«.^ij hi-'H fin 8io;JeGfc owi- aii* &9e ot
j-iwo£> *><ttoo oj"- •■I^^xl f;«^'a-^. -biii; »3i5^X .XiiqA ai *Rodc9Xs-J' 9x1* no tcoxJ
}s^di is<A '^Xcj" ■3:o;toob ail!' bct^ ,»aodff9l9J anj nn ^osfaglsft ii»Il&Q
izdj ."xcj^-^SiiRT ^.'I;? ;?iiGiii guIsiiX'-y^ f-^' •^^-'^ i>X«Jov ®ii blast in&hciBt^h
IsSsTs'i'to 9B'^ iit&kK^t&b taoi't f>9yi«>09"T fe-.e-ri ©£fe .feisa 91*9 xf.oiilw sXIicr 'to
©csorf rj-i.- |5'-^?rll :t«iHt'to>i esriXA i.^^rli anode t&xDtsn Qttmhlvd ^riT
-q« 9xil' .fioi'xlo X,ajn!»ft 3' j-aefins'tsfi^ moi't ijr'1; .ton , ad-nsaiscr isrf xiJlv
lecf.nxjff B ito >t«!lj- QTf&dB eocraMv*? =)xi:j- b.i*:? ,■«»::> i'tlo filn j-* siooXo'o XX
?}9;iII.ir,? 9x1 aoi't'io a' :J:is£in9'tr3fi 0* Jio^i bxisi xiifBlst tr^^'U aaoi3i-.ooo 'io
»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>
iSoSX ,8 i£«M *48xi^ jEE^X .-JC^Jffai^osG at gaii'is^s ,^??rf lo't iiow Isimb
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
od- isnoii ijsfl tas mlii q2 ,t'©w,taJ;X .fe-r»li, &1>11A 'i-l ^^Bx^^ i>Jfcj2<2 liSiiaxu'l sri
-fii STS'* sgftwX T^rf. i'^ii.t ,"vjrf-sa «££! '"to T9fi^ oiS ©££# 908 03" oa OJ' JUil
9x-i f: iV- -^tmt 9!iorif{3.[»J' aJtri »oi'X'io isiii :tx a&ff @d iiaiC"!? ,.3$.<JX «XiiQ'A
tZi-HiJoV *T<-t s«w «^;!>. £1**8 ;»iaii;;^J- ixoais?! SfO ^-^uit ;XIi80 »iid^ fearjawsius
rtoi3'q-a&B TCo'i :^ii<5a '^d'a-d »i# «TSif to ,;XK#icsoiS « 0.1: Wil lie©,©; .^iTcig 'Sfii
o^:t If! trfiii i' ill- -Jte-rd iXeo, bXiJOW »iJ ;:),Jt45a 9;^itsoO, S&ti^ ; iwo* to #l/o
Isifi g-t- i'tl38?3i ■ssrf^'Xfj'l: sastn.tiw 942 ♦Ob oJ ^j-jRiSfif. bsfiioaf) Ji^^ri *Jl -rra.riy
i^ifciwoii:? bsn ^d Unii ;a,t<syoO ^.-JtC: asw sri .f3j:jB8\soi.ov^£U *»n« ,XXfi3
teikt ,;,*i 4-j.iO?fa, ^©^^o't; ©#, .feaisipftfe bad l?na X:Xswel^9a ifl^4-*jn, 9d^ -ssvo
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
•^ii.cs'1 a^5:i'llaA'! sii".t lo'i nrsialsTcrlfir i? asiscf ^ri. ©il *«£!* 'fslii asse levsn
p,mlSB&'ZBrao& ».ioiif'»l9^ o*!'* »xi* #U6 itcti^a ^'swoo ©lii a-mihuelaft le't
feis-3 fens ex.c!l oo' .bsJodt'io ^Iqos^ aiii -m't l^s^ojoD ^b&itoiiaeai ttvod^
•xo Y^s'iff^el, fil >'to'ff iMimh ta't *ox*t'rc> ci.d &S sums ojrfss d*«ri.t j'St^Sl'ti '
• ® 'r©"i i«£l 'let ^tot* ejf» 64" 'betJititnon ■sri #Eii* &i«j ^hZQl ,vtBix'x<f9'£ "
®vgf*r ^1 .&a.9,8d-m>i:d'.ff.CT &.tii iiilw «}*K*>i!;:i{-ai0{|#«-. tiff gnl\Taxltt , Jq-«>4 '
B& ^it< i&fi-xtB^M '^.'M nk Son si ivd <»oi*»,t)XT« al &®vl:6s><9-t hn& '!bB1&Vk-6".
«iii* lo .tj;j.;B*>'i i>T{i ®^.i» >!di;^ ai«e ussftivelXs's 1© ©-Sdciwcf *£[* lot
d-OH bsii bm'. hetsabotcr xri;J.fiIoi xioi-iw allicr s>x»# ^pfs -ssvsa e;l iaAf ■
; ^as-ttss's*! Tjaiscf Is .niij OCT S*»xiJft^ 'iovi^^n siia J«rf# jTtsrs e* m»ii3' nsvlg^"
;X'^B'X«^do*i .tCT -so fWKmsfi .t£S «sa ocf og ci -rsil Ii*#^&fl Bl,^ si* ifirid" '•
t«OK»*?>Tq, Tftxl iji •»««i'{qfli:9*^rt* no asuibsH ,tG II«o i^Ofi bib eii i&d^
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
Qiill bAoqI X'^^^ -*^i^' tST,S:S fe«5 gnMgjwsX b0*'tjis$s s»f!t. few *fXil3
0it iijxlo,^ ^-xew i>^ d'0i5*j ifoit s fe^ii'I tjaxv^t foxss naili? Si:Ia ^jsii? "' jwot
^Jlj ^l£^z mifJ t-$j<io!s tiii$ SbM 'jMd nimi bs^ t©Y;w2?X idog, « ^olQ'^*
J^.fitf' jtsri sBOl o* ©id^sii: st^fW -'csxJ? bti^ **:tfdia ^i-i-anq" aa«? •t©it(%«fiB
sjia sgfiisa^ff iofs ^*r«v od" -S''tm^ sii^ ^ fief* ,&lfle a»rit &i'mbm'Hh
«»^e &ris awol') staoo &i &:X: b&'jia^ htm Jte^lgaori bsU ^Jtet't b9li»9 t9ut
9iai£i:j ?JJi4- isti^^ifil *^rf;^ Bite eae^Ht'toE »^ -.aoTr"* i:»©Itf & ivod& b^rll Bd
iS'io'iisq o^ siif l>:3iisa fyax «Ho£iq»I©t ©r-lj' xso ;i'iil Jb©XX«o Mft d-ajspajstefc
♦■,9tVJilt ©:iiX ^Iis4»jc© Joi?. ©■';c®?r*' •<5«ii3- *M aXii^ 9ta-08r iimbxw'tBh «rls
^-a^l lo Site e*jn? bltkio sxi* ta Tsxltat ari^ a^si? >EWt£»n9ltsfj' 9j^ texfiisriw
-Woo *i iioqtf bim .jii^^aa^Slj srf.* d-SHJi^ga ftas/ol $H «i^ijj©o sxf;)' lol
aaXjliailjJS xii M-I1© ^Jniiioo »Aft 5-;strJ^ afca^^ateo t^d^Tist J'aeJbrtw'iaCL ^'••■' '■'
■■- 9tmi bitso-iiB ^x^£j dd& "to tA'i J©1 o^** Ts«>il •»-?Ata ^iiafeaolai) ^©m^ff©;^
"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*
»si i.fi.M j5is&i%«Tf n^iir t«ii8 Ktiri; i;.iad' fiiis ^sil^ 4«nol3*oo'o 'to t'Stdi&ua
is^ ,%i3j8 ,«JIi^ !?.sn}5 i;-*£?. eg-^Si -^fis icctocJb a ssa iili-'ouy ©li ta-d blo.i
-'Mil iti: jj^csT© jt|:sij& eii« ^-csiii' M-as-! «i 4:i; (S) t^alisn&^&ii o$ 5"Xj;oo
£ji a^acijBS' t^j*:i;&?s.l*<^a4 eiiio -s^M^^iiW .^alii^o aoei'^sq «xi;f' 1© solo-?
«axs(»i:'.;fe,e'20;mv)a o¥^ #£i':J ^ao ^oyx^s *'X^90 9.if# esusoaor a&qu esasi icm
0.1 a«"3 -.i;aoi'fi5igsi Ton »i-r{*aRiiS&« ^-isw ai«|.t3as"X oil ^^dj bciA ".^KeX
©ill' .iS0iiK«s*«oo sJtiti ill 3J:,iiS»ffl. e-a eii: S'tss^f »«!9t*slj |>®i.i0ii-i'S9*'a iSBl o^cT
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
(
ivrtg JaiS-^OT SB b&si 't'iisamlq fciis T{I».:ra^,aqfta teiiJ <rxssr a9B.e3 ©ii?'
*^^biji .ba» toxJiTt»v «s aje* 9ri>di bets, ^haiti £ii.B^& ,£)stei>i:IoaitciS »t«w
• #i2a ^di bm ,asex ,§ i^Tijaowit Jboi-sft wJt Sd^$ xo'i \;oiIocj sril
S^di li^;^iXi3iit\« Bi si qcm ,0c eX ,asi*sM 8*iib«Xonx bne. od fcisq e^sw
<,a9i.-Jb 'to ;)'ivz>:.a.'^«5"Jioa '£o".l; JbcaqjsX b&d »q1o1Xc<5 xidod
T»ffl"20l x»H .aiejsis! rsrsh to XjBi3T»a riJiw aflXviX ,oiriO .ofcaXdl
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,
.-. - , . **X«;Vi;f«*s -z^'t aGltjRSLtXq-sf^ alii*, J^®v<?tqg«. aTJSsxf
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
*tll J- Ha jisXcf. 'xo't. Xi'^6iuij^;» aot'-ww-x^fri' { ,m>iitstGt&rnQo Ao&s.orli) e&aXoT
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[
aivit© ixuU' jsTo'tscf §aX«SYt&; ^^sjiiiiJ'*^ ©ri* »fl50fC a'si^JSCl t^^ntiiQ^mol
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*
n^'x&ii&L -9^1.? «t^ 8i:v.««I f*«ai o«t ^n*"* sweH ,a'ia. l.«« ©rf d'«4J jlja^i^seiS
feae vr^.t-it.S«i0xdj©-3:cf 'xsii sjis raixi ,?j«fii;,f)o"Xttax ©.a©^ *8iM isu&i jsrse^i
-soil ©n^ tii: asT? ^^ids ^BiU i;-J:«a i bsm &&w uc^wssi ♦snM 9-TS.riw bB:ia»
0jEi JjSii:* ;SI^«SX|' isii^'o 0ii? &a® 61*, ©| a^w SKio tl^i 8#w fen-a o;J' &»
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
J^ '.lO't "xeri flxo'3:'.t eaafJt-iisiq; ssoa-jEiianj. l^aiosXXoc .&ii.il ^ri :i£siS "jos^o
«a©;^8i0 *s©ii i^i.isaos.tetqi-.i, ioti bib »ii8, *«4* J 9«,0-U»8[ -AWKJ^ b'bIv^C
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.
»;-i* us- JiMJ>i*js?''i9& Xiji'w ^©^QS'iiJBoa toa sfif? JJ^icf ,oJbaXoi' fii jssoi't^o
<,!i?.0JA laia'ijAiSiJqaii! ggajt-caoitf ^^.sttt'-S^Qi i"«i,l^ yt^tulu -xsii, .caoH ,5iiM
-"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
j#OS; tsfe^il'Q'ptfi rto &isq a^0a" j-|«j:vjR.tl JK0|i'a*'£«:i &M bap, ,siT«0: d^«g>3«
«•«© cii #m^UttS^».^ <£t4-US I'adoS'oO lidm/ &i!mhfi$t&h x^ hBtikai^^'z bam
ssais ,i©fIi"5£0'A .fHm .Y's^ft ^it« lo'i ^^^'' field's?!!*.? »Mi- ^ianrs) ■^mb
Joiti ^HriUO rlnaij^iit ®Jt^i /nitfnx^t.Cfr ^o t'Srmt aX Uwat asitut >«iiW
j-EOii® afcoiiss ^-iJoriilw ff.©«*d h&d a.E^li.t ^i^y- 11 ^Sstf-xa^aii? «d" oJ'
ftji.t at ftii.' ,JjkJ:'ic' t^ftjOTcr i' 3oa «jsw sj-i^riit *b£{j)' aaoifxlsso 'x^mto'l tug
'io tovs-l: ui. iasiGx^bul m *q«o..^e ijiisSK hluon ia»mhiii on i»di •xm&lo
.tiia.t'tt^'?'t«jj; o) 30i-<iXci<jj6 $^9W noJw«a; j^ois »aeH ,?iiM *«il^ woxl« ^Xi9««t(5
"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.
,«)S.i: *qq!3?: «T ,ti dSS ^^p, .^aal &.'t^^;^^ ,., j;»M „,,-;/., 1:^^X114 ,x^'<iJ^o^ ^'^ X^
eioliO'sniwo :.il p&n::^ sjS'V 'i iXB;sri((.q^ ail* S-^rf,* ftssoXoeib 9o:s&bl79 •^•Xi?;j'a9;a
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. (Mirida
V. gprschner Opntraoting Go. . 31S 111, 343) and also disregards the
rule laid down in Jtierkev.ich v. Atchison, r, & St^ £", Ry» ^o^t 363
111, App, 1; In re Jiistate of Swift ^ 267 111, App* 224.
,iiiiaT4.miiia f^rtiOfai^ sioifam aj^iiaiaaii*! ^sa seeefi
■^aeitcoi ao^JiJ *«KO0 aixi^ S'xo'tjs^ef 8«w sismjs© fjsij'jsfiiXOisiisoa si/SlC ' '■'
'.t©, ,4o«« raX ,..Sdd *q«jA ,iil ^fS ,SK5V'8 lf«us i^^OVS ,aoid jaiks«j<5«
ax ,*fis;s.;»i?vt &0'2s^flv aafi '3-yai<'& lal'ii £ sax J .S-sijitc^ ^4* to'}, baa .It'li*
^»*j'ii;fi*iif! ■:iiiS ^^!ax»s.e al ^^oi&'isr «>,t<vJ' ij3ii,4' ■a'ao*A-&t «iS:f -tot* ■ '''"'■-•■ -^''^
'sii* gala^svSi .^-xetos sat t^oiisiivs xBliaia ■\(,IX.jrilitai33-<!icfi;8 «o ,woa
-(fus ®asw S9i>a^i s»aa«it i)rss (aXfii'xJ lOi.rio'i srtd' aoqif ios't 'to swaei
,iiUi* aiii> it© ioal 'to ^sjbgI an as--n &%&££! ,a9i-x»t »rf^ «>*^ fc-^^Jisa
dpiy:i:i) .V^^t '^^^ Xei'i^r 'to ^ifei-i's s^-^i "i'ii;faJ:^Xe( o* s^insb ii ii:&sii at
&m alJti3Sffl*xei& mlis bae. (IH, .1X1 SIS , 4^>_^«lilM5lS^_JEt«:^M3j^„„f X
^^^ ^jsQy, r.Yul^... r^^.„fr."*!r^ "^M *■,> * np&lj[io^4....«.x ■■4>>,I.?J*M^-Q.-'^ ^ii; iiwot 6X.«i sXi.."i
.f'SS .(SQA ,XXI VSS ^j-'t4^, '£0. ,®.tB^^,a: ai nl jX .qqA ,XXI
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
:U:!^-
I
r*>< «\ ^■*>«n|^ ^ *©«j:.£a^^ --.^.:, .s::v :,■^.;,.■?
t_/ ..^ w eilsX 1/ O .«5=^
(**t©i^' . -.fijisla-. 9j^t' *«, M&ff saw ^1. ♦jKJB«.|>j#; feic»w#4' -^i^aiEf?. ..g:a4l*«1E
iii(/ ,8ftd-as Euso'iii^i ■w;"ij4i^.if)*xo sniiawel fiiis saJ:»x«T ni asi^A^na bjsw
ai>et^' aii«* sa amji Xisrf i©n Bahnuos! asw aiJ-airit'^ on ^Bui jB-inxfjiojactii.
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«
&::i '.to ;t"S8ifr « BTjinSY , xffo ssBl •s.tiJ' 'to Ijns Ji;f uos Btl^ *qeo:>j:» ».??iii-
j'ifecf* ^K r^ai.-^.iwx. a&T ixlr-'xi aa'J- ^tMii ii£o &ias 'to bun xiJ-xea siSf' a©
a© -tiiijil s j>v*u{ od' Las soi^wsiiu ai ©s^sXf 3iiJ -"^^ «t-j£iw; sd^jEisco i>n«
-x^i^KX i^siJ-s 3Boto-e XiJOii ate asIiiK i3M.# "id 1>&»ob « fessax/* ^o« iba«
'Sfsieao-jsii »rfJ J^sa'o^-s^t aix-i* ©fit ;5n-o't'.>^' >»i*fi:^ ft-9T»woX ^nlriiii , flol^tawp
•nj ,dfioti Q.U tis "liBa xocf on hav btsAS .lAdi ;bshnif:i^ a^a^ ■sid'alefw
«*9ii."3ifi:P'-to -.to w..«X xorj 'to nox4-,sXoivr »« tisfr 9t-3£ii ^oda
■•■ ■ ,,»»J^Ti **>^'U>9|'iJ Od fciSOlXi^iT *,«3M','?'i:«Jb ib»llfJ^*9-r rfolriW CS«®liEfQ "^O
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 Mieh«^ H. R. G^,. y^
Bodeme^, 1:^9 111. 596, ?uQd Elon6.y6ki^,.v<, .Crescent ^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
SixcAtiigo £moL tfib'^ii-d ti^sii-^iij 'iQl-xq^ ■^^ai.v-ini itsjoo ss^'S'K^ijL' &iii ,s9oaai3
,£I9X 'Jq ci^3-sB v;:Jiii.Jv oi/ljry? ^ni 'to 3?53'3''S>sq 9£fd- '^cf
3-xsfj'io I'iii' K&onjuii^i^ ,:/ii4' 0-? .£)a.lo-5t-o d'nssbns'tsff:' -lo'i I98;:ijo0 , . ■ ,, ..■■
©jpIT .,Jrel>055'.t3,5 oJ 3ol.:?on d'iroxi-^.f-^' ftfs'S.i&iJfl'S noacf ^.crf ifOiiJ- , ■sawBO.-'Jd'
lei's.}- 03^ "^1.0 snliwi ©riJ- 'io ■ai<iiUQti oi itGi^iaoo on ^li si Ttictaij?Xq
,«^sisiaxv9 ai a'^onsiiii.h'iQ hmi a'j;»&-io 9xl;t ii; Tj^ o:^ j^ais;j*t9i iii sJSi*^^''^
-.'io fU^J-ssi^Iq s>4>,ii,x?i ■Sm&i hsxA ,35iwa» araoal no, .ttsaacf ,,*8©;«p©*£, 9* 't'tid'
'^■^S t *fii^, ps.^ \^f\^:%,- tP-^P^^^i^.ry^'iX...kdi-^^'P*\^90; '^^^ ,. Q (?3 «XII gSX >^ajg(?^Q,ii
.&«t,ia ■:3'is ,0^1 ,q;qA fXJtl
1© ^aO ^•^aLnncnQ i^*nti^ b ia h^-xtilal \ll^i^'i, hem ::i;AfntB .Jbee^so
|>j&oi iJU'i ^s:ii io 3oaX2i«>« ^©at^jp-o naxis-oijA .^©axxiooo "^^iwta-i »4^ «>t»ilw
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
saw li bfu? u$>oiiitiL'ilbio ^dj ©fijuioxs o;J' 9li>^4i:i 8>a* iTieiJoJa oii ,aiax;od
g'-se^w ^©fiit esELt 9jl{J^ i« bSj'^-JLui&a x^''^''i<'''^^^ ^'xaw -^©xit soiiia ^jsrlJ- blBd.
0!fiXa S£.W il&lxiW , (0«i *q<^A ,1X1 VXa) ,96^3 ilBWcaoXl »J:.i3- iSl
X-ts«cjj£iJ»^t5 ^;i©v asa'S^ d-.is5XX©qq« d-J/i^ :«, eSX »^} filae ')?; ,9b£m saw
. '. ; i f'
M«scf Bisw f£cJj;d-ji5tsXQ?Mr. ©iic) ^foais i^ns . »&o»i4*ai.feT© i£jJto 'to 9oJ.*on laio
Bxii -lo'J: IXjii'i *aiJiti ©e.so Qdt .SQnsiufj-i© 'axid- 'to tteiJjeXoiv sdi ao tcXsXos
i-£jrl^ axoa n'tQxiS- 9?; ♦'.i-n^voiq ;ton 3»as»?!' anei*Bs©XIfi sxiJ' ;J-jBr{J' «os«*i
-o^g sfi* '3:s>r.t'a'-#riw oiJ- «-a h$'!fBU^tt&$iil su^w assssarf-lr Xfiii^- 9ri* no iu(S
*.feiii«3-3;i9 ©2 'xott'ia ««*■»■ i?i: l>i«a ftU' ,aoA*8&tfp alii* ao «OiEifefeiv© Jb«i«1^0
:(0©X.Qfj kl&s svi' j-nieq' exiii aO .lisi'iir «*»cr fiexf. ©eRo ©xi^ "ie silt^m
-£1,UE ftiov;- ^'itft ?»ii'i^ .9i>i-te).biv« iti fcftisTxo *©iV asv »oaBai'i>^o aif* iJttii
^Qi^untHiti. ^tsv -i^iii Jaite nei;;^«%iJXo©f> 9tf* x;:,Tiw tsiils*! erf o;t fcsaoq
sjcit ni: fci>-.X 8« iis»a sixi stoi? o# fcatcifa-pai: »«* 'i'U*nifiXq ftxi* d'ari*
rii lem^jci orf* ■'^0" ,d-&e't'ls> l>a*» s»o'io't «1 »jbW no i>9iaXo9fe ©oticfliSto
sm&aacr loGiq fetois>'t'to rixdrii^Xcj ®oai* fcfus ,i»®riJ ©ew »«^o sxvi xfclxltr
*rw;XX9cQx^ £>.ar. oonxuiit-xo sr:* 'to am,»i 9di to aol*aX«J:r « w»ite •♦
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
ilDjja iifliiiw -xo'i -^'xaJ -t'xxs;)' ^aifd-o .-xo .tiiiO'xxo JtaloiBtili ,^jiaifoa ^v'^^a
i-aa tsi; ii; . eS9X fu ttm i&di 'to ©^J6sa?frf3a ^xli- soaia ,SSe.C .aiajS
tx«?o i-isjus xlno ^Bisis:^© oi* fettliipei d** feseBSOsi'i ?ijf&t 0«rf;J' *',n(}i3'jBT
g0eia-i3«o feiw ;?n«»fetiiq ■\';ljl«aos.s©'i js B« ^j^r^l^s wffo si'i lol Eioi^i>«.«> fctw
6cf*5 T^nirtosotcfg.* al saoiJxoaoo ^mya 9ttvt t?»l>fl[xj fte.tais'X'-. 5Xwow nosisq;
^lisr ^tmbm'tf>b ifmii soa^foiTe Bdi 'lo 0oris^xshai:c9tq b sici't bmiol *i
taiifits'»flec'«-tg *s inoi'i .ftauo'i T.tn.iSns'i. is. tl bm jlost^ .»£?* aaiiiasoig^a
ii4^ &«c ,-v:d-©*tJH« fffTo aiii tol sif«o '\tx6JsiJ&T0 %g_ sjslo-saxft sii* oi 4'99x;3'«
•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, Lypris. ,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.
•so ■-5;»Xi.!i OS lo b-'JJJgB .s ;J-« ^iiaisgcro jS".^m:?s rij-oll lero noi.tfc&up nJt
feiffi jY^'^'--'"'^- --"''0 'f'-^-^ '■^'^^ •s-rpi;/ oti.& 'io saisiaxa ^di' til ss^vt |)9te«»0(96
ten fei^ii -.^^-''y- :f:«?j'i.t j^i:!>i;H TfJ-'l^^G «.:1i iio J5a« ,fes:»Jard.tV ftSSCf iiJii St^»i«^ft
<3SjLaa.^.-jJL»S:iI'2Xsl .Xii'Xif 'xi,55'i #j &jbx\ ^on a&d mi xbs o^ Hoi^tiacxj A iti
X«.c.ti'is«5;"! Hi- ig^iar &*tBii«t Slissi a-'ii^oo Sill a^JBo '(fisiuf- al .8SS' »|ii ^&S
(Sjr.d:^ R*5 JiKi ,,£i»;?Ji:^i{j :i!.L4lo le 3fi3'usji5;^a a ' 'i'tiJxiialq to' xJoi;J«ia9XJt»
.,3V r3:«'i®«f li'iopes oXoxiw s-cii iiiiw ,s1tt« iXlw sn? j--;cr ^Xiitni.sXg fi-rf* "to
.■^i-i'jfiXi.'^a'ni: t&mi-alo liom xtm lot b&d-xif^
..xuo«OG , ,X ,^eX$ijj?''oIS hue ^p^^l^iS^rUyimH
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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(
k
ia es5
*■, \ { i\ ,«00JIW AJJS.
^ ' ■■■■■'' -ar
!i^
JiSJio JijS'jri ;■>•••/£ 'ftic'-i'ix.'.-iq JiXKiaSv's^a «>ii;t 'io <3ii<fj3t,v-;^i'ijBa Si-Id" "to stio al
isifl iac/T".: baiis^soiosaxi^ ^.en sii Jan:}: cii «{)j6et> ■'^IIjs,s^©X aa* tsxaaai 9iit
"&% j@;f J*i«i3. &aa jfcSiO.C ,dl •i-saiKS'J'qBB ©lo't&ci' to ao ®.&f)'Cf*i m^oosi I'a^X
siawixse-xq ofii ^jbxw h^iiimb ;8S!5X ,al isi-fjit9ct-«j©cj bail? aeeaJtcroH ,j; ncCol.
s.dJ iijos. sgioiio<5[ ooRiViij'iax end o,oa©.&XYS iii f)«>'x«'rJ:o l'i:i;faiitX'i
5ff*.va'J:i:J'xo« ©ifj Oiiw , aosnicf oH .J ndol 'to ,*S8X ,31 iscfaJj^gssG n»
B-B\f , b&iL'Kfli 9£iJ .noaaid'oH ,a ruiot cl"aif:t .bftx'txJsa;^ Tilj-ai^X^i
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
ux. ii'XBx^j■ d'l©X srf v;iJ5i.ci' ;si.i;,; J;!j;o& urtts «I.'odie siri CiRS' So^jIo rfoi^iw tnii
raoi't '■•'•x.eo fJ'eoa i^ .Sw:.*'. sn« vj-i't^;-;! ^a.iv,'- ;ui ■i^Svt'te xS-S'ifidjn :issii jai.RS'si;
«»j.te rtofiVv' i-'iiw Biit .it!oX ■5>.':i:? ;Vr»..ti~r ,\>k'-M"xoIu tV^sd rcBCi ill*) 'J lEOisifi ffiirf
et3i?' .:....c iifts' ^««)ig Jiloc, owj ari^f fc.y.ii sijfe J'isxij f:-i*s tHi-mh'iotci ^d'j fiiaq
;bsJ5?£ /s -3 fjK'il ■:->(;: 'io -jgi^i: >,'.i4 na ■%&^z4^(i ill sfJapb a' ti^iiitvxd x&d 1o
fjso'i'^ tioS siJ:.^ T.i 5jsy/.tn>yi aisjji-al jssEi^vc jftaj^l/foii^ .ao 8?3©xO 6efi
.C|X! ».fi«:> ?jiuJoi"i'2fjrX fi Xi.?aw j-xniasTa i\y)ii ^i-^'^-^-'^-^'S^^'i^'-'^ ^^^ Y^^ ■^^•^- '^■'^^
,'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
mid OJ i:i®s^X^->t nofii-iidoJ-i ,J. strioT, ;}'jBri;f l»i*s«5 osi^s ssiscji-iw erfT ,BitaJ;.hnI
;.:'•■:..#■.(.■.•?''; I.-rs-a.&s'O: no l>siv.c.I :.->/:.v3 -f^-^xut f^ris ,o^£olriC> ax i>?5"Ri» «si.d d"XJOtfe
£3si.'r.tJBr.;«^ "j'-iiia-iii ■:; I'll ^.l&a-x.is X;'X5'i#> ac iXfiii aL"i3'»i i*; soiisb j3 *.s i^ri
9^;^ i:ij;,^;.r5.vi^ Ton sao.b *.»!;> -fio 's^^vSO "Hit .?.;M .gc>-A .1X1 V.C??. ,SPi«SSO0
^»X;^*s'!; jafea^jj a.^'" soaiv t-iv.--. 'i9Xi\?u uiiv. .oaf' oi'^.c^-sijaM esY/ -'(J.cjoili-Jteo
^ai^o fc''t'J;J:aiiliiXq ^^.axi& , ^Kfriixs'^r ^JijoiiJ'iw ,>^ttii^*KRj3 ,^:tUij%i^ iimbnst^b
•xo'l: J*-iiJ fji'tfi js-z-s'.?^ ai»vffia OKSfivl- 'lo bao ©fU oi qk; a»loxXog »£l* ao
^I'^yos'ioii ,V.'J^oaiiJ xioi^e^aia&ac^ sii^ aoq;*? ^a'Si tea i^s^oh sa^so a''ttJ:;:!'
anvma 'lo ;ioii&x±aK& r)j:i4- li-w s>r. iiB iaa aeob fii-B9b to .aot^qfuxse
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;
Howard v^ State^ 75 Ala. 27; iJVhiteley Vy Aaauraiice society, 7£
Wis. 170, 39 h, W, 369; Sp en cer 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. Interstate Busi-
ness ken'a Accident abboq. , 354 111. 538,
Plaintiff urges that she is en ci tied to recover interest,
citing Ktiight lemplare & Jaasorfa v.^ Clayton. 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,
^'^fiiis- ai^i'^t 'tft aol^'qsii'i-'ia * i^v^0h lj»-?'i;«5q: t^xi:} 'io fens ^.rC^ ^'^
i;i0i.i'(,?ii«i:;iSiS'^(7 .e J.ls^ri^> LXfjfi cwsd w.; rt jx &'XR,!:ivv a^-rg-gs Mlftfti^Jios iX^'W
f'^:v;«:?; "t;,- iftsij :.i-5/a'v:;;' « 9i>w&o-t(f blijQVi yioiiiw ,*oiif J:t''«?X'5 Is tRfij-
;sys8 .?i\i:^J:-,. .^-'/ofti^ it'^ito:-..iu^-! t?£U *^oi'fsg ifec^'sorfa j? riJt:i;Mr?y
.. .vir fs?:? Vo'^v^l'cc; ^■xS^o^~],v■ 'i^agmqi^ ; ?df; ♦^is' .£. QC'"'^CV£ ".bT^
-.li ■^ji:' :i^^n,:j 5fj:!^ii<rv lo •^o:ii:-.i:;<^>iiO' 0-ic- s wff j&syoig f)B£! 'ft j:;j-ni£»X<|
.hid ^'iiqj'. ,iS.l Oil , no $vjiliL.^I ® £iP Ji^'Ktfi. :'i^ B-xfelgiaeT. i(ife2a§ gni * 1 o
^.|«,,rf}-voi.i .Ttiuiai..;?!'-! .ysSX !5>;3iHj t^' .*»«»S ji-'*' *q/ij'io ,i3tr,ei «a*B;fS
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.
•<, . „./'*'■••■'- t SSl>iaJiA)i 'to sS'.Bd.ai.'l e/f;}' 'io
TnUou XIUDrtIO JiOHa OAJi'WA (
( , ■ .KV .
'A'AiuiOTAM EuIluU't. iJ>ilGifciigS''i ,Si;i
, ■3j-:/.6JJi}©iI , •-;iTisi:.ii^'t€>D ox'J jaiii^ji.jfi jiXjj. 'to ^Jltsn ®xl& 'io ^fi'lsmscf
S3f-;j- lo •sfJvisQst ,ao2.f>i;A;iio in ^wi; f>fiB , asiaTioh ,u aoi-niJL tsrw nsX«E
SsihiGjiSTO i'ixoa'i-^jXU ,Y;a.eGfu.oO \^srXi.£H ^cyJiO ogiSO-tJiO sri* lo isviso
lo *>BeXo -^A-^C)" d'js b-.UA ,3 j.asttie'iefe isivi^o si*^ ^enifiaio soasfciv? s^X
-LiijfvXq BfliliJ-xitjvo ,;J-i;uoy ^tii dzil&w .loqw ,5!.Jajsi-ii<?'l:oJb «ii^ 'to lyv^l
5 nij i oi.;id- a ni. rii: bs-xio o'-'iwyo ofW 'lorii^rM mi Xaagq-a aJCjii noqw ayX;^a&up
¥!^3 ;toif>T»v srii'- xio J-n9Ji,,}.i:/jJC .-jni-io J-ne boB e:tiUibiif»'l9b lo'i. ^foiti&v s
9XiT .eXcffixX 9'U^ afifi^'t'toli arfJ- ^f^-d- Mxjj^'xjb Joa ex dl ..ftaniui^i
oi BJi 'loqo-iq 8«w aoxorou-ii-aru .9iii- •l^iI^5■9ii•«!f .©to'tsioiiJ- ,al noiJsswp
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;
gnedden v« Illinois 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«, Wabash 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. Bartlett v. Wabash R. R. Co.. 22u 111.
(
^lis-z pal' .©on^^ilififf lii'tllv/ "rffc xio^rtevr 'to ■^'^■^■^'^"3 si«^'^ ^pffit' j-jsxl*
nx S«?d-E».up3f. s.t ':toi'C^iJrJ'IJ•f?,^x r«? "3:o't. 't^^i^os*. ffi wieriw © !(;<■£■.?, iXcqs
« vli'T.-.r.-irjifc^i.-o si .rro,t>i.fc'.-,' htis>- lu'lilv ai^iid nasi 99a«>'-^2Xj-3»n 8.tx i*>iliaiiw
•^xis eI ?j-t3.n'>t 'ti. V'xwt Si^^ X'la l-oiilKs-tip^flifs *d ot .toxft: 'to aoicfRfiJLff
I'li :fT:if?Iq s.("Id' "Tox i.u-ii't v;Id:»30o??iio':f oro x^^l ^^-^ xlolxfw noi'l soapRiv©
t • oU„ X^- oJ:s?h; ^>X . «iiJ!;ii;J XJ:. *.11Z~. i:12£3l5 ■'S f '> j: o 't'l i ^ ai i* X*^ ♦ «tf 8 a i » rl^ no era
;Si5£ ,i-t;S iiil *;'SE . aML2il^>i3Mli._«X-SM:?^2M^ i-^^^ * S^E .Xll GIB
^iSSJiSLM 1-'^'-^ *^^''^ ,i':<:'A •X'lX *£.V. t «c>9 yH .,3;.{jg»jj siffniXXl ,,v £t9|)fcan£
*39a*.'t5 •!:'. Xiiiiis XI5-XW ; ydS ^i-c^; .fjqA , £XI IgP , .pO if (Stand ■aurfXiW^ ,y
^'xatr^^wori «o'on {jx dotiij- .slui Ifcisris-x; 9ii.t ect^e.?s fcoj'io psbxho «xfl
'tc noidBaxiJXXS n^. iStG'x"i le^qqp Xli*? a* ^ «;nci;}fii iiail iuosiitv
jgX'i^ .gcA .XXI f.fcg .asl-ixki »y 3t'iai:ijy^X' ;gag »XXI G8X .loxmoO'O
&ar.tf' 1: i TS oilrf- ^nii-afiiffinTia i:?/*;!-!-;!; ©tsiiw d>dri\t .feXati naetf a^.ff *i iioiXCw nx
i-ao-x'-t f>o,ae.l?ivi3 oa ei e-jsiicf ,, lllJiiljsXcT oJ aXujs-xovist Jeoffl ^xlgiX ©liif ai
fictaota « \tx-vf5'i- 'riicfftJ'BXc?, lo'X .foni''t ^Xcfijitoajs&a IjXwoo v't^/t ©xf^ rfoixftir
90.5.0 «mT «.fri.c)-.ai3T.;) sd" f?XiJo;is ^olfiisv- £i«>ioi.Tjf!ni m; lol JxxB&Halafc ytf
^sonsgxXasn
{rXf.-oi'riifc e« si^ ^^Eiiitt^iiX^sw XjalXi-^v S^di ^:abLo^:' V^o.trusis' iixie- XulXiw **■
.llssd'i: sortejjXXafiCi ss «nitefc o*
afi"^ ti-Ui.sb nxiiitx sai^iiJaw'i i?ii;f;nx ' ^jrii' fift'/xso'^T ©xf ftaiJcit arid *«
a^iiGJbiK'iofc x^ mviib d-;ifi.lirir/t«.b 'to .uoj.;ij f. aoqii abli e j^niXae^s
o^ as.3-£.i<.^ isxljo &rte PXriO- ax i^ii'iosiiuM Jxiefmxjdx? ai ©tsxIT .j-oav-isa
^Xnto gxij T;oaa£sqayi;r xi .liojjs ax JbsG^s-oeb sxU a-xsifw Jcri^ ^tsat't* ^iii
^XXxr'iXXw iao'xi nljK'ils'i oJ s^d-cft siiJ ai naixi oi iOBba^'tdb \d fea-^o v:*"^
.XXI OSS «.oO .a .ii. .rfsxifeW ,v ;^3-^XJrtBji .iffllri gnliiJtnX r^noinav ba£
i
163; I,, C,v,R,. T\. . Ccu_ j^^Qj^onntrr , 1 69 111, 5 5& ; RepaxC 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 Oil
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
{
jVTS *q,qi% ..til ^71 ,.[!£g3tim4...-«.?l..§iii2§2 ;S^3 ♦cji^A .1X1 86
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,Vi>& ,'jf©H .DS^l ^*dJL ,,.pO
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.aoj aeiF X-ae /..u'tli'^ bia^a'i .'^rf Maco w«X "to 'iai
5na J-y«riJ'e Jill's' i- ij aoi Jo:^«i&Jai exiJ ?r-j ,f;r.O.£., XS isa'msvoil to ^rji
».&ns>ta:s Y.^jswxi-^iid oiXiuq js 3l tii&'Xie tUV$- ; 0}iiir:,iriQ al ®w.nsv« *ttio>sa
aoi't ftliiv/ osa't ££ c}-uo<J£ 0>sr/ fiJ-^s-^a-s soi;^ la nomas' 'rfd-jEfna hatB xii'TOfl
J j--'3:i-i:>1c diVi- >ii bitil '^-t-.^n &:los-ii v:>s-'?XJ;4Si iBtftia ovfi jitno oJ- d-Xiio
'iDvo !3i..?a fjaxia J ^aaw 5i!w i,oJ&i3- .dL:^>J'y3 ^ilj- -x©vo a«t ET:ao bnuod' d'aa?
ij'xsw a ;H:;)jB'a: »l ^^^^At 'to cTsi.ow asSi oj bns> tlttoa S?.ul jioaii xiiion snii
bi-Kl oslsi ■^T.(HW a%oivii tjjo jfa^i^a jojijjoidli 'to ai)'i.eY y.ooit noiitU »iW
oiii 1370 a&T. aiMO &nias>»iiJtofi j^ss-i^a .•:';^V*i 'io i::$!Jo» suaQve sniosS ai
-00 3\i.o&x30ir. ©ifl .^3*7.4 je^TsT arid- 'xavo .&ni)od*£!*woa fen-a .Hosi^ S&so
Ijiil iXi;'t nflsacT b.fsii a.j;^-i ;gaiiTxon aili aX xacsXg'o Ji-f^gie tl'iiocffi fedi'ius
^eucf i? s..<5v; noi Jo©r.:i9;Jai su;..'' ;Y/r3iiVilXa ferus ;J"9W atyw i&i-i9ri-s3 s>iii has
'K'4i3 'iSi;i'tXo i-m e«?' pi^fi^j' >im ,a'-^isi®v« i^'^ iv^in^toJfi nl ri*ocf i#.n;oo
.aionxIXi <v.«i-^ aioalXXl nX fi^vxX oiir ,«ct-;J£j;/Si»d; *nefcft©1©Ci; ' - " -^'i
XjBTDfisa '^-t ^i■i^• ■ssiio'i:*^!" 2!L©od'e©7-iX & «* fSJ^nlei'cf iix baatsn-j ex
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 jionduQt . and, though having no intent t©
injur*, must ^e censciougf. 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,*'
Jeneary y. Chicago and Interur"ban Traction 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. Mitcliell. 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 .iitoGaire 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&doiik ,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-ress. 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 ⅈ^ "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.Byflls.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 Wasiieyits^
T« City .of Chica^q, 280 111. App. 531, and aohmidt v« City 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'
.■■!.■ 0 u 'a !'i a.iiia'xo'/si B.iin Xoahtab
,o:^i-a<.y ,.L ,iOiij:cO' 0 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^
found eome tenderness o?er the left ovary -md the aouth of the womb
was red. Inflamed and Inclined to be pui^lieh, indicating oonces-
tion; that, he gave her eleetrical treatments by -what is known, as a
vaginal electrode; that hesT next visit was on, October 84, 1928,
when the t reaf-ient was repeated; that tirxe third and last visit was
©n Uovemb^r 3, l«2a, ^hex.; plaintiff coaplE-xnex-', aaat the treatMente
had not done any liood, that they h&d not made her menetruate, and
defendant tolA her that tht treatia#nt» were not for tnat purpose;
s:
•SMife {•-Jilt- n?iioi;'iiY/lQ ^ e.4. ^n&tn-^'t^h h^bn'^&.^oQ^i. fin^i.t't fti^ * t«rif
,9S>.tll« a''iv;ria0G ©iJ,.? 'OJ XffJ-iila ©ii'ii.X 'saxi ii^li-^f i n©-?? axis S'ajtifc* ;gai
©Jjsvxiq
^J'.feu-ii' I'tsii fUi'w »@ti?ai?'S'">if ai X^jkasa Mfl' ^xi 9-^iVto\9j %<i!isiQC'. »£&$■ o.'^al
lifia 4.iii?..ii;^i«»'5:ci ei'."^' Mfe ^s'-.tia'? -xoc'caj:], -fat f/Xc-^t ^s^ iU#Si?S ^'tw^rtpX ^iserfiJ
a*5-«.' lieJcv ;!!&ii..l kirn tnliii futi;- .S.^i.{i^ ■ih'^j'.4iip>q»% asw *Tw».i?ii5«ad »4? tmii^
aif;.tf;-.^#s5'/J ?,vn;t .^«j;fc £>ssiii^,iq»iO» 'i'tli^tlstJ^ nim^^'i^'^Ql ,-8 ■^«^fJ'■s!^»■9'Q!». n©
Ifas »3jj:iva.i'«a-sai V3>i 'i.f)itm .tort 6^-gI \£»jriJ i'isri^ ,^!3«5 ^aU» «»a*f* ioa.lwMl
tfeftl plulfltiff paid #8 ioi tixis viBit aiid wae aagty, tur«»t«niai
to get ev»J& tritii tixe Doctor. Ctferjd&ut testified 'Ui&t he tts-Ter
iMkd sexu24l iutercoara* vita .plalntil'l' sm ikOVfealDer IStli or «it ^ay
otner tiaie. ■Dtfendwit 'e tce.tiK.ocy as to tiie liE^e aad naaaber of
■visits is 9upi>«rte4 "by tinp reeordt lis kept, ehowing th« last visit
to "be oc «<ov«tt'b«y 3th.
Diere w«9 also evidenee taac plaintil'f k»T>t ooffs-P'Suay with »
"■fooy frl'TBd"; th*t she told Oils i>l«»ad ttiat sli* wa« prej^iarit and
thAt 8fa«^ did not Kfgu.t hisi to get li* trouble on %uIb aceoupt and
tol<! Jiia to Si»appoftr# which he did. *i.« we ^aid in our fer^ier
opinion, tiiere ie otiier «vivl«mo« wM.©ii we du i&ot tjsink it »«©««»
sary to 4sitail. She euatirir reeord ii»pel» to ti*e eonoiusion tliat
pla-lntiff failed to pruv« Uer gIjUjb b>- the gireaiw* wpigrit ol'
the eTidtiic*.
There was aljso &.ldition«a ftTi^enee olTereS l»y detfendsnt
wlieii eeaipl6t«ly nefe&tiTe* piaix.tiiT '» t^etiKony in one important
rf-9p«ct. She testified that sotiiin^ oiit ©f th« way hapBttn^d on
her first uai. e«;c©nt visit* to deleri4ant*« offiae; taat nh.m is
poeitiv* her thirdi visit, on w-ivicxv Uie aliegefl, i»t«rcouree took
plaet, wa» on Bovftafeer 12, 1928, Ana t/iat elae arrived at uie ofl'ict
alsout eigl^t o'oloejii la tis« evaning ^itli iier xittle aieter; ®he waa
99sir.lv« aTi« iiad nsvar ii&d aeaoial lutere^jurse at arjy other time
or yiaee wita defeufia^t aans^pt on. tiiis date, i<tovem.be.r iSth,
Defendant intraduead eonvineiai; avidenee that he was not in
his offla© at tiia tiite spacil'ied by |>laiat.iff. Bv. Stanley, a
4entist sharing a sulto af offia@s witi'x daiendaiit, ta»tlfi@<t tHat
he ira© in the ofiica ©n tat evening ©i' i*ov«Mib»*r 12, 192'6; that at
«lN»ut aix o'cioek two auBS ca&e in arid a»k«d for .&r, iutttstTong, who
Idantified hijaaaelf ; t^ey e&i4 %h&y were diateetiveo smd, hmd a oul)-
•foena for Dr. *aiaatrc.jig, raad tne subpoeiia t© nia, and left iilm a
copy; t':;&t defenviant left taa affiea at about alx o^oloeJIiL and did
iiBir ^^)g.t ^iis :^i.tx^mis ,;t«;;-%s, »:ti ^hn^^-x .^Mi x4 .fossil ©i;,^* sl, ittlsir
«r^«!f- tsuSl^v'^ii. a«j J»«f ©t
Mm 4^Ki(»S^#*Sf<^ ^#W MjaT :|«i^# l,':*»i'5> s4ii^ fci,«f^- ,#4s J-aiitf j*'|>iE«»|^'l ^o4*
l^r*® p'.ms.-3s«iii &li.y- a© '»Mufj>x^.ai rJfe^ a4 aiiri i^.>3««f $0& folfo. »i^» #ii5B!-tf
^sji:^? as»l'a;.ii,a«ys> lAO* ©^l *iiX.*Qi&*;. ^'ii'&«»a"* 9'j;i,o?.ij^* s4J ♦,i.*a#*i& «?•! ^jjf
•>«fse a l»iid btugi «»v.tj'a5>4'j»£> st^ww i(,«>ii4 i^i^^a \9ii4 I'li^cM^i £»«i'li,fat&i
not return that evening; taab -witness rsa&ii'i ed in the off ice uatll
abeut nine o'ciocK or aiiortlj* tJriereafter , enS did r^ot stse the
plalntii'f at all tnat evening,
Befendant tcstiried as to tiie service of t'ae eutpor-^rm on
hire, requiring him to appear Taei'ore the gr&rid jury of the Urii'inal
court of Cook county at seren a'alock. that evexiin^, ihe copy of
thii? subpoena, is in evideriee and eommande defenlaiat to a.ppear in
rooa 540 Otis Isuiidiag on iMOve-iioer 1£, 1923, at aeven o'clocic p.cs,
to giv« testi£.ioiiy in s certain pen^in^ cause. Defer.d&rit testified
tnat upon receipt of the subpoena n® left nia office acout S:30
p, m, , arriving at the Otis building atout seven o*cJ.ock, --'here he
resxAlned un-cil nine or 9;2u o'c:.ocic; that h© ^aa accompaaied fcy a
Mr. iiatohett, that tl3«y were together all the evening, arriving
home about 9:30. itr, Hatchett testtJiel, confiredng in svery way
the testimony of defendant in thig respfeot. Sheridiin Iros&eaux
testified taat he was a special investigator for the grand lury in
isoveaber, 192c., with his office in rsoaa i40 Otie Toailding; that
he iesued the euhgoena waioh contaixis his initials; taat fee saw Ht,
Armstrong in hie office at about a quart rx to seven on tae evening
of aaveff.bar 12th; tnat he Wias e.xm."in8(l as a witness fin-l left at
about nine or 9:15 o'oioc^;.
Counsel for yl.aintiff oall attention to the t'Sati.nony of
the night watciuaah in the Otis baiicUng, wao k«epe a register of
persons entering the builling after seven o'clock in the avening,
A photostatie eony of the register is in tae record; it toes not
oontain defendaunt's naiae as having ontsr*?d the builiinti on that
•Tening, iiowever, the watciiatan farther tastifiedi that a nuriber of
Tsersons w^ir^t to rooia 540 of Uia otic bu-liUng on bjsineas there
witn a "orim^' eoxainlssion,** .xncl that he would let these persons go
up without int^Tf er^nce from hiia» The photostatic copy of the
register ic^pt by the watchciari ehowe the rooms iii the builAint to
Qd<.t 0'S^- iQi% hlh htiM ^'S.mtiSi'S^mlf -'Clttfei^S "Sto «3.9l9*0 ©Jijta .tBOr/*-
.Bi.frt •K.ooXa'e .*i«9V§a j'M ,SV;ex ,ii t^^MrAvoH m<i 5^aife,.ii*>¥ ai^j-y 0^5 moot
i&«.i'3;:Msi'k»t ?Et*i9n?sl'^Cl ♦aKe«.-0 f^filtai^-^i &ts.t'm& «..si: -^gasaEijgsj »▼!■:% o#
Ot id li;e#^ »l""xt-fr *i:fe f'i^»i tvtl ,«i?#<&6|-'.5Si?« tii^"' 'life iJ«ji^'v.j^'jL a©^ tJsjfi*
^ntvlz\n ^^^eantr^ ^^'S llis trntt^'^^i i^%i'<^ ijSKi'i^ smc^i fit'^mi&Ji ^tU
\&^ TfSiPvs «i |i«i?iiriaoo ,:f'»,ri.;-.t«s->* ii-s-rfc^fc-H .'i-l ,OSi© ^»©d* ©jsoil
vhleh persons \f<mt after sinTeri o'clock p, m. , . ut fails to shotr
that anyone *ent to room 540 » wiiere the- wutnesseg were iiuBui«oned to
appear "before the grand Jury, juid yet it is not deified tliat tan or
mora people w«iit to this rooia on that e-vening, i:h!= eviderioe auf-
fielfintly deinonstratee that defendant ^as not iii his oific^ at the
time plaintiff testified defendant had intercGaree with ner.
There was persuaeive evidence tiiat when plaintiff first
▼isited defendant and waa eatafiiioed Toy him sne w&« PtirestcVy pregnimt
m\A that FshP hoped to obtain frora defendant sie4icine which would
eauei^ her to aienstraate.
Aa plaintiff failed to produce eonvinoing arldence that
defendant is the father oJ her enild, it foilowR that tnere ^'a»
no coniBideration for th# a,lieged i^roisise by dei endarrc tc support
it e-ven if we should aecept pi s-iii tiff's TerBien ae to waat defend-
ant said in this respect.
Defendant testified that sfter the visit on liovmiberQ,
192 3, he never saw pi&intiff ©r had any telephone oonversatlen
vlth her until she ealled upon hia en ^eptem^er 2v, 19.3S, - a periedl
of nearly four years; that in the interval she had never threaten®*
to take him into the 'bastardy ooart, h« never knew ehe had & baby,
and had isade no froe^ise to eontribute to its Rupoort; tsxat the firit
he knew of any clalE that he wae ^he ffs.ther of the child ■»?"&« upon
this visit in September, 193S; that he had «!mtirely forgotten her,
an^ that when she referred to "ear baby" he asked iii&r what had put
it into her head to bring this charge, and that ©he replied that the
depression was on aiid she had to kave money; that he replied that he
was in no way responsible for the child and was not feOing to do
anything about it; that wheti she le'ft eh® asiced dei'endant not to say
•Bything about it, sayinF. "^ a.on't want anybody to know 1 have
spoken to yoy about it,"
Other points are nade whieh it ie not necessary to note, A
,i^ii i&i i^ f*atiM®e"S'*<*iJ{i. Iwjii J-ii«fe^#)i«'i#l> i^^l'tx^sa*' tli#aijEsi*| .Qsrli
"94 ^.artS' .u-^iiqi^i 9ji-3miii ;t»i"*« •r«Jl <»* .b«.?t »)!*« feis* ao ajiw tmi^n^trtfih
©& t>J" a-«*iO^J ^O*^ ^«*^ &''"* i»i*«ia »Ci'^ "XO't '»MkBit9Um9t ■^«w •« ^f'i »«'*
rt-exaaiination ol' the ©vidci ee, and eepeeialiy the additaoruai evi-
dence t'i-"^*ii ou "bei.alf ol' defendant, impeia tiiie coridusion thi^it ths
▼•r-ilot ol* t.U« jury must nave oefsn tixrou^ aympfttiiy i'or plaintiff.
The verdiot, bot^i sa \. the paternity oi' tiie dixld and as to the
alleged proisiee of iefet^iJ&Qt to support it, ie ii^^Bifestly against
the weight of Lhe evi-'fT/ce arid a coiirt of review caniiot, in the
eyerclp*^ ol ite duty, pcrrdt a judgfiient bs-eefi upon euch -a verriict
to ststnd.
Counsel for defendant argue taat unier proviaiozi 3 ol a?!o-
tloc 68 of the Civil Practice act, a motion for a iirecteci vgrdiot
isade at the close of ail the iyii&ucQ raises a nueetioii of law for
th'? court to decii^e, Xhie prc^^ision has no apj.iiaa,ticfi ld the in-
atPBt case wher^ only questions of fnct were preaeEtesi for cie-
terBiination,
if we had the povrer to pasF upon the weight of tne evidene*
we would enter Judfjaent in this court for tae defendant. But thie
we oaniiot do. ?or the reaaous indicated the Jud^pent is reTersed
and the cause rexaatided.
itatehett, P, J., and O'Connor, J,, ooncur.
/i^ itiil/iXjl tiyt xn^^qm'i* ilg(»?«n..rtt si«*e-*i Sivsi,i-i- ^skm xxi:'%'9iiS 'le ioilvxe'V
t»ii;f 0t ** few- fcXi.i/s oiiit 't© 4ff'li«:!»tjgi«![ iS'i'i^ •■■» »« rl^o<l' , f&ifctit'v §Ml ■
^fcfMi'S ©■#■
■ ,t.yfeaf»igi ,,^ ^-^iSflia^jO' S lute ■ 4 ,1* ,%. ^ir*»£[ei*aii'
;iv;-/, i:,
/.-/)
38943
PEOPLE OF IKE STATE OF IIAIIOIS,
ex rel. C3CAR i^ELSOS, as Aaditor
of Putlio AccountB of the State
of Illinois,
Complainant ,
UfilOfi 3AMh. OJ? CHICAGO, a Corporation, ) APPiAi. 'mOK CIRGUIX
DefeBdaxit. )
) COUBT Oi? COOiv OOUfiiy.
i
LSWIS K. WILLI AlilS,
Appellee »
S
o
I.A.
_1 ^w'
TS»
JAMjSS S, RODIS, Receiver of Union
Bank of Chicago, a Corporation,
Appeliant,
ilR, JUSIICS C'COKKOE rsSLIVSK&I) flia- OPIE.IOK 0? TrIS COUBT,
By this appaal the receiver of the Union Bauik of UiiicftgO,
a corporation, seeks to reverse a decree of the Circuit courtof
Cook county allowing petitioners' elaim for $7890 as a general
claim*
The record 'discloses that the banic was being liquidated in
a proceeding 'broufeht hy the Auditor of Public Accounts, and a
petition va.^ filed in the proceeding praying taat an order he en-
tered allowing petitioners' claiia ae a preferred claiffi against the
asset fj of the t'.'JLnk. The receiver answered the petition, denying
liability, the matter was referred to a master in chancery, who
heard the evidence, made up his report and recoHiaended that the
claia. be allowed as a general claim* The receiver's objections t©
the report were overruled and a decree was entered in accordance
with the master's report,
December 28, 1923, Harriet £, WiliiiuLS entered into a
written agreeffient with the Union B&nk of Chicago by which the
banJc agreed to act as trustee for certain of her property, real
,.3lon2XIX 'to
,1SV
'^-^ X U «ii.^ jL O o ^
.Bv
and personal; only tae latter is inrolTed in this proceeding.
Under -lie agreeme^nt ehe deposited $30,000 with the bank* The
"bank from time to time invested the raoney in certain securities,
fluaong which Tere 70 shares ol' the preferred stock of the Middle
West Utilities Company and. three bonr^s of the Southern Cities
Public Searvice Company, which are involved in the case "before us.
Petitioners' claiai, as set up in their verified petition,
is that the haaak refused and neglected to sell the stock and honds
ae requested "by Lewie iw, Williams, a beneficiary of the trust
estate ard one of the petitioners; that the market value of the
securities rapidly declined and the bank was liable for the loss,
Ihe trust agreement entered into between the bank and
the
Harriet K. Wiliiauiis, who was/mother of the petitioners, provided
that the bank should "hold, manage, care for and protect the Trust
Estate. It shall invest and reinvest the same from time to time
as circu/i-stances shall require and good judgment dictate, ^ith the
written consent, however, of LS^flS M, WILLIAMS, '^** The Trustee
shall have full power to sell and convey any or all of the Trust
Estate, *** suad any investr-ients or reinvestments thereof from time
to time for such prices and upon such terms as it shall see fit,
l^rovided, however, that they shall first secure the written consent
of LEWIS M, WILLIM;S, «*•* the Trustee shall have full pov?er and di«.
cfetion in the laaiiagement of the Trust Estate that it would have as
an IndividusG., if it were the absolute owner thereof, subject only
to such restrictions as hereinbefore mentioned*"
Lewis il, WilliaLiS, n-;raed in the trust agreement, was the
son of tl.e settlor, Harriet iv, Williams. He t«stii'ied that about
three or four weeks prior to September 2, 1931, he called at the
bank and talked with kr. lA,, A» Bierdemann, of the Trust Department,
to whom he had been referred by an official of the bank; th4t he
told Eierdemann he had been advised aiid wished to dispose of the
^aftiJi'aioes rus-it'^so ai -vjaxtoiM ©ncf be^e^arsil m-iki o.t s/sid' iSKn"^ sifi^cf
filfe»>i.'.vi' 9ii^ 'io ioocfs tfyv7.s^'t;i-T.ct &itj 'to 8eijfi..l3 OV ssis* rioidw saoJtajs
..'su -Jj'i^si'ta-^ sfaesi ®ii^ itl fe^vTlo-irai a-Jii? ffe Irlt? ^^ijageiMO Bolr'S&Q: rjildtj^
&9ibi;vo'XQ ,3t?:3a©.tti*0eE ©rij 'to 'i^tiiosi\^^ cd:^; ,a...jc;lj;xiW .>J JaJtiijBH
©Mis' Oo ®mU ffieirl ssaeri »/(;? taslrnl^T bn^ jfeftv^l IIjBfiS *! ,«^fiv+QS
©s.t^fc'sT <i»rlt ^-i** ■.t'MA.X.iJlW ,M eilf'Stl I'o , i«T9^6a" \itms:ncni as^tti^^
i»inl orfj '.to IXfi 10 ■^ite i^erisoo lirue iX«s oS isxroq, XLssI evisd XXx?ita
i^siti m&t'i 'l^&t»-ii^ »ta«.fr-Jei5vais^ -lO a^n^i'itaovHi -^itjs hm *** ^sdJ^ctsS
itw^acfO Ltsifi'iif ftxU &'iisi:x^& i^rl't XXoria xdffi iJ&xid' ^t&rQx^^d ^&&hlvotq
»»lb .&tiB TJs^^'OQ ilif'i enrsiii IXfida ?>«i'at!TT ©il* «■**• ^EMAIJlJIW ,«iI aiWHcI lo
as ©-^ftiii MaoW iJi; .iJaii? ac^aisS *«!i£t'i! ®ii* I0 tXMtiaej^iuaia- ©rid" ni noi^e^o
*iJo5f5 *^xir f^mi-Q©* ©.U .aavriXIiW .:» ^fslii/ilt ,"i©X*Js2 eiJt 'to itoa
.i-miiinaqse tfaifiT ei«- lo ',i^"ifl^i>^'«iS' ♦*• ,M ,'sM. 'di tV 'hisMjBtf bos iMtf
3d 3-ijiW ;i)ia3':J silt lo X^iori'io rte ^^ bsiists-x aeod* IwaxI ^ri sorTw o;^
jstocks and bonds; that Bierdemann said he would "bring the* matter
to tiae attention o:l' the committee oi' the bank which attended to
such matters .sjad would later furnish the witness with a letter for
hie signa.tur©, in accordance ifith the provisions oi' the trust
&gre«ment; that at that time he told ^r» Bierdeiaann the stocK was
selling at 190 a share and the "bonds at #530 a hond; tiiat a few
days later, not havin{?; heard froia the bank, he called Bierdemaim
on the telephone and inquired about the matter and was advised
that the committee of the "bank had not yet met but that the matter
would be attended to shortly; that two days later he had a similar
conversation with Bierdemann; that he was ill for a short time, but
on his recovery again called the bank on October 17, and attain saw
Biedermann, wbo said that nothing had been done about the matter;
that thereupon witness stated he would hold the bar^k responsible
for the loss sustained; that at that time he told Biedermann the
stock was then quoted at |J69 a share and the bonds at #450 a bond;
that at that time £ierdeK.ann said the banking situation in Chicago
was very uncertain and that it had been impossible to get the bank
eommitte*? together to take up the question of the sale of the seeuaci*
ties, and Bierdemann also spoke of the pending merger between the
Union Bank and the Chicago Bank of CoiiiHierce.
Bierdemann, called by petitioners, testified that he was an
»ttoiT3ey at law and in 19 31 was employed in the Trust department of
the Union Bank; that some tiiae prior to September 2nd he was called
en the telephone hy I.ewia M» Wiliiairis about the sale of tixe stocks
and "bonds, and that on Septexaber 2nd Willi aae Ccilied at the bank and
spoke about the matter, and "I informed him the inveatiaents were all
right and should not be sold"; that on September 2nd 'if/iliiams said
he wanted the stock and bonds sold and witness replied that he would
"report it to the committee, and would deliver to him the report of
sale and the necessary instructions for signature;" that after
Williams left he talked to the vice-president of the bank, who was
$
oJ" i^^feiisd'cJ-.s xfoixi*' Ju's^cT siii^ "xo ©»#iifiais.oo ^jciJ' 'to noJJ-nsd'd'.fi a&i oi
%&i^sm SiiJ" 3j8rU dfjft!£f d-^as ii»x ^ofi i-ijrf aJ-ixad" sj^td- lo ss^^imaoo «>iU J,s^*
Jiid .ffliaJc* d^oii® £i 'lo't lis. a«w »^s :!»&£& ; fiGusjasfeioiS rfliw noitaK'xaTno©
-1^.39 axj&uJs baa .TX isd'ovtoO ao iiaiMCi &a;t fesXXao ctiisae -^isvoofti Bid no
sXdiartoqaoi iascf sM bloxi fcX«ow ©ii JBsJ'js.Ja assa^iw Bo<T*i9'x*»rt3- *afl*'
0j;li}- Si5®w*acf ^S3i©M sJsi£'^K»q ®rf* 'io »]ioqo ©aXa aamriQt'X&iS. bae ^a^tt
|)flIX«o e«w 9xi hiiSi i®dffi«iq»8 o* lox-sq »mtt atjaoa #«rf* jsLcwa. aoiaU ail*
B^ooie 9rx;J 'io ©Xsss blU d'iJod'jB am&iXXilW *2t alwsJ ^df dnotiqaXo;^ ari* fl«
iXis *3'£®w adfnsfii^sevni mU aid bsi&io'tnl I** ba& ^tBitum ^di iuodB 9JiG(im
&i«8 8ia«iXXlW fexsE i»d'^e*?9a ao ^ari:^ ;*5Xo8 ©<f *oa jbXifOiJs fecw i-xiaJrx
JsXwow exi ^rjBXfd- fcaiXqe-x aaartd-xw bim isXoa sfcaocf fcHB Soo^a »ti3 feo^oe^ ©xl
to #-£0<l»'x aiW iaiii o:^ zsvlX».b JbXwow JbiM ■,d9'iiirlmmQo 9di of -fl iiofisi*
in charge of the traet Department, and aivieeji him of Williams'
request, and the vice-president said he ■^rould take the matter up
"before the cot.niittee, Ihe witness faita-er testified that in Oc-
tober Willian-s again called and inquired about the matter and he-
canie rery angry when informed that the aeciirities had not heen
sold; "I explained the actioi. of the bank m-as not ^eliteiate, tut
■iniply the hankirig situLition at tJ-^at tiiue; that the officers of
our bank were occupied 7.'itli their conferences, one t.ing and
another, without calling the trust committee togetner**' He
further testified corroborating the testia;ony of Willianis as to
the price at -which the stocke and bonds were selling*
It further appears froxa the record tnat tne bank acted as
trustee froni tne date of its appoint^sent, Decesifaer 26, 1928, until
the bank was closed by the Auditor of Public Accounts June 24,
1932, and that the receiver was appointed June iob, 1952, by the
Auditor, whose action T^as la-ter confiriied by the Circuit court of
Cook county. It is further stated in tne record thBt Lewis si,
Williams, in a suit instituted in the Circuit court of Cooi: county
apparently by the beneficiaries named in the trust agreement, was
appointed succeesor-tructee in lieu of the bank, and it is repeatedly
stated in the record and briefs that he was appointed such successor-
trustee January 9, 1932, Apparently this is an error, because if
the bank acted as trustee until Jurie 34, 19 32, the appointment of
WilliaEB as suceessor-trustee would not be until after that date.
However the date is not important, Wliat ultiiaatcly becauxe of the
stocks and bonds does not appear and is somewhat of a myBtery^
In their brief counsel for tne receiver say that "Where the
trustee is vested v/ith absolute autnority and discretion in the
Managenient of the trustee estace, the trustee is not required to
sell upon the direction or request of a beneiiciary and a refusal
to sell on such request is not a breacii of the fiduciary relation;"
i-tJi ,«d;ei®{ri.t.»& iof; s*;/? Ji'rt^d »ii,i 'to aoijto^ 9ix'jJ i>aini^Xqxfl I" ■;.5Xoa
•'^o ,^,"r»»i'i'X0 ©iiJ v>'«£l;J J0fai>j .j6;;Li ;f.B i>io.iJ;:.Uxtxe :^>iil-AtUJS Oifl >^Xo?3;i8
jfjfla v^iiiitJ ©so ,s,a&as>x^T("tn»o tL^ds lUlv^ h&i&uo^Q S"x»w olaad tuo
9-H ''^♦'iQa^^ga;} ea^^tiiiiisoo izuii 9di siiill^so J'jUOif.^iw ^lerlctoas
,K> s0c;o ft^fiifcooA oJ.idij'i 'to 'iclifcijA eriJ^ x^ b»^Si^iiS) a-avr insrf f»rfl
%iimoo xooO 'to 3-3.aos itii/ouxO 9dJ- rii ftalciiiJaai: JIjjs i5 ul ,axmiXlIi:W
■^Xb94«0fi?>i ei ^i bm, ^:d.aiid 3».d;.i 'io a^lL sil asiaia'x;^-i£O£a8O'0JJ£'. fts^rtloq-qjB
-^oeeaooiJa i-.ojjs fiis-taioqcja eSiisvr )&rf savij s'iaiicf feus .biooa'x oxi^ ni Jt^sJaifa
'to Smtn^iiia-qas 9x1* ,i;'i5^I ,■>§ Oiiui. li^^iiu &^;fewi.t b& biii-o,^ aliiacf axl*
^ssJ-js-b isdi %9ti^ ii;rnx/ scf ^en bXx/ow 9<sJajL;''t.->'»i0s89ooiJS 8« «3U8iI£lW
SiicT 'it) 9.'iioo3tf ^iXiJia-.4i;J-XjiJ JsflW ^.tfiaiJ-xo^iai ion el oi.kb »£ii ■ferawoH
»'ii5i*t3Y^a & 'io d'jfexiwoiatj® ei JbOf^ 'i^&tfqji :5'on s«of' eJbiCiorf tite a!iI90i^»
9x1* a'^iwxi?/" d^«i!^ ijao T&vl-^aa-r siii lo'i X&aficfoo talarf ilsxtt rtl" «":"■•'.■
Xjisewle-x J3 hCL'T, x%mii>s.'t^nB(i a 'to ia^wp^i rto ttol&o&tih 9Ai aoqu XXsa
»;<3ioi:*^£X»i -^cwiowXyit 9u;t 'to xfcuBsti ja ^oa si i-eswowi tfewa ao XX»6 ft
and that "A trustee and others standing xn a liduciary relation are
held only to the exercise of reasouabie, dixigeut ajGd ordinary pru-
dence and caution, and such Tiducitjiry is not liable lor loss to the
trust estate occasioned hy ai\ unforeseen oecurrfeace." And in sup-
port of these contentions say that under the trust agreement the
power to s^ll the securities was vested in the absolute discretion
of the trustee, and the failure or refusal of the trustee to sell
the securitiee upon the request of Lewis M, Williaias did not con-
Btitute a breach of the fiduciary relation. The trust agreem<2nt
di4 not Test absolute discretion in the trustee, but expressly
provided that before securities could be sold tiie trustee must
stcure the written consent of Lewis k, WiiliaoiS, ons of the benefi-
eiariea. But counsel further say that feven ii the trustee did not
have absolute discretion in the sale of tns securities out its
authority to sell was sub.iect to the consent oi Lewis i^e Williams,
he could defeat a sale but had no power to compel the trustee to
sell, ^e apree with this contention, but i x is vi little or no
importance because the uncontradicted evidence siiows that the secu-
rltiee were not sold by the trustee because it thouti^t it was in-
advisable to ao so at the time it was requested, but thao tiiey were
not sold because the comEdttee of the bank did not have the tirae,
on account of the chaotic conditions of banks in Uhicago, including
the Union Bank Itself, to taKC tne matter up and sell txiem. Obvi-
ously, this action of the banks falls far short ox carryin^i out the
provisions of the trust agreement; the law requires a trustee to
txercise reasonable diligence and ordinary pruderxee and caution.
But counsel for the receiver further contend tuat the trust
agreement expressly makes the trustee liable only "for its omi
wilful omissioiiB or misoonduct;" that there is no eviasuoe that txie
trustee deliberately intended to do wrong aiad, tixerefore, tiie trust
agreement was not breached by the trustee* The difficulty with
©ilcf- i3j a&cX tij'l: dldaiX i'ofi isi x'^^lBJjwJfel'i .{tows .(:»«j? ^itQs^^^j^Q ban ©sasfc
-ilS'.aocf s^^ 'to ®Ho t«aa;iXXi:W »ii; bIwsJ 'to ifn^nnoo ri».td'i:*iw sdi ©lijoaa
iiti ;Jijo a^iiJ-i-ti/oe^ sjifi to ;&X,»a &iii ok iioiJ-©ioBi& ©^-Jiloed'a er^il
, su/talXXiif .ii aX«v9d; 'io iaaaftoo axU ct jjossti^'ifs s^'sr II*'? o* ^*ltorf*««
yl aa^swiiJ SiiS' X@fJ.sioo oi t^'-foq oa b&d tud »Sjaa e. .tad'isl) bluo^ &el
OK '20 siX^JiX 'to et il iM ,f:i6i|n«i;tnQ0 alrut H,tj:w ©«»t,7,/? at »XX9«
STt^w T£S5jCiJ j;3iia ifud" , r.Qj B.^'Upe'i aav'/ cfi ssil;f ©xW d^jB 08 oil od" 9lcfjnsivljj6
. jSiSiXJ- avJ dviiii iaa l;i^ 3l«ad' Strid' 'lo ©©d'd'ijffliJioo »iii aawjsosd" ftXoG d'on
fii.U iise ■^ttxi'itijV '.to ^lo-us iJit'i aXIe'l 8M.n»jd ©lij- "to aoi*OJB eXM ,YXst]o
o;; soJ-aj^id' « s®-tiifp9'« s«X ?»iv;^ ; titofiasfsaait d-sii'it 9di 'lo ia0oleiv0T:f
,rioi;tJsM9 5iia -^omtim^q, xxsmlbio hiui &!:xn»'^titb oXcfisaoffljasi 68lo'S9::«:«
^ajui^-t &di Js^ii i>rt&d'rioo isjid-si.,-'! i^^viftosi ^rii lo't X^amros *«€ i
xiifiw v:JXi>oJ:'i'i:XL' ©ril' .©sJeiJ'Jj aa';^ ijrf feexio«9i£f Jon bbw *nfl.r,wsiB«
this contention ie thut the case wae not tried on tlaat theory* 'ihe
master found that at the time LeV'^is k» ^'illiaffis I'e&uesteei. oli© 'bank
to sell the securities the market I'or such securities was rapidly
declining, ana that the btuik, under the facts disclosed by the
evidence, ras negligent in failing to sell the securities, and that
petitioners sufferevi loss aa the result of euoh negligence because
the trustee did. not exercise reasonable care and caution under tne
circumstances. The receiver filed objections to the Blaster's re-
port, in isfhich no objeetioji was made that the receiver would not be
liable unless he- was j^ailty of "wilful omiesions or misconduct;**
on the contrary, one of the objections was that the master had
failed, to find the trustee was obligated to exercise only "that de-
gree of care an J caution in the **^* affairs of its trust as an or-
dinary prudent man leould exercise in the administration of his owe
affairs." After taking tiiat position before the master and the
chancellor, the receiver will not now be periaitted to shift his
position in a court of review,
Tha receiver fartuer aoiitends that the burden was on the
petitioners tc prove the ajaount of their damages aud that tiaere ie
no proof of any substantial daai-ages. The verified petition alleged
that on Septeinber 2, 19 31, ifhen Lewis M. Williams requested that the
securities be sold, the Etock va.B celling for #90 a share and the
"bond^ for $530 each; that en October 17, 1931, when Williams again
ealled the h&nk, the stock was selling at |69 a share Mid the bonds
for #460 each. The petition was filed February 7, 1934, axid it was
further there alleged that at the time of the filing of the petition
the stock Tsras of no i?alue and the bonds quoted at #100 a bond» 'Xhe
receiver, in its answer, neitaer adifiitted nor denied che allegation
as to the value at the time of the filing of the petition but called
for etriet proof, and there is not a scintilla of evidence in the
record on the question. Moreover. Le^vis k. Wiiiiajna. one of the
■■ ' ».i.'d" v;«^ 63ss!6l9;fli& e.-'io-Bl ^sii *si&biUJ ,um5d ©!,{;}■ ^siti baa ,'gaiiiiIoa;&
** ;J3J.i6acoQtii TO «rtoi»?sijsi<;i JCirlli ?!;■'* lo \^.tj;ii..?3 ss^W'i*^ asaini; ©IdaiX
©ri,t fjOjf. stjxx^:® te Q^'4 to'i ■rirtiXCs':: a>«?<f i/ooJ'^'^ ^iiiJ ,6Xob ©cT e^i^ii.uoea
"nx^.^ajB ajJisiXXiW wfviu? ^,IK&I ,VI T»dFoJ'!:jO «o ;i.c:. .■]:;( •ifott'?) Of=;a| lot ^feftdrf
nox:t2c^'=»<? S).'W 'to SiriXi't »ii4 'to ■aar.t.t .•*ii;t ^s Isii* liis:s>»IijB ^isrf* 'x^tiittit
oiiT ,ano!f ^5 OOX^ i& b&itiiJO nlnod i^iii bitm &tsi&y oh lo b&vt ioots sri*
noi:cr.'),';59XX^ Bdi belnf^b loa .fo:5;}tiircfcjB •xsri^iefl ^t^ufsfte 8lM ivl ,n;^v.!:©os>'i
&SXX450 *uO" .tioXJxd-sq ©ii.;J- lo saiXil 9fic^ to «fiii^ 9i« d-i-. ©wX^V «rf» ftj^ 8«
»i:i,l «x aoa^blT^ 'to 4sX:Xi:3-fiiofs & ion «x »^f.f£^ ^ttB ^"iaotq ioi^its rot
petitlonfTs arid a beriellciary, 'was aupoiated trustee succeeding
thp hfoik on January 9, 19 32, (proljacly 19 35) niid presiffii&bly tne
seeuritiee were tumsd over to nxm, Wiiat t'i&position w&a Eiade
of tliem do»s not «.pppar, i'he niaBter, in coiiiputinji, tiie daaaciges,
flif» 60 as ol" 3er»tem)>er 2, 19 31, giving tlie valu© of tlis stock
as $90 a phare mjic? ol' the V.onds as |53v eaca, and. ttiis was api^jrowed
"by the inaater. We tuinK: the quesstion oi' damages was propeily
saved by the receiver. In one of his objections iilcd tc the
master's report the receiver coiaplained that tJae court had
erred in assessing the dajuanes at $78&0 . i'he record failing to
show the amount oi damages susia-ined hy the peti tioners as a
result oi' the trustee's neglit^ence, tiie decree muot be reversed
as to the #7890 and the cause remanded,
'ihe decree oi the Circuit court oi Cook couaty is
reversed and tne cause remanded,
RSVERSED MiD RSHAUDHrD.
Matehett, J?. J,, gpeeialxy coneurrinj^: I agree that the decree
should be reversed but doubt very »uch vrhether
defenf^tant is at ail liable ui:.der the facts.
MeSurely, J,, concurs*
OS S£ilXI;.jg;'t I;--x»08'x Sill' .'0?38T$. i« aiS,>^'i«\ft& sili? :^Jiis3a©ss«- iii .r-'Sia*
AT A TERM OF THE At^PELIATE C.OTJBT,
Begun and held at Ottav^a, on Tuesday, ^e- -f i-ftt d ay rf my, in .
the year of our Lord one thousand nin©^- hup€red and thirty-six^
.Ithin and for the Second District of the State of Illinois:
Present - the Hon. BLiilME liUmiA}!, Presiding Justice.
Hon. ERMI'XIN R. DOVE, Justice.
Hon. ERED Gi ^-QLIE, Justice.
JUSTUS L. JOHNSON, Clerk.
RALPH H. PESTER, Sheriff,, ^ q ^ -^
BE IT RaiaiEERED, that afterrards, to-Ht-. ^n SEP 3 1936
the opinion of the Court .os filr-d :n the Cleric's Office o^ said
Court, in the words and figures following, to-'it:
111 SIB Ari^IIXA^fK Omf 'M inMiOM
I Thiw «rlt of arix>r is piossentea "bj platetif.? t« &i:r&r t:: rfi'^fc^
Ills 0i'r5'^ietioa Smt a^saxsXt* Ji® ^as tMi®t©d by tte igS'asiS Jm*y ©f sigia
Qf^vra^' ttor the arrli^ of a@»?ailt ^l-®j a deaSly •mmptm^ ^vitli is»t-:?s^t- to
ams&nlt* ThQ eamt mmm»^A « fia« of li^ «pfm the '^^riist.
a e©rt^.l]ft ^oeft® whi?ti bfO-oi^®?! to i5aal.ntl.ff in errcr* Xe this. ^'?i e
tfis^r allot mm ®Q?alrr©l« ll'^ piaifitlff ls> ©rasa? ^-ipcse Mailag, Mi© ^i©t^
tlft ia ary€jr ¥«?p& msi?^ st^nrsf «»! affsfisir© iaa^imasiPt ^**d cra^f^ei
the huintsrsf tT-m t'm ^mm%m»» ISi© ^Tifi'se-ee 4?boen ttet thr? 2teiia%^ri^
sf plaintiff In &Twr, Hwetisp, tte plMitjUff in ^TPm^ a^im^^. Um ^i&%
^m of tSi© maid. ;:^i)iHOii© nM xml&Ttmik %o %ate t!i« same ^^mtf fr^s &ija»
T&is fSTlAem© of Iim *-&se, tl^ plaintiff in error, iiselog©® tisiat
i©©>? .»o;; ssan
^•r-i'.hi ?f&'r> ■-.■^"- ^-wso* -*;'■'•■ •'•■'isJ i-^j- ■•'?:^i'A/f-t^ !:«<;■ iv?fj 'r>l^<;jiis;:> ?5.fpi« effS" tfSs Ifflyr
his ear im& pTQm.m^m^' to thm. fl^t© la qum^tumf ttet li« IwrrlM
©ir®i* t,o wfe«r# tJiS liofitgf*^ imrsfj tfe;f. te atir^Q Usesi -wts..% tlw^j ws^^
that &« w.at up to the ia^^gt ?st, Frasfe aisa&f?,®, ^m toM feim b« «®s
vm.&i^r nrrssl, aiKl to glT® Itlm tM #*n| that J»: ti©^i»iip<m ^irabl**3a, fje
}!|iiii and «mi«"r^i^i ts tsks tfe* sssi© sw^ f^m 01i^>5?$« lliia In %tm
tim^ t45# ,g?ssi was M&<^&rm^* r2Mittttff in @r$H5.r states t]«»t ife«?f
sfert^d IVijr thts foad| that ^?it©m frlief r^i^-eSsrel th« rosi. M «r3J,@€ t«
0®© l''a«salf?r, ^5s0 ws® wittt felm tmS who fe«^ f«®&^ in taie tsai^j Isj
bring Mm *"^i# ©Itife*** It aprf«r!S ^m sa&l plaintiff la ©rrss' wmm
stes-m® Jerltai le€>^ fftsea &imt ^^t cfrsiS' ilie tor.- «f '&©■ fsst$« i«i f^^Jl
tafeo tfee llteh ois tJsa oiitsife* I'-ariBg the tims Mvaj w©» apfsfseds liig
t-fiffi fs5ii«0, pj.al.»tlf3f is trrisr £iM Ikj1€ of -;ilsi;a^. * la »tat«s ftet
af^«r 3Sa.Qis« fell €*©r i&e f#m» iiitJ- t'im dltefe ^-at h@ »##i3.« ^.tmmw
siK.'?'i*@j Hiiit vUmf.-'^ In ejid.©m'?orlij.«5 to piill s'&my tarcis* lifea, agslE f@l.l
tlma, t^^e ®toak of -©sfe f§m ntmek tlv<s gr^jBS, eewlag tli0 terx?^! ts
fly trp mt-d. hit Bim^m CT"«r th® rlglit efe ks^^kliii-:? lils ^m.#9xsa0.it>'tts»
SHjeeivM tfea blow scsaf2sisi@a ^@f, ia^lgmd of l^lag felt «itfe t-li,# isffii*&»
It i» <;lalm^ 0© Hi*^ pert fif tlie ffigfsEttesiS is btt^M" tUit tsltintiff
1b arf^r ®t»sk ;iiB-"ai@ #f®i* th,e* fe?^Ci with tk& ml-i^h ,la '^uastiim^ fe<>«!ls;"
foroj ij? net JSu^esp'UMs ©f fe^iiag jr^t-©mfJ-3,wJ« It iigioastptitsg m.
fsrsist-^st feslliget-srit spls^.t r^n th« part of ids'isjtiff in evrow*
i®S!,vis, In m^f waj ii®laft-4 o3P wmfuB^i. ta t$ ie>* Hd^ir^*, the isfe5,n1;if f
in ©iCTt^ «at«fN®a isto as aF;g^»a5i% a&^. ^^fflss witfi tfefjg^ tJiS^se mrt;fe@
.7^;"" rr^t-i".
-' :-■■••■; . ■:■' ■■'■ ■ : J-; ■ ■ ■^i.«i«0
i':y%">.i:i ''l\
: ..:y-Ai h::M-::^, .yi&:,i2;£^
'■^i- .;:.;-, Ci^' ,Li;c;; C^Xl %^:i
:. :r-x'^ . .V- ♦^>; ■•. ,i:^-u ,- :-^K/ .-^^la :,iXl
mm a si-imM ^mit, iotsfetl^s^lF te®©^ Wim t?;^ f«^et tai^'t tJi®f Jmt
l?iTgd«4 hi© ■pr^&imB without !ils e-ms-«iii. liU? <s: wSxmt fms il.r@«t®4
to^s3r«S tlt<»a aj3 a wlaslet «5E(1 hl# iMyitiH 1»H af th« ws8 Bat #»Bf IM i
ta al®s*t®# '!'&» JiSpy liwxtl t^«5 ®fli*»i«e iSimi saff the wlta^iss!^^, Tfe0»
sny vjay ^c'tt t&e -vfeiPdlst :: f tfe© jia;y wks ths ftfeult of pas^^js tr
prm^xiMi'Sim^ -t-T ffios^tst fer imtirop&x- mttlm&i^ Thm mmm faet f,tet ma
eTi««ri€i® ij e'-riflietis^s »®^ i« disijmM as l»t«S€4B the vitm.m^-^:<$^ fbr
pliJiutiff iB era^r ait* -fehoBe of def^sieiife istj artx-m' $ &:f^!.(^ sot ef
of t^e «'Tit©sss«, ttele^ss ffj® a f©'«l@® of & <5 S'^fseM tlis ©i^ri 35
fmlsii it will mn 0ul?»tt.ti*w It© Ju45K«l f^ tli't «^f tli# J^iff*
but we So set scssnid^T 'th«m su,ffl^i#Et t':? t?arr&nt u^ 1b, ai.stttitsisi^
5'' 1;":
'■'I'^B
STATE OF ILLINOIS.
>-ss.
SECOND DISTRICT J I. JFSTUS L. .JOHNSON". Clerk of the Appellate Court, in and
for said Second District of the State of Illinois, and the keeper of the Eecords and Seal thereof, do hereby
certify that the foregoing is a true copy of the opinion of the said Appellate Court in the above entitled cause.
of record in my office.
In Testimony Whereof. I hi'reunto set my hand and affix the seal of said
Appellate Court, at Ottawa, this day of
in the year of our Lord one thousand nine
hundred and thirtv-
CIptI- of the Appellate Court
(73S15 — dM — 3-32) ..,.!^^7
Begun am held at Ottav/a, on Tues(|ly, /he^flf th day cf May, ia' |_
the year of our Lord one t housa^^'S n^"e hundrei and thirty-si^,
mthin and for the Seccnd District of the State of Illinois:^
I
Present — the Hon. BLiilNE liUF^'LCiN, Presiding Justice. J
Hon. FRAL\FI'H.IN R. LOVE, Justice.
Hon. FRED G . '"OLES, Justice.
JUSTUS L. JOHNSON, CI er ko ^ ^ r^. 1
RALPH H. rES^EP. , Sha-iff- ^O'O XaO.© ^
F,E IT RETvIS^ABER ED , that ef t ej:'v'ar ds ^ to-'-T). t; 'i'n
the opinion of the Court tvc.s
Court, in the vjords ard figures f cllov;iig. to
sep S ^935
:^ 0 in the 01c?.c's Office o:^ said
I
Gers, !r,'-o« 9
sad STDMIOr QM501S*
Sill vJoiiBfef,
itiia i® ssE appeal frori the .|md>5^a!; ;ii tli^s eoaaty ©c^'ert of
aiJ^elXsKt f&r m h^m^&n iiXiiim^& erne for tmp^^ld E^fvliS'ss* ilie es.m®e
was fesitrd MthoiJt Jbs^* Tt^^ e :-urt gsv® Jiid:r3a«t!:it itsfs-ror of ¥i.oJft
l^^ror of ay^nay G©daes for ii;^,E©» ^llgs Hss^ssm ©tsrt^a ®03f% for
aep^llmt li^^igji-fcai la X©:Sl.* sim was a ni0x% &u-mr^i&&^tf -ilss Hm^ry
Ibegnn watk in If 3g» S!j@ also wag a slgbt SMp^Tl®r» asr* Oa^a^s
^§gii wt^ in 19tf , as s_r, a)i5?iitest Is the ki%^@m#
Appsl3aiitt teeta:^ fis«sjGM.mii^ ®gi'b®ii=T'as-t«d» Its m<mthl:f em*;
X» this ijasg!® it is esiai!!s©d fey ®pp*»ilMit that spfy^'MmB agrem? tte^
mstiM &©©ispt a «Jlarjr M;ieh was fe fea i<6t€r3^.ii.-®d -apoii a p-^e^setta^t
feasls, ssft^?' Jm?i« 1^ XmUm Appallamts «xplaiiati-B of this wagt &mlm
mns^ tm% th^ mos^lBily ©aafe s-eetipts wei^ «.« fee j;«3ravisl#€ , %m htXlm
first psia, ^ml that %# fe.fa?m0®j if a»f » '^e to b© lli^ii,®«. a;«3Bg tlij
Pi^OOi; Hv/i ti'Ml:.
■ ^^- k$.i^^%X
h^ ■':■:•.! 'f-V. v:-, '-'i^'i-.-i.: i:: ■:■■<: u^ U---- a 'lot ^JtuXXw.^^?-'
:j.v. 5;;., ■■;.-,«: MS.'!"/ ¥.;. ir '"^r, iXS,?";:' ft:s:V3S? f7i:' .? 3'--.t £•'*'5:^•'•
1 feosi® '"Shot T&Q&ivm^ f^jj.! tis« ¥.%m mt tm iKSUyitsl, usS ^l^osre
mto 41^ ROt» mos^ i» aottslBi to sSiS^ to %yfeat ©rt^iAt this o^jatitloR
fess^aa© tlislr wages to ai^€5li?t sac^thlj ^jntitigmmj*. Tii&f elato tlat m&li
thsjt s^^t ascaisrtAl&te in t^t.^U" moB^ly wages, ^^s tABt as t^e aosRlfel
was mhM %Q ■^f ©ajts5# This is tim fmly QTasstion Is t-r® oisss^;, vh^jtfer
AlTiiSlms earns to t|j»m ^jit tfc# ®sS ;if ©mefe ismtli f^^4 th© #sali r©©«A r?%s,
&.r whsWii^r such ai¥i«ikm& ^fst*® im,^®*-!® beiaf tt&^m tspoB. tft^ir imlfirf
tlist a ptosis « by 4S©bt'ai-* te pay e, £> socm ss f iMmsisX e Irffiiss^teBe®®
Xisnait, or sasi a©mi ^m M «ari, wfecii smelted «p^m #» a& ©rlsifuiil |i*fowi®«(
beeB falfilJbsd, Itn* oi?.s«?;3 r$li@ti upon bj apfellaisl. a.i'e ^^ilstlagalfrtjalate
fr:t:i •&« ea«! a% 'feisr. la thoi© ®ai@s cit&sl fef asmtlaat tJssr® eltfei*
exisstsil a© israssir?;® «at ^Xif, or th® @ <si6;i ti«:>?i wsts ^;^wm to "fes^ figfforKs«S
by tiie |^,y©^, imel Sf'* per-jf©^©^, or |m|r.si©at wma te b« «sai® f®i<^ a^
tliat a e#rt^l.*i ai«©\®t wmmlim.& Smt* If tte 2% w&s a isfimlt® pj?;>ial
to p^f^ tl:«&t ^rt of the mgr©«B5mt ta -ptf s.s nmn m^ Vfcs i?.ilsle,
istati® Qt rmtvpf F# Ail#B, tif 111. A?p* teo, fes«
•v:;^:-'> , . ■; ,. ;■; : j-.:.\ ■ .' ■ :•■ "' ■• ■: : j , > ; ^W ' :" ? -■Vi:-:,: « ^«3ft l>l;fr i''^
/^ • ■■ '< '■'■_ ':- -■■'■ .": :^Cv . : ^.■- .-..: ■{ . ..i:' r--': .^^ttou^" -y -Xv>.>^,- li.:?;-i^ ^f^if&^m
■ '■■ ■ ■ ■..• :r ■ . ": '■': ■ "'■' i, ■ .'l';:'-j J •':& j C O.^ ■ 5 fvlVX*;^
■■}. ..,:,•: ■ • ■ y ■■■ :•,.:■■'■ ■^-.^-v ' '- : , ; ■ i ; ■ e-: 'T^d^rW^ 'Ji.v
■ ■:-^ ' . 'a ■ ; .;' "^ -■■ v; .. i'- '■ x" •■ ■■. ;' •: ^r ';■ > r- v^ ■'■f^^^'-js- ii*' ''O ^' 5'';'"5!,;r'
:■:.''•:.-:'■'-■: :: ■ ■..■■ i, ■ '•• -^fy ;,.'•■■, ^■•o.. L'.-'i ^■'■■2^■^v ■'■ ■ ' ..h :^_ :X'*S.ifl i;ni,7i:
«■»;■:■•*■";■ If .a;-^ ■*■.;> ^^ ^ .:v'> ."—■■;■.■ "; ; ,;■■:;■■ '--it^-.A 'f-y-^'i j -''i '*;.."-" f* :? . ■ -St -?:*• ?^ A; iiS^F
*• ^' ^' v-"- ;■ ■•■■'' ■ "i ' '"•■;-■ ♦ ■,!r;^.?':f '?.-.:?;•- r::, ,;5-.4 • ;t - *R-K>f j"(**v»:s'.:- 1:: ^ ?;■»#«©'
^.-vy-v; ^c;iS-'; .,•'■•.■'. ,X,l" tis; ^jK^;!:?:-- , v-xafs-r ■jo ^^t^?'-
«3»
stt^apt *o »euj*t B-wrfi©i®-ii;t funM to pf Its frntetaadtsg lEil«fet#a«r
si#aa, fey @«3liititlus fijsnatloa® tm-m tn^ ®i%i^s of «ill votmty*
Aa¥#rM»«««»t8( app^aiP^sl la 'III® tmwm^f'i^ iti wjaigii wssr® li®t®a % WTt
i
fills Qjctsis 6s-® teim &mwifet afecmt tl^rtni^i tfet ii^wt^MofUS
Bia?iRi tfeffi t«8t iBmaittllS aloDBi tl50 miFAll; Fas #(^iyl®©
!,« F^iiii tmm. Gmim>f !©«€ for CaaBfcr l^tients ,**i4»O9a,0§
t# F'lai^® :^JS3 a®Xi#f SosateMos far Coaaty
f (^ eo®fc of mm i?®l,l ..#,,».*«*♦»«*,,,**..«.♦*-,, SOO^'Si^
r)®tti.ljs©# fgr later® sti ©r* iaM®t ;laa#1»^li*
testlm-oasr i^ <&ajffll«^t;l«sg« S® fe.s^« §»alE^3 tfes a-arsis sj.rii sir© met fll-ss*
pQ©«« te atsa^pN?® wi^ the trial #m,^t vm tlse^ Ji^fsas^at j?®gi/de3^fU. On
eoatroTfsrt^J questions ®f f®,«>tt ^^ ««*'*J3rt ^f rmriB^: mn ist^rmin^ mif
QM&OTcr e©.* sti 111* »§j i^fw ¥» s«wt»ei»i"* tiJf X31. sf@» ^a#
I
,•», „■.■. , i<- »* rj
•■■t h:<;- Aiifii&n
;;^^
the w^t^-^lit ?3f the e¥ii©M©# Joliwm t» =ij«tsal Tras^t life ims» Ca»
'Bie ,fttdip8®at af t:fe# trial- mwt is tfearsf^r©
iH's^f'Cia
STATE OF ILLINOIS. 1
SECOND DISTRICT J ' I. JUSTUS L. JOHNSON. Clerk of the Appellate Court, in and
for said Second District of the State of Illinois, and ilio keojioi' of the Records and Seal thereof, do hereby
certify that the foregoing is a true copy of the opinion oi the said Ajjpellate Court in the above entitled cause.
of record in my office.
In Testimony AVhereof. I hereunto set my hand and affix the seal of said
Appellate Court, at Ottawa, this day of
in the year of our Lord one thousand nine
hundred and thirtv-
CTerl- of the ApvcUafe. Court
(73815— 5M— 3-32) ■,£^^^
AT A TERM OF THE APPELLATE C'^'JT.T, |
Begun and held at Ottawa, on Tuesday, the fifth day of I,Iay,;'in '■
the year of our Lord one thousand nine hundred and thirty- six,
V7ithin and for the Second District of the State of Illinois:
Present — The Hon. BLAINE KJEFMAN, Presiding Justice.
Hon. ERAMT-'iLIIT P. D0\^, Justice.
Hon. ERED G, TOLEE, Justice.
JUSTUS L. JOHNSON, Cleric
RALPH H. DESPEP, Sheriff.
T
BE IT REt^^EPffiERED , that afterwards, to-wit: On ^^'' o l^'OO
the opinion of the Court was filed in the Clerk's Office of said.
Court, in the words and figures following, to-wit:
Tims% «Rd ."iavlags Bank, u.lgia, .Xllts^i^,
Appeal f^jia %ke Cfe' euit
l^^lf^m Clll'lic (J? ::i^xt, I53d,, a
alX^^ f^araste©« Tim ^m>mm "^^ imm^-^ fey %fe« ©-^irt si^) jiiSfe»iit
r^?i<i©2*®^, ta ttivtss' of app@ll^, i,|sp«lla»% m-m$klm*
'&^, eTl4©ise@ s cms! ©tea of a ittifmiation of f®etfi ntA. tfea
UQm& Ts^mt ®a0 t^Tt?>.g8 Bank <s^ ^-S-gla* prioT ta its HbXIw^ It
ftpti^rs tliKt 8.p];j«il<^ iras a eorpoamtioB sf tfeis state 0-mfi.tdM^
aa4 tsalntaiia ® ge«n®i?sl a-«diesl, sur,^e3»i ^sid d^Sital cliBisi t%lm
other labors feqrles, aaa si©© Is^spttalii for tfee traatis^st csui t^<s
©f th0»© r«5i^pla5 ifiedi«ai, surgl«r=l tiul i^^mt©.! fitte.Ktlaa*''' l!\:m
tfce owi^Pfl, ()• L» ?@Xt«sis Jr*, iX^ii m& Iit0 interest is tfe© ©ut^l^
irise pass©^S fe Ms wMoir, ailia B* Ps3.t«SB» J* Jkm^i Milliism fas
a pli^ielaE li'^ir^^ im l^liQ Cit^ ^ :;.liii3i, siaS ha* teem ttsgc^eiafeoi
v*ltb th0 X-'sltm Climic? slsiofe 1981# i^t«r tio its :lj^orTJ«r-aUcm,i%
bed o^araitsS as a «®iipiaifi lam titist» ]Dr, mni^^ waB a©strom® of
■.a
-'i'l^.^'Mm-'i
\U>--:-'^ ■■: i I ;a>. .'v:',';;';; .^^'S'. ,■■;«':?■] ^'^ <J .'■• ^'r''M(MO ^v^s
wtao^t oTtiita B« I-®Iton» m b©Tf©WQt the moui^ me^MiiM^j to pireliisa®
gixs-ira'^e® the jMifwrnit ciT tte wt^tir* s»teg at aatai^ity ca?* i^t imy %tmii
l^ifi, ®mfi; aiST'a© to pjy all sosts and @ig?c*b^# mi^ ox' iiismrs^si i»
, Inc." "v}»L, j^Hffe, .;ir*» Pm&*it ^J*-^*
L* Jl«i
■9
J,# ljosaI4 I'lllii^nj 8iipe0t«ir»'* Th«3 ^me^ teak guspitiissscl ra«fim as
cm Armmjr XS, X^g« I)?. iMilll#ils itifmii'^i is the igrfj^tit fjf Um
note anS tf^ls 0W:it y©stdt!«st% fegaiii^t sr^pell#®»
note fe^ »r, ■iiillg&s to %hm 'im:Rk* H« mm#. tMsaoiisy fe 1^^ ete^
fr?M tfee wiaow of o«L« Peifes, Jf,, a^ems^A-i the, l^m'^mt is tf.^
far til© f4l2ioirt Xairpe^s, te«t tfe cf fie«3?s sf t«s bai-sk- s^iii:^ ©rsfes^.
Urn ttass-aettoa, ©jii ttat ttef ^on^M^fstJ tfe® ttiios^emei^ iy tli®
epp©ll®@ eoxf oraticm upoti tfe® Mi^ af tJi« sot® s^ e gm.x®.sit@© f«
tbe pafiasiit %hfs^©f» TtB &'9i^mk-mi ft4.X& te syip^crt aa|" stela tlast
Ejsy pssrt of tfe© ^srssMei^tltm ©>f ^u-.? sMii® of tli© asit ws;(it ^
0ituatl0at mM&U la 6f>3:®ii*jr«4 e-^^ateolltog Ibihs, %mB l-&f^m this
e®uyt la tJi« ea»® of cuHiema *?♦ ^wo^Ss Co* fSl 111* -^-^^ i^S, ^00,
aoi, rlsr«ia it was h«M mat s e<a?pQP8tiQm gyg^jsa tlie t>ii® ias-o3sred
.';>t-. ,.';■■■ ' - -.: :■■ :,».. . ;, •• • .n, r, .../.■. ■ - ;- ;» v ^-j ^ -i^^v*-:,; ■■■, .fr^l
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, ■:^- ;:,;■„/ ■: ■■ =■; /■;-:;/;/.■- ■;;■•> ., J*;;.:* •;.'::;! ;J ;?- ; : ■^'; -.m -m '?'■', .!!?:■« O'^^-'-s:®*!'
■•■ : ■■-,..- . ^ -r: ::. , , r; y.., r. ■■■■ '[-, ■:.:. ,:.> m:\'} iiiy ■:;■■*; '•'?■ ff ••■■.■■ v J;'.?-'- .,/-!.,r;j:5
r : :, -^t :•':-■■;■■:;■:;■ ■-'■ -LLc' .> "■ ■ ^t ■ ;;':"r<: ■'■fc^: ■^^'v,y v<c^iv;..(i !;^>, ^ '..; ■ y>^j^'y*{:'S;li>»s&f
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'^>'* "«:-^-:?.v'; ■■..!': ij -S':- *:*'■;' :va<^ 1.;: :^-M-^.:: •■■-■; ij;.: ..;; a'' ■:. 5 :.••:".■; -rv:.;/ >:^.'.j'.i>^-'C.%.
©SB "be tm p&w-'^S' to jpetiQ'' lt# lE &daitio>i te %h$ m%tl^Tlti®m ref
to l;ri 111® s-wpfd® Caa® smpo^ttiag tfe© ml©- slssar® smssatei, is ttot «#
tli@ jti4fp«isl of turn asreeit Cotart is ittf-^tmti*
.'; V. ■'■:"'.' ii^ Oil '.jd '^i'?S
i^«'j ci & ■''i^!:---'- J tii i].J ?.'^^
STATE OF ILLINOIS,
SECOND DISTRICT J T. JUSTUS L. JOHNSOlSr, Clerk of the Appellate Court, in and
foi- said Second District of the State of Illinois, and tlie keeper of the Eecords and Seal thereof, do hereby
certify that the foregoing is a true copy of the opinion of the suid A])pellate Court in the above entitled cause,
of record in my office.
In Testimony Whereof. I hereunto set my hand and affix the seal of said
Appellate Court, at Ottawa, this day of
in the year of our Lord one thousand nine
hundred and thirty-
Clerl- of ihr Appellate Court
(73815— 5M — 3-32) ..^-^^y
AT A TERM OF TliE APPELLATE COUB^'.
Begun and held at Ottav\fa, on Tuesday^-' the' 'fifth- day of I.Iay # ins
the year of our Lord one thousan|'""'ni-ne -hundred and thii^y-^^x,
within and for the Second District of the State of Illiinois:
Present -- The Hon. BLAIJTE I5JEELmiI, Presiding Justice.
Hon. ERANiaill R. DO'.'E, Justice.
Hon. ERED G. VOLEE, Justice.
JUST^JS L. JOHNSON, Clerk
': RALPH H. DESPER, Sheriff. ^ Q. f% T
BE IT REI^'IEMBERED , that afterwards, to-wit: On '■' i: P 3 193$
the opinion of the Court was filed in the Clerk's Office of said
Court, in the v/ords and figures following, to-wit:
VSi
f?s trick- J* i-felwsiefji a©#®®»g, aEd
Hi^ert Gaidar,
Tkis eaa© &fim& t& tfels «cnjrt by trail sf'sr ti\m ife© 3«;pr«^B*
Court;. (WMiaim v» rsop^ ® Tra«t asxd ta^vlBgs &r&, ®6S Ili« M6)#
It S© SB «s©t.t«r» by t&a ereit&^srs of ^ dafuB^t k«i£ife to @isf©,re«i
gt©^ toilers lia^ilitj tmScsr »©$« 6 «f A^tie:fe .-ri €if tls©' Ccia~
stittJtloB, cmlF tw3 t^^lmts ©» «,f^S#fi by apaillsrste for r#v«rsil,
ifm^&l^, th@ i-ftat^t© Gf LirJ %vt loai5 J asS. Lsoh^», 1% was str«Eii©?»If
ai?i\i©6 bF OQ'imi^ for apwUmts that S^f ®s34«irt is in aeticmss ef
cif Limi tat iosg*. '^mf TBf^T %(> no sAieli o&s# iis Miii^^ i?ttit.% HswesV^F^
t!>e. ?i%estiaB 3F«i?«si-?fe<l tiie eoastclera'feioa of the s-up3?^gi# Gowt In
t*m. ease of ^r^sn^ra ir» Mer^tt^Bts stat© Bassk, S49 lU* M*?* Is
tfets r«0|?eef tfe«i 0-^>wl; In ttevt isse.©^ et f>s>* §5©^ 800 mi its opiaiomj
P-$etat« of i.-teifetioj», tM «|5f®;Ua!©s eomts^i that ac? qussm 012. cf
4©M of th0 beak to l%m erestitoar aiJTt %im li&bUitf Qt ttm st03fe-&oli*»
eeeme at tfes awM tlias - tfet is, st Cn^ tl» t)'^ ia^bt0iaj^&?^ is
?0 '^^'Mi'^^tXii
■:: i;-f1: &^<y ii^^'f'
Vm hm.'k cs" the jits«'<ho]t^ ep ^latll fehs felit csr liability \^&.m.&&
dAie; ttj©-t the* catai^fe ©f si0ti«s. s«cir««sf sgaiiiJ-5% l^ytt. at tl^j: ©ajM
payment I ©l0ft#s itv^3 ioorfi ssriit ^i(iite !»<j:® fiitga^ On the otJb«r MfiCi,
it is ax-jmecl 'M. l*e^lf of tb.« apptl l':ints tte t t?3€? >Mak*s llab:LUti©s
^T^z^mnl of %h.& .^pgll^ea ap-pllssS &wlf to d.Kn-'Ositsiv tsy&bli* an d«^»^
&R€i. B'M^mt to Qlmukf arid not %■•■ Xiabili^ss -s^'idsss® toj pr-'mi ®0?>3ry
m:*t«a ©-^e-eut c-'t 03? li%d©i?^®«l by tfe<s fe«mk, drafts aso«®t«i. or 1 a^gorssi
hj tlm h^mtf eel* %lf I sates &f dst'Osits -psfafel* at ?l»tl &m:%0m^ fer«salass
c3if ©autraefeffij oy coir^m^JtiB in €e#^© or lims^s^^ torts, t«e©it,
!j?i«r€-^#s®.istatis« or fr&?i^, or atfeef fojmB of oliligi-^.tiaii ot liMlll'W
0uefe liabtlltl«a t&e ea>ia« of asti^jg ih^fiwrnm a^i^slist !fe® te-Ek apas
th® IsfiHB.cb. of ite ©smtj's^iot, tlie Q^m^iB^tm ?>f ti*; tort or fr@.ufi or
tke j^kiag of thn mtss^.*^@3i«Bls.tioBj ?a,ful a» titsMon »i:^^- fee l?-©gaa at
aaoc? iaga.ir.st th9 teak f^jy is^t^b Wssmcti, n.nQ &g®. l^ist. til;.« s.y|s#tliS:l«!^
at ^.m SCB8«^ Mm© »?-.m hln n-m.&*4.W%i'mMl llat-ilte'*'"'
■*^^ i|5.s«8ftlom aifj:t««-# if? rs^^ t^; th«s atssMfe of lislfetlim^i s»s
is fav-©r of %h& BtasltJsoii^sfj tssd,^ 'fi?»rs d.o#s rs ea*^-© of p.0M'"?b aueB-i^
olals3s» Ills d^«r«6 gmte**^ so flistlr®tis«i is thlfe r-^spttt* asjo»g tlie
ore^lfers* r'Twy f$.Mii^ ef ife# «»o^rt la » gestfirftl fiattisag of «&^
total Uabl3.itl»® &r tk% 'bsiik t^ all tUi ©.r©4itoi'Sg ^It&oiit 5ia.f'
^IsUuetJlon,. ■»:»; i^t?*! ^«5^imt rf ail th«j 1mrik»a llabtllties^ sfc Wm
ttet UilB as©i3Bt ws® ^.11 au-® t'-J- d®pc^sil5a:rss> &ii#. « e^oa if %hm otsuM
\m 8iS0-tji!8t:i, it 0s»i5©t b© ass^^isa tlr*t 6.11 tines© dSsposlta wm^ ea^js^st
to eh«sl£« itKuailf s feack tea mxvin^s dsB©«ife>i "w'hich ax-e swbjeet to
7.4
,av.
a eertalK s^as^bar of dsjs* aarfeiaa &^rtji«s; ^jaymsjit nay fee; 4ffi-J3^M#d»
v'©rtifloat«3 Qi' «}«sposit ar« sis i®sim<-,5, ©aaetU^^j® p*ymDl# es
4e|jo;slt©r% feaiiks Muji-^ra ilafeXe «:=-a itmxT ut^ri -pKiisissosy aotei^
jfoF m'-m^f fee(r£«^^c5» eft Bill® re-ais^aisiBt^'i^^ \ipm. tli?^ Milk's gri»
«i€jrseBieat J on t-&sihi'&^^u ^Jx^skSj for ^'sast, thm ernXfi:^! tm oT its
off leer®, mm ^tmr suvi^»m.t i^y^imim-ss as a &th«^^ tm^^m of li&b titty,
fe®sia©j? Its lisfellitf IK» it® ^©l»«g:it©ra* ,i.S':Mg ^m M.aijXllti-as
of tfsls betsk vms h% claiajs el* ifela© okirmcitm' of €^#5 of t&e t'orm^
prt>p2*i&te sad fe 0tites:-s tis^ tsa-y^s.y .^-feit^iS^j aaa tfea otat^ta
fapont 0lfe^r8. a pXi&*» of Ite ^itetetss ■:€' LiMtsstiom m^t apply t©
8 p?si'tisulai? gX^Sm or Gi,asB af eXfeisas* -vaeb ®toek'>ioM«y or class
of gto«i?chei4*^» ?2a.y f jHe p3®&S of fee ©-iKitutts ag^-iB^t tn^ er^dtte-i?
or niass: or ei?Mlit«3ir@ tfliQ ms^' h& sublet t;.i itfi op^'ins.tloa*. II im
elelr?® no plim of ^mf atat^ate of Itmitfetieas Ci>uia h& %watfxf\uXj
stattit© c^ lleii^k-tlcme -&&%" mtip^tlf fee ple5&Ae»2 aaec! smfclnM*
lili'e?! i?r.jf b« i*mlg®d upsn fte r®e«d te'S© unm duly fmigtci l3;f fi;^pro-
M:il«^ w« im'r© n&% smma &M ^^miq% mtt, Hei^fes- t'b^ crMsraet^^a? cf
say it-«M of lttdefet^&s.e»® l^iiM to Jia-ve- a^«ij^e€ a-^^lsg ajw sa® of
m'lly ttet ®a«ik ^sfet teeru^- Mtweea 'Igi?? •!«£? S&t^a G-f ■&© pw^ims®
Qf stotiE .^j^ its ss.-I«« fl\& &&%&w%&s. ariQ? ites: Ij^Qatje #^» if it
asoerlaip.eS asiegis it is Iteii tJiefe tl;j^ ^tslst bcsliig due f2K»s tim
< m
f ,,■,:) -^j .,a ^5
t ■ ■ 'f
h .. -.i.- M ;..'■ 7 ;•. -,■•;.■■ ■;^^;, -^ ;V'^ jj ^rl' i.i ', "'&. ■^.i:<1f!as.
, ., -,• ■ ■ ■ -A- ' . 'i, J-'; • i ti,? fw -i;- , ,i \.' % ■ '.' ■•( .\ ■■ ;.^^r ,s i; , S'.-
.; -■■^■'il' A..., I .y';'; "^ I- 'Vj'' ' ■■'r ■_■:■■': i;;*';; > . ■'{ ''"^'-v' ^ ^j ?' ifSi^ft ■f^^-s's
^i;'.;! <:rf,; A-.':! . .I;- /-i^in-" -^rwi^'^i ^.JiS/iiJgjI-' St-: --Af-X^d
§^a..nof fc'S tsnie 9f tfe.fs iisfpisalt©* the .©oatraat of tlis teak fit &
its Mafeiiig feemse., is sueh a?sa», at roeh tlSMs-s «i»f2 to ®«®fe BrsKSB®
aa tfe© dtp ©sitoi* si.|r .Itee^t, ***'**'SaMX 5®istmiji, tl» i^posifer mm.
that Itj t.> 'i?^ m}0^n 4.mum.& i^mAa ©f tJui* teak lii a^jsh miBs, t-t .^a^S*
time© «!>riiS feo aiA^k p&itmmB ^.s t>3© i#|K3?^tvOE' gis,? sSiri»&1»* t:m S'lti ^
keiJ «m a© 0tth@r t«m% «a! b© satloii ©sb lit «imtⅈtg€ a?^i.m®t liim
lletjiiitr tlMia tfe«s 1;»:^k, but UBft^r tfe e'-msMtiitlosss !?ls lis1>lll^
a isfe^ttlioMtr aacl Eot soratiiag dlff-ar^snt* 'B'*© ::»tatm%» ^-^f 1.1^1 titties s
end p«irt 1^ ,ttOt, tfB ii%&.fmk4Mt& Ir. raqtsirsai t> WfiW'^ th* wrfe whii^
f'-ais ®'t«5Clfisfeli:f sitfeiti tli® prot«j0tl « C!f fete ®-t«t?,it.®« **'''Sti^@#
fto dlstlaetg ladlfMtial item of ll^iMlt'lj of cM »b of itasat It 90m t®i
smt iB ths arg«gi)^-t as having aceytit®^ fiurii^^ tb^ «»msTsJ';.lp ttf mw^
^TtLm^lm ttiia3?8# ^'f st0«i£ assi m«^ 4at« fer tis b?s^5i»tsig vjc tint kis; 1§^
of the 5tatat« «tf i imitatiass f«r arif psrtl«'^ty i^t^t or ea«ss af
limitation 5)f aetioiis wfeiefe Mfe b«i» at^^^iti £3re ?*i®ii"8f sc^ot ?j?,»iill on^
^^feJUeB do a#t ec«itMtmt« a fesais nf a#.j^.lt«tioE in this ©ftw***
It mil fe® afes^arrM. iss lili© roi'^Qla:f; mM^^Tft^ frm the Sti^fijr®
eisse, tiMS ©mirte ittatiMs tMt th@ t'^wtloa. s^ to wlwrn, tte liability laf
action ©f ®a;^ ex»®tit«5^, wmii^-^ & ai'^isloE of tl?-» f^msstim fee^jsM tt|>*5ft
tlu-i cfeayaetar of tli® #reaitar*s <sl«sJis Egala«t wii.uli tte ®tta%!il« was
Bovtf^t %Q fee lafe«"|>oe@A. Im tliit «s!iif'se%, it Mil b# vb»®rr«»d tim.%
th« eoijrt th^y© s?tet«®? **T!b feeiss^ -mKe® m* aistlneUc* in this
i' ^t.t.
i= m- :;. u -im
*■!, ... uV 1^'
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:^ 's;:
',..• ;;!=!* ;.::;■::-- ^■.•^^^:^:' •* /? J ; •:;.:■ ^ '--',; h. .- J:^ i'i ^i^(.
..■! .V,;-, :v :- .i..,j;-M.v:ti^;?i ■. 1.; iiS.ii4'^^4^> .■i?\i& to
;■•;- ,. ',.:V' .:.:■;■ .b-v.^l-A. ..:,:**>.!. rf'';?"'''. 'Cii-^ '■;; «tttii|i|il
; ■; '.■;r--'-^i ;■/?; , :;: .^^''J /:; ,ff {Xf.r; S);;i TC-' :^'A>^ i?'"^ i^iSl^-^-
tlnHms ^f ^J^« total IlalrilltS.iSj3 Qf t&s l>aslr ■&«> t-E its -aj^il iter®,
idtliout fisf aisMiist'Ua*'* It will hA fi^rfeer obs«*f«Tea that tfe®
s.if li'isti fet loss is «!*,a affissevll'W €©f«t«., 6 as tij« teM^iH cc i>ro'i^,i55g
it Tmi^tm wlsiJ-f %^l>mi, tt-e m.vW plm^^iMg If • ;%«¥» mrl of tfc® p,l&im»
t'-^ pTGvm tlm 1)^% ^hisfe fmll® is|v®isi,f i@sil y sHaiis, t'u«?- israt.«*sti3a ef
It «i®t fee iet«'?ai®;®i fmm %h.^^ f&^tm of ®iti«ri «>fsi»tie'alat* mimim Tm
laugtfe ot titm wMsii m^iffife p&yjs li?. ur^fer to ?s?ya^itetv5 l«^|j®@ v^rt^M
wilSi th-# |B8-aiisr ©if oixEsrtjm <»a o f «a«ji-i. mMi$ nmi lteref0:r<siB this
r®®!*®®^ In tmJllfe® th$ ri.Htter of Hal tat tarn j iffeish IB aul^jaet' fe s.b
gW lU* 203| i^eoiO.® T, Tiar^ts asS 111. S54| SoaM t» ?#tj|ife, l?90
ill, #18» ffsB r'aisort is. tills ©at« foafeiu.* R©tli>Uig ©ssiept %fm piteai*
ings, tiM il^e:^©©, jsad tlis TSirios^ impjsrs fe®e@«i;a.e®j to 1® fifed ia
to® fen el ooiart is ^rtaf 'te p^faet aa#s-pi»®l» fii.«s^ i » mj eTMam«#
pi« •■-jf tise gs'ls-Mte »g :!s^® l.s i. 1. tlm fkm,t g-^^mtl t'^wmst is® stile*
mn& Wi^m %hi$ eyhmfmwii.%i^» s?s mmt q%% in. the B&4ti^& ^mm^f 'm%iX& u&t
m,ttl^mt SviMti fl^mm ai*& mot air©®tf«t« t^'wv^^ %hm n'Mim of smj
atsls up tlist ?iis& ha4 il^o^sti of bis stts^k aieips lli^ixi %m ;^r*rE b'sibr©
fch«i l&«'k <j.lo»dj r^.4 fo.** this -s^^iffJi wt?s #*isi tted. to tm saa«flt of
Statt l^^ai?:, mieei Umlm^ v, Nsgm, SSS III* Wf; eoaafcoffe ^« ivserjpsi
F&Hc Vi'^st and mTrimfis ais.s^» 563 I.13.# ,!HX.»
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STATE OF ILLINOIS,
SECOND DISTRICT J I. JUSTUS L. JOHNSOIST, Clerk of the Appellate Court, in and
for said Second District of the State of Illinois, and the keeper of the Eecords and Seal thereof, do hereby
certify that the foregoing is a true copy of the opinion of the said Appellate Court in the above entitled cause.
of record in my office.
In Testimony Whei'eof, I hereunto set my hand and affix the seal of said
Appellate Court, at Ottavn. this . day of
in the year of our Lord one thousand nine
hundred and thirty-
CJe.rl- of the Appellate Court
(73S15— oM— 3-32)
r
AT A TERM OF TiTS AVVWl/ItZ COURT/- 1^" I
/ -^^" f
/ sf '=?'} !
"th^ fiftjf day of I.'ay , in I
1 / / I
the year of our Lord one thousand nine hi^dred and thirty-six, /
y/ithin and for the Second District of the State of Illinois:
Present — The Hon. BLAINE liUFFLUm, Presiding Justice.
Hon. ERAMI-XTII R. DOA^ , Justice.
Hon. FRED G, ^"'OLFE, Justice.
JUSTUS L. JOHNSON, Cleric
RALPH H. DESPER, Sheriff. 2 5 6 I ^ A© 6 "^ '^
BE IT REl'IEMBERED , that after\7ards, to-wit: On '' '^'^^
the opinion of the Court was filed in the Clerk's Office of said
Court, in the v/ords and figures following, to-wit:
the ©st'it» af ^-iiXliss H* M^sr'dts, I
}
)
Consolidated ^tl ) ;-)mT 0? ^«PAa-- a03f??T,
)
vr-GlL i. i^jhfO'-^f as -^xsautor of }
tte Sstsiie of wiiiim^ n, Kd^ar^s, )
}
.EOS A, ^-IL^OM, SD^IA X.. :-tL\'m, )
islAHT =::. i-FOHB, as Trustee uad«a? )
tmst 4s9<! M-eoorflM as ioouaest }
and BMJUH .::.. ;fX.&, )
br ths •■"Ire wit Csurt of Du Page Cmjtity la. faT??!* sf Tlrgll J, MortoH
as; fiXso'.it-or of t^» estate of ^lllt^^m :U i-dwi^rcls, doscsoss^^iS, j; ^3 jagaimt
Lef5S A. Silsoi sua i:Sni; I. -ilsos tJsoa e nntss «at®fi Oeoesbe? 5, X9Sfi,
for ta© prlnalpsl sura of ^5, 250. 00, the note losing pi^jmbls In lastell-
rasats of :|40«00 ©soil on ttj© 5th Say of t^atU Kiosth. Oa ';e,^te5;^fer 2?^
'il^
r •■■■ V'C ^■^'"i' -"t^
1954, thf? said iAortoa, as BUoh. ©st-usator,, "'ilet! ala cotaplfdnt %o ^otB"
' close a tt'uslj de^d {ipoa SfKCtftl;- prsfstMsa la Ihi ?a.g«s "ousty, gf:td
tru«t deed b«l':jit #x«a;.;tod by tbM Br:Xii -c;■^m i* >:;;i.l3on sad ESaa I.
wils;';a ?aafi ffAvm. %o scieiirft the pf;3i?fK*.nt of %h& ne-t-s ypoa whirth ^udg-
should stwnd S.S 8ifscu.ritj" flurln;-* th& p^n&mi^f of i?i0 •:>rQ^&^&6\w,t^ srsd
tfaasf^rr©^. thst esuif® fK'oia th«; Ir?^ side to ?Jse efUAity aid?? .■5f ttit
The 89m;"l8iJit for foi:'e0l.©«*«s'«« ■???»*? te the tjimsl f?:«*iB sad set forth
tli©t M).© «!ef®ridant8 'Lean A. ^'llfxoa @sS ESbs I* vilsi'm ^sr?- Justly
ind©fe-%ed to -sillimn H, v4i^rds i5> fel^ llfetl^ae Iri th- sua o.t >Sf?^50,00.
end *!ll»g:«s^ tf>«t in. 0as,siSsTati'-K! thereof tfe^v lastcte taeir n.f?te ©ad
ex,e(jut?^>S t.he truat deod to Mary •■;» pota-, trmt©fs <^rspi«is '"f s'h.ieli
•®©rs attsoh#4 fc« fchs osestr/ls-lrit, Ttm ccmplAiitt ti^f^Ti Kst fortli the
€siifeb. of i^iS^ardo s£i -lo^e^t-er 9, l'3?';v, tte «•"»:* oijFite©at of glipdrxtitt
as ax®e«2tor ©f hli3 estrnt?*, the r?^iMi1;loa r^f ju^^a^rit CM ^-h^ aote c?a
S®pti^i3ber 14j X934j e-^^fs a©T®rf!l di5fs»ttItN In tb.e j>FO-pi®i^ms of th©
triist €6.ei| a?:;:^ jasdts the, -'iil^on^ '^aS M^'^y 1:;* Spahr ■>&;'* tea def-pnaRtit*
Tter®i3f^©r feii^ (^dt^mic^its Looa ./U -ll«»s5 sva^J Mnn 1* ^-lls^on filed
tsi©ir asf'm'm'j la 'sfilsh t.fesy nsjitaot' acini tt^t'?*! n^sr <1^»'}t#iil t^lw? iMebfte<£l-
nmna tD ihs plaintiff, ?>nd noi^li'sr atoi&t^jf fif^r Assnls^fi pfaetie?illy
all of tlx© ©t!j0r ^llegfvt?, on« 3;f tiK? «osif3b4.iit* Tli@y ?:«■,:?% up, h-j^^vsr,
Ixnisfc 4s><9!5-, th© ssta ■•llll.nss H» 4m\t-ds5 s'fn^iag, fully aftd ills^'alXy
'Sherged ^^^ni refj^SB^ia tiic Bmi of 1500.00 as a .■'OoaissioB fca? laakiag
e lo&a of :^3?50»0O, jsUIsIi sosaisaloa i^aa in a<Sdltl^Bi to !;iie Int^f^st
iat6J?ast eoasiMtute^ usury sna. -as tiJtlarfuX aM a;'?Btrar;y l-s tk©
^- ^
■ » »^ ,•■ ^ .;. f .
mdviy !m feass;«*r uiSiJ^e oath end tliis BM^mar was 8lgn':?<S &M swors. feo
mn asonflowisat was? filttd I?) tM aoaplnisat laM an amta€a;mtS %o the
answer v-,-®;® slao filed, in. '4«iilefe it was ©lleg^d tiaiit tte aals?n*ul
iftstes^d of 11500.00 o«4 that Vm &momr& of tl^e Icsgr mr^p- I4j^0'>0*00
instead 0f 13750,00, After tlii?'! issM^ra lis* l3«j6n so a&d# is|k #a SwaHsi?
tiptsrj oonsldsration for th<r: n.at# Cj^nd teust ^«ad '^'as ''^.jDOO.DOj that
$1250*00 viBti rH%t.lmi4 by iisj^^r^a m© oommiB^toviBf fils*t this? eo^aal&sloH,
111 a6-5Ul'sa to tite latei"©.*«t s-esferired fctaaimtei t'.? asiirr i?;5!fi ttet l-h'sr©-'
for® the plaintiff Is sntitl®€. t© 5;»ll®et no !.utei'ss§?t wlsteff^r* Tlje
S@sr«<* fauasi tliJ^fe t^ tew o£5:f;^nt® of 140*09 eni^fe h&f; l?aaa pnid fey
the d©f®?idsf)ts cluriag tti«s llfatisfe of Mwitr4® and tliat? tMr^fsisce
ttmrn was dM© fi*»M Sbe ^efsMaats tc t,h»s pl^sS-Ctiff tte ??«« sf |sa90«00j,
.■■;:@0t®?«b0r 1.4, WM f asi provl^ecl tMt imle&B tlte ^efendftiits psM e:aM
BU%t of |4,')30-.80 wltliiii. five dayg fjfosj t;fe iat® of th^. te0:r©«, tliat
t^iis pr<emt0e« ssbould fee sold l>v tha "Jefete.r'-la-crissm©©?:-/, who wj®
direst^^a to ^xeeut® tte 4«e?©€« It is frc-s t^l^is d«?sr®® th:^:t tise
plaintiff tialo^^f^ Vlrfll «?• Mortoe, a® #x:«g«j«tc?j:' ©f 111® ®®|f?%^ csf
Willi®® H« rfSwsrii^, digseesed, p'r ostfaut^s ttilB uppm&l*
It Is lnslat©i^ bf ®pp©llsfttis th?( I it wes bts^s^ for the
aourte 3r®Ttoa» t;o 8onfi^lidatiJi$j tM s?iii»es %z- vv>%n up kh& $i0^-s.mit hf
9f>nf€;*sioa, t'mt %lm ftisuJiJig of ila© a-^urfe as to a*a^y Is^ ao% ©«pport#S
■by %hn -wifl^nmi^ fchet If tt ^&b r-nA tlm d©«x*©'9 •.'^ft® oori^sot in flniiajg
tl»s smeujit ^^t ^fei^^it th^sa t;-^e s>i3i?%lsja of tim deisir'^t- ^hi^sh ¥&Q&te4 tim
plsilaWff WR0 s)ntttl?fd to Imve jiis judgSTOn.t Ilea px*®©#:fTe0 «iK©n thou^f:!!!
It be for ':: s,.mll&? aaouaS.
v.-',''-..' ' ■■"■■: '."■■'' ^.■.'•, ^'^J^VX'T.t^
\'-e &ri^ or thfjv opinion tliet ths--«! U no ^^^srit in any af
®op«Umt*s? GOBt^a?^lonfi. Ttie arA«^r eafe^^^d by ta^; trt^a s^urt op^a-
inp up the Jud;?s^®at w?is ao% ^^ ftti^l ?>j^sa,ebl« or<}er onrf ftp^eU&at
(ioes n-jfe ao:siS'l-ia of %iic ora^^r ooni^ ell fist Inf? tt.^' s«^«S0sj, rille %m
nl?^lntiff hgd a rigfet to outmci both his leg«I ^^nd ecultaMe raoiiAlee
at ^U« BK^m: tmm, the trii^ ac)u?*t likewise w&s Justified Ijs «an*jollclBt-
intt the 3aas«s m« ^Isposims or ti^oxi by on^ a©Si^e«» Tufe a:>i^t m*aer®d
thst th© p<9tlU^^rv filed by **;v«l,le@a ^ft mm up ta© Ju^ipa^rit ©iit«r?M
thu plQiatlff, "'br^ i3S^ thus maa© is ta# 1b^ pros«®aine w??s ^h«tls©r
or not olslntiff»y t^s^tstc ted ®5?antA;5 a'snx-f la nc^otXatin- the losn
viith tlm a^.tm(l-':ntm, :-^rffi3ti«ally %lie only Usm m'dM hj th® plm&l-s^n
i« %m foraclsfure suit was the saa© a-^ it ^^aa eaiac -tly ''Ittlm smo
nroper %■-> aoasrlldat© iJis la^v prsoeealxii^ ^Ith tho <?cuit3? ^»: &ml U is
3Q cloluc. ^^^-il^^ ^S ®f *'^<^ ;^upr©ffi«^^ -i-^urt proTtdis^i tfiv 6 If tia© sy>ti-m to
opea up e. iudg^aivnt by c^mfe^sioa is =.u®t?:ln«a ^eitUer es t« ^^fee whol^
Df tU0 juagraent a? as to uueh part tJjs^eof as ^ gaod ^©fenssa tea b«>e::t
ste>^, tfe cmae ahjill thereafter proceed to trl^: I, and thi oomplftlftt,
stffUon nna &frUR^-t, aJ^ o.:>aat'sr-af f idiSTi is siwil aoastltuta the
pleadlags. ^ * - - The Us^& ot suefe eaae sUsli b^? trt«'! by th<?- eourt
witlaout a jury imiess tae defeadmt or pls^iftUff demsad a Jury,
mn ^rl«;inel j«<lerm«^t ^n<,ll st^-S -s saa^-lty, «n« ^1 further nre^c^ed-
laga sMIl %ej ^^eyed mttll the mrther r^a^r ?5f &^ court, tufc vM^^^
the d«fease la onlj as t. p^rt of s^a^ orl^-in^^l jadr^^r^* ^.^^fe Judfj^ot
Shell stand as to sh^. balans® ma ex#autiom issue t^e0afi% Th,e resort
l^r^ does iiat dlsalose iMfe elttasr party cv*r aem^Aed a ju.-y la ths
l«« o^se, but doeft aho. tMl \^m r^arvi©'^ proQ^eSed t- » iie^rinrr cf tl-i©
for^slosurs suit after Vm order of Qoa^olidetlo^n m^r. ontere<l 'Without
SUV 0bjeatlo« aEd we ©re of tU^ optni^a %fee decree r.s retidered is
suppctrted ^y tu^ 1?^^ .nd the s^id-nse whioh U^ fomd Is tnla reeorfl.
■■%:'■■■{ '■ ■^ai
^i:;t.
,'^.ill ji Of.
upon thr: h«!erlaK, eo-isael for a '.^pcillfiats off'Sreil m e^ideuis©
s-nd r®QWiii5tod tim &mtt t? t«i-f@ Judl^ttel a^tlo*:? of «fec jud(?;aeat aafcered
®.gs' asl Hp|^ll0@ fey a-sf6ssi^a rm : ©pt ^"i& ©r 14, ISS^, f:.vai, sf tfe ©xoeu-^
tlon l®»«i8^ tu®,p»jis wiifjr^yioos ooun&ftl far ap'selieejs iEi^ir©d ;'>f aoungel
for #;>pe laat Aetlissr te ■'ssis iatenMa;^ te pr®:ss M? salt oa tk^s ooafessioa
for fipp#lXait r@;:dled, "'Both"* Ths ."ourt tte^s-eapon 0tjitte<l, ''TMef are
soaaolidetiea for h^sriiK ?mS te is slrsi,?!- a^^-^ introsaotag th®se fUjas
sMe or fin.© ccftarfc, togeit^r itii tfe- •srifslael fiote ©ao^div ten pay;«^:mts
fif t40«00 ea«h e&iitors^sd tli©-'e®a# tosot-las-e w'lth ta& or.l^';l«el trust «©ed
were sffe:f©d sM admitted in e-rldeaee. A;.^p«s?^ l&Jit nls© off«r«A 1a
Q<^&tm Cli Tcifd .:^id fmd Bisulfth .,:* ;ieia, wutsh i- act abfiUrft^ted but
^ieh Wis f^oetvad in <-v-iii^m& without cib^Qiftim^ Ar>-p^llunt %tmn
pfOY©a the <3i>t*i of Si", .^^vS^farda oa asT^ife©^ ^, V^S^ rsmellmifsi 4ip-
poiata^nt a© s^^^outor ?4%sg that no ps-yaifi-tE Ijad Idg&h. a€i_G6 stuae the
i®!*th of sir, :-i^ei*A^ aa<l re^twd, i.T'>p8l lee© e?v?lea .;ppf3lls.at ur#0C
';ei3«'abej:f iO, lil3£, dra^ft ";». til© .:ajittastit{5l i,Ilia>:ds 'B&x\k 4 fSist
Oo?aj>#ny foi' H#0''.>Q«OS» p^i^atole to li!i0 ar4«»f or Qmrm •;. Held« sli^e^
by '-*♦ H* 2d^»rd0# md bftarlag *?» f^^sSorts-rsst of B®ia mA also 3eofct»
iigersieaa ®ad Lomb-s by ;■'* J. S*aa%®, llUa ©.riectc w?J3 i^^lf^ ;>fe 0<i%a©r!;b®^ IS,
I9S^2, by tti« bmk tx?oa ^Jtilfsh It w«s &t?HWTi ^nS ^ms offered 1?^ eTiaeno©
by Bpp«il«@s s^ad ©&sltted ^^itfeaat ofe^Qtloa, S. J, Lambe t^st^ifi^a tm
sspp®He08 ^er© intcvr#«ted «fe t;Uc h-?» of ^UUiss >2. ■^'^arS.s Ui Isomers
hir23?uf ??@r'S p:f reseat* Uptm this ^cisasi '^ti tals witasaa ©tgii^d =si^i
^iliik tii b'ttm fos'OQlciSft^ in tt::iu ptQms^ilm* 'l^ 'SJRs Sit feia tiscs
t«55tifi«d *a:,t ';'4¥fsr«?; w&s sfe^aisg & las^ia u,^o® t'lis -ropcrts)', *iiat h®
«&v> juo 0t\i^t tmt^m pasvss-fl ?;:Rr5. -hll^; %^ feoia.l^.d ttet s;:.m^itui.at w&e
he ^s to f®t :!2»OC0.OO plus tiie a^5sua«late<! int^f^nt^ Upoii tn<j tsust
doed Of ^hlch hjn -^^^ trmtm, tlM.t ii^. ^^m ^lifc ^-^ fcr tti& vmtpmm of
a«>liTOri3Se ^ jwrtt^l f^;lm.m ••;? ft-ft t trust d^sft it, aos.r!.fl©i'atiaJi af
do^a with ?iif«* ttet M.>^. -<5^ir4s; m^pmr^^ Jll ^.t t!<..> tlac aj«5 *^&si la «
^j*.©l sueir, tlj«;.t ?.^i::-B apohr asr-lat-re hisj iJ«K^. ^er;tsj tl^ff cfeee% f^rA he,
::>a:mr4e, slgmd U m^ gav^ It to the ^pitmm^, .^b.^ l^^ft t^te :.award^
ssr*'an^?K:s«^nt h-^ bad ^i^fi Mr* ^-tsia,
ii. aft s!;%ai^i^y«at-l«^ r«sl<U.HC «^^ Bo^nai-s^ Gi^OTe and isee «it the Mt^Ms
Uo^ la ■^^sas.i^f.r* 19SE, tti>on t.h^ oa«a«loE te^tin';^^ fey ^.^t-. .a?As. ta^
otters ^te wrts -r#sf^at* Tt^^t lM»yit i^t^^irea, of feis ^J^%li©* la® Ma
%\m aot® .^4 k^^ 3aai.art.4 l^t Ue oe^ ma pr^auce^ mr. nst^ e.ri<l trust
aeoa m^lveS la feblt -foseeaia^ and hBiiM^ m^ tn hits, that l«,
S^^iird^, %..>?c t;te.m uM ^^.udaea %!i«r... That Sclvmirda th«t mM n^mU^
Q "
•'. ^'^ ■•'■■■ffll
';■-;■ >S>OJ»
that %h^. trusts deed hM b«tcn reao^ded said .ima aa^^tirefi M?ar«is thet
h@ P'ould iiav« e fit-At la-etigage oil the nr&oecty sI'Tsfi '.>i5- preseat 'ijort-^
gage tihereojj •sjSiS r<si«mae4» tliet Ux&ii examiJicd th<j rel«jaa« de^o wUleh
Mr, Laii^^ lassd broui^tt ^Itli hi:?5, ® a«s-t>;:d li-.rss ^^M dolivs^ij^ed to the
parties tii0 v4,00J.00 cae§^, Tii-nti ttKi:raiiO';m RI15. ^Itnesa sfiia to
B;.;?-, ;@id 'Thjst 3Jii83^ la cmljT f?5i« fM ,OG-),00^' * that i«i<J sled "Tea'' sond
t!3S Vi^itaiass t!i«*ri issiA "T)ie ats&a -.f ^i:;:-, ^illsim i;- ■''>*= .;5,£5^#00j nrier©
ia tk« .r«st cf tU0 moaej-?^, trs^t loSd thr.!:; sa^a '-t\x}% is all ^ 0s;i
get", ©f«! tsjc 'sdlnass ta^i Irtqulrixd, "j^jtei yoa ^^;?l^l, lo >;;et v:uy ^Mor®
:a^'^iisy ea tills s.>t;e'?" assd nEKid ;ma?/ar«d -ifc, tuts* Is all i^f ili# He
iM^ardij; l<i s&a^giag uij ri?^50«a-' acmsusL^a for l<^i3aln.> ta^ 4,0<JO.OO
-md lis w»it%a « ::S,SS0*0S K5!?rta,^e ta 0lT© us i'-;, ^Qk; :) ^OO"" .* Tlmt ittsr@unjm
^■stJfM toolt feiics oSii5!3£ safi lift ivaa -.;?• uss&ss v«:it vf» l«ix-;'¥;l •_ Is '^viiiji it*
Til t tJha'i"© ?f&i3 no m^asy ahas^gstfl .icsmlvi aS th<s- Mimes of ^j«5 sir^^iagi&etisa
and Uxmt tlst? ohsfai? w?;3 %lm only >oa;;iS@,/'ai;i .m Ccs:" tiK; js^rtgage,
t^vfintjf^^s^vift'j years;', '^^is.% sUo raaall* ^tet h!a;»p«;risd ^Imm &hM%
Dfe$i.®toer l^j 1^2?;^ Ixxt 4iu m^t. i'feSfeli ;-a,I &T tUv: acaiv&rs tloJi ^tiiols
%o^k place el %U&% fciHfc, •■;«© t*:;..itfied tisifet ssb@ prepsi?e«;i tha
yhecfc «:aii the 30j4yiSdrst.loa ftjr^ axle jjot^ wi?/ -^i-uj-vi oeM, &a aiKj
urifierstocjJ it, tl3;fet s^g diu uot kao^ it if 5?=r, ; fl^«r4s p^rl^^ ajiy fm'tJseir
liS^ards i^JiiSfciXy ^:lmrged * oosiriiys^loi'i, rs-..' a&xXae^ l***^'!^ i^y&ii i^eal sstets
■7 -
^rtx ,■<.-,■;:'
shsrige<i upon thii* ;^i*tio.ul<^.' loaw a? Mst;,
T*i^ toT^i^otm' ©rldeneta wafrmted thr oaiift i& findtag Ihtit
this t^fvHsaotl-'n *rs5S tutsted ?^iih uaswyy mfi thfit is ro-tt^n far the
is firihcr yiid the crcslS;> aa tijc Viot© »<:* ^kow tost prior ts the tifsie
tnia Jii4gRi#a;t was t?-.s®a ^^^r^ t&is frtm.i^ilomiXL & prsaaedir^ lasttltnfcoci,
app85.1«J«s f'iSvi pnid :?4 0« )0j mid ti^f; elisaec;!!©,;- j in a.ft^soi'tigtr; j« M-tfe the
p?«vi®lc>ij*. g!i the ■::.%&:tnte f ■vf^gy f»r3;;3srXy creditSiS ®>T>^:die^® rith t'.:?5t
K^^a. 3aap, 74 III. Bar :;tst^ 19S^5j v;-0«tl'jfis ::>, 'l^ a,
■'?■» oaiy datJT'fie tliat aould h^<i Im^in f-ntnr&A upon t-ii©
L.
STATE OF ILLINOIS,
SECOND DISTRICT J ' L JUST CIS Ij. JOHNSOlSi,, Clerk of the Appellate Court, in and
for said Second District of the State of Illinois, and the keeper of the Records and Seal thereof, do hereby
certify that the foregoing is a true copy of the opinion of the f^aid Appellate Court in the above entitled cause.
of record in my office.
In Testimony Whereof. I hereunto set my hand and affix tlic seal of said
Appellate Court, at Ottawa, this day of
in the vear of our Lord one tho\isand nine
hundred and tliirlv-
CJp.rl- of the Appelate Court
(73815— 5M— 3-32) -r^^^y
\ ^
AT A TERM OF THE APPELLATE CO
- I
Begun and held at Ottawa, on Tuesday, the fifth day of LTay , in ^
the year of our Lord one thousand nine hundred and thirty- six,
within and for the Second District of the State of Illinois:
Present — The Hon. BLAINE PUFFLfAN, Presiding Justice.
Hon. FRANiO-III P. DO^/E , Justice.
Hon. FRED G. hdlFE, Justice.
JUSTUS L. JOHITSOW, Clerh |
RALPH H. DESPER, Sheriff.
JL eiAC
.6
BE IT REl'IEMBERED, that afterwards, to-wit: On
the opinion of the Court was filed in the Clerk's Office of said
Court, in the words and figures following, to-wit:
S€4i» 54a. 907S
Ai4#ada iQ» 14
ill fEE
A isl. w ^ti IiA.C?l« i<s'A V ri f
hm:&Al ixiiifi the- aircuiH
fMs «&fe i® urcju^at to tivls court apon ai^p^&I imni a Jx4ii#
af I0OO.QO fatsrta % t^ie airauit Ooui-t of J??iiO£ia Gount^y os a vai^lot
©f %h© Juxy la f;?j*©x of tns plaistif I, Ailea a.&gle®toii, sum &^aia®t
fh« e.:;i^plB>iat consisted of oa« count, «fai<3a all#i^sd mu% -m
4uiy a?» 1934, sipi,>#ll0s mfe ridlii.^ as a pB.mm^t on aa tltet^le
trolley tog op®fat«Ki by asp^ilaat iii fee Oity of Fsarla* t^t
apvJisilaat i^spaea th« trolley Ims fof tilj,?ij v«.irrj<»^«^ ol aXX4>wi5%' appellee
nMa aiiaaJ? pa«s®i^airs to alight %harfefyo» sa^i wail© tp;.eXi®« was in tiie
m&Qim ot ofali^jy »ax« for lie? csm B%£mj am la t&e act of alight-
in% fyoai gaiu eleota^io I^U«y bus, i.^« s*fatiiiaBt, by its servants,
aaxisea tE« «kid teug lo fes J*fk®«4» wmf^U m& «5¥@a, l^y reason whereof
n^^p^Xlm wm ttoc»\ "^iolsiitif against ©aid bui aiwl fiom it to the
fiii* mm-w^ ot ni% ^:mt^mms% mrUB^ tk# ^lltgations of erne care
m& a^glig««® afia k^®?® tlmt tm plmMtlfi trf-pped or caught her foot
ar the lit#l af fee? ®l53t in ?so-si«3 ^mnn^s net. due to any negligence or
fp}Ml% (3f %h& iiifeMsat MiA tls©r@fef imr^ained the injuries complained of.
it app-e^a it,m %xm miamm of appellee that at the time of the
ajQ€l4#iit shs was a^ i3&rrl«d w©»aii.|, fas'ty-six years oa age, and about
mon on July a?, 13M ®h« &ad h&^md the trolley bus of appellant in
%k® oo^tttoisi imrt of Fe^^xla., li®r aestination being Haungs Avenue.
ssIIeqqB ■:.■■-;-•.■., ■...' ;' m^ •• :• .. . . ,/■
Bfii' ni 3S\7 ■■.:■■: ;. •;,/■.- .!■■:: -. -.
xoeieiiF riosBST: y ; :'y- ■ ■ ■ : ' ^ ■ ■■>
ei£o eub 'ic aricitjo'ge: {,: . :;,i .,.;*; 4--
TO eoas'^ilj^en v:n'=; od" sub ,;-';.. 'Ji^rv;
-^o oen.c.slqruoo ae Jiarnx erf;t jbsn ' „■'■v•-^■'.., •,;
s.fi.+ 1:0 e;-;.':.t srf^ d"R d'srfd- seJIsaq '- •
d"jjocf.R i\a,6 ,?3? so aise-v xx8~Y.- : ■'
ns. in^LLeojjiB J.o sx/d velloid- exid" Jo ^ r.i.
„f J{
-sS-
before
ap.u#il»s a-Jfose, iiHd w&im tfes li*us ©toppssij tht tJtit door opfi
sli® staxvsci 1,3 ';Ii.^t. C?ft aiS'mt ia2g?^;aiaetloa ah® stated tn^at ©&.® «'as
o?i «iis b.;:S£v-»:s sttp ax' l-ae tome ami fs.lt %tx% s^nsatioa of t&s Ims ^e^rk*-
is.;^, and xiii^at &:i:t©r tMt tijt ftil, Hax aounsti tls^^s a^sd if ^i*®
bus was SJ0VS.:% *E ih# f€iili or t^usbltSii oft asux glit aiiiS«i3fitti l^ljat sh®
iiiii«|-Ssaa? I was an t,ag et^p or tae plaSfss'.a os ob ■yi^, gxourrfi ifli^ft I
fell. Tbe ;£?fijp©el0 tisat 1 aati. jL wa^ aa.ryyiB^; uad'SX ojp is orxe asfa .msi
uBfisje—- 1 uQri* & r«ai®vsi5#r. fiia riijtit bsal eaaie off »y srljii^t s&o® aad %lm
lei% tkBsX ©asa# off of i&y i#ft tJho-s;. fiie oss li«®l '^assn*^ os tls® &'m%
V'^isy tight US' it wuuldnH b.%^% {Sje^pp€4 off.** Slit was thsa aslsedi "liaw
tsr&@rt «sr« foti ©taBOi&g oa tn«i ^^s or t?fmt payt of It, ■^'m\ yoa tblrsk
elaiiti i^siit t^iat -stifsn Bke wmx% ■%& gf% off triis teu.®j iitfcMgr thaS she
os;i%iit h&^ iis*l a» tte sii^ial strip or litel; tii« bu«s iei^®d, but feiml
&jrt«r sli^ fell ta® a^stoiMsa i|Ot off $f0)& tlis feus ts kelp fet^ s.^ad sk®
ale. not ea;^ to iila tlifet 'S&8 ^t ted staxtt^ ^tll« ^s w&® g^ttiag off*
Ap,;.#.ll«« i'ur1^#r tctstifli'd tJi:tt fsr four isostim aht li&d 'tm^i in
^owkf 'iSM% |j&a :iiluQ to««ii out 0f tfet^ kosijltal far feat Itag^a ol tl»« aaa
Jmcl rt©a¥©ircf4. tkat wfliie £.Jt« sa4 li«tii to a plij-iiiaiim*® ©f.ti£fe tit®
lai^rsiJig of %a« acsclutat, it was n&% tot lh« gturpoi®® i>f r^eelwing a®y
itutia KliiiMr 'feB^iril'ied on ftshsdf &:l %a% t^y.j^Xl&^ tai:t ©aa mm
& pass®a^S3f 051 tiiis sio-tor l>us c« ths day In cjusstloaj, m-iS sitting on
tius stiat Jusss fcaek ai' %hv ds'lf^:!' ana iao&ing out of %.m. «?laaow, ■sast
■&.%/ IkMja-^B i^M Mams Stareet iatex'see-^ioti, tii® te^ ©toj'spsd &M gsvt a Jtr&,
SIClHCf
.' V','•;^^ ;ji,.,'^'i- f.-UV-
;>- . 4 .; ^: .*■ v*-:* »^-5?^'^ '•'■^-^
■■:■ ■■;■ ;.-..■ ...-,^..^ /.g^- ,U^V^^j
tiiat alj# aofiim'i*% x'eiKtfgiib^r waeihax tia* &ua nsA stopp^^i sjiu tiiat th^i
tli« J#2^k oo^iXMzmi QW sat aaa in raply l»3 t4i« cpestlon al ar;.,.®lie*i.»s
aaaw«seaj *!l®ii j'ou .;s,eti ta^si as fee bus all tke tiatt** yii® fujetliar
taetifitd tiii^t "a'ami aat firsli ofciias2'ir®4 appellee, she (app«lifs) ^ms
**rlg&tj dowi. »| Uie stsps a»ci I s&s^t 2?tsi«(jafe?5i? ^i&ttlit:? tilt isfes tf>4»fe»
Ing aai" pax^^ af tae bus <iS ifkethsr tiif was oa tae sraimd. '^ ii^
furth^x ^©etifl«d %sm,% mM aid not «ae &pp#l.I«« fall asd ia si sta^i^*'
jasiil* aade ssiiaartly &f%Qt %hs aeeiusnt, si*® sta^lM nm dia B.ot tai0w
Bhs ^Bs a p&tstmggx ©Ittlsi^: ©a tft® s#&o*ici ©sat fzoa tte® fi*cmt an tlit
xiji^x'S sly.® (btiag vh# @;i4e of tiit «i;it usssfi Isj' &p:...'a!.ii^«s) &i ajsyaliaat*®
by® oa t,a® uay in. (fAesti^m asw tat app^lleiS staiKiii^g up pmt lisfgr^ ulm
0}% Qtl tJ5.e b'a^, dla BQt @tt lit^ fall, hat iiia obssrv* lt,€X &© itst ■»s®
beljjg jisld up s,£%nT Bm imd. f.&llfi?5 and miB i;tagitiv<s on iilrtist ^xtislRa-
tlas tfe&t tii« iMa lUid. tm% jsal£ oir ®«^-f or «a®v« f:i'o$s tlt& %is® faci fefut
stappM im%il tais issflmsas ofeisrrtd &pT>eiX©8 feeiag htlci up "»f soasaiit
oa tli« p&vssaaftt. Oil ©i*9#s*®x^sliistioa sist sa.i«i there «©.s aotslsig
uauisiA&l OS" A« jK.S'tlGiila.s' to atws&et ii^x stt®»sioii && to tii® iaav^^jil
af 'fe^e bus as ta ©netfiisi* it Jexfet-d ox x^ot.
! Eatliai'lat C-uli€ii was als^ a |;ra.©8tixy«.f' saii* itstifiad or* Usja^lfof
■apptiiant to toe <sffe©1 taat iil« t&s Mttiing le tlijt ttif^ ®®&t f^aa
tli® ffomt, timt tai# l*us iit©p|it& and sxis ®aw appeXX^s fall 'iaa^ ^^m&i^tw-a
%a.'£\ %m iscstor^iaa iitlpt^ fmx up aaci saw tiis tm€l of a.pj3«il^«'*® slia® -aB
tlis ictwsr at«p# Tiili-i *»ltae®« wm &Xno pei^sltl^e lisat tiie imw did ii©$
tata i^ltJiess aliso tsatlftg© tmx t-fessf© was ii«thl-%' mmsa&l al?#efe %h%
mQi'¥«ia#at& «f til® #ar ^lis® it gt©|>i»®a ©? at aa^? ttsas to psjrtieyila^ll*
Luelil® uimX^T, b. i^u^j&tBt of uxb* vmmr^ iishl^&r, wsn wltSi 1j«i2?
aiui was liifeswiss posit-lvst that ta-f bu® stood etiil is.iz^f it osme to s.
I
•,;';.' I •■■■ . .; . ', f < ' . '■
i':- ii,j'..;'-v )■: ■ i;;^ .1'.: j!.J''?iS^ .i^'JJi
gtop Mkij, uatil Bxt>rX ffihe ofeg^yvsu teat ar^; ©llae -sS-d fali«!i &itd was
M«v» Fsjssiu^^as was sls^ a p*.si03%®5£r an E|yi>®IiaRt;*s bua jn $&©
fi^ft tii« rl^iii li&tisi siaa of •£ii© bmtj yssgi^iafesied that, tas ous @topp©d|
c«.u^it i*a^ xi#el f^ixa I B&m %ho imBl whiow -sag detached f^tj^a hg;^ 5Si.o€
ou fe^ «t®p» l^ii-ft tMB »&i3 stefeiiin^ Biill ^ftei- %m aa©x wmjs 0|>tE#d
aiui. ^a« Btartsa io ,^^t off o^iiu (tne dui?) cdooiH ;iJOTf« z,% all at S3i^
%li?i€ ¥ut%aw sh# K%ar&ea, to i;;,;^t oit or after tiis vaw^® ^«rs opeB."
Fraisk O^oos? isa© t'u& sots^Si.aR or t;li« bus on the a&i ia :.|u#«tloa
and Iw t^svif lea Sh&t at H&>.5^i^® .^vmtae ae ;md# the qsH-ob^^ ©top tii®3r#
ajivi taesi oj>«afd tii® @^t d^fOfg, ti^at. Pm ot %!me.a pasting ipt &££ %hu
\MB .iylsr %o ap,^®li«!S:, !sh0 W3.s toa last on& to if^a^® t.ae «i«a« That
•sji^iea appellee laft tfe© imu urn hmi juenrsriil pacfk&c^sa its. or uziuiis oat
of h«? arssg aad In ^ettiag off the lais i;;© tsQ&. ii&X<i of va.'i upri^^it
hzit as$X off aci that sb« ihs^a. tvy:ii6d %^.> ^k^s rl^r&j Stei:t ajie aid fKJt
fail to the stx«et ejiq. was aot on tm stxee-t ;iixtil tiyls i?ltsess aaa
otkisrs iielp^d iier f2^K^ tlis steps, mis witmees fureiAs^ is^ttiXm. tiist
was a. |ss,®s@i3Lg«x of &pp«iliuat jgltiliig about salu^iS' In th® Ima aa fek§ aa;^
tii" lis^ aofiiusat. She fuftli^r tsstlflsa ta^t eht diu not ses tins
».ccl«i^st teut was pasiti¥t tei^t ts.a M# gt&aa still f:?>55s the tiiae it
aati^ to & atop at HiMiiigi& AY®i$ii# until altsar tua aealciait> ami tftat it
aid Jiot jt2k. It further ap,>®^@d fjfa^s tfea tvlaesiee feat tlis @t#p of
fcii® l*u@ is fo;43rts£E iSifiiitB fwoia ta€ gsouad im»;t tee ^^.^tane-g frc^s t^€
st&p to the floor of tlve tou® i® tiilrtsm iaohes.
ypois, tii$ irl-a.i, tli© «feo*8i i^rti by tip/rSllt^g, -^ith taxis' 4#t5&casa-
ksels, ^sr^e ©If^s-eci and ^tisaitted in @¥id^aos 'j-MX hu?fn- b^mi by the- t;rii;&l
,;^^ '■■ ,4"; ^'.-J .X^L-.;
©ornrt mxi%il>std. to •this q9-^^% impimtlQTkt. m Urn??? ^fmMimm. ^a-^
Bxm. !ia?s resii ^it e¥id«ja©« iri i^vls :r?<»ra -sita oar® bmx tbe f©t@«
golsg is a la.lx 3rts©.«« o,t' all %M' tvisi^tnee- It Ib r^st iaiisl'ia tii-iis>
^Sii' pttjmiiel&l exjor mo^&t'^ ms^u the trlsvl, eiU^er wltli s'#f«r©a#t
to te^ aA;ils#lm or ?8j^istion of t'Std^ftos Q:r ixi t»# islirlns or refus*
xn^, of in®ts?t4©ti4Mie» but 11, iu &XiipM,<h. thitt tft® T^ralet is s«iasif«©tl|'
a^-siJiilt tht w«i^iit af Im^ .^ij-lutsee &JKi fof- %i:&l tmiB<m tat tTl&l
sou3?t ^X£m ia refusing %0 gr3^,t. &;>;;.• el lant»» «isti«a fo^ £ s®« %j?iaX,
is ax@ iMfliax^d to aj^sr^a wlSu t-dg a:,K*iaiti0Si. it Is t3 se liolitci
t&at after 5,p-Bllee fill ami &fi& moto-mm w%ri% tQ Urn sdci» noU^n^
waB &&ia by hsr to i.ii6 ef fs^ot %**s.t hsr fs.ll w&ss ^s to Ji^ &®% 0f tee
BBOtoxsaati asm uposi hsr oi'0«s-®xai«tii«ttios5: SB>^ aajal%tt4 ti^..% £ f tw days
af't^r -tlis &&sid®ftt ©&«■ a^saousle^ for 1% W ©tatiag ^Jmt « n'm m»
all,4it4n8| ffoa* tiis liM, either the toi.m J-.srfctci ot ej^e ®.aus|iit ?;h® li^^l
^m<m<i is %hi^.% a|n.>tll0#*s iaj\i3?tei# w®^t itot du^ 1*0 %M# alleged
appellee ^ais &ttiSJ3p%i«g l« aliglit th®xtfraja. Tn® welgtit @f tM
«^itlencs« is that ticus biis mn not IB TOtioa sa4 dia not Jtst @f- ^Wf,
«?M ^pta^si 4ii« cioar uml %m% ^&dl.& tis^s toms ms aj staadlTsg gi$tlasa©s§
&py«U^», wiitis a:&^ffii^tiag ti> ali#Jt tfetxafrcssi* fall froxa a ©.sxwe or
fli^ laetaat ©a^aplaiati sllsgsd %ti^ sppsll'tS' ted ^Mp^mmX &M,
b«iua«e Xiaijle *a t^«nd #600.00 for l^<^spltal «psaigsa, fmrslms md
<io^tot»g fst® md BTOgat to tse^tif aiUgQQO.OO t^^t th^ ir4\m%m a^s-
tai:^4. Il5« ps-s^of is tli4-& ^iif mM m,th^i: nm&mly ii^urtd and %h&t
Bsm^ slaf to mm i^stl«»41st jioipli&l is Faofia, «fii*y« sto® r^asisnd asm
tlie m%h Qt mgimt fclloMsg, that m & result of ts^t aciol^aat sht
sustained a ;rm«5tux®^i tifeta Gf ti»t l«ft X^g, BtmtU^^ %m imhBB
h^Xm nm ^mi m4. ss^eMisis 1st© tbe 'mm ^slat. f^iat afe# «p«ids4
aijpTOximt^I $3?^.^} la lias-ital aaa mirair*g bills aiid doctors* f«^£S.
; :,• ...aj
.;'?i.,i* 'iff-yX-!' A.:.
•l'>i'. : A
iBvklcat#s tliKt. te& iESPa3e<3t was |X>2S£»4felf a&doS to k©x sore on aoo^ojit
af f^pfetSfiy than aiv/taii^ «i#e.
rsr t lifts esror of %h*?i tri^l ©oi^st m oirsrruliag a^)p€lisa.t«a
^jitloB fax a ifiew *rl«.i, ti'^e jua^est al fci? uiwi< <Jouj'l; is
.:::K>iyj.-i '.^ :ii ,fl
STATE OF ILLINOIS,
SECOND DiSTEicT J I. JUSTUS L. JOHNSON, Clerk of the Appellate Court, in and
for said Second District of the State of Illinois, and the keeper of the Eecords and Seal thereof, do hereby
certify that the foregoing is a true copy of the opinion di the .<aid Ap])ellate Court in the above entitled cause.
of record in my office.
In Testimony Whereof, I hereunto set my hand and affix the seal of said
Appellate Court, at Ottawa, this . day of
in the year of our Lord one thousand nine
hundred and thirty-
CJerl- of the Appellate Court
(73815— 5M— 3-32) .rii^B.7
AT A TERM 0? THE APPELATE ^JPT, ^^ |
Begun and held at Ottawa, on Tuesday, the fifth day of I.Tay , in
the year of our Lord one thousand nine hundred and thirty-six,
within and for the Second District of the State of Illinois:
Present -- The Hon. BLAINE HUEPr-IiVN , Presiding Justice.
Hon. ERANIILIII R. D0\^, Justice.
Hon. ERED G. VOLEE, Justice.
JUST^TS L. JOHNSON, Clerk
RALPH H. DESPEE, Sheriff.
5
BE IT REI^'IEMBEREjj , that afterwards, to-wit: On SEP 3 1936
the opinion of the Court was filed in the Clerk's Office of said
Court, in the words and figures following, to-wit:
^MkJi^. |>ggi ^,__^
in THE
•i*J*.'. t ■<,•-- !• .' .cv ♦ ■■-'4. •ji^.^i^.^j^ •!> 4.* -^<^ 4 _/
( /
)
}
*)'■•¥■- .i"
®x.esut«;'d *aelr not& Sf^mble to b?^sI•®r, I;tj.r0?i fssra after de.ita, f;x
■gh® num. of ..s9,0iK)«CJ0s !)^Aring S;^ iRl^sy^er-t* Thl;« n«%8 reotted that
it was s^cuTPia by a trar^t d^#d ©r e^e-' drsts* feli^^re^^ith t^ *;h« fii*?:it
prt^ilsa^s, on the a??i:?se5 4«f tj^sf* m^k^rs^ of tuiv. nott* &Kmfu,%^A & %:^ut
deed, e<j.svsiyin.i* to ra?? haxik Ike pi^«&Sf4«s l?ivnli?-ed hffirelB t® ©eeure
the p«i3>-s^nt of aj;ia ar>te, flie aote teYir^ rmt'as"^-& t,a«i r»ot teeisif?' pai<S,
eimrlea n, t^ele «n^ toe rlrist Jietl'^scl Umnk of '-mjfesggn, as trustee^
nij^a 3a Mo^s?^aF 4, 193S^ theis* Ijikl tc :'o.p«i9l©s« srifi trust 4e&d,
TacsMll wag In tlic^ usual fDtia saa «li@ge<! t jj© t tfe sotspl'lai; st
Crmrlea ;^» teeie was tfe iegsi o^JiBr iftss? h.tvld?;r f5" %h.o. ps-iimiDf-l aot®
ssoured by ss.ti. Ts-ust deed •::.n€ tJie bsn!?, ©s truistee, jlotaed *iti!, him
as a 5osi:a^:iR?;st. Tn^ a®feB€srjts, na April 4, 19S4, "ll^^ maU Joist
,' ' i'.i.
-.•■• ; i ■■■' ■ '> lisjS
the bill ^-md sTQrretl th&t »tm iiid^btedaasss all©g«sd ia ^e|*S bill and
tij© nate^ sad. ^ir^rtgsge th«i*e.lJi rsl'Ka'red to ut^B^ out af & trengs-aaM-sn
vil%h. 'EiUa I'lf ' t '^ati'3aai Bsnk of ajmkGg&s, lIlI-T-iaj 'fey i«htafe ca-i?
ti'ryii iS';--ld btVik tfe> sau of f^,a',/0«00 arid In reUurn '.i!isjpef;>-ai^ «xt*ui@g
oixd dellToi'ed arid uot«ja ©1^4 ?sc?rtgs;S?a; tl^st i3«l€ bftr.v -itgij:; pt tUat
of buyiag fead aoiliS;' -ind gu?'|)lyla^! to ^iio&x^ ftrv^&gSu la tf4i4«i sa^
imad aad ia use iti a® ^inlt^tt --tete;' of sas^lee t^ ns'cess?^^':/ 'sasae^i*'
tie© ^lijid ?s»nl?^? of ii'sehrirsg^^-^ I'^r a prices: titGt at Suv. %%m-^ of feh^
exccjutlc.ai aifttS i^ftlivsH'y of r;s';iti r»t<jw r^^y m.yi: Ugts^i^f tlw. said i^r^tsisfss
M?! a market Tali*** D.f ttj-'ivlt; ('Ir0j,000,.-Oi titet said '.mu^,. t:?«3s. &t %l3L@
jaetab©!* cf a ssaroi aonf;plr&i53^ nud aigrsesis^nw vi lU tJit i;ie;sl;)sx- Li-iiks of
the federal r>sserf^ -j.ysSe^-a, inaluc'laf'- tlm plxlatifr, fey v&iaji it ?ffis
understood s^ad &gj?C!©<S by •: Ufi bcstpctj?. ^st;.!^ hs£j<-a that s^rtslju r«?©*,rie«
legal fe^Msr ?:eviic1 "be cfcservesi by klIu bfefiUa, v/iiicJi t-tlH. rfcftii^lc ^ Ions
c^isantity Cif «cJa gs>iO, i^oM anit,, ;u>5ic, , giirreau^ aad lft{rfcl t^eRdaj?
solj^ la ?11 thj^ states af the CnSt^ti ^itfi^isa, laalucicig tJi*? tt.?.te of
1115 -101 E, for t^K? purpose of dap?c..;-'iBf^ tfci<i: irtilue af t^-'Hl sisiSfct*.. unoa
wMofe Goat-ifecti: .f^f fciaa 4eill'«'e.r^- af ss&ifi ^c^lsS, £:^15 soli;, ;;ieijey,
ow^fisft^ fitA Uigcl tsxi&sr cel(S. fey £.ti& fe'i-c;- ^^^re ^cautftci «aa ©btfalKlag
of ^ssta ®«jcurlt;^, hi, &n n-g%rQ':ielr ss&xl i^^iiiUy of ^its^r gal<i, itold
P.wt *s«j:5g ss»id r«sSrlvjMttns: i% was j^greiSi! by a*^^ia ii&n<m tiiatj aft#r
L
v».»y
i-a :..' . ^,>UA
i'^->^ ^i^^
rsatriotilnrt: the seIgs ot-mU, l?oId eolft, sasncy, ctt:?';^®iay s^rie legal
gold, gpl(? eotn, fflOR'^y, earrer.sy '-^e iegt^I tsnAet* R',!a€JSS&rUy briaglag
about defftdlts la th# psrfsr^aj^iiee of s;U/1 ?t -litraets if«Bi«»rF>lly, a«
f^^rtbe? dofit;ra0ts, ©xtsvi,?! sag »?' ^ae pa? f^>rTfeti«© of mti:tTmt& -m
r^m^mln of ^?mtr«ats:; sni Ung for the a^iilTei'y or p>ldj ??»lo :soiK,
!a0ae:f, •Mvrm^j sr 1.*;'gal tsjadcx-, tJi? ps^?foruifl\c-^ of 'titcli sir<^ t3 be
Siccus? tea iJi' ii)?aB or -^ortisges ''ri rfi&I t/ranisrtyj -^oulfl ■b^y aoaasuiS'i&tea
oayuitmt ®? prin.5ip-.il issii iaSarss* v^titis »o ^eaefftlly ;jr ©¥ .^I '^at &n %Q
!KmQ»nt tr; a !?raattOf^I ^i^s5t?iietle?ft of rmlty reluess erjd to pre^ejiS as
uspf^r-silfsd op -^rtunifiy for r^eourdnr* past l9sK«?s ^mi e^vrn^lug liu#?«
profltsj pl&oeg @aia plaa i^r^o 0|iei?*i.%i^B bj uarfDf nrf. ly vetKinin^ to
ffif ^hiiJh er@ and v©r*?5 t--- !?« {?«c?U3r^«i Hy li-n® f^;' -•i-rtr^6«» s& r#?^l
«3tst;e ana fsreoseA'sa to for«?csl©8« ©^;M oxiitSisg lifrijii bmA moi^tgt^ges;
so;;iJuortitieE is g««er&l use j^j^ Ec^essRry ^aeais of esebi^ng©, ?if^?^^Iy:
gn>M, gnia cola, sioBey, currs'^ay nan l^e?^? toaS^r use^ ox- 1» ma«i la
t'm liiit©^ Jtstess; «>«jt >jf vlrt«« of tm ?sf0rft55ald s-atrol, f.;?'atttl:>n
mc. flri^K, by asid oongplr&tes's, n«e of ^ileb ?^sa tfe© plaintiff
ie§al t«5Jai€jr^ fed/^elhsr ^rith %6e edopUoa poll-iiy of refualag ts ^«ir©»
©xieaa or rmev Sf^ifi o-mtr&stc, it wfs^ ■ftsssse aj-d ts iQipd^siM'S far
galu 3o4a, «i-»ey, otifrs^aej os- loi|f.l tender ?<? nilfia tlm aorttrsst
- S -
i w.*; St ''''i'-' <f!f
:;:■ . ^- ■ ; i -V,.:' J ';:•''!";:' • C i> .'vl/ ft "*■!** (^KS?
: ^v:■^;•;!■7 •:- ; .<;'..■ ;>-.,. ..:■ ii'^U'- : '?#?
, :'; ■:.rf M-: ;:■ .vvr. ::ive ^^f 4->.nlx,H ?;f1H«
ohli^stions %ll^iis^& la «o3s:?I?ilaf'nt*-? bill of «ofijnl^iatj %M% s^ad
agr^seate^t im'3. aoBi^^iraoj oa %ij^'- pssrfe of the piftlatifi' teji'^?la Ib tu
dlrsst trial '.■tl,:5j| of ?vft .c?t ?r fcljs S«in«rs.i Asst^iJ^ly 0f fet» ^:ta6e of
aM »:g6« tit Vi o^&'l^xt^ ^;a(l RyltjiS 3f ..:,;ij'id^:n,3© %■& .:.'uch C;n;a©s,* I,eiss of
pl^>inaf^-^ io.if the os-stt^:?^ siiesM is aosUpliila^^it*.; "bill of sX;sisT^lsliit,
the g')tll dsy of ,j^,xigiist, a, S« 1S£9, the Virs'^ 2toti»a&X Bank of
gisid Sfitfi I5si6 bj^fji';' t-as « :as!^^-3r of & iiCwre^t cartJ^plF&ay^ ««M®r£jtanS*
laf &sid «gr#®ssitat ^^:it!i thc^ m*;..i3^s' l;n-ife& o.' tte F€>fi#?!id .i^fSfiirv^^ ..^st@!s.j
fe^;©ral . 'reserve : j«tfe?a tteS f.?^® prlsss* en ^ol&t tnjiaa Is %b.t- a?t:sja«art
of Tnil'^ €if tii*£ •i'4;'r'«xn$y Sifi^'tW of tttS UiiiW^d ..t3tS;|S, SfecJUl*^ fe«J
r^gi:la.^e<S ead fl3:«?;d ^cieordlrk-*; te toe py'0|'S'»& s»f 35\ib®#^^a0iat #¥«viss
to-wit; ths^ iiSiUth Qi" Jaffi,?&ry, a, ^.^ 10'!!S, ia o?4«r to fei'kii about
f^M fixing aa<l rsawuistira of tsi?-; r^rla® of Sfel<l gold oolii, ®«d« yaijy:©
«n:l®r®i Into ^ s®5?®t S;gr*jesi6©-fe, p^al im& e.iafedoJ'SitioJ} r=sr fe>30 p^ar-
-*\' '- -XX-ic
^ ■' . "- '".iSi^t-
■ ". ■•_ '",y .,.! - ",H i.. lit;
'*^!i.:'T "j
pmrsysao;' of ssit pl®n to fix nm. limit tae aamat ©r c^ttiarstity of
said ^M mlr':^ a?Jis i'irst MatlsMfil Bs;e=t of rtaufeeiiii^^ <*Et€>rM l^ito a
fckw aoJitra^tS' exhlbit^sd 1- spIcI bill 6f sj-iisj^lfiiat sjjSj la aadltl^'m
fi#f«?Rifi«*nt;?' ef thft <!ftllT?5ry of s.sJLn syer^mcy Snoring fiill »ifrM tfiii*tt
the p^fo^giSRse ^ fA'i ^3 el IT'S? J a-f fiAid w^rr&Fiey on tjit p^?t @r *l»ti(®
^^ffsift^wnis ?'-r?ttl« b^ l!t'?»* 84 bt 's 5 tuot sftl-a *s^:itr*j?3t8j feslTvy wi^t par*
Hjj.fl^i eeisi^^sj sss.^f?: ■&vj.. pr-^rrtfed*'*
report Ills f l^dln?:^ of le?^ irii«i -^^f f/'.?t, ;>a -iTui^-;- 11 » l*i54j hj Jjjmfi
of Qsart, P-ar%v;* ;:,t«>®Is «s.:; aa^ls s p^i^'^y i5v>«:a"-:l!:iejit 5.M tfet oMgiael
feill '^esi s.it-'iM'iS ¥» S50 :^; h:-!!" :^nd "fej slleisgiog tlj^t alii i*?i3v at •S!»%
b:f &%.ii, t :"m t 4e-S'3-* Tiiif #vii?.«jo.f '^&m- li@-art3 b,/ fete ■laAr*'3r s^M M July
hs>&r<l aa July 9, VSm, '/■fe j #atl -jai; tn «Ali rs»ort ^«^e ni^dj fey tfe??
19SS, the Mas5ljej:*s ra-oft sm^ fllea «.?^ cr the 19?;^ of tfe^ asm® sa<mt*
an order v*ss ®nfe<^'r#a Ifet te^e f^j^ssitt^mai filesicl t.^ 'felie!. Man%«i3?'ii r^^t
■ :■■■ ?■%- ,-
t ■ ■ -li &
^ Ti ■■• 3 1 ^ !>
■ 1 ■■ ■ •■■■■ '' f ^w
ill .":':• r>n:-fd;1''
sjfesuld stand a» is.ximp%l mB' fmM Im&'^-q -was gr^atcs'i iefendents to fil®
roT^'/rt -of t«»t' Mastdi' vf^s 0-;:^s' i^ret ©ad #. s^^ars?^:? of foy^sloaiisrs eai
far leave to Siiits^sS -tiicir -aswer aaa tc re^^^fer 'sae *3a:u^© to t.h«
ii:u£t cl^iylK:;- tb???^ Ifc&ve to \^=*fej6«i tiieir s\cs?-«c;r Mt.il c-s-rnf^f t!F= ^«u®@
tc Urn lA^zti^r f tfe© d®fiftada?^s brltja %lm reoor€ to tnlss court tor
I^SSj -sM t;£ijs T-eeorfi ^a *:;i#ii ms; fil^si^ Iti tiiis G::?-^rt bw?* tl^i^n
tiilrtj* clsys fefe:?i-#aftei% This aj.v3|.i.ou w&® Is;*;^^! '^ilh ttm «&te« diil®
S<> of tto ,.;-atjr«ae Court. «>ia .^uie trne of &uia C'':arl ;A«>'ni#®s ^aaiig
't^tbilK t^.& em& art*c ta.« rsutis^ »f ■ g:v©--^1 te£ lieea Hied, pytfSiS'a
ajifi fill? 5i prsi^-rst^e %!%% 'Hike ^l^x'< , Ui cSHlste ;v':ii^-::ll?a1; stell gaaifa^l;®
te i-''vOo:;^'~'&rsv©(l is wli?5 rt'S&rS <ja ai^jsa^il fey «3it.-i.£;3 eerUflsci by tfee
siaa of tfe eleric, fe; siiftll make up %tui r©fii;£'4 ss apocel, wflioh >slliiall
be t?aaajaitt;«t5 ta tiki teviaigli^ aouri;. Tbat <^rian ^lie ;»' #eiM ^^^es
Esat sp^Kiify say ;)rot?*B4ii^s «;t th^') triul, the raeoir^o oa ::-':!-#al sfjali
* li «
m" :<■■ 'y:- ^.^.'liiH
J ''-s.r'iii: : .' ■ ^f & [{?j3
■■i^■ j:'i :■>■. ,:'?«Ic
th« n%5tlae of ap»el ImB h-^m.. illmi^ but if tii*: i32's.«scij^<s do^i^ STj^aify
;;iitfe©d tv> th« r©vim4r«g ■'^aurt; rust; ia3..r<> -^lea thic-ljy m-js after t&.e
.eepoPv of tm 3:e«>8«i©dlags has? b€^--"rt fll*-fl» In. t-?j«? im^tant cs^ae
iim m.v%i>^,€^ >ie-X'B%-i^ oh ::Js!iraa S, IWSs, f Jj,s4 list vh^s lo\^r a-?urt th^tr
i54iuiU:.sU^sa tg ih& Bft'&u% th^^t %ae- ie':aijseriov o*' prisf^sedliif?? net <?f
dsa Fs'5|si'u?!«rj ]5, I1ici<>t an^ ■Cric r'©?>opt w" tk~^ s&,iit;?.r ^ idgr-tsev' with
'^y iiitt el ark i« th« reev-roi for ejs-eel, '^jse aroo©(@<iiit^::K c'/rtlfifid hj
thiK oii^^aae'^ lor oa /rbruttr^ ^E» i^v*;^, yss-^ii ill*3« J, a the Xoi^'ft?* e-.Jif.ct oki
ost;®re}d fen or-aor e:.t©?^lt^ the tlss?-? to .-■ebnis^- 'v itS.^ i9;>&^ In rh.laa to
tM lij^ier c'jixt m Ft^brata'y iS, !©.,&, It tn^i-^st'on ^p.q.&n» tfe duty
skoi-t t'm.>x thirty Sstfa 0ffc«.r ia® i:?©'-^??^ t>t' yucii vr-')csc*ain,-^.y ba<?- fe-ee'n
filed Jba tue iom.e si;;xirt. Ttes record fsia Btot fils(2 i.a ttiiM srsart
or »lk^ ..uju-®!:ft»3 Court p:pA i;ult: «J5.;9 Of tiiifl aovrt^ il5 i« i5&ndafecry
\Xuoyi ttiiu y!5UJ,*t; ty dtwai-sss vh@ r^oiss'kl*
i£uslutiiiag OtHsrUsj H. ;.te?^ie, tiffin srasia^at of the trusts!?® teafe,
still ti:^r© 1. no ©-^ISraiaif; to sasjitKia Shis ©liargs e:?^^ ®vs« if tUsgS'e rrs
S'V it'
Ci ^^Sj:,'-
'"'4 ft'vi. f ':
fufpiiilied the m«?s©y ^^-rdobi *';r>p'© ^IcaiSe barrsi^e<I, but it r?;® tht
fee only oaa t}iat t;.?' fjviclfisi'^i* •■it:! la^ wnula hsv^s ws:l*r-si3 ft 34 *
y i tui.
STATE OF ILLINOIS,
SECOND DISTRICT T''' I- ■TUSTUS L. JOHNSON. Clerk of the Appellate Court, In and
for said Second District of the State of Illinois, and the keei»n' of the Records and Seal thereof, do hereby
certify that the foregoing is a true copy of the opinion of tlio said Appellate Court in the above entitled cause.
of record in my office.
In Testimony Whereof. I hereunto set niy hand and affix the seal of said
Appellate Court, at Otta^^a. this day of
in the year of our Lord one thousand nine
hundred and thirtv-
Clerl- of the Appellate Court
(73S15— 5M— 3-32) ..ii^&^7
^
AT A T3RM OF THE -APPSLIi^JE CO'
jf-'
'^
I
?gun am held at Ottav/a, on Tuesday, t^f if thfaa^^f May, ie^" _^
the year of our Lord one thousand nine hundred and thirty-six,
.Ithin and for the Second District of the State of Illinois:/
Present -
- the Hon. BLMNE HUfEl'IAN, Presiding, Justice,
Hon. 5EAI\TiaiN R. EOVE, Justice.
Hon. MED G. ^-OLPE, Justice. ^ ^ _
JUSTUS L. JOI-IMSOF, Clerk, ^ xJ '%J ,
RALPH H. DEEPEN, Sheriff.
BE IT RETviSIBER ED , t ha t ef t er vsv ds ,, to - "T t -. ^^n g c P 3
the opinion of the Court ras .-.Lrd in the Cle^-s Of ^ ce o
Court, in the words and figures follov.in-, tc-^it;
;aid
U^ ferm, .,» D, 193 6,
J. E* :fS'AI,T,
I
TS. ) APPEAL F^iOK TTH;. OX :<:;IJ IT
V
^^HW ■, ^x::)SS, ) v:'US? OF LAKE OOU^vfY,
)
Appe.1 Isat . )
Xa Au^-tiSt, l'M5f :rm J. ;■:, '.^:^rbet;t puratias^di lot vii-x in
blocte sljcty, Llnanla ;abdlvlal'm la Drd<s County^ FlariSfe, fro®, tfta
Beaoh -loWiKc Oo?apnEy» liS a part of the puroii&se -prie®, Cox'bettj
oa Auct^Wst 15th of ttet i^er i®x©auted his tlsfea aatas, csii» fjsr
|1316,57 &ie in ^m® y«@r, ajMi for tlSlS^S? due la t^^ yesrs r^jid oft«
f^s* .;'1S16.66 cluf? i,n tltx"®©- y®aps after a,feti® cmcl to seoar® thc^ payja^ait
of th® sast b»s exesuted b ;aortgags5 aa tlies prc3^p«r'ty purees ss@4» IB
the f:?Il3^njS: ysar ts^b?- plaintiff liei*i}ia, a re&l&imt of '^irtsl Bec-sh,
?loria*i, Ics&mia ^h(* Beeeti Holia.m ■leaoeay ?2G,090,00 and ttis; Corfeett
notes w®re endorse'? by tlie tU«a fcesl desit of ttot @om:=«ni;' asd -^dth
the ficeoipsnyir*' sortg^ige, t-Dgc5t>i©f with --.rttex* 8f<-;j;;r itles, w®!,"-:!
delivered to tno plaiatl ff &Ji ooilat«^£xl s«3^,u• It^ for that lo»B.
Ho fsr^al asslgsmfflit of Vm rsortgege v?a,s asS^s by fehe HoMiae Ccspfeny,
but suc^i sn as»i««t3»at «os (^xecs^ ti^d osi April S"?, l3Jffi, Ik ::eft©sfe«r,
1955, the defendant hei^lJi, :io:aH^ fj faj^?»r livirig Ik Berrinf^to:-»
Laka Covmty, Iiltnls, west feo f'ltjrid&j beQa» laterest^d in the
p«roh?Jse of s^ld lot six r.n^ ^^mt t-^ oae Uoolv* 'h«3 vi«®-tjr«sltleat
of %he M'syer-Slser Gorporfetl-sn aad pufstes^d s&Xd. lot si?.» Qn
HoY^tiber XE, 1925, th^^ Sefeaderit rjlgned f^ tRortg?3g©* !;-he provisions
af whloh realted tnat it «?as givfss to segur^ e aot^s of SS|OQ{5.O0
p-eyisble to n\e >rd®r of the M<?yej>-:Cis4Jr Coro-a^afcioa ock? yssr aftar
dat«5, -^itft. 8< latere^^t. fuls a/^rtgage soTiVijyeS ss^ia lot to er^id
Mey«r- 'iser Ooi^poratlos jsnd ;^lt|??jt8d th-. ao.f%airor to pay tba
jsrinoipe;! aad .lni5»:ji*©E!t eTldeaeed by s?--.!*? note tlier^in desor ilsed,
to.getacr s?ith ell taxes, aasB? ssianfes, ilfiMllti«*s aj:d ir:.Ci?mbraao©g
of every isatur?s oa sai<3 ao)rt^©.g0d !'*rop©rty.
la Deot;ub?jr, 1934, tuls auit ^j&s instituted. The oosi^lilnt
cnn^lsts of t«t> Qounts, tlia firs?t souat aets ferth r4sR ^xecsutiori by
Oorbett of %hn s^;ld a«v«i:*sl notes m. Mieuzt 15, l§gi3, together ^tth
the aortgsige to secui'e fee imyascnt of th© ssai?;, tlie fis;i!igr3;?;sE.^tt
th©.?©of by t-fec! rMc^v te,fm^9 feo ths t.lal-*:.lf.f, tii© pur'Ohjise of ths lot
described is tfee m-:jr tgege by tae defencl&tifc on "laveaber l:^, 19:^;j,
§i?1^8nood by s wai'fai.i ty dsed o;r4 3taaj*g-.-a that ia caa by srdcl deec^,
ssld 4©f®?idant asguiaefi '-nQ a^sorl to pay t-h#-. Corbett raorigage.
This aeunt eojialudss hf dssmndliig Jii4i?mettfc for t>ie prinolp^i of
aaia notes, toftJ^^'ifti" witli taterasst aad gttorMey fees* TJif; ©©oerid
count of the assiBoisiat r^-alleg©© most of tlj€* a¥&rrri«i;ats of e©uat
oae Rii!3 after aTer?lag til© piis?ohaae m" Ife lot toy t-he 40f«'?iidcaiti Ttom
Corbett, svers that t^". ^®®4re a b';i.asio® of tjiC? pujcaha se prioe therr^of,
defendftnt «X0OUi©d nin a:i:'tg:8ge d®eS bv wMah h'' ocnif^ycid seid lot
to* fcb,# M:eye?-Ciser :arrcyati»n a ad tterabjf a^trs^SiS tr? pay s^il the
taxes, as»«ssmoats a ad 0ao«;abr&ac«s tliersoa* Attaotsed to tu©
oossplsint ^-jgre copies t>f the !5ev.«sfal nc-tesj suartgj^ges, asisig?m®!iit
ana d«6-d. Ttm rr-nsw^.t of the dofei^agmt; aeltUer aSif4.tted cu- deriied
tUe ex®Q:-ti'-M by Gartstt of the H^sverEil notes uad iai^rtg«g«?, tlie
ssslgiiiiient ftereof to the plfdatlff &??« tae purelif^se of the lot by
I
■!"i-}'^':2 : ■
'.'•■;/ ■■'■■■• ':■■ ■ ':!'.: ;-v->-' ^ :-i X ' '^ Z'''^^^
pay the aia^SgB,g© d«so;c'l'b<n1 iii Uie e-.iisp,le.int ?-3s3 aire,-r«4 that ia
fvaft b.v the c-.-nitreet of piiraiiase the agreerifiat of the £>srties thersuto
anfi that <3ef«sa!lftiat %0S aat ts assum'S ai* ixr^' tha seta® O'f siiiy pr=rt
thereof, but Vmt by mlstSR'ce 3f tlm xmriil&B tim deed scntisin^d as
asstivaptioa sg-f«eme,st; thai; «3®feK,dent timer st aay ti?f5i sse^pt^*
any deed e:>ntaiatii^ sf-y assuptios cistussj ttet tlati assumptirm ag^**;*©*
m«!B.t, If gait®, wft® wlt&out 0-Ti3ia®'f&tl aWj ll'»t S'licli olau®« was n&t
is wrl5l»i? s^n^i by thss a^fisatoat «?-id urrf^r the stfitatas nif t^to
otats of Flarldls. is uufififoroifele, fM answer aenleA fcas, t ia tji©
rftortga^e- set fo>?fch !» t.|jti! sKJiapisirit t& aor*fi-8at©.^ s:*rKl sifree«l lie-
assum® tte iMebt®d')«ss® repyes®st®fi by tte s©v«3:'al aotfs hel^ by
?>li0 pl^ntiff end av?i.i*s tfe&t uMer th© I«.t.'ss af b-'th I.llla;:dB @ja^
florldla Ue is Tio% peraiosmll;^ Itafole to tlrie plaivttif f, .-jfter th©
flMlng tne lejj-uea for ta€ dsfeM&r»t* Tte eaurt g.f&rrfe«5a plaai.atiff*s
laotioa tor e n©"?" trial ftsKl it Is fi'osi tltls Qr&iw thsrt d®f«ic4s5at;
Tfeis eass ws-^s, on Jyly '?, l£*30, argrasS orally la tills
oourt »aid autesii vted !■& tfec! ty^ux't upoa tbe petit ii!ti of npji^llssat Sot
l@«,ve to i3p:'«?.l mi^ upon the aaswer to 8&l(!l pefeitlaa uaS^r 4ml6 S
of this s-5U,rt, cm July f:gj 19Si*j Oi;sin«sel tmr ftispelXae filed v;ith
th© ci®rk sf tkis atsirt, ■??lt!ic!ut ImiVB so to do, « 'saotloa %o dis^slss
tain apj^eal, basiis^^ hiu "^-sotifjsa tipc>.n tb® f-r-'^rsi thsl apir-fsites^ fsilss^.
to Inesrpopgite la fits p®felttoa,, Ts-blcsh u.u#er nnlA. rule S a'^«M« sss kli
b?i@f to fehlc ©aa©, ^hs ©ero^s relia^ upos for Twrm'sul, "ith his
faotloft Ji«; file- a oertiito s?^ gges ti oas ?.uii on the sana day apj^sllait!
fiissd e^uaCer siagrf^eaUfiina. TUls atstiaja. vdll not fe® aoas MsreifS.
it SHB fllcsi after tlis-5 «®«6 had !>®m siibsjittsd up'^ja orel srgu,§si;at,
petitisa for l@av® %o sppefcl nM r®plf th«:r«to« It aaswa toai lat;«s
TU® F8i?i>I® ¥• a* £* & Q, :it* ri, Jfs,, £59 III, lOv, aM im®s«ia:h ss it
'i''!
;■:/ ;,.^.j b-::'^.-:,::-!':. I.: >■::■: -cj.-i;, 0 ..-.li sfi i'»tii-.i J^.f;«^~- ^i^spJ '-^'ii^ ■jrJ f*^
.■■•-■ ,^;;::V•,s •/;■' vV ;: .•!.■-■.:..: •".•i:*C-: K'^ '? : .^ * i^ :'.;: ■•-'.;' r~' -: ?. \':\ ■:■.:. ;J-/.,1?J' .;•■ ■^5?
i,A: .:■.:;•• i;- i,l:-:>!;^ jt/j eji.sC'^:^ :.?s;>^ "■ . ■ ■ ; - ;■' ■;^,.!- V'^ (^ Sue J\; ii ^ 'c ■V:»'^S4:-X*"
: - ■ ••,.it^.,i;: ->:;:;•.'. ::^y.,,f■ , cr: .^^^.-v-^^-^a .;.■■■•■ ^i ^ ■ - i:^; .i ■■' '.,: jij.fe.os vi. ^vKisr
■, ; ' ' ■ ,-•:,: ■■ ■ /■ :, J-, y (.•; ^; ;: ■■■ C, ■■■.f-iltii •a-' •;, ! S-;''-af •■i:.li: Hi¥ iffi
-;? rj^ ;'■••: :■' -^'i^t:^ ':'.v-r.. . ;- ■/• ■... e'.U.-: ••^^ •'.-*.>' -jt ."s>i: -:0A'.. 1 <:- '3;5»j.
■i ■.•'v-!-.;.;-- '4 (■?•,••■•;-.,■; ^ --y- -.r.i' ''■■■-::., ■'■■:[■ -. ' :ja -i:'::, i,t-U •:.-;Hiy^%Hm
c? /; 5 ^vv- 1 : .1 i:, ^ :?»■'•: •u^'-':';. i'..;;^ ::,: i" ;:x ;I ^A" ; : .■ '5,:? ^ ^^j. ?« VmV'i.. fcc jliS«5S?
■•'. •,>i>k "UJ^Vu: Ux^ It ^■)' .., ^-l';- ■.? •J^r.j-'U'U^ '■ i-' r-w-iif; V-^icfi; - N^ <'■• ;■■?■ ^Vi^ti
v.. •, «•■ \':.* ■s^;--': ■■;' .vo ia^..;f -.«■.-. -i.- . .:>s^,>j;'; f'iva'l^^J© b:X?'i -jfi «;.jtj?c;fii•
- •■'■■" -- ? ■^^■' , .-.; v.... i.^. .- ... . , , :• .;•• ^. , v' i-tif. <:,!>! axil"
ffiug.gftstloae sad eoaasisr' suggestions «41l be sti-ioic^a from ih&
It is; flr.-:t insisted by oounnml .for s pp® il«at that ttm
ferial oourt ^yrdn-sgjwtly gjpsiRted £(i:»pell©e*5i tso'tlrm f©r «-. &%m trial
because tb^j orfter wea ^oteired apoe 0pp<(Sllesis*E ojfal actios -^itll®
Soo. 196, Ohsp. 1,10, 111. -mr Statwtss, 13SSS, provides tHa* If
ciitaejr party desirfss to tso^r® f or , .m a«^ trial tn$ ©lie 11, b®.for«
flr«l Jud^Ksent if. «nt«&.red, fil^ feis peliatc. in rritiag pisrtleulmrly
sp^olfyiriiR; tbe grounds of s^ueli ar-tien, Itis recssrcl aisoioaes mo
o"b,1©atl3n ^^as ByRde fey «ppisllainit ta the trlcsl gourt to tha faet
tbAt eopsllftC!*® ®Dtioa was orfel ^n& set e-rilt^sn &isa hevln^ i;-r6» ■
o©«Nl®£i. In tU,® loweir oourt tc? ss fe®arlag tt*5os ©p.^^ellt^**® oi'al
motltjn for a ae^^f tHel ?Atliaut ofejeettsa, 6p|sellar.t ie Ik so
psssltica la this Ofoairt tr^ taire «.tifRatfe«P© of ftpp@ile©»» osiissioa.
This «t»tt?t is &t a disadvantage b««£tta%^ %'& ®p® mot ®avi9®d. at !;&«
reeao!is insisted upOR by iapt>«»lle« tiiMsn Ills aattiJii sM isls© fe^oeus©
th« ?(?.eor<l ^infiM not eissssloa® trsi© x'ftason.s whloJj proEiptejl th# tiflel
CDurt in awar^llB^ a new trial,
So«Ji8«l r^p e;)?»ll«nt fu?rtb.er iTOlst tfc;p-t tlir< riseoM
dil«al0S©s that ^«sr« Is a^ li'iceiitioo^ tliat &xiy rm^, &(l€ttl©B«l» •
iH tule 0«s« and thst th© v@rci1.et ctl^: subist-wstinl Justtoe l3tet^««.n
the p#»rtlps »sM ir-- ?5«gtal?i«?!fl by tht^ ®Y,ld.enc@. ?"© h©.v«5 read the
eyld#*fjce as th« 0&«e liptpesn?. In th« 9b»tr'4«t fttr»l^®4 tef appelteiit
ssna Slse additional afestracst, filed hi/ epi^Xlee, lipptll^t's ^Tldem^e
eaa^lstea of tUe tsi^tiaony of' hlrniself aM tleha B. :^elcl,, both t?y
aeposttisn. S©ia t<Bs5t1. fle^ tfeat; la 19:':;5 nr?.!? slaa« t?ieB hf! tea
b«6ri en^,nim& l«t thsi real ©jjt^te vjusliiKwe to Hlsisd B®«.s!h, fiorida,
anS IQ 19Sr> f?:na It*?© w»k pfesl^eat of tfe% Beaeh HoMlag Qa^mf*
Tbat fee ka«« *t, ?% GofflJett tf> ^-^a the Seaeh Hol«la^ (^SKpany s?l«
said Ir^t 6, tliat CorbsJtt ree^-^lvs'S s «««?€ f^r thst lot an€ i!'<ss wart
p.<^ya@nt therefor BxnenttM the notes ^hloh !ie lilisnti fl-f?a fn&. •^hlQh
llf '■ ' ■ .1
,'^ ':ejc' ».!7: ;.'■■'-'■ „<(:'ri ^^'^l .j>»^^
•■ i ■• ^-^ l?v; _\r' ■ i--'^ir ^- "r;j??i5. 0i-;'.;« IHfUJ
«.f-^-^^ ■ ST,r - >■/.;•■■. .M,^ I'll ^•Ja/c©
6r«* the 'vaes a.®S!e?1bofl la the e^stsoUilnt. H*? fur'^lse" testified
tl3£t la^ a=ad»rs®i ta® aotes bM in M®.;y, Jun® or Jaly, I92S, sold
ead 5ieliT#rad thea, toget^'iigr ^ith ttss ssort^aias glvwt to S9«ux'@
th^li* paysMSt, to th© plc^lar^t•ff» Iff; fjji'tter testifi^a tfet h@
t^ioiight tfj-a my^tg.ii.g& ted fee®a f.0g4ga®i to fels^ plijitotiff la 1916
feu$ fisicimg ttet iko forsssfai assii-tiiiasRt &ad b<i@f5 s^cie, &: did, as
pref5i«Se!3t of th«^i '!ol4iag C»s-pg.iiy, eseeut© as a8Bi,v,n?siisat t-,e.r©af
in ,19S3 »ni this a3si#;n;a?>st k'& l?3entifi@fi f-a-^ It; i»bs5 affRi*t,d m'td
lestmeA feh&t ^niis aosapnay slelmed it was la#:-.;lve,at, t\r; taak tih.@S0
he Is ifia Q'i^Tmr of th«m sad fear> beta slrio® fch@ ::.prii^^ of l^Sfe,
That as, St tfUs tiais, giso received tlie eioptfssi^© pi^-ea t& S8«tur©
th.« .payment thernol', but -alarjl&aed It. that hi'. SMsde ^^■s'ery possible
©ffsrt; to U.n& it, but tes fea@a u&abl« t?s do »••,;■,# .i% pt&p^xlf
«®Ftlfl^ end ttstes-rj-fli title sopf &f tMa ja::a= fegage wasi offesjfefl aai
&d*-ilSlf?d ia ©irld©ae€ rafchsimt object! rm. "©rtifiiid espl®® of Ih®
reoord of tte d»scl from Qorbfttt k? ap;>«ll*®t t>.M sf tii® aortgsair®
exssautisa Isy t'3^;«?llaat to tiie aljiysw^vla^r :;©rpQ rati out ^-sr® offtr#a
iao?t(g©f© waa a jiiiiJ.o.S' llfm oe feiiAi D^salsttv^s ^©3S.rib?j4 tl'j©r©ia, Vaa%
tAm flrat Jsj^tgB^??; te4 Is^^Ei fojf^alossd sad a sale he.^ but t**;* M«l
r«©e*vtd rj5itii1L.?i,g frssi tlist sala, that hes lisd aai^i an BTtort ts
laoat® fe?-'ellaJi1; siid filially ild so tis^ajic;:la tlia @ffa2"1?s of ats
att^rnay a fes' isa.-i-lks prior- to -i-li?; tla© ho ins-jls-i-ited iliis suit.
In. aiffi o«a b©H)EiX, sje?''«Ilaut IsfJtlflesi la p^rt^s to fete ©ffeofc timt
iie wee & rssldant fjf Lafei a^':uat/, ® fa,r»r twid aoatraot-ag", ^.Tid t5mt
di.a' i8£ tlm last w#0k: is ,:>s|>t«abe.r, I9ft3, ht» «©at to l^iajgi fe^ieeua®
of the i'@€Jl ssjtatss b>oci tiiore , eittiougfti ts« wss noft sxperic-nuea is
tli© real ^&ttitr^ b&sim«ss* Utet a ;i!-* jrf&Ml&xton. teolt b,isi oiit mil
&hCim^ Jilta tte 1st 4®a;;ribed ia fels& o©^i>leln,t aaS th&t he ^joaflit it,
I i t;- ■;.;.■ . .. <: •'■ '. ."J ■■ ■■ , .»: ' ■;^;:';i ■^■^:': riiv ., ^ i; i ;y I? y'. ' i^ ■^.y'!^!^
;i : 7.
sppellfte^ he ifietetlod f't l*agtfcs itie S£ii^sr?iStelr.?i ^i*': iiM ';.;it(i tries
parfct^s; I'a -^'Jiloy %;m^ &,s.inv-e4 h%^ i/iEt tjr:,^2y Mi-niaXn 'inilv^^c feaia
■ ' f'^Siij' .til 'J/ ;a^' I. ;■ ■::':■■ ' :^.-': . i.'i;;l; l:\&'i lie %i.iS ;■.■ e-'i'hX ei^vStc a;?''«Kf?.? •'^a'
';':;' boOii :.ih: ■■.;..-,.■'; .^.-^^vU'r; ia;-.^ ^ai i;>^.«. yu:^. v !,,«-* r «:>;?■;!' est cT *^
■li<: fiot'i^ii'vj^ til l.--'l,;::jf;;;='i ;;■■• '.i-^-r-i ">, ..'liy-v yr-i. ^ i Vlv -";■»'*% isie:^|. ^;'
lii ^; 0^7 ;;t'ii i " i^u. ':.'r^_';: tt;- > Li-l titty iUi^w^^C ' ' '- p'.^S^d Iji
V.J,-?: -Jfjlf :'0';. '-■•.' *•' ?•'"'" /.Vr. vii'S^'-ij 1. b'i i'itli :!. fc s'fXj w >-'i Oii.^fs'' ,lJ»i''Vfl: Qi
';yl%,:'fOt ^•' '.H-1 ;":^^»-.''^f ■ ,;Cle& y,itViy^i\ iuxC ?-y t& i^'?>i'S:^ i;'if5t*^ mr/iilA ^^
|jr> "SUMII'T -iivi-iv^ ■.;.: -Tas. Jivfa-i *r ;>:;xi.i::^tv t:.cvs Knid ''eU ;'ic^t
«354*'? ^fyOS<a a^r,ii]| t.l >;^^: ^ihsSS, i v.! i.i ^3 eba^-CS^f but t 420 : 5t rSiJ^t
fev :\Oiris. tasit ae aisc. thiate tlis^ tj» 3i? T'-tfffts*? ^o>fS "ii^;t4?a 'mn also
in blaa^, that hie r^aolleotiea ^as %fm.t 1% vmB ^ Umk mrtmm
%o lAn ^m^Mm^ timt fe., ^ wt%»t®* toli Mt. Mlw^, *fto was
*b« Office oarngsr ^ «&® Maf^r^Si^r C^rf^i^aMoii sad tte s^ri^a«
■^h© filled IB %tm &m>& f^oa oorl?«^tt to :^asffl, wimt to ins^e^rt is fm
d««d ss^ ttet fee (iii ^at t«ll hi- 1JC F«t tter^a tlis oiaase,
"subjeot to mmtmm ^^^^ed Mfcy iS, ISES. fo^ tte swa of v685l.00,
DoolF, m.m fufthi^r i5«ffssitt@i to taetiff that ttia first -liise H^? imm
mx&H n «latt»e '^as %n tm &mi ^iss »hm ^mmotm %olo. his tliat :.os®
,m^ hMim s«^«- ^«^y 3^ ^ %m&%i^tm m&kM tills wlt^iess on dir®«%
e^dagtlon «ere l®ft€lftfe sM objettloae tHerete for t.Mt x^m^on
sUoaM baw be^n wsteiaed, tot ^m^pl^, ^mmn^ fo^ a»-eUaat
iv^sicttot MeOlttSg sfi tft tm ^ntmt% sf llie dsgsd, wlmt was to !s« put
ls0^:?t in 1% %lm slaus®, sal^t-sl; to a3r:'g&i® i^^l^^i ^F ^^* ^^^> '^^
tl^ eta of ::;C5iU0S» ^tefe %M Frrty ^^f tte seo:sna P^^t mmmm m4
'ffusCvtlsa was a'^^s-®** ■-•-!-!>■* t-.»---«A./j .,w». »t ^^u'
ana feh^ witassjs mm^T^i ''tM% U m ym^lmtim of it- aM llse
i5tattcl, n ^lU l«t; It ^t^m^'* Til* ^^3^^« furfeter Gteaa«s ttot
lloa. t^i® question, n>iQ ws ^:^rB« B» MMmmT^ ®sfl s^b witatss
Cisss' C«rp»atioa aed the iii«a was In Mmas ^ii«i it ^®s m^^mt^^
fey li,. ccj:'fc0tfe. Timt was t!«. ou^t^^t. 0f tfee ortimU Qmmml far
: t;,. J3_
.;;.:• -:,:.:■..■. ■; ■,,-?:^^ ■,.• vr^'-' .h-MJ^ S^*®^'^ '^fe""
... .' ■■ '-:r-; ■-■. /-;:;..■ ;'';;..".,;;?■ ^G ^iv^^:-' '■;,• ;,;■;;.;!!?) oiCJ^
■■- .;-r-. .'■ ':■'■■-■■...■:' :/..: 1::- ;.■■:,. rf,.,.-:r. :-s;!«/;a5 ^--yji^-s
■ ■-■ : •:'-\ '.V. ,''ri'::.'.is :;* g •^. ! ^ '.?•■- X" ,.!-:T;??fi^©
Htf ■^- i- ; •:;■; ,^i«.? :;;■»* ^mi'' ,3;m-! •:;:; .w 'jtf
f>bj«otlofv. Agsln in thf^ dls'fsct ©xa/alTm 'dcss of aupf^ilaat, his
eoiinn^l aa^srt aim (ref^rriag to %&n lot In ?p«sstioa ?^i5a i©sofilje«
Is Ssha i^©'»<l) "^lil^ jon «iVer taks po^??®«ssioa of this property, ttsis
reel ©stsst^s?" a;^ oi-©? «<^aiM«sl»a otsjsetioa !3.s tss.s pe.rtsitt^a t;o
jmsw^r, "I 'Mdn't^. Thla tpeuUsn sb.1 lad for Ite '5;:aelu.3l!ss of
the ^^i^itw®© B.nfi oh p. 'sti o& fAmr ^tct shouifl hsT® b®€sfi s-usteitaM*
From wtet we teve uaia, it is fcVjpiSii'eBt tliii;* upas t»
t.flHl af 'Shi'- n».m9f fe«r r^Eas of ©Tlisitia® «'«r« f lolsitsfi fiasi
dui^ lif? the orc^r0<s» of t&¥ trtel# v'lirtlxeKSO.J?'© &ppfellgii.t aclaittfed
th^ i>«r0!»s» of this lot eal ea?iiltted ttet his si|p3.atisrs iipaear®
U"^0n thA -nort;sSi« whl«fe was eacaeuted in ta^ preserKM of Js?i!«s U,
have
^i03tt Rsd M, L, fhsausoE, ss4 irlit^Jh eppears t- 3Bs> bem duly
«l<^IiT?3rea. t«> litrs ead e'^i«eae«? w«> infer oduo«fl to tte efffect t^iat
ths party ss;» Aid py©nfir«i tise dm^n iUmllii^ig ^uo dia mot testify
nor w?ss his »lje€^S90 ^mmr-.t'^d f of } flslated Ifet? iaiistaietioss af
Bnoly ?fh!? <il.d not ©m or alol^ to O'vm tile l0't# H©w »iErli 'Sr^Aesiw
^j?«?i to tee ;^v^i the fedstisjotty of ^s: soterBl mltm&B-mt m© a
rattter la th-^ fiJ'^t Instance for thf^ Jury k,M tsea for tke trtsl
court in i^sai^r- «poa © -mtim f^r ^. aet^' trl: U i> eoui't of review
^ilX not oMinB2-il7 sabstsituto its JuS^^uoat for tliafe of th« Irlal
eoiirt ual«e3 it eUarly -r-vears t^r«^ isss an abwi?® of dlsor^tioa
er,4 ^© ^re la^sllae^ to a®r«5€s ?^itfe tte t.ftel soiirt tJmt tlia i^?st»s
Ymr^ln ©h^suld be subai tte^ to malht^r ^xiTf. fim ard©? appe^a^a from
will tiMsrefore b«f a,fflrs»-?l.
(iUJ J 'iif'ii'.
} S.l h-
STATE OF ILLINOIS,
SECOND DISTRICT J I. JUSTUS L. JOHNSON, Clerk of the Appellate Court, in and
for said Second District of the State of Illinois, and tho kerpcr of the Eecords and Seal thereof, do hereby
certify that the foregoing is a true copy of tlie opinion uf tho i^aid A])pellate Court in the above entitled cause.
of record in my office.
In Testimony Whereof. I hereunto set my hand and affix the seal of said
Appellate Court, at Ottawa, this . day of
in the year of our Lord one thousand nine
hundred and thiitv-
Cleric of the AppelJate Court
(73S15— 5M— 3-32) .tS^^?
AT A T3RM OF THE -AVFELUvT^ C OUE^,
Beffun anri held at Ottav/a, on Tuesday, the^ftt^^ rf May,;ia*" i
the year of our Lord one thousand nine hundf-ed and thirty-six^*'
mthin end for the Second District of the State of Illinois:^/
Present — the Hon. BLiilNS HUFBiA:!, Presidinf; Justice
Hon. FRMIXIN R. EOVE, Justice.
Hon. FRED G. ^'"OLJE, .Justice.
JUSTUS L. JOHNSON, Clerk,
RALPH H. DES^KH , Sheriff.
BE IT RFJ/IS-ABFBED, that efterrards. to---it-. "'n St'^'S 1936
4- --.--^ ^ ;n +h- 01 p-'^'c's Office o'" said
the opinion of the Court v-as , ^lo d -n tn.. .^te. ,v o i^.-^.o
Court, in the words and figures follnvin^, tc-^vjx:
sisy Tsra, ?i. D. isSsi
j
)
THE SECSU:. ;.4HU BA'.-: OF ■:*?, ) CO^uT :=? KA^: '«?:.£ GOU'fTT.
\
/
Plolatiff i« s lasyes* t'Sd w^a OiHployfd bj^ the €0f«aistit ta
o fie®, wpotr %ht 3ialo?.lff In ao-necsisi r«i w|t?i S6«ts? lag Ms atr-yj. aes
•??-niId he mit\Bf%o%':^y i?;ith you to i-i.&r&. j-m failcw^ tlif5 sslc-adar^
^lla tli'^f pitmdiags, ?tek« prsof feei'sr^ t&& Mast^'r aad pfo'^® up the
liSfual ssttnrney f&e, idiil':^ lu l-^.r-s ;?© vtotil-l srepssr; all pl®a3.1ng here*
Fsr jouS' ^efVis®?; •©© ^CHild #s-^ot %q im.y s soislm!! amtmni of v50,00
and whatever j*«)fe&l f®« ooultl b* th«rr0aft?;-r r ©«! t ?««4 froia tbtc fcre'-
^slOB-affj at the far;&| that is, '^j th^ extmit of fcrs* oolleotlon at' sny
fi^©, the sntiJTi^ ftfflount ^aild be rs^isitttd to j-'U, Also tfee aaaatnal
a?a<mnt 1^^ fixed im frm ^esurartl^ja the % feere "^111 Is© no softest,
"lea.'se lat as? Ifao*' 'sfifiife-r-si-* 3ueit or alsaiiar afr?jn^,0S?mt; wi.ll bs s©'^ »-
fficti^y". 'T'he plsir.r.tff &o<s#''t^?§ the offer of &ir<lojtimt cad t.h,ei'@«
after sppearefi for pa re'^res^i-ttr-Ml tlw {|@feafl''-hnt. In sixteen forealoeur©
•."i ^^yj?
-:iV-
proeeedlags. 'm. llo-rsKiber 19, 1931, dsf^jniS&j'vt fos^«rft@« t- the
pUlntirf tha origin^ i nad a;A:>y of a Mil to faraoloae a niO,rlg?^ge
title nnd i^ oii^ek for ths filiae f«€. f hereof ti®r, an ::;eoe«b<»r s:4,
1951, Svid bill was filed, rea'alting in a d«ere^ of f os'fealoso.r'© sa^,
sal® on a»rll l''^, 193S. 'Vm 'imt&-'i> s??Ift -syjais Is^ld oa May 14, ISBE,
at ':'rhiQfe tl!^ tber® wes? du® tas^ d©f®ttd.&M , uii-j«r Ui& desi*9«, i.h«
su?a »f S24,E1S»S5, «^Uio^ g^jamat iac?iu4ad ^sa a^toi'acy f©45 of .?aaO,00»
At ti:i@ Jiesl© tji® prsiTitses «@r© sold to 'ste iefeaaeijlJ /»*■ iSSjOOO.OO
end on jiugis^t 19, 190c, tbtrs b©iag no redeaptioii, the ^i&atar -exe-
cuted a desiS to the defendeat, T^ere«,!*t;jr th® dofsiidf'.nt sold t.i^
oratilses f*Dr $S7,O0O,oa and oanvissyed tli*i;;i to tUa purfciv-asr hy a deed
fisted Karoh 1, 1^35, tSiie defcndaat psid the pl^iatiff 'l-lOii»QO as
sttsmey fese ontl re^^.'jtng to pay r.r.y ?aor®, Uiia auiS \4'&b inetitutefi,
After tim Imxim w@re :mQe up, a trls:! «ss l®5i Uifare t;ti© iourt, a
Jury basing ^=alvcd, wlAah rusuittt itk a Judg^imiv f^r ti^e plciatlff
for :'^700,00 cM tht; fedor-e ii l>efc5re this:? o.7urt for r*-vi«B,
Coiiassl for si>t>©lk^at laeiat tl&t Ijy tiia tern^ ov tUe
Qontrfcot of esiploy^-<»nt, ijp^^llee is o?ily fc:;fcitle.a ic reeelv-o t&e
attoi'ney fs5© assessei in the forselosja^'S si^it to tbfe oxt«at thst it
^&0 eatually aoHes^trd \jy ii av«r 7._sd a'b:3Tt- ajiy tusi cue it for its
sEdrtgaae aebt prior ta the ^riolratioc. of tee statutory pgrisd of
rs4ervption, ife&t In the l/sstrat 0fj^-<? It eld ^iOl sell th.^ f ax^ ua^il
after tfe® i^eriofi nr ired^iogpti^m had sxplrea ^ut) Uerefcre sppeli«^t Is
ii^% llabl®.
It Kill be EiOtod t^t la th«; Istt®?, rMsli ;;-0Ba8 fete basis
of tfe onaip&cl;, i;::\'-«"laatj^ after steuij;^ iimt !gp?>?>ll@€ ^fOiM be wlkM
a nominal f<^e, adfioft, "aM wlmt€irsr 0.etsM:d f@« c»uls3 B» tai;<r'iBri©r
rGsXiK«?a fPfJsa tbe f j^eolosur® af ti» fBr-^, tbot is, to iM ta-tsat of
tae eolleotloK of «fiy fe^, ttm entir® egiOiiit v^-ould fee rensitted i>-> you'.
fh« sati«il f@6 IB ^^ laataafe aase Is the :-800*00 'Plil-fe was m&0 s part
..-.■■■/Is- ::;-L!-y .-rv;,
•:c.?'7'',, vijiii Jig;.:)^^ iei<:
'•-• '''>■■' *■■
of the d®<sre0 of fej^esIaR^re t>m\ sdtod ta th<? a^o^;nt WMn fix^nd to
b® dae ftpt?©^ lent tinkler Itn JKste aad moftgag^. "'Jils; mm of 5©OO,O0,
aooarSlsMa; to tfcts war^Jlng of &.p-;>t':ilmt*e iatteer, woul^- be pcdS appelle®
if 1^ *'eouM b© tissr^af^er rsali^S fr^si tlie fcsr-telosyr® csf tine fara"'.
Ti4®.r® iji iiat^an.' ^«id maleia a&:i toe ao:etrtisid &0 ^»r^i tiBt tbis eia©imt
siusfc be? r<3alis=sd rifcjbklii "^i fteijn m©«tltsi f::4i swine? the de-y IJjws far5a
was jsoid. aii,a to aoasil-ras tStes® 'SonSs s@ (SfspBllfist 0i>a%@Ms. -ssmld fe©
f araoigsuT ii iTrsoetiaisitir, litis to %m f&ri& bsaisca* l5:?-5©fea©afeX;f vested
la ?^;>#ilss-rl;, Aft«i* nniinB *^'*^ nrfs fos* .slg!it©«i mostlis, it soltl it
tsad i*-sali^ed ti»?«5frc!ia sa ?^ae»ua-. far ia ©so^aa- Oi** ti-js amcAiai of it©
ti is £ fassillsr pi'-laGlnle at the l^is* af Um edmteietiois,
of Qoatraets tlMl; '«li«rft t&€: partita tiiiereto lisvo iBter-iH'fet^gjjil ifes t^Jt'ia®,
tUafe t&sa, ta th« s^-smt of &«l;4e#qiis5Rl. iltlgatiaij the oourt \tlil
.tsdopt SU3U ofiisgtrijsjtioa as tJ» parli«5s Ui eased i?9s f-iftve «l®?3:.@<-i ur-om
:J. fe. A© sstiitetl, sfter' sp grilse bafi a^ae *»Sil mv::-loymmt a«Q"^rt'Bft to
tji<; terras Df tfee letter af ap-^©ll&ai af April 4, 19SI, 'ae X'®pr®ii5@at«»4
la ??alijh op;;«liimt feei£aowls%#d tlm r^eeipt from «pj)el«ti3 or Ik®
'yastti>2' * ii de^d, tJie p#rl0d tm r®«l«sptlon ftavl«i? eaqjired ftn?3 In rnfaf'-
sria® i;a Ifee attca-nssy f«© of appellee ia tli&t ©as® ted tiils to sayi
"I asi ir^ainttei, iiow®YS5r,f ths; t t;£®re ^^^s a s;jlltsitcs**s f©ii of |S40,00
alloi^d you or* aaeouat 9i' -^fiiisli *?@ as^e paM jsii ^50«00j tte bslrne©
of ^hleh is t«i fee peld t::? you ia tli^ «va?it of e ptrojapt ©als of tMs
farm with^^ut loss t;0 fch« baiik"*. ir^d fetae* e'uWtHfS© iis tiiat ©a soSsra^i 30,
l;i33, appsllaiit gent 'v;>:na,l(se ^i^-SO.CO, #jlalj «r©s stntta fey it to be
tte bal^tno^ due appall®© ojti aoaauut of his solioUor*s :f<se fUlo«e<i in
tb© ;U'Va;r^ for®ole!5i,jre suit* In appsdlt^Bt*© Isttar , la w1iiv;h 11, re-
iaitted tlii® bsleae^ Qf H^»0.0o, it s%$t«d timt altteugk "tee
..) .'C. ' s :, \X
fix
■ ■'! • ■'.<s ■:. . J I
j> ■ ■ - (
gal*;? of tte prop«j?t5' aid. aot quits ptsy "^^ ^3«*'» ^'^^ fmll^& ttet y?>u
aesat la full, &11 sf ^^xioli I tirust you '4.11 fiad s&tisfsetory'*.
Counsel foj? spaall^nt ib ©Meevar tag to ©xs?I«ia ^hy this paym^st
was «s4« te sst?©ll®t loag siilsa©<it.i®st to toe tlse the ^.^ate?*^ de-ssd
Wf5£ i«0u®a, -wfaa, aA^!^ar its iJlterpr'etJ&,|i^m af %m «j<ii§raat;. It®
liability ©©asaa nt tlm tlta« th-^ M«tat;ap*s a®«d "«b isfij^i^^, ssays that
appa-psntly appeii^s© '?Jts o-^©r9'6i^ sM further t\wri Is t;?as fc mi*&lmj,lar
3ss«e» ar'sp^le® saotueLly fou;iT; *; buy®r for %e' far^a, »i* tue r^&ssn
oUher tima tum 550*00 it ited |?t;l<i ^qs not h9em.m^ apimlee fouad a
onroliassi? Uit beeaus® or tlm fast «iB.t ho did ft?^. a imfoht'tsesr
qusnt s.'>l'3 of tlis proixs^iy did not Quits i>fty us; out'%
In *#;t;jsleaaU-OR, of f-^liy &prjeilai*t imM sppeil®e :M00,90 in
thfe lastast eases i?ist..-«i4 of ISO,00 refer^#<S tfs te tto latler of April
4, i9Sl» i% ajKwars th?;.t fsafesaqu^niay there 'w-sy fsome othe^ r©r©r«tide
to solioitoi* t©®0 la. ths csc5ffji*@ap0a£l®n3e of tae osirtie® aii4 oa 'iMy IS,
I9S:g, appslleaii te-fol@ a-r?--®ll©@ isa t:>ai't aa faliasaj »to<at fees will,
hfijt^eeri y;:;,y;'®®lf sM J^» Kirsfesfs i^fMGli X maaerstf^ii^ is that y^'^a ssliall
doas n^-st exceed ;-l5,O0O,OO aM :^100»00 la m\&h d«ifault oss© #i®r& t!i@
lM4«5bt-0!Sa©Si5 is la axctss thereof. ■"
thla ^&&::f&^ tSie trial aoti^t Wis ts'arifaafeeG la rssfinesi iig the jaigs
siBp«sI®d froa sad tte I* 4i*a#^Rt ^i i i b« a;
JU0GMSJT 4F?I«Sia)«
fX.i:-4:-l X'.i
-7 :'■ .- i
:*«.'*;i "i^^-Vj-ii '>;«'.
.) ■:■..
V ' a:^'.. -ti;!
STATE OF ILLINOIS,
SECOND DisTEiCT J " I. JXTSTCS L. JOHNSON. Clerk of the Appellate Court, in and
for said Second District of the State of Illinois, and the keeiicr of the Eecords and Seal thereof, do hereby
certify that the forejioing is a true copy of the opinion of tlie said Appellate Court in the above entitled cause.
of record in my office.
In Testimony Whereof, I hereunto set my hand and affix the seal of said
Appellate Court, at Ottawa, this day of
in the year of our Lord one thousand nine
hundred and thirtv-
Chrl- of the Appellate Court
(73S15 — 5M — 3-32) .rs!^^?
AT A 1WM OF THE A^LLATE C Ol^-;
■day, thefif%\^ey of?Kay, fn
5egurt and held at Otta^'a, un Tue
Lord one thousand nine h i-in -di- o d . a nd thirty-sxx.
the year of our
Y.lthin and for the Secon
d DiGtrict of the State of Illinois:
Present — The Hon. BLAIKtE HUEJlvIAN , Presiding Justice
Hon. ERAIMiaD' R. D0\^, Justice.
Hon, IREI G. rOLEE, Justice
JUSTUS L. JOHNSOIJ, CI Q? k,
RALPH H. DESPIiR, Sheriff. 28 O T«
BE IT REIvLMBERED, that af t ex "wgr ds , to-wl-. : '^n Sir' 3 bob
the opinion of the Court .vas filed in the Clerc^s O-f:. ce of sax.
Court, in the v:ords and figures following, ^c-^r.t:
la tilt ..i>pellat^ u'ourt of lIXtm>i.B
of . ari^a C^'
DO¥e, J.
a« ^afeyarF ^®» 1^&» t?..^ '.circuit --©tirt of :#..rs*®i CQwatf rsi^e^*
%lM% the r«rti®B ®f®j® M*.rri??i ir XM® aasi «5f?aM®<5 the ©uatociy of
f&u3? S^arjj. of ag», tfe« gan,i5 ©f «aifi parHes, to ISit ©a^jtr dxsylsg
the KCfeool f «»,r sb«l diz'«ist«-a %hB f&i^itss^ %0 p^iy for tlmli' m-m?>©r%
sua a®iBt©B?m,e® itirlac.; the p^rioS 'wfcile: ■^rs'^'' w©r© In the imU^fSir'^B
^xmtQ6f^ %h& BWA ®f ntim uollare eaa the f if^M?. as#. s iik^*. mm e® tl«?
fejie, E^tfeer T^er© fit aM proper i>@r®©iis to lis?'^ «5 'tie oiistoay of ®si^
ohiMr^sn sry;!; irnmrd^A tlmir e-insf^df cMriii?; to* stjsssj^a? metitM to thf-s
father* OS 5?0Trem^sr 6. 1935, ti« iSjOttefSf flle4 lii »si€ «mtJ?@ Mr
staa^a® and in ti^ sirc^mst&iasss of l®r l%5®M«s-3 si<:0« •^:??. d©€ir^«
w«is grsjitssS- mi6 #ifersi"f? the^t it ®ost t^s"© ^ea t© EiUlKtaia 'Isfea
cbil^ar^ss lifean It aid whea th« rteerse «a» gie®5*.t«fd. mn4 ^eygfit, t^
the pttitJm:,, to lmw« "fe© piroirtr4o«s of tfe© f^nr^er il^sas^*? iie4.tft?«l
sns tb« amo®i* .ln«r«!S®«!it itiie'h 'febe Iwjslmn^l. i^fi d.lrf?et®«l to p*.y h^T
to aaal^i© Jicsr to p?©w©rly sayport tte© ®lsilcf*«fB.« Tli« r@©p©?id^it
®.RBwar©^. tM> ptstltiioa ein3. ftl^'i a tiresa pttttioji asltln.^ thtt th©
eoiirt awar€ M® %e suatoSy of tte« @fe,tl43r®B feirtiSi:;^ ^s? seJ^«>l F"^i'#
Rm« tfeat afe.e b?* giY^r* ^as ©mgt©d,y of tJ:ys eMiar« a^j^riag tfee smumsr
'r\- i.t/z^l
.'!^- 1 r ■ * ' > -1;^ ' ■ '■{\- .u -4 S. ''^ ^^^'
sfeOTia b^ for tlie m^^-^T tmmmm ^nlf, ^^n«^ «i® is^ims® ^m-^
oriftr <sasfi«ii tsm j^mmi' of bote tl^e f^titiaa aM tte e^s^# peUtio^^,
bttt aireetlBS ^mt t^# Imstena i^y t-v the ©isi% ©f tfee ^OMVt foT
tm W0 ©t hi® «if^» **^^ «^« ^" ^'*^^ I}«ll^s'6 -I© ©»bi® ter %Q mf
h»r fttt^i^y for Mk 0«rTio«6 i? r@sisti«E tfee Q^^m^ petmo»* It
aiv^e® ^es rtM^r^a, appellee ^as in tbe «^f loir ©f ti# 3'otm t>mri^
t^m c«paay, » «ii tsut owb ^nf D^yper^ ex<5©p% UiB li©tis©fc*M f «r-
Kit«r« mwl aa Ksses mit^i©bil#. His sol© U<sm& afe t&at tlae wss
lilt saiis^, ?e:icli sa^mt«^ %& m'^-mtf ^i*^® bolter© psr msstfe. TlM<r€
s#0mjs to teT« fefea ^a asi^feie ^ttlsB^rrt of w<mrtf rights i>@t^^m
tM partie©, ^® ^'i.f^^ r^»it isc all ©f tfm hmm^^M txmitt^xm &m
%h^ hm-^mrS r^minln.:^ tHe m^^tmrnv-U^-t ^U.©h &§■ sola ^iortl^ tter©-
aft^r mr m-^tu%f fW^ ^olMtB. m provided %f t&o «5#e3'«s» app#lle©
^ii ai3n«lla)fit»g at?;armeF»ft fee. a^sesstim t© fit l^r «»lMr^, asifi lj©
eaeb &s pro^la^ fey tfc© 6@ere«. Is Marefe, 1§5B, «st tfes airsetlos
lilia©lf%, ©fti?ta»5^ low TO^I mw'^^m. -is^i^im, li^ «<lfiltior t© his
Bhieh |» ms t©ta:5 at tSie tli^ ©f tte haa-rlsi?;; mmm h% mmvpUtm^ mi
mrch i8» MM, a»a li^i IjM m Utimt^ ^gf^e^sEt aa %^ salary fif«#r
tnat aata. Oa March SS, l^S, appall®^ j^-«^rried «i6 «m© li^in^
frith 1st a ^0cmsl wlf® &M iit#p*«^iMi*sm at t!>e %im« ©f tfe^ Jisaring.
im © fe««*ty ®^®? ^^ ^^« feusiiMss i is trie t ®r ^a&mm%ht ^nt ^hortlj
W.^ k
X:'ysl
■■ v- ,'\;'.«: Xr^ m-iid
■3 , ■'■' l.^:i.<f^i W^^
.• . . , . , ^ . . . ;. . ,• - ^ , • ■■ -^ ix- i ir ■ I'
■:■. Li''' Ok? i'i « :'.v'^.,-i;.S;>0':.>, c ■:>■'•;,,■/■■;':.:■»<,; -ij; :,; •; ;;m:j ■,:,;^>j ^iKiyj. j.*-'4, iVJT^
m^im-
hmr towmr mm aftS li'sr &&iiitm^ hti-^n i#«i««^#a mst^rislly ffoei wMt
^^ w<'?r«f 3f the tim# tlM d»ere« ««a» rimiiereci. It fmrt^er affsaari;
®p^€ilX.€- OK Jmit^is? 1, Its© sM mirp^llse tM© @.^iat>®^3-''''<^ '^ employ aa
««,1 tli<^m to m|>|>«ll@^5i' in. ae©©fi-aB$# 'ti^ 111® profialoi:*;-. of th«f ©flgSj-mi
fieere^* It fiirllj«' aft««r@ t^^t wteil,??» st the sisss of tfe r.^arlsg
l5« wsi® r«t0e3.TiBe f'sr^-s Ms «5al0f«ir ®a« l3ais4r«« omi fifteen, «l©lMi's
p«r ®a«titt lis fe@^ b©€Si rnimbl© t© t^;^© 6Ej in&nwt ^* ^^® pfepertF of
x>^a.s8eis. ^ Bfelpfe*® I Que of II® Isc^^l iil.B«S5S mi timt <Miliis tis®
f^mmk^&r of 1®SS #i|iss tlui b^a m^T% will: hi?s fev f»^p4%M#ii ««y«^ ttem
tfe«it,, 8,M this <sl®t;Mi¥u tog#t&ar ^tWi slui^s tm4 oth^T &tU®Imb «f
w«i?s^ A^liv^red to t.H#l:i* g5©-i3..«-:f wfa*m tli^iy w^y^^im mt-'rwrn^n 'l© !«r Im
%im fail*
puy f 3*©?3 $3.ipo to at Imisli ZW wM si m ntb ^ a^ tfea t *#ia all fe©
%Q m^&hX® liar %o 0t4fTj0i-% th^ ^ilMre^ ©©t lets «^am ;i54I»#W per mssstfe.
Xu tte@ f«m®et 0e@© of Bf^rlf «*# l^trXf, 36S III* S17, 8 •UK'*
(gift^l 9m.p it is aaiS: »ltere i^ no )mw& aid fa^t milsa f-iir t. ■•'■ fi:«ia#t
■>. aA''J
Of.'-;.t^; v^
i-.,:
. ■ . ■■ ■ .' ■ - I. ,1, ■ ■;,' .' '^ ^ :;•* V d!»
hmlthf %fm pro-piirtf ar»^ inocKs? of t.te ta^baiidi a®»-rst® prmm*%f
iB&mm^ If siaje of tfe€ i^ife^ t«0- slatloxi la life af tli® pt-^tlee as
th&y hmra ket^tofsr^ livei, -ar^d ■^■igll'/uy ct* not- tl?er@ r?© aay elit.Mr^B.
(SepsBdtnt U!>©s lister f©t $«tipi>ort, as«S. als© the is^itur© ®f tfe® »Js*
toivJuet ©f tiJie h-£4at:!ai3S, It was r%^^mr int&i&mS. tfest t-B,© a llQ^-:si?.e# of
aLtSsJiiy sfeali b?^ u?is€rd ®« a ^:@rb csf -risitii^' oismitiv« ^vmxft^s. wpmm
t.h€» fattsbrsfid 4a f@Tor cif fee '* Si'e f&T %h& h\%si}mi4*z sriseo^4tset, Imt,
giil<a®a by til's aifferwtt t^feis©«, h^r^stolbr® 38®Bti&nM, ^ tfes* sltxtetloa
©f th«! paTtirtSs 011M5 @ll©*s>fef3,e«^ is % ^ be rsS@ as imy fxiriiisli tlim ^if«j
isupsvert or eoatribuie ti® t*r parties! ayTSt>0i:*t« ail&®i^ f?, (Jilc©rt,
SO© 111, £10, If tte 0ir'^i»tsS'ir.-e(©B of t: e parties {slifiBg©, upon oroper
©OBcUtlons- 5«_y waryanf* in thn infttsst ea.®e wiljr mm) aon^hs^ im€
cila^^eS fross tli^s tii^? the osl^'lml £^9«r€ss was #?j t©i'@«s iHilill ©p^peilmt
time appslle® te. <1 i-f5ceiv#<; aa luereaet .Ir is.lai*f= imi tfe^t sppsliSEt*©
Iksc^^ from h^T feiHiiri@s® Ii&el d e?sr®.«®©4,, fM% .ft r;i» tt©€^:re^j.s«a daiTitag®
^d^lrfe i» t>® iR a 1)0^1 sioti: to j,-ii?# jsaip!^? %ig|© aiid uttesiieii to Mr
seCjtsssBS©® af smefe a m0«j wre isKiii©mfct»<!ly f'-sr®^?^©!! hy fifes'.* I'fea
©tatet® wis?€il:^ prorM^m ttet Isi.' d-»-art sjjaj, ss appilesslloa, from
tiae te tiis-:--, mke sueb alt*ss%tiios?,n Its ths gliomi^ess #f allaosif sa^
aa s-^?»2.1oiSiti«m is aadffessec to %fm ,|iiitieial dieer#tic'r^ of tlMs
CfeasselXpr &nS the isfuiry Is diititetsf: to asoti^taia las^^eti;. ®r s^xgr
©-affielervt esas^ tes Istervti'TEefi «lsio® the? orl.«:;iaal d^tr®© S65 &ml€S»
in V-,e a^pliG^tioE of s^^mlMlsl® prlnc-Sples,, mufcfeoriK^ t. efeas'tje la
the allavjrmo©* A^hil?3 t;Js5 ::-liaRGeUor si;-?ht te^e l>©®s jui&tifift^ in
,,?■■
:■■-■::.:;' -^ ''■■:. --iH:,- ;■•;.;:■.. .■.':,,,. >/. Lj..,:n:r, 'VJ'-^^*-^s
i.'sr *';- *;ri>j^ ^ --8 1 --t^?:; ,j';;u ^'itis; , ";:!:\;k; ^.^v «>:i> :".':; rife
suislj alSisas i'jf Judicial '3,l®0,?^fels*;:- as ?¥©uli ■Kmn^m^.i tfe-ts ©^sart la
*-♦ This ^riiisr »,pp#fei®a f.p0:s i« t Mrsf «3>rs sj^ffiiai^*
^f: ? ■;.:•; c '^-^-^ s^^sfW
STATE OF ILLINOIS,
SECOND DISTRICT T"' I. JUSTUS lu JOHNSON. Clerk of the Appellate Court, iu and
for said Second District of the State of Illinois, and tlie keeper of the Eecords and Seal thereof, do hereby
certify that the foregoing is a true copy of the opinion <ii the said Appellate Court iu the al.ove entitled cause.
of record in my oifice.
In Testimonv AVhcreof. I hereunto set ray hand and affix the seal of said
I Appellate Court, at Otta^^-a. this day of
_in the year of our Lord one thousand nine
hiindred and thirty-
Clerl- of the Appellate Court
(73S15 — 5M— 3-32) .m>^^7
AT A TERM OF TKE=*roT^LiiLTles#^T.
>
Begun and held at Ottawa, on Tuej^. ^je^^ ^By tf Ma^, in J
I the year of our Lord one t hcSsand n€e hundred and ^hl^ty-^i^^
I .Ithin and for the Seccnd District of the State of Il^ois:^
/ /
Present - the Hon. BLAINE HUmiA^I, Presiding Justice, j j
Hon. 5EMI-XIN R. roVE, Justice. /
Hon. roED G. ^-QLIE, Justice.
JUSTUS L. JOHNSON, Clerk,
RALPH H. DEEPER, Sheriff,
T
EE IT RB^/ia.raE^ED, that eft ervards, to--d. .-. -^ oe -
. _^ ---.v ,^ -n Ir^ C"tp-'.c's Office of said
the opinion of the Courx :.ps ... --c ... ..n .n. ^ -- -
court, in the words and figures following, to-wit:
M^^mj^Mm ciim$""iff iLimoiB
KAM& Oaimf r BixJiE. & tiS&t
Sim® CQ-imtfm
Wolfe,. J«
tlii» is toi &po©id fafc« ^ orasf of Di© CiT«^itt Court of Ksats
Co«rt fey e.}ti^miA-m ia fs^or ot tne nis^ntlff, t»Ci ugaiBst this
no iiXL^hQ^ltf %-■ sl^^ is?'J li writ ia n tew 6^8«*
tim Mpiw.l%&u% wejs- fcte«'> «i©f?«.%ife*it- ftr^ tte^ ap&all^rv ■&« pM la tiff
Is tb.«« ti^al s&&M,rt ajia in this opini&si, tF.e partitas will h® ^e
mm^^ tja* e«fMs*^mt for t&«^ gajs 6f Ag,a8?,M» TliB debt ms
©YiSaao©^ by tm-j j^teij ca?«^ii^* bj s teed i-sf tTm% ofs eartaim rft&l
oa 'Ui& iu4p5ir*l» m^^ Ja'?y aa^© mpfm ths Jisps:orafe® 2'«S4^3. ®#tsit® of ";.13&
wimtrsrteltia^ feiia yie isfeerlft ^d^^^'^sf^ a^-BJi r6©l ®dtRti» for m-il^m
taicois of ii#r iiu&bsad sjil aot of tej?©gif j fehat> &aid n^tmn ««rsi fieeir®^
^^ a %ru.B% 4«&©€ to c* L» .4f^i'isg^ as triist®©, up.rss %fe© tnt©rsj3t of ^®
'■^^^r^'tr:
^, ^'i; ■■:.. -y, \-%ro-}
:::\ir,i.i\ ZiS
iP«^
,vir,.
-i ?:r:'--'i'
•■?./' ,;'■'.; ^.'-i '::■ .--!,v^::^.^t;;■; a'V ,J^^■;4r -'■ <'■ ■:fi'<j it^-
asidi otfegaps of %h& msm ®«3rite4 '^b> §. tirrit li'ssi to tse ©xt^mt 0f
tli# lats^e-st of ^&kn Tfiateffe^ter is tiali fsist-jf &&€ tfeest saii ijs*
t©3rest «is M' grater ir&lu« Stma %im pristtp&l of ®Xi tl» ji#lwa#
&e0ttjm^ tlmimhf mlMx iu%m^st% tli«f4s'm| tlmt all tiie iatea?©®^ mm
paid r^^s aag liawi 0.imi feat Jete. wtu fe.ili.mJ,%sf «^@4-i lMt&u%»%9 J^ji^
lB,t^ d@ae?fb-®<l ia tM trast i®«a.| tiiat the ^-m^n-mut was estsst^d ®.M
her tt. pay tht ol>liip.1i4©asi uf iMir asAdlsiti^ ^iwl tte;^'isl)y ral-iav» tia
ffioriiim^a prsBiisst. ---f tat* -^.siAsii £%%'^4 !.>^iil?a ti^a* s^w ti&t -teit^risfej^ tse
as^eujee d^fefasi tk&% if &&«* letf Is is^fsiittfM 'to stai^, it ti,ll im
iM% %'km t@tf%i^aal i^ sot 4ji6©M><i*& %& tu^i mm#«ir^a SBsii, tars #
Joia Sialkii-tei'ter &M m uiiSm" m4> Is^i ©Mig^ic^ %j' ps^ the iga@#
Ji& oMw was ©fifer®€ Ifci stay fmrtiex i^i^^seSlnge. trnfi®!?- t1:@
to %M suit, aaa ttm Coir ^ tw^rrfislei tki soti^is to q:mmh amtl « ®pp»i
to thoae of tlia ea^® at; berj sM it si!«b tljiit ti-ve Cairt *i! |si0»tsrlsg
'"■'■ "' ■ ■■'■■ ''■\f-' '^l'^^^?' =*■?* '^ '¥5. ■'^^■■^
. ; ■ ;\ ■_. : , ;•{ ; •■. :■'; ;: MJ^^O
q.-xi: ^3 '■.fer-'/'i^'J;-?^
■■■•i: ■ ' i' I-
:■ ' V .'^ ,f -'X
IrA^
• '"■'." -.-;.;, vJ'^'ii «.; ,,■■: y''i»&;';>^& ?5';1 / ts;*?-
♦ ■fi^^^'A'^ t¥?.:.[5: ^'l^JlJ't ^'^•te'jr'i'^c S(i«i^
Hi I'll:; :';':;.>i^ '; ;::■;; ^j^jvfi^cr ii.i vj^ai^ttis '-r :^; l:;::;!'5,i.i;:l' ;l.i
is @ ii*4pmst @:m®@«®d fo Ik; « ■milt jud*p©Ht, wp<a wM^h m 0^e©mtl«ia
ws^ 3»|ij.3as'iy issai@«^ ^5 t&« •cswf Hmm sot fe^i tfe«st it <m-u grant
ttet raliaf a^ir<! Is a law «^a, md "^mmfm-^ ^mlm tlie mc^tia® te
of th«s trial 0Qi&% Vxnt snld c^;jir% fea^ ^> mi%umitfi tii3ft«^r tfe© « «,
to q'm.^h mii r,ri%^ 1w.t tfe^it rf«e~' iS3P«f- a%ist Ij® had is ©t^l^***
it l0 '3i:5i^i5tfM hy heth w^^^^^ S^^ tfels l»s i"all?l ami «ariisV'
i?5ig 4ud:5Kftit imi- %k>i tilt «*smitio?s waa fel^ iiiMA^ as •r^i^Ci^fi©^ hf
laWf ''f!ii€ «^ SI s:s'«^«sAtja,g, st few ^mi m^ti? th^^ Mw tli© ©|S|i«ii«®
kiS Urn .rli^i.'l 'S?-' pur^Ai© £5g ■fmnf i-'ftmeilea sis It dsil/f^a in ^QlXs}^%ing
%h& m-ote wfeicsii it hA?t* '-.a ti^is^^Uai 1»? Urn tna:5 somrt i» Ms
me mmmxm^ l&nM ;jf ^-poll^at to ®al©-^^t ttm.t %& sot tli# im»
It iis »« i?pls*i3E tk&t tfc«i trial ©surt |»issp€s^? fow%i t!»,t tfe« m&m«ja
■%^ quaiii esfalt not i»» mi0tei»@i«
f^ ,i;
I
STATE OF ILLINOIS.
SECOND DiSTEiCT ]^^' I. JUSTUS L. JOHNSON. Clerk of the Appellate Court, in and
for said Second District of the State of Illinois, and tlie keep.-r of the Eecords and Seal thereof, do hereby
certify that the foregoing is a true copy of the opinion of the said A]5pellate Court in the above entitled cause.
of record in my office.
In Testimony Wliereof. I hereunto set my hand and affix the seal of said
Appellate Court, at Otta^va. this clay of
■ _in the vear of our Lord one thousand nine
hundred and thirty-
Clerl- of the Appellate Court
(73S15— 5M— 3-32)
_4
AT A T5BM OF THE A^^S^SlfrC OTJBT,
Begun and held at Otta.va, on Tuesday, ^>^e fif*.
cf May/ iB-'
the year of our Lord one t .ou.a^^nlne h^ed and thlrty-si<.
vathin ana for the Se.cna District of 4e State of IUlnols:|
Present -
- the Hon. BLiuNE HUFU'IAN, Presiding Justice.
Hon. FRMiaiN R. COVE, Justice.
Hon. FRED G. ^-OLIE, Justice.
JUSTUS L. oTOHNSON, Clerk.
RALPH H. DES-FB, Sheriff, 28 6 I. A,
fi
^
J^
BE IT R3.i3^EERED, that efterrards,
to--.^t: '^n
1936
the opinion o
f the Court v.es file
d in the Cle-le's Office of said
Court, in the words and figures
f ollov;in:
t 0 -wi --. :
Q©ll» i -i^m '■:'
.Aipnaa Mo» 4*
MAT T'lM, 4. u. ItSd
^miiii #. MO^tllBJi,
{SefSfiSsrst^j
tie Brmmm^rs bo&e?' f t???:' police
wm^s Ammiri him mmfif nm sf
I .tat® rimni m. Def ®ad 0:^^ |
Oojjort of Lahislie Cotiat^, asssisst h^w Uxmhi^^^.^ J^mnu 4, ^SBQuir©*
Oa .Tamiary 0^ iSHgs a hfeariag ^mu Imd am^ s Sesrs*© ©Btej^ei ns^mt-*
husMRia, was a m®®fe*3f' o? %h& GM©a,f/5 Polio® res'©©* ;s, /^B.m%mtf B j
llgUPla M'c<sui£^ fllea in tlie t^Hglasil ai'rer^* p^©8sMii;^Ss «3f Lf;r.«tll®
GQnntft ^i®^ JHttltioa |si*af:li¥S Ife t ttm ^ere@ of dtworti© gr®Jat«*4
hmr in Jm&vimTj S^ 1911 j^ b® im^s ■&#«?. %Efi iS'Si^t asUe ea tte ^jTS'^sffla
that St the tii^ tli# ^lTOi?©« WHS grasji^srl, ©lite was ?iii in®®i^ prKSE*
JR I'^tsmsjy ?*, J©3Sj i«mw" wa® g.raat©^ tc* tlie Satire© est Bas-S^ «f
filed ifl tJi# 8®li <i:«niFl» an fiiis«id^€ i>©tl%ioii, asa 'm Ftbrn^r.? tSj
191^, am ari@r wais f^stai^i grssisiisg ©fpelteat l&aT© t^s iBtfi^rtm^*
im .i\ily ©, 1935., & fe«S'iBg wss tsd Oft ig;aia petitl'^ij mi6. mi w^^
tJi@ ord©? .ssmatiBg .Itecwis feo interim* fhm Goapt sXs,® rf^aat^a bb^
'-'yi • «,'>
"'■;,:. »-;;;. ^.t> ■>;:;■' v::^:-^:r .-ivl ^S.S:'i ^a -^;;"- :'f?:::v. i:r.f r-'^d
m% a&ite tfe« i^ere^s of ftirsf-o^ 0a JeniHFf 6, 1911, om At^jm^Jt
5, I§!Si}-^ tib.0 ©Btlra osHlar af M'mmw G,, 1®S&, ibi-s set &^M® sM
I ttse S^er?*© i^®* ti-rcire-^ ®Bt@f^©fi J,i?mttary 6$ 1911, «a® vssatai*
It is fm:m tM® i^d®r of /to^st is, ItS©^ tlist tliift apT^Haist, 1&m
'V&tmm ^t, Illm©ls imp'mw^ Gom^t Hff#rs»t a^ fi^-s ^m» %hm im^^^m
frmmmit^ hf this 3?e«»re nm$ w^b -^mm tml^ thrat turn BmU.-mmmM
ilpfeal ^i@ml©a#d#
C5;-.L „B V*t
K'^rt ':! 3' I
.',' '■! ■ ', -^Jf>;f i;.">si /'■*'(*>'
STATE OF ILLINOIS,
f?ECOND DISTRICT J I. JUSTUS L. JOHNSOISi". Clerk of the Appellate Court, in and
for said Second District of the State of Illinois, and tlie keeper of the Records and Seal thereof, do hereby
certify that the foregoing is a true copy of the opinion of the said Ajjpellate Court in the above entitled cause.
of record in my office.
In Testimony Whereof. I hereunto set my hand and affix thi^ seal of said
Appellate Court, at Ottawa, this day of
in the year of our Lord one thousand nine
hundred and thirtv-
C'lerl- of the Appellate Conri
(73S15 — 5M^3-32) -k^^^?
AT A TERM OF THE iL^_gELI^iPE"<J:;^roT^
Be^un am held at Ottav;a, on Tuesday, t^f^mry tf May,|rfS .
the year of our Lord one thousand-Sine hund^ft" and thirty-six^
.athin and for the Seccnd District of the State of Illinois: |
I
Present - the Hon. BLiilNE HUFU'IAN, Presiding Justice.
Hon. 5RMiaiN R. COVE, Justice.
Hon. FRED G. ^-OLJE, Justice.
JUSTUS L. JOHNSON, Clerk,
RALPH H. LESTER, Sheriff,
12
1-^
S IT RLMEMBEREU, that eft ervards, to-^-n.t- .n ^t' o ^.
tlod m the Olerk^s Office of said
the opinion of the Court v;8s
Com-t, in the words and figures f ollovan^. to-.'i^
AgsMa v:qi, 7
MAT '?Si«» i»» s*
PUMiiiiki mm^im c-mpakt* a
la %h^ Circuit Ocsi^trt of *4li So%mW <M J^am 6^ i^S^» ^saliast
?U,m& Br«i^?iJ3g C'Ssp&tr ^^■^ ^*9 ^'' rseeT^jT ij@®©auBiai* df nim
®x»s^tteit with & Jie'l«.ti0i* t'fei J^« >5^®-^ ^ml^«? t^^ fi^^ ^^^^ ^&w^W
iu liiM &^xm* 3E July g, ItSS, the plmmitt f ii#4 t$# iteX^ra^oK
is %^^m %^ miM eouru IS.® 4©f«M^g filta -©i^lr ®,a.w» to mm
Gowrt i^ma f&t the pl^aiiitlf r iii3 a^feis^t tte Pl«i^« Sr^msig
j;liistt© B«wlisg, Cq^piej of ^#ltt% ini©-f43, to li^feU is tfe®
mfitt^y ^f tfef^ wT^mnt suit, Tfe^ 0fr^ wa® aec^tM aad tli® f^sj^atiir*
w@m imUll^ in ml& bT^^mrf. Later, t^m milMi&^ -Brrnim om^mf
• ;^50o*o
;. .1 -
iiiXlsiie© Bs^wlt^- Co^njKa^ tbss fSMfS is tlm 1>8a'ite'tspt«f pr^cs^^dlRg,
#il8b. d^et^etsd th.& plsiilBtiff a» ® ®e®sr®!l. @»dit»r fox* |S,13©,5%
li«M tmder c-m€itic}^.l etie® ©.a ticket, Tte trasta® in 'imnkmxp^y
vm.m dlr#eted to sseXl th© ^e«-«xf properly* -^Me th« fi&ir,tiff
sol4, it filed i!fi ti» Pt#lit'i0t Cts^yrt its r««?l«si®ti0rv, eialBia® to
ipas ».«v«?3r aetfsi u&'m t^ tiro: o«iwt« the p3fD:p! rty was seafl far
«®rllfiQat®s, t,U« lattar mT% of gaM ©Mesr of sa3a saS osafia:^®*
tton th@s^of r»«itea Iktit tilt ©alfi i® ssad^ si^3©«t to morfe{|iii©6 ©a
fli® a|jp©il^t 'mm iiasists t&.at t.h-3^ trial ss-ift arrM Im md*
p3.f4Rtlff RBa, tlt« Bill^fe l^swi.^ C'i^tmEjr, tfes Mstepaptsgr
tn barjferijptey ■;:r fee HJjJjsift® ^mmirm Cm^mn-f* '^e f li^ 'tm !@?@rt%
€!qid-?lfelti? fm" Viif^ parpom ©f «sts%Mi^iJ^ tt«t Gmim of tttfe- I0 tfe®
f!3© s®«oiid. a®sl??;ig»r5t- of mrm m^&Tn tiPt the Ooirt*s o'pliii^a
'T*h^ evie.ei»ce olaarly estfiVtittiet* t?3.s fact tlKt tl^ic f^m'^t^r^s i?^r®
aia iKsfe laiill tfe ff32*f^ister® aaa ^«^ titl« di.l sot p«s®3? l^:? thm
%xi as^arSase© with tis© f®o%e sua th^ ia^ af pli^afele t-i %h& m.m*
,,..!:, ■■•^■■r;>o-> ^^r::; ;■:-':-■-.:■■ ■: ■; ,^ - . :.:;:-^;. ■".;'^ x->*- ";-<■ -^^h !? ^^T^^ ^i^SliSsI-Ci:^':
•■,'"■'■;■-? L'^'-:''^ ;■■'•'' ■; -y ' '■ t^ ■•;;'^ r S/'i ■".''■O ^-t".;'- ,■'•' v.v'i'--'^ J ■'''!" ■ 'iXJ.'J,-'; '!??! 3'3I?89t
Ofr^rraltii/:; ^ef®Ei^Bt*s -ssolioii fisr a 3i«^ trial a.M lEari^Bt es^f
<u4'-3!ssait aM In ent»riisg .l^jafps^it i*c«r the plalmtiff IR Tt®w of
naell s#tafellssli#a titriissslp.3^ af law tMt s flsiatlff t®mot re@#imr
^mm a state ©f fatt© &itf%rmnt f^mi tfec-j. t ©llagat ia Ma p3©«,AlF^»,
pXa.jitiiT Hsd# &^miiM \ipm tne ^i&tm.&mkWi for tlm T^twn of tJ'H*
Com*! h%s tmm& th# Ta3-«# of %h^ ^mwrtv^i il^opsrty fc la |l,f41<»09.
;.-X* "%:■ t -Kl 5!-:i.
i, ff
.'»,* J5 ■■■"'■ft Jt" 4''''';"'f' ,M' '■ '■"'; ''■■,',^
y;.''f ■■yr-:n
.?'it' 1 ■■:
.:■ ^^
'it'
,t'.'.
;;■■!..
^^.•j,.
:'?i
,:.-vb
ti-^.C-Wi'
;0<?
<■:■■■ ■ 1:
li ^\>-..K ': ^i-i s ■■■■ i. 'J
STATE OF ILLINOIS.
''SS.
SECOND DISTRICT J I. JITSTUS L. JOHNSON. Clerk of tlie Appellate Court, in and
for said Second District of the State of Illinois, and the keej^er of the Eecords and Seal thereof, do hereby
certify that the foregoing is a true copy of the opinion of the said Appellate Court in the above entitled cause,
of record in my office.
In Testimony Whereof, I hereunto set my liand and affix the seal of said
Appellate Court, at Ottawa, this day of
in the year of our Lord one thousand nine
hundred and thirtv-
CJerl- of the Appellate Court
(73S15 — 5M — 3-32) .,;^^7
AT A TERM OF TRS APPEi_LATiir COUg^^"
Begun and held at Ottawa, on Tuesday ,..-t lie frfthday of I.Iay ,^ in /
the year of our Lord one thousand nine hundred and thirty- six,
within and for the Second District of the State of Illinois-:
Present — The Hon. BLAIIJE I'UEFMAN, Presiding Justice.
Hon. ERANiailT R. DO\rS, Justice.
Hon. FRED G. VDLFE, Justice.
JUSTUS L. JOHITSON, Clerk
RALPH H. DSSPER, Sheriff.
r-^
1
/^ ^
BE IT REIvIEivIBERED , that afterwards, to-wit: On ■'■i— '^ ^936
the opinion of the Com-t was filed in the Clerk's Office of said
Court, in the words and figures following, to-wit:
C^eatto* Bo* Wfi
c^f l^.i;e3i€ C«4m%, LliissftiU
^ Rf L B. PJ^ll ,^, ABT * ^. ff J ,
tijd-& e®is# 0s»^ l>©IW# «^ tit ® rtu'^«iar' tara of Got4sH&»i-^. is
directed is './iir fQ^ata? ^^imiasi.*
fearer ^^imlsa*
^; <if.iV ;> >■:..:■ ^:iXJ- (.. '■■■
Tk-'W^f^x- 1■^^:':Tt<^^i.
i:'>:''lnK^u 'iA'?'>^:-?l
STATE OF ILLINOIS,
SECOND DISTRICT J I, JUSTUS L. JOHNSOK". Clerk of the Appellate Court, in and
for said Second District of the State of Illinois, and the keeper of the Records and Seal thereof, do hereby
certify that the foregoing is a true copy of the opinion ui the said A]5pellate Court in the above entitled cause.
of record in my office.
In Testimony Whereof. I hereunto set my hand and affix the seal of said
Appellate Court, at Ottawa, this day of
in the year of our Lord one thousand nine
hundred and tliirtv-
Clerl- of the Appellate Court
(73815— 5M — 3-32) -.-■.^fe.?
JBB3RWW
»t»ia*i«*'**f ijjjj,;
AT A TERM OF TRE APPEII.J^. CO-JET, ^/
,^" ^' ^
Begun and held at Ottaiva, on Tuesda^/the fifj^rday of ?.Tayf, in |
r the year of our Lord one thousand nine halidred and thirty-six,
within and for the Second District of the State of Illinois:
Present -- The Hon. BLAINE lIUEFLliVN, Presiding Justice.
Hon. ERAM-ILIII E. DOYS, Justice.
Hon. ERED G. V'OLEE, Justice.
JUSTUS L. JOHNSON, Clerk
RALPH H. DESPER, Sher
i«. *>-s«, T.4, 621^
- ^-
k BE IT REMEMBERED, that afterwards, to-wit: On
the opinion of the Court was filed in the Clerk's Office of said
Court, in the words and figures following, to-wit:
& 7;o« Ei
IH Tim
r-m mmtMii fie;? & otbssi
GMBAMf IMG* 9 I a eri>r;>ofati0ii]»
County, agnlast tfe# Qomtfrnta" Tlr*^ & B^alj^^sac c^apsajf, s oos^orstiadj
a remilt of a ©sXXiaiori of tlis fnitopiobii« of tk>.& l^fssBttent frii^eaf
Oofrqmsy, wiilal> wap beiag dxl^as by fiagaiE', its sf?@istj «lth %}m flalu*
tiff whlXs fca ^®Sf vltsdk'ing ?^ i^#gsl iMsbiRgfe-ia M;r©sit witlxin. %%m et^-
poi^it©- limits of tfce Ct^ of -.:&sit i'W&Ti&.f lilitoftlsj MewsTibar 6,
,lyst south 9f fli« fit^gmmXl Cmmt^ emtTunmi t;:;; t]i«s l«?«r fi*&€- bridge
®&v0rs5ii ©oumte Miaygl^l %tm sJ«f®iA,«JSts wl^ls 4tf f^rssl f arsis of
mstitiom «il@s@i5 tliat $li® fiiia-Btiff Just tef©r«3 &,ng at t^he. tlim
of t!^ aecM^.t ia siu^stios wms iri. ib?? ei^reia® of &um esr« asi
essutioR for M® gsgB gaf^tj^^ ■■Hi- Q^trntmntM fiJiti tlssLr f4.?mw«r t©
Coja^®.ii3r was %hm rsm^^T of th® simtomofell*j In ^uasM-vSR §iit3 tli,®.t I*
IppfiHted i®&v«s to file sm ssBsndtoj^it t^5 tfajsix" answer, v^feldi sras filed,
'?li«y ®Saltt®di tfc« nm^f^Mp e>f the- aytf->aoliile J.a Ci-iSj^Hc^ &ad tM%
^ '"■ C irO'.'
.J •;?■.:
■. • '■.■;■{ <■ >■,,•' ■■ .: '■ •■ .{;• • •! -! . ii ■'■".. s ' i' » , ■. i- •■;- v * »-, .11
*: r^ J, ;';;.:;.. 'i^'V fV i,•S(■5^•;•'^>::i^ '•■;■■ ■■'''' T;'"^ ,;?'^i;^ .y^J> '
Em H* ^'&m^ *as <lrl¥ir*ri it as ai3®:j^ of tli® C^:m&^^r C-ampsr^yj hit
iia rs B*glij-2eiit s^nr^r* th® <sas«* issajs trie*;! hntorm ® J'ispjr wJba fo«M
isotii^m for a »w trial, wbich weif oferrmjtd aad ji'4ct;.;^^st! iws ©i^$ar#i
tm the Y^rtf-ict is f st^i' of tlis iefef>J,«.rRt« fhe «;'j>i:»«?-l te frmi tMt
BtatM 0 f®®.#-a®> S of wiilefe gr^ t&s'l t|j© -irmtt ».rtm& in giviiig
e^t&iii ifj srlif \*ti?yBS tc! feft jt^y* 'By& S1^ i®, '*11i# irarMet sail
ThB m^'p^ll'wit p^ tU-^ubIj mhiutB fel, t i; « ' ^<arl. errl^^ in ^iV' Kg
tiM? jary ii.r.j nasfemtti n t hiti-^^ t v^ iM<^ e^ro ml eawii-^s of
%hei plminiiltt fe*i«Mua^ they «il>^im ill t n n t iis "■♦ *Rti?3f tec's ^tw it^ti m.
imd^r tl'i© nliStdlafJS is tlit- ZB.-^'i* "M «^i:|' 1 ri?,-. ff's;:j^@r rf" Urn
Mfmn&tmt. put ti'it ;^«*st,t%«j in i»tmfe '^s i 4eaie& tt* % i.^s ^^lajat^f
««s la th® ftic©rate0 »r ■^ti^ <*sw ft«l cintJ^B mr I'lr m\f 'ty* >*}
QS fllSj &ni it di*®?: isot, i'fl&t-*^ i if? sn/ w^*}? t/^ '.t^t- nacJ ^^y^me^-^ f Vtm
plaintiff, feiit rtlf imts trs Is'^m'ft t^s j^^-^lx^tme^^ >f tl<@ ^«n«jt^^ t,
ill th-& Q'pfVtitU'm of tl^ v^^lj.'-'r "t!tlf»» "t\*^ H^'«ll@« files \-n tMs
Co«rt itm wrJt^.'^R n ll-^fi loi»tfe»r with ^i a,aaitl<"B'l '-biiti'SiSt of
elusloifi ©f tfe*^ < wrt %}m% I'^t ple^&in-' "«{?lEs?fl# *%*.osi@,i 'ii.-w<isr* Jss
mimt^T iSim^M !*>th feat® *T©^?\ ia tji''} F>f^#lJ*3e'ft ^sls^stfiiSt ^& mrt >f
t.fe@ pi®alsiBs«? ifi fhsa ea®s* It ts %M tmh&t'mm ©f a papas* or p3^ai*
of tfe# flee 03? arissfwar %kit cymi%Tt>X!» mi^ th0 -mtMi^^ of tfit pSsaSlng is
»Vtr
/ .' "i '■'■','■■
o,:^^
';^ ir-..i.^;...?i;
•a*
^%stefmlB®& fey ^© g!|.l»i.J^M<:mes ^i-& erin-mmnt^B Mi-t »p|5asi. tli.ar#is
ftss «aai»t on tehrJf of ti® ■flis.lBtiff ,. giir® tli© B©«sa4 sii
tfeird iE0trueti0ES wfei^fe aifs i^vs*;®^ i?lmllf %-ci tfe«j it® say* b.M
1 si3;,®!»r of tfe© il^jf^aiaml w&s a part of iv® pimiiit^t i^ tfcf e®®a»
'I
■^1 -"It i^s E-ot s,%i'S» «laFte#*' 'itm plcdrctlff eTO-ssei MagoisaXiy Harass
stini*^ him as si JcE«Nto§i htm &mm» Mr* is* H. £&i|«Kr, ftli® tfiirffr of
tfc« fef«jrt«ii*li*)ss 0iir asM ijisat %ii^ pl^^titiif ag fe^s me ey«siii.g
%h^ jstrutit \fsa*5 ■waj.klu<¥ m- ■mm.lTiQ^ s. t & fiate cif si^#i aa was ^tet
&i bat ®f«aoiii|" l-teara sail©© ?•* flog tarc*t» lioigjfer Ksi,iip©=p8l» im &li®
si©?/ rua*** Allj«3r% *•'« c-al-itiaa & wltiee ®s I'^r tr© plas. stiff ani tn
#1^* ?rit,»©0® te tfe© ais4iM«mtt lis rBBpm.&s to *4 isimstloa ef timt
pfTt vj* t.fc# S«f«g.amt.*f^ ear strtst: the filiilE'lifft ssixS, *"l^m fitrt.
0f the leaf, Vhst ma^ in. «f'>R-te$t to Ms wasv fet ^^ of %m do^Sf**
PoaiBfj^f* s:sKiffip«I ^cai^s ^^'^^ e-'M,mQ% h&t'mm. t&«?- «i^r ?uiii, is|®mlf i*t-#
n©ar %li© doox*, flr-«t, «it!i tfe« f^aiiS* ^MA th^n wit*, tfc* |s»t it
ti-ie car, ia liis »tUHsh8# ®te-S«», "*t» plsla-Uff ta» is* s^ata©!
ffe#€^il®w# l^srUlwr ^ows Umt It^e ^lid stiff was a pfs«ti8l.iii5
^li|"»isijijfi Ht&ii is M'» citf #f .P«5tris, bmt MS f'&yi^rly 11 fs€ to
F^ariaj Uiist ii« ti'®:¥Sfell#d this stref^t ^ag?f fj-'efitisTttl^fj, practical If
©"Tftry ^10.^1, *md »■&» ^^Xl &.0<iimiMt&^ with tfe atfss^t &M t!io eEO^me-i*
WqM tws dcoi' ^sidaai tAat at the Ifed tfe© eo,lli®i':m Gs©"srs?ii?<4 ti#
V-- :> , ^ ;.rj ■'.■■■■■.• I ■: ■■ ': ^ it ';A^;?i? i.. t.sr?*'
: ■■■' ■' ■■■ ; f.- sr> :■-■ ■;:;■ < ■' ■■■i' -: ^^ ''o
■■ •: ..:^■' ■■ ::;■•■' , ,v: ,., .t,;,ir- 'r ■■. 'yc;:-.-';
■■ ,. J^-;';-.;;^ ■■■•>i:r;.,r ]':^0 li'l \si 17:. ^7i'^'? Ai^:?*
''"4 *-'f"- ,".:a -;J:V ■■' " ■;■.:.■:•;■; *•;:■: ■Si?*'
:V ;-;V' •■;■. ■^■■■■■■■ ' .■ ■ ;^/--^- 'vt , -■: vf *
•■■ ':<■ v; '■' '• ' "=.-^- •'• ?: r;.-,t«'.Ut''^J-
diflvt^r of *« ear 'hmi %lm f ■reftt. ¥?fe#(si8 &tf &t mms?Xy Qtf tb.<®
^xmimit trjlmg ti« amJH^ m acelttiit ^tliJt tf^e plaintiff sat tbe
■£Jii@ slds »f ill® i^#f@a!!s,rit*i3 erjr*
that m^T& ofimym^ hf tli® itf^ifeiit , iiiB|»«slt^U.j la ?«t:r\.# M os So»%
in i?hicfci it Btutmi Mi«''t^ ''*B#fcr<?! the. '^Mtetl. ft ©!!«. f©«oir'=«» Sis mat
ti=:--n, ©te.'' .4 slaiitar ia^^ra@1i:si Ms leys s€^ir*?y@3.y ^witici'mi.
r@&el3»d ill r^iiaiKj fe tM© ^i^iisiies, ws &-a not 4@©^i it Tev&r&xbX®
twns-p. tlm @¥.i4sse@ iji this tB.ms^ wsi to sot mm hm %fm Jtsry w->iiM te
svppsar® to ag *li.st tbe pla.l..Bf4fr? wim .grcm;aly rnvgli^se*? li?. ©ros^n^
Ife© street et tlie ti» ®i pXaes fm ^M fsM tM% if fe'? fial #s«r@i»i
oiT'fllaa.rif' «4ii4 rf®®r«ii>b,l« ©«rfliy fer M.» o«i. mt®tff tn ^tyxiM seaHf
to do ss£> Is Jiei*is^40l. oawi mi$. th^ ®p;p#i.l«i«*s ei»©-sf.-«pi^al @?mB«l-
thm trial ©otirt i© h?^**!^ afflx*j§M»
O -X;.Vl-X/-i
•v;i-:a;„ iSiC ■■;■■! 'J-if <^^
en. ^>^::- >.-:t .'t !Sv
STATE OF ILLINOIS,
SECOND DISTRICT J I. JUSTUS L. JOHNSON. Clerk of the Appellate Court, in and
for said Second District of the State of Illinois, and the keepor of the Records and Seal thereof, do hereby
certify that the foregoing is a true copy of the o]nnion of the said Appellate Court in the above entitled cause,
of record in my office.
In Testimony Whereof, I hereunto set my hand and affix the seal of said
Appellate Court, at Ottawa, this day of
in the year of our Lord one thousand nine
hundred and thirty-
Clerl' of the Appellate Covrf
(73S15— 5M — 3-32) ..J^^?
AT A TERM OJ Tnp>«?FEILAT? q^'tlRT,
Be2;un and held at Ottawa, on Tuesday, ,^.e flp^ii day of May, m /
the year of our Lord one thousand nine hiMd'red and thirty-six,f
/
v/ithin and for the Second District of the State of Illinois:..''
Present — The Hon. BLAINE I^LTFI'l'VN, Presiding Justice.
Hon. PRAMrLIII R. D0\'L;, Justice.
Hon. FRED G. TO LEE, Justice.
JUSTUS L. JOHNSON, Clerk ^^ r-. ^
RALPH H. DESPEK, Sheriff.
BE IT RElvIEMBERED , that afterwards, to-wit: On -^ ^' '- ''■:::±
the opinion of the Coiu-t was filed in the Clerk's Office of said
Court, in the ?i/ords and figures following, to-wit:
Gi3^._M*.^G7...._ _., • ,. _„_ ^.JM^JUB*. ^h
m mis
Of ths Estjv.te of iU.F4 -C '). )
va« ) j3,p';>&nl from
) Girault vr>u?t;
SU7:lE w, ii.ii;:'0DX, ftjialiil&t matrix of } ^^Itinebassai
t\vo B&tat^ of rliXJLm A, M.yJlX?I, } Coimty
lie ceased, )
Tnis esft« wfes tsefore this asurt &% the May Ter'si, 19^4 ^ at
^hleh tlj?i© It Tsas reverse^J fl'ai :? ei-ciM©^, to tho trtel C^ort* It i^gs
again tried In tli© C;li-.A*lt ■"..nirt feefoz'c a Jue^y &M a T^rdiot rsaderst
in fjivor of the plfidntiff for the sum of ::?,500#00. The aefeadatit,
t*Qro«i?li li®y ettomey, fl leg si sofcloa for JMj^-ieRt aotFifetist^Mlng ih®
verdiat. This s-vfei-ui was grao-ted nr)& the Cli*«mlt Com't ©aJfeered juSg-
ment for th®. a^fajidaat notmltastmi^iag the ir^-a'dlat, l^ross th.ir> Juog-
rneat, fctse oaae aoaes to this G^-wrt f^r S'eft®?, vtth th® szseotioB
Df thffl prsof x'elatlir*^ to ti© heirslilp of AlfBea >• vlligeroth, de^essi*
in tui?;- cws® the eTM^ae® Is ae-srly Identioslly th?; s^ijacs as in %ij©
forna®!? case, rsBd we approve arid aoafira our farser opinion Mueli Is
as felloes;
"TniK ease fti'ijH-fsi oiii of gh Ri3tl,'>n brought- in. tn<s Circuit
3C5urt of ^irm&bsgo oouaty by :K:««5tfte i! 1 libera tli, adslaistrstrix af the
«!st!rte of fc.r deoefsssd hustesn^ Jiifs-ed 0, Ullgeroth, ageimt Suai® v;>
y^ddox, as ©felElstrrsfcrlK of fch-ri esS^.tf? of her tiegeasea httsT3c«Hl,,
S-:'U. ,. . ., t',.
t ?/i"r:-1:'fiJp?^;?5
:K* Ir
!^i x--:^
ni-
'^^'i' .i'W:, r;.!;- '^i:- ^-i-::; ..:; ^■Hi'5(3 i-ii:y;!^
V :•. .1-, ,'( •- X- -.. r, ru- fi • ?j>jf- V f, ■•. ■-■'■ .-?■■:* « t
Killiam A* Mafidox. The eojaplaiat '.ll«5gM titet on ''.tt;tast lo, I9£^s,
William .U IfeMox 'sy&s drlTloit Ma euto^ioliile nM j-lTt^d >* ■.lllgaroth
wss ridirsg •■r-^ltli hlffl a- a. paBaen,g«r; ttet B^ladaox was rit'lvtoe sai€
nutomobil© on. .'•tats v^ntt ri'o, ?0> kn&wx as tlii* ^^eridi/m ni^&waj;
that «t?\l<S blg!i^ay raas nort^ amd soath, ead sb^jat oae tail^ ©asl of
st» i-aul -fe Pa^siria isllr-osi €ogipsa^''5 titet %}m ai3%>®ob-lle was 'bslng
driven in a s^jut^^rlj dir©43ti'?a| test &b th«^ aas* im^ ess^saohijsg tm
oroi^stng, feddiojK t^ta and tl'is.r-e Tfllfully, ??^sntorii.f ©,^ .r©*axless8l^
ran, sasuagtd, operatfed, ajid, 4cs»irt sr-id aufessobl le, ead t;'a,%t aw aeo uat
of &^M wilfa.!, ¥vS5atoji aad irse'-rleaK TOiiiJuat of ^efesdent's Isteestate,
sffild autQm.i3bile wea c«smsed to au^ dii a-alllds ?;itfe s railifoadi trala
oa s.'-idi .rallraad traek st s&id srosMsg aatl the plsistiffa iat^stet^,
tsiof^sft®? die€. Tl^«:?. aoa^l&lst elso sets forth tsSis? heirship ^f
Alfred 0, illlgarath.
To tfits feill of ciomjjlaist tite; dsfendi^nt fil&a sn asss®?
acMittlmg part of tlie sllegattoKa of the i;3f:5titiO't5,, but d^nylxTg
t&st "dllla© :.» Mftfld^i: t*RS ipllty .:>f wilful sssd ^s-s^oa son^ucst is
the SRno^ei!'«3Tit and op«».i»atta.n of the autosioblie Just prior t,o smd
fit the ttsjft of tim aollisioa i«lii:,*fc saaaM till? ieatli of %h& pla.iis*
tiff*;,-- intestalse* Tim eas# mas tried l^tfore a jui"!-? s?'4i<i& readsrai
a vsi-aiet la ftimr of ttm pl^ntitt aiid ssgsia::t tl» ief«?Rd?iyjt In
^he s5Uffi ^jf ;:§,OO0.S0, Ths^ a«ifmi4m:it ©i2lcr»d ® jsstii:«i for a ^a^fissat
for a rm'^ -ferial ??a,® #nteif®S ©i.^ ;^ ®r ruled, ttm. dsfanSaaH wse tli@a
grsntad. l®s?€' t ■■ fil<s as amrii.afeffiti s to hm answer if?Meh a^^rga®,
"that ih.e plalatlff© iRfe^stsfe??, ■^illge^-dth, Hhan BWi tfagr®, wms
guilty cf ^-dl-fwl and wanton aonixurtf SB'S ttet aaia sllful &n6. ^mafecm
'. t,.- :-.J
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I'P.C i !.:fi S) I ii: ■?»
■'■0 '^-.?i ->uS J'^
•;i.;';'P.i.:''-.j:*Ci JvAoc
sonduGt sdatri buti'¥4 sjs the? ;>r'oxiEjat;fi ea^s« to liir. o?-?a lajsfytn«i
dee^h, v^:ltJi<sat, %h,isb cfe« sosiStmt 'vsould not Iw.'sfe oc^mvve&.i*' s?^
(b) also olsar'g#a '♦that plr^intlf f's lattstfit<s, c;il|,g«jrotfa, bsfor^
8,afi St the tisis of thc> a<j«lg«!Rt i» ciuestioBj ted fete sesae op-por*
iSadfiox, ha'I, and Slij»t plalj^tlff *j? Intest-ste, . illg»ir0tlii, tf^iS fmilty
of %'m Bvr.m degree af «ili\4l and setitoa onrstluot of ?;;tel0h ^©.feti^ant^s
ifttastate, ,Ma<3dos, ^'ss ^ilty, if any, ^jileli tfilful sEd v^^mtoa
Gcs^tg'jjst on tm ptirt of plaiatiff^s intej^tat*, "^lllgsrothj ooutri-
bated as t:;e proxi-sfttfi eaws® of his ma injuty^ BmX stat.fe, en&
•.sltU»ut whi8& .It i«ouM ast teT© ooeai^i'edj*' sad (q) elso ■5!iargt<5 "tiufat
plalo-tif f'ji tntestr.te, tllgeroth, ted ©qufd opr?»rtU';lt:^' t-s observe
tfe© a;>|>itvacli ^-jf %h-^- r...liro?^d trals with iifet opposj-tuaity wUioh defein-
vi-eatoa ^^ad r^e'clsi^s S.i&r^mi*(l of Ms diaty la &tet fc©k©3. f, assi tvife
u5t«r diBrcifiapd of ^oaseqacjrAOsjs, the j^lsdsitllT'*-? iiit!;';S,tete, . tllg'Sj'stfe,
liiy duty la that bofealf, sM ^atb s i?;illls'i(i;?ri@»® to tjoeent t-fc^ di-sat®
of injury to !jla^;i©lf, wilfully, ?r&utonl^ aad ^Itfet r©e>:l«as! 4 ljsr«gar^
eitfi^jr fsileil %& abserv© t;h>::- oc)a.la{-t. of m-sid train, sr h«^teg «?>-
served tU0 aossdnc ??r igalcl traiaj^ asi to'^-Kflw; af Its a>:'r^aeh., eim
the? said l3aAa;:*3c of the spproadi of s^dd trala, aad tg.c said . Allgerafeli
Kllfully sad waiitoali', sad ^ItJi rsakle^s disregard of tils, owji ssfsts?,
l©rt a plac® of B&:fctjf Slid .rode la ITmit of sfsii sv-- .roashts^': traia»
aond-iet of th© seid ■'illgei'c^tli, s-mti^lbtst^d us tii© -pro-xlaste arraa«5 of
'tti--? o^m Injury K^d slesth, t^M v.'ai-ai; if; fjould rat liave oeoiu'red.*^
*• ''^ •■
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c.!V;.r, 1:. ..; .- . r:'; •^■.:: ' ii\nyi Q.ii
■''. . ■ '.;;•■; *■?;■ :K".^>5;y«! hiB& f^M
■■■J-:: jvi- ■'>,;.:•. '.y^-- v.lXirlll;?
fo this sa«M©d titismsT tfm pl&in%ift riln& e ir^plieatloa
dsaying tjiiet tli-s plslEtiff»s lati^atat® was gulUy of my ^-litul,
fhs! first point urge«? fey feaa sp-:'©lli43tt for & rev^srsal
aP the Jude?a^nt Is tfe?5t ^'j© plfdntiff fail^a to proTO tfosfc sht «as
the ^i&m BBd nesirt of fein of the pl^atiff^a Issiestat^^* Th^re may
b@, aat ^fotisblF is, soae a.erjti is tai^ aaits;®tiaR b«t e;:^ the eif^e
?j13,1 have tc be -refersetl «a'5 yes^tflad fer «t!itr .rfeasonj^t f^ 4& aot
decM© this point ta tWa ap^.eal.
Thar© is ircrs littles, If any, dispute to re/^ard to Ih®
©^latoao^^ in tEiie eastst f&« main witaess for tm plaiatlff , Mr,
aoss C. ^niest 0f B.t!2i®®n villus, l'lln^>ls, a lo^omstiir^ engisi^r
sniployed by th® '. M* St. i . & ra«. Asail^fsy Cfvmr,;say, twstlfisjd thst
h© wfi3 in aJiare«^ of tij© ^iigljae oB A%M=;uKti 10, 19»::-, et tii® tls5© of
mately 30 rniUa per hourj that thf? bsll ?fas risgine ?''S^ ^tel ft©
«Gc.-fr^<a; that IM first ab®©rwd the &atoa@!jil--5 oaniistg In & ssarlterly
fiir«eti^ about 700 tmit uox'th &f tk- ta?e3?s®atlon- ©f tlie lil|rl»©j
w.ltii th^9 t'fdV^o&& tm&k; tte% Ie Ms o-pitUoa tte a^stosisjlvil® was
driver of ths ?sit«sm«"blle rf&B loofeirig s1;ra1,#t ahesa until hn
h© i:urK®(i Uis hmn.& ^io Vm w^atj &;is®, %h.H% the s»an «iic> ws.a rltllag
^Itu bin «!ld tile ®sm@ tiilaix; that Mthln s tes ae<i::ttas tfiay fas©^
aheafi ageln »a« tept s^^^mls^K an at tte mu® rate of n^m^ mtll usey
c:ot rltiUn 75 or 1;.)0 f<ffiet of the trasfS, ^sl^^a tte aaliosiobile alo'jssd
flown anfl the d<'ii?«r j\jst ;.s fee f?ot I21 ri^on% of tte rngte'S loofe«i afe
the eagins ana tliafe wfts tte l^i^tt ttet lie, t£io sngtliwer, sa^ of th®
autamobUs imtU tfee @ftgl« stx'ue- It; fctet wtem tfeij Privet aM to#
■passeag«r lii the RUtomsbilQ flrsl? looked «t t ^ tmgirm they ^«©P8
- 4 «
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Al - X
■ li'if
■':^-ne^%rm
o.--. .-;;: hih .Au tSSla
^^i '^^vf •?> ^> -■■■■ .-r^f' fi'^ijili
Other «dta«9S®s ttsstified irelative to tfe*s J5;>®s«I at
«'al«li tte .&utoffi0Ml# was fesiag -trlTssfl! an<l n-mt asl&he? of Ike de*
a©aB®d partiei' ia the giutosoMl# iryf-mr^d. to hcir-s smy fcanw.ltsd@i9
of the ©p.TOsofe af thr t^^tr?:m trsln* Tlie tl.r<»ra0n oa m^- «giae^
t«i3tifievl ttjst fe-»s?;«.5i5« iM &>itQmiM.l€ i^bm sl;«0k fta tfts frost of
tfiff ^gina es'>tl3i.©r ®fif la® was! p^'oaure^ frDsa thB ^t-rti^n a abort
t!lstsi5,<s® west 0f ti!3.# seen.© of tshe. mi^eia^nt mfi that Miey tei tMt
s;jagims coaa# ttp ®a,S pall ■?^,l3'?: iM.;f.63©a'feila laas^ froi^L thn*. eSiirias wH^
used fnr swltofeiai pu-rp&a^es stisX' tHe ctfj^loa et the -Urns of thei
Tls© Jury by their •^^erdiet ^viienfeiy tlisap-ljtt that Maddai:
at the li'ffiis fe@ was ii'lTli^;? t?iii# sutftfewfell® ia question, ?>e.s f^^ailty »,f
wilful and vRiitou «»:)rt^uol; \mii3^i causae fees lajirtea to tlw* pisftimtiff*?
intestate* Tli« ft^?pglla.fit a«?io«,sly aisattada fest teis ®rld«a®®
«Sc3@a not juuljifir so«aa a fiatteg, tM If it dossj %h&% tiis plelBtifl"*®
iatestata Is jjatlty of %h<& ssa© ^f^atoii aa<i ■'dlful a.33^:u0li as TsfeSdo^,
It i?$ Ha'd td ills'! tag-ale a tet«i©sri m@0lif/m§^ mk& I'^aalss
?!jjN! wilful o&iaauat. In tav^^ saa@ of L«s© i^hcar© S; M, » :vy, a-i^ y*
B©4«ffl^r, ISS* III, ^Gf tji« v>apr«3a J^urt is Als^ussJUog tiila aat-t#i?
use tU0 foll-'-i»..ff Ii5nciti©g.@c **:';rimt 4^«;;re® 'Jf isagiigtm®® tiis l«i-»
upoa the mrtiaela? •slj?'fjtis?s.tt*m®©s ©f ®«,«m me^ j-it aot to Ij'C; sus*
- 5 •
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'■■ :■■■-".■•,;.. '.r'- ..'.'-■■■!■:■. /i: ■... ..■::■,■■!,. /^:.; :/:,h'r':'f ■•?'.•• ijri jsii-i:* fi0J. ;liji
■>'---"^^ ';-.:. ;j'-- ; - .^: ,, .^^. v ^i,J ■/ i, ir-;; li.;? .;,?;: £>:; •.-:<:(■, 'iX ^J
?,-7^ i;.;-j ft?*..: ..;:.'::■..; ■■' :i:- : -..-'i :: .-'Sr-'" ;^• V - '. : ''■'-a ,Mi/.: >. JC?;1 mi-S^i:iXf
the rallroi^d sas^aay islirble fCfV ■*im€': ftrasa a©&^ligs^-uoe as
«Tlderia®s i'll:'"ala«3s," "a ts^ia tJit ss>as thing la Fil?ia<3E»^riil. ¥«
tBice i:''i&t& % ;** s,, H7, i'0*, ISS III, 416, 'hat ia ^a^^mt by
"suoh gress aegllgene® »^ evkltao^s id-lfulsciss?" Xt is "sii^i a
p*osB wast of Cfii"© snfi ragrsrci. for tj'i® rightis of #h<irs as t<3i justj
the ppeisirantlan of v-^ilf ..:li»s8 or 'flT^ntoain^as." "It Is sussl* gross
a^glig'^^s© fss t0 lapiy a dli3:r«gara of ijsasie^meaaes* i*:f & iriilin^jri^ss
to laflict injury," in Hsrleni v. "t, i^oiiie , K^ns^mx Qltf & j3» ^<y« Oo,^
as ?^j» S£, It ^&n sjaid: *''.'hQB it i? 8fM| is tsases w{»?r© plaiiatlff
has b??®a, Fuilty of 0£Wjfcx'ibutOi:*y aagligtsjiae, ttet felie ooiiiiMjriif i®
liable-, if by th® ©xsi*oia6 of or-iUn&rs'' o-;y*@ it- eoula hafe p-r®Toftted
the aeal^ent, it iti to bet ua5l©r??t->Q4 tbf^.S it -j^'lll !>^ 6 0 Itabl*?- If,
by the eacerotse of reasoaablft sj'-u*®, efter €s diKeover^' bv faefeadrnt
of the da&^s'si' in f?'h;l«ili the iajur":d pscty jjtoscJ, the a®old®at stful^
hi&ve be©E prevented, S).- if the saaprnj^' fr-H^& to disH-Jover ■%«!
dnngor throu.§Jj the ces-'lsGea^ss or &f%ffBleB&a.m'>^ of it4 a?5iploy«©3,
"i^'hea t&e esceijoi©® of oi^dlnary sar© m.>ald M'^^s d.isao¥0i'®d the dasg©?
aaa ©verted the ©alaaity,'*
til© evlds«i.€s@ ia this eft^e 25ho«^'S timt ^illliMs /■■» U&Mox
i?And i'dfre<il ■• lllgsroth had bte'-j frleMa, ftis2 far asversil year a
w«.re ©apioy^iS at t&t sasjff Blaoej ttet thsj? te<l bees ts|?ether
fps'5;Ueatly, thet sf^ they ssr© I'idla-st tliey e^rivlerit. ly w.®r«* sttr&eted
by th% freight trsia ■^tdah s-aa s^siiteiiirifs wtst of the road oe '?fiiah
they ^©y® traTctliii-g, thst tingy were botk laokias' in the 3?::«ae
dlrestloa t »a;Pi6 thlB migiae; thst a«ithar of th^aa paire any iafli-
oatlan w!B-taoeT©r timt tii#f w©r& e«are sf ts«.- afv.-^ro&sli of th@
frolght trala t?hicU oaus®^ theit* dtaths. 'Stmt mBQh of tMsae parties
was «illt,v ^f thr: rross^at atfligesae in not dlsor>v©rin^ %tm ap'?rea©li-
l?ig freiir^t tre.la Is feoy^aS question, ^roia ttm eviaffas® ia tala s&s®
wo are of th© opialoa tli; t u&M&x im.c!i rillgeroth •8«©P'@ |i:«lXt^ of
m Q m
V ''.i.
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N ^" i fl }J is-.'' ibli:^^- ;":r;'^ MP ,^^'; ,• ?.' S^
vf V.J.' ■■ •'j-:criii; .v'ff Gf :-.| j'i .Sr^^M^tij o0f
' -/ , J. ' ;: . jit>'i^ ■■■-^ ,;;.:■,,; ^ii ■■.•■v:'.:'f> Wl '*
•^■Jj -^^u.? :-'ii :-■?/•'•■;■'... 1 itic-cf i>7>i-'' vs^iij :? -^ij-K' j-'fsii.^Vi??^ •--y*'^ \©ff;*
^ :r if'.:!jr ''5^ -i':! ?•"■ M'v'^xf.iv, 3 ;:;'>isc? Y-'''^ ^*..:?.t '; ■■<V£3''Jfi?>' ^-St''*' i-J'^i^i^C
i^.-.v.m,.
r •
negllg^aoe er- ^^llfiil and ysmton Ofsaauot to ti=^ ssji® de^re^j as they
both ii-d ©qyiei opt30i'tu3lti' to obser'^e ?:hr t*>;>rt3eotili5e traim. It Is
furtu©!" our apislon tliat tae al^datiff ha» feiled te prow timt
tte t «fei? thes :r3reMmati§ aause of defeaSafit** iistastale's injury that
tYelght tr>-lr:., the fu®nt4oK thm s$'l@®s w'tettep tf-at Is a a®f©s®e
to tn« aotloa of tist nlainfeiff ia tiits suit. It; i« 'aoasedea tk:!it
sorstrlljutory segilgsa©® Is aot a tisfaiss® to &n fiotion for the
peraonrd t&$Virte&,^ riim. it is ©S4©T|?®i t'aafe t&® acts wer@ don©
wilfully and. ^^.itoaly. the 3mpi*«ae Cour'i? of Mt@lit^?©-B in Um oas©
sf a©dsc3i ¥• '-Icfel^ea Ceat. -U Co., lEO Mioh* 671, 73 n* ?i, p.
939, had oi)easi!:r» ta pesis o.n this <|.«®.stioa, ©ik! la thair spiaisa
say} '^PlaiBtlff sm-^ this trsia c?omiag» He «aa Jmnt Is tte ael
of uito^-.lEif QtitCf a l05> Iiialead af IwBediataly rsra^s^isrig lii® horses^
srdeh, it is «Tlient, Im teS: th^n ample tlssa to do, «iM tfe'rliig thsfs
out or dftigei*, he or^er^^ tlie I©-? rolltd iip sato tiSe asr^ f^tsl bcfoi^a
hti oouid tlien gel ai& h.orim& ceaatisSs, botfej, tfes ?ao-rst0 aad .his partaei',
^;©RtweM*tli, iE oharg® of t.h<?raj wtps5' krilleS. Eml tajury resultf^d to
the irala, <H" to tte*^ irsain^aja, it alilit $us% as well Mvo t)«6n
aterged Uiet; be? (tte Tdaiatiffl ^iS;S jTalltiy ^f intent;.losal w^ang, as
to Qharg® t&at ths €sgls8©r w«i.s guilty of it. It v^mli. ^mn fee
gross ne^liffi-Mis© ags^isst gross aagli^am®, wilful aisi3©»dt*st a:?:si nst
wilful mls^onauat, ©jM iutsiat a^^siast lEteatj ^,ml in Buoh mm^ tli®
law l0&.ir«5 both parties shsre iMy Mty^s pl&Q&ik tlseexiselTes, an<5 gives
In th® esiSSi of Tliakls t# ^l£i0aps3,is, .ji. t, 0« .t, Co*,,
ISK lolar., 1x2, SOS -. w. :5, th0 3upi»8iae Gouyt sf th*?; -iVfefet© of
•p ^ «»
■ V..' ■;.;;■ l',.: :.:;i':. 'l J '; ;f /"•/ i nil-, n.i X-5i*f;::y'3.yff
: ■ :". I' .>■'.: ■■ <i''"d" .^vi' /iiV ^..J;*.-> t /?> -l Ja jiij^iii-
,.■':• ,\...-iJ.i,^ . ;^ ,■;■.... *;:•; >;%■. y-o a.i ^ s'lv-iO'« C) ;:;«!'
Mlanes*ta defines wtet is wilful &m% vmrAon ©sndy^fe, and defeases
t0 nuQh aotl-sas sn4 i?i tlmir opinlm, isy tills: "v-llf-jil ^-^A v?antsa
Qegl.lgen«« l»^ r©sitl«s6£ aisregs^e '3f tl^ safety »f ths perrKm or
r^rH^pfiapty of anstliRX* t^ faillsg^ «fter Sisijcivering the peril , fco
,:;jrerois«* orcllaary sere to ?>r0'rent. t'l'sfi Irapemd te?. injury, Onfz is
liabl® for afjgll^so® ©sly mmn s^kjIi fiegligea^e Is ttm pro:si-i?mt^
oaus© of th© lrij|i;s'y« "'hea a defeadmt U ctisrgecl s^ltli 0faj>asry
neglli(tence» sontributsi^ n^^glil^ftaije Is « g'i>o<3 dif*jrs«®, -liy?
The saas-agr Is rmiaSe-d ta nroxirsate oms©. la the abs^i^na® of feht
dootria® 0f oomparallve aesjiig^noe Umj a?® equally %& bluiift,
wijoa two perjsaas s>*e ©qa« .lly at frralt is ^>iroflu«iii«? tfe^s iajury,
the lav? le&Y®» the® -here It flnt?© %her&, a v.jitrlbutory nsgitgeacMS
is aot a dsfe.ng© to %?aRtc>-n fm4 ^dirul aegligfe-aoe, for tbR '^^ry
sim?>l6 r#as0R ttet tti® parfcltts ®r« tiot 8?|ua. lly dftllnqu^stit la the
flalatisffii or dut;% In saoh Qas© tfie aeifllg^ce of th<& t@f#ndmal
Is tr..® T>royls8at*s «aas« of T)l-gi«t;lff*o lajin'y Miile als af;gXlg®ase
is ao iir>i^3 thf'M. a r's^isota asm®*
but one lOjSjicsl asaaiusi*!, ©sk^ that iti ttmt tm Bm»' Mai® reason
aatloa 8o«?K!ia;: %%\ orMaarf f^glieme© felso p^ir<5nts a e^aovery fey
■on© viho is ir^iitf ©f vTilfril bik.! v^iofesa aegUg«aa«, aash iie-*:>:lig«a®®
is Just as effldimt te offset t&e ^efaaiant's aegXlgaBO^ sf tl^
sa5^ oigiraoter a® sorst.Hlaitorf n^iifligma® off sets o-;'<5ia®p^ n-j-li-
,<?.eni30« n»r-- can 1)'^ «io ace'© eom:imj?attv© iK&nto-im«*8® tii&n there
a©.n bpi 00ffiparsUT® aegligme^, 'h^ii botfe -part I©® are guilty of
proaclmat© oaiis®, »i?«5 heBOe tm la;- aa^r?t 'teaTe b©t& sters It -'iaas
them. Thsr osaelasioa is iaei?tli8.fel«^, eima tliouc^ its arjpUmtioa, >>«
fpaaaht with, ai ''-ri.iulties,"
-> :. ' -:^.- ■■..'■ : -■ J:": ?;■ :.• i l' ?-- ^T' •-'-.: t,-. -,■•»'■•'' r, i^ 'J .'1 «>€!nrni X^JOff
;'■,■ a-i^:--'.;^ *::•? ;1 ^;^>; , .-i-b^ ij; ;■;.-.>*. :?'*'■ ':.l'j^& i^w <::iX'::^i>iA *iol ^id^il
'■ ^f':, ."^-ij-r .^^f, vr ■•■, J .;?>'. -i f .'>' -^i^fn. n^^l ;-',Ni.-;n .fcr^ywl/^wjl
i;;':?' .: ■; tM -■■;■: 'f.-, •«?(' ' .: ifV.;\:;» ■:■? r?^!-?-,fVr Kl hBhVi.f^l ''I m'ji^W ^im «^irtt
;'?'■■•::!■ .■•■■. ^J ■•'..■:,:■■:.»■ r.;^' '?\: ?^ •-^?:c-ct^'.- ;: ■ •;(^' ',- ,5.) nro -^wfj .isjfefs?:'
The oa®»5 of )ste«?a v. ,:tl^tl« Q-r^et l-Uw :U €o», 119
ft. C. 438, lis 5. S* S3£j Ir^JJs teat "oontvlhut-nv, mjga®;efiOe oa
tiif% pert of t-hfi pit^ilatlff is a &<sifmim t» aae'l^g^'-'^o® oa t.?ie part of
R a^fersasnt, smsl soatrlbutory wilfulBSBS, wsDtojmssSs -m- r0«&:l®«-
nmm on th© pert of feh'.; pl*ilatift' i;:j *^ Sef^jiss? feo wii fulness,
a-mtosaissB '?.r ?©Q*':l«>.©8se«s &u the parfc of thC! d^fendErit,"
X:n ta*' c^i?e of ...-pillei'© v. Sriffla, 109 ;* 0. ?^;,
95, ;.« K. p. 193, tli« c':.upr«rae vOtsrt ©f •■outli ^Ms-olins us*"i£ this
w:llfiilae5:s, baoawse tlm pertlea sr^ not equsilly to oU^Jse. 4p?ly
6Mt sesi© ful<^ h®x'®, B?id «e fixia that wtem s plfdatiff vdlfUilF
crmfcrl tilths, as th«» prexitaate ^smm^ tr.5 aig 0t¥& la Jury ^ iif- ©!?;.t\ot
c'lcoVQ/, e¥m tliu^assSi the tefeadsxit v»& wilfsl. X? t',.m p«t':"tlcs
v^^re «t<|«ally, ia the sassj alacs, t^:- blame? in ->fs<tueini? thr injury,
Ifc is our opiaioat tfnet «J^i.^<i tha plssis-^tif f o|yifg«» tfi©
defendant with -^'liful mi& «-'«;* oa misaotiauste s© bcsln-f. tim proxlms^t®
oawse of iajusfy to 'airs, nm t&e tl^f^ase almfgs^a Itet t>ifi pXalfitift
waii also miltf of v-:lirui mx& mmtfm mi&C'MAn&t ^-'aloii was tlie
proximate QBim^ of the lEjury* thm tha sa:a& Is ft ^o«l a^tTOse,
ftnd Mrts tte s0tl©a If %?x-m®n,"
la th® f-^T-mv t>pinioti timte Is ® slight error la tto©
sl&t®.:^nt C't faotss in w^ieh w© statej '"fast wbsa the driver
©nd ths SiMSaSEC. i^ -^^* autoadMl*?; first looked at tte englari,
the:? Ts-erc i^erli^s® 15 test awaj fpsm ttMi c.pcs»ia^ ma %lm engiiiij vras
about 1216 smm HinUynm s^ay.'* fa©r© is a© evi^®nG# t!mt tn®
as the st>sin(&05* at^ted^ Ue oouM sot see itie paasj^jn^e^ ia ^^^e
aar when it m^^-^ %te t olose to ta=- ©ngla®.
\i; ^ J*; 1 : ■■ \' i ■:: J: :.i ., n j:'-: ;.r &',J ::;;ir- '> : r::s« .o^^^i -ily:,. fo<ai^» JM?
V /;<.!. i* :.i^i •■A.N i>;j'. J rl !-vi.-:Uo ■; J ,:;...> .u> r;!«y^^iK fsji sij ,!^.f ii<rp3t aiisvf
" ■ » 'I ; " Tc; ;? ^ ^' ?» ^ a '» «*ri i i -0 E
■." -vsl'-'.;;-? '*^..' i;^r5 ■ /isfii ■: '^^ '; ■.• y;K; M)-)'! v^^^-s 'f^^S^ n..i Si:|-j«j::'X;j!(l J5V#vif t*?-^'^
The oaly rp actions v>rea:-n%ea by t;his s;?peaX li. whether
the df'Qei^B'S^^ i-illiam A, gci^dox, «^as imllty of wllf;;! and V3sst->,R
sonduot ia dj'lving his aer, ?vh.ioh saused ta^^ d®&tQ -.jf t^is plaia*
tiff's intestatfi; asftuaing ^at .-.vaAd^jx was guilty laf suij|i silfiil
and WPntoH. ^naduati -mif.Q pitlatlff *s iatesfeet® guilty of the @si?as
wlirul end wssntoa erjsciueti ^ouM ttm ^i^m be « g^od d«tf^as« to
ftUls suit, iis atci.tesJ la our .fofi?)©? opldcm t;iio avid.»ms«5 ario--©
ihat eae^j of these r^artiles wati guilty of gx'osa ttegligoric© Is
not dlsieoTertn- the no::'Of .mc^nj?: fresictit trela, &ut "v^^© do not
^6il0V0 th'-- evldeno© ^'&s aufflsient to sIio-t tM t lladdoy. wsb
pjullty o^ ^sllful ?ina ■suntoa Qmspjst as deaoribcd b3? om^ Courts.
ti© fisr tiles' atatiad that '>:add;'ix and ^ill^si'otlj ^er? ^iilty of
they both tiE^ equal oppor turutlep. ts ofeservs the apoi'Oftdalag
train.
It is om- gpiai-on. in tals ease that the @irM<st^« 40®s
not shxw tlret =.silliam j\. Ma^dox at the tiae tad pi&ee ia ?|«©stloji
wasi guilty of rllful ami fteiifeoa eomiuet, arM t?~^ plaintiff esiaiot
recover In. this ©uit# If It ®aa hm stilus, tue« t : ilXla^ 4» .^asidox
&t the tliae asod pXae« in ctisentioa -t^as guilty of r/iii-'ul asd »«3iton
Qoaduot is tlie ®aB&f/:32*®3it of the es^j theji tl3,e plaintiff *3 lates-
t®te W85 eXer-rly guilty of thm n&wb i^llful sa<l santon oonduet.
Tills vrould lw3 a b«' to the as^tisri e.M %'m pleiatlff eould not
It 1?, our opinlDa t^*at t^^e t.?ial «Jou;*t psop^^ly ^^is*-
tained the m.3tion for a jud|sieat net yci that aailai?, t.he Terdiot
Kad ti® S0!3e should b<r^ af firmed.
^-'■: cV. ;;.^\ 'w ,:•'.; '.^ -n:'; i:;- r>. -■^nj^^^o./^-:.. ■;■ ^:i; -:;» .f^i': Vc-^^lfi 5o£i
••..;: i ;•■;■ '-.-^v ..-, cs;: "r; ,iif;; :'. j ': ..J 2^,. •£/;!•';< r^-rjo i^nf^ imii i.i^t>ci 'i^d'i
Z^o:\b C;^:'.^ ,^'' V=>> ^'v^ ;y';.;T ^>.-;f^» ft.t'.tf ,ai tK>li:!i'.;0 '^fWf r>t - "
-.-L'.' ,,fA >'.ij-v; -rMJi.'j irij-j^' <5fiJi :i giil:^ 'ic.inicii ^tio cjf 3l
STATE OF ILLINOIS,
SECOND DISTRICT J I. JUSTUS L. JOHNSON. Clerk of the Appellate Court, in and
for said Second District of the State of Illinois, and the keeper of the Eecords and Seal thereof, do hereby
certify tliat the foregoing is a true copy of the opinion (if the .^aid A])pellate Court in the above entitled cause.
of record in my oflBce.
In Testimony Whereof, I hereunto set my hand and affix the seal of said
Appellate Court, at Ottawa, this day of
_in the year of our Lord one thousand nine
hundred and thirty-
Cle.rl- of tho Appellate Court
(73S15— oM — 3-32) .,^^7
AT A TEBM OF TFiE APPELIATE J3 OURT,
Begun ana held at Ottawa, on Tuesday, tj^fifth(^ cf May, m
the year of our Lord one t housand^^ie hunc^/d and thirty-ai-xV
mthin and for the Secoid District of tl^tate of Illinois:;
Present ~ the Hon. BLAINE HUmiAN, Presiding Justice. |
Hon. FRAl\TI-CLIN H. EOVE, Justice.
Hon. FRED G. ""OLFE, Justice.
JUSTUS L. JOHNSON, Clerk.
RALPH H. LESTER, Sheriff. ^ ^
28 6I.i^« ^-^
EE IT RaiEKffiERED, that efterrards. to-^^t; '^n -|^p 3 ^935
the opinion of the Court ..as f ii£.d In the Cleric's Office of said
Court, in the words and figures follo'Tin- to-T--,:
Qmnm 'Mm 9QB§ A^®Mla N«#
IM BIS
I44t' f imM, A.e« 1936
fKS OmiHSf 0 -IffiTT HATaoMAL BASK,
l|M MMUm^ £;. BULL, Tr^tee,
irii» Cottrl-, fimsaif coisstF*
Oo«rt of flRTtiMy Coimty %o teimolom, a, trust d«e«« It im,§.® inrnk
iMaf<^c^» 'Emm p* »af?r<l jsb^ =^3^0® Qm-mm itsrtis^ iSefmisat t©
tfae autt* Ost3i3,®y a®fa>ilt©El» Irat tkt ;Miif oris filsd. mis,»©fs *o tfe«
original ®.ad ass@M©d Isill ctf eoispiaist. Th& ease folio? #c: tlia
in qussti<ia i0 situated, la uook^ Grujaty ftsji^, Irofa^i® C^t^antj. Tim
&miit^® &t ssl© cricf®^ tMt i:iie p^of#rty l» «i'?^t4g#fi fax* sal« ©m
©f" fefca da%® of ©airs ii% %im B^v^Ttlnmimnt ii% om-^ tsS t3.cs eojjutfess
l&ls coun #8t asi4@ %lm formsir ofiiea? of mm.lm .tad r@¥trs©4l ®M
r«i§yma©d th® ©ass® with. aiir«i®tlc«i f^^sr Ite %r%ml @(?ii>t fe> ^'i©r th^
aa»t«r %Q &&T^^%lm a salt- of sj^ii :^of ^tf &e#as-ifeg t> ttm srima&l
deos^e «.:tf the eireuit Co?jr% ©f Sfmty Ootm^*.
''Bm ^as© isisB s..gaim l^aM, b®it>r® isai4 emiar% 5% si tl-^ i®ef^i
0at@rea !» ooirtformit^ with th^- :smMt,te of ti ia ©cnsTfe* TM aB]pi#I*
■raoat© th?s deex^® of foi^^lcHrar® and aimtefe tliei Mil l>f osspIalsSI
'J*
->:;'■ ■;r.£yZ'.-r\ ■-,■:. ::-c -•;<' ,;; K,t;:; urn;:- ■- V- HM t'^'Vy^^-v ^;'i :^ X^>«i4>l'KJ
ittJ IT) />■:•'' ■•"tii^^'te '\o '^'^i^y- i ii.iiin.i?i nut 'iKi ^m:i>^t
-S3"
ae to Vh^ lmx&& X©eatasd in Ceofe aM Irc^itiois ^ausilry, l5;@3g?'a«s tJ»
C4rc\iit Co-art -s-f -^^ptmdy ooutt^- 4M ia>% 'hwffs j-sj^iscilotlors tf t l-i®
sul3j@et jsattsr c^ ®t® si^t, sjkI h«0 ittst; assf jurlsdielrilam »f %fm
refem^^ ta iri tfe^: bill ■•;€ tsmlsi^t w«m s^v^m^t^ %ml €X^lnmt
t,r\iet d«»©48 *s.s4^ aMtlisf' ef &#r« tet say lafi-i# c?f 'Msatr Ooimty
iescflfesi in mif o:r «lll@*' «:>f th^« 'Bm Soar t ^veiru^ a tlie si-dli^m
In %hm ease of B^dJmg vg# mM,int, £81, Illlmcdt .5.op#-J&t©,
pa^ 301, thm^ «aie » r»ii3il«i^ quest! ci® fr#s®Bt;M t^> tbi© Co^irt
trial eausH;, it la t&«3 itaty c^ ths^t O'jtsrt t-; t&llm sttefc .lia«t.TU0^ *ms
sM tt earr-ot «•«* i^, 4sij^@ so» llp^tm Jtpp-a.'s.l fi^s's tm ^siei'#s of th$
ls®l}.et&*r tMi &&^Tii^ t»-fef#i., is iri &#tJ«3i*iMi©® 'tilth tfee sigisiiit# afi
dlrsulS, ess sf tdja Cssairi ©f r#id©w«'* fl» afp«12,ss%s «5c? ^^fe s«^ subIs^
qtt^isM.ssii tfcl.® if«2.© »f law, Imt f»EteB4 fM&t iMfe ^.m^rlUm fehej M¥@
fi^ s|j|3#lltiit8 irisifet fti^p-^ %?# tfir@# ©fjpa'^t® sua ^istlset
deeds of trm*t 0r58iirf.ag » ssri®s 'sf ja©t®® ifi'rsiT®^ is ^lis smit*
ab 03^Msr%tl«ia ,>f fit r@«>B5 4i0Dlas»# tfcli %hiB was 6^,0 ^tr©a©E0ticm*
It was r>i'®«'^^'^©^ ■*© te«5 ftttiS'sai- r$i5ip«s«atlii^ tli# ®ffpe2.ia,at% #?.©
In it® a©@r©# flouts, #.iioi^it ^tii» %litBg?i, tteit it ha© J«3ri®fii®^ on ^
.^'•v:.^e. ir;-"*:
f:"t c ■■£:
gild tli-:t it &M .teve Jyrl®sii@ti«m of e^s ss*.b>et matter ot tim
ffe,!^r® if? a ^1.1 .®@tt:fe 4 Bile of Im^ that "^sr-a spssttcJEs
etjyld tei^« l>4S'@& fssise^ csj a fQTimr fs>p®aX ard w^fm mot ysiste ^m
appeal tli@r®-of» .*;>r^m Cr«@k DMisagis :i8trlst*v.Ht,wl«y, BSS, 111*,,
34| StriUi?*!? ¥®, B®rTi8gtt:m i^B^ III** ISl* 'Bie tf'lal eyart in
tiK g-ufeje^t mil©!! astf ^-0 pssrtlas t'- th^-s ®«,il« fMscmesHom
.1",'.
STATE OF ILLINOIS.
Vss.
SECOND DisTKiCT J I. JUSTUS L. JOHNSON", Clerk of the Appellate Court, in and
for said Second District of the State of Illinois, and the keeper of the Records and Seal thereof, do hereby
certif_v that the foresroing is a true copy of the opinion of the said A]ipellate Court in the above entitled cause.
of record in my ofBce.
In Testimony Whereof. I hereunto set ray hand and affix the seal of said
Appellate Court, at Ottawa, this day of
in the year of our Lord one thousand nine
hundred and thirty-
Cle.rJ: of the Appellate Cotirt
(73S15 — uM— 3-32) ..=^^7
.^t-'A-'^-'ft''-"--^^'''
Published li? Abste/ct
John R. Bradshaw, Appellee, v. Sallie A. Bradshaw,
Appellant.
Appeal from Circuit Court of Macon County.
ApraL Tekm, A. D. 1936.
Agen^ N6.
fhi
u
f /
Gen. No. 8987
Me. Justice Davis delivered the opinion of the
Court.
This is an appeal from a decree entered in the circuit
court of Macon county, Illinois, on April 4, 1935, m
favor of John E. Bradshaw, plaintiff, on a complaint
in chancery, praying that the defendant, Sallie Brad-
shaw, wife of plaintiff, he decreed to surrender and
deliver up to plaintiff certain government bonds
claimed by plaintiff to be held by his wife for the pur-
pose of paying certain mortgage indebtedness on lands
in Macon county, Illinois, which were owned by said
Bradshaw. .
In his complaint plaintiff claims the ownership of
four tracts of land situated in Macon county, Illinois,
and a dwelling house in Decatur, all of which were al-
leged to be encumbered by mortgages. He also al-
leged the ownership of a 250-acre farm in Kentucky,
which was unencumbered and which he decided to sell
and apply the proceeds towards the liquidation of the
mortgages on the Illinois land. He further alleged
that his wife, Sallie A. Bradshaw, refused to sign a
deed to said Kentucky farm unless the proceeds were
turned over to her for safe keeping, and that he had
entered into a verbal contract with his wife to receive
and hold in trust for him the proceeds from the sale
of this Kentucky farm until the same could be usecl to
liquidate the mortgages on the Illinois land. He fur-
ther alleged that the Kentucky farm and the live stock
thereon were sold for a total of $29,000.00, all of which
was turned over to his vnie and by her converted into
Government Bonds.
He further alleged that his wife, after the purchase
of said bonds, signed a certain statement in writing in
reference to the same, a copy of which is attached to
the complaint, and marked Exhibit "K". He further
alleged that he made arrangements with the holders
of the mortgages to accept the payment thereof, but
that the defendant refused to carry out the trust al-
Z
Page 2 Geu. Xo. 8967
leged by him to have been created, and prayed that
the court upon a hearing order and decree that the
defendant, Sallie A. Bradshaw, surrender up and
deliver to him said bonds in order that he might use
the same to satisfy said mortgage indebtedness in
Illinois.
The bonds in question were alleged to have been kept
in a safety deposit box in the Millikeu National Bank,
it being made a defendant but defaulted. The defend-
ant answered and also filed amended answers by leave
of court, and the defense which was inteiiDosed and
finally relied upon by said defendant was that the
whole transaction involving the proceeds as to the
Kentuckj' farm was a gift between husband and wife,
and that the conveyance was in fraud of creditors and
that the defendant did not come into court with clean
hands and could not recover the money.
From the evidence it appears that the plaintiff, John
K. Bradshaw, and Sallie A. Bradshaw, the defendant,
were married in Kentucla' in 1870, and lived there for
a period of about three years, when they came to Illi-
nois and lived on a f ann for sometime, and finally lived
in Decatur, Illinois. The plaintiff for a good many
years bought and sold lands, and he also was a real
estate auctioneer. At the time in question he was
owner of a farm know^l as the Gerber fann, of 228
acres, and encumbered by a mortgage for $15,000.00,
securing his personal notes; a farm of 160 acres,
known as the Pritchett farm, encumbered by a mort-
gage securing a note for $9,000.00 executed by himself
and wife. He also o-nmed at this time an unencumbered
80 acre farm and a homestead in the city of Decatur.
Although the complaint alleges that the farm of 80
acres and the homestead were each encumbered by a
$2,000.00 mortgage, j'et at the time in question there
was no mortgage encumberance on either of the two
places. At this time, however, Bradshaw was indebted
to the Milliken Bank in the sum of $4,000.00 which was
later secured, $2,000.00 on the 80 acre farm and
$2,000 on their homestead.
In 1932 Bradshaw was obligated on two mortgages,
each for $32,000.00, payable to the Aetna Life Insur-
ance Company, and secured on lands in Illinois form-
erly owned by him and which he sold to Jacob Reich,
upon which Reich had made a payment of $3,000.00.
He also purchased what is known as the Clifton farm,
subject to a mortgage of $31,000.00 which he assumed
and agreed to pay under the terms of an extension
agreement made in December, 1928, and which amount
was still unpaid.
Page 3 Geu. No. 8967
Bradshaw had a farm in Boyle county, Kentucky,
of 250 acres which he obtained from his brother.
Walker Bradshaw. His brother owed him some
money, the amount of which the plaintiff was unable
to say, but he testified that his advances to Walker
did not run a half or a third of a $100,000.00. Walker
and his wife moved off of the farm and the plaintiff
moved on about Aj^ril 1, 1932, and he and his wife ar-
rived back in Decatur Christmas eve of the same year.
During the months of November and December of
that year the plaintiff and his -wife had various talks
about selling the Kentucky farm. She asked what he
was going to do with the money, and he told her he
was going to pay off the mortgages on our Macon
county real estate, and plaintiff testitied my \viie said
to me she was afraid I would buy more land and lose
more money on land deals, and he told her he did not
want to buy more land, and said to her, the lands in
Illinois that he would pay the mortgage on is splendid
income property, and that they had better sell and go
home and spend our honeymoon in our old days well
fixed.
His \vJie said she was afraid he would spend the
money buying more land and lose it on the land like
he had lost so much money. The plaintiff told her he
would not but tliat he wanted to pay off that encum-
brance. Plaintiff testified his wife objected and said
she v%'ould get Agnes, their daughter, down and that
Agiaes came and they talked. Plaintiff had received
an offer from a Mr. Simpson for the land, and there
was a conversation between plaintiff and his wife and
Simpson, and she said she didn't know about it until
she talked with Agnes. Plaintiff testified that a few
days before Thanksgiving Simpson had offered $25,-
000.00 for the land,— $15,000.00 cash and two notes of
$5,000.00 each. After Simpson went away he talked
with his wife and told her he wanted her to sign the
deed and make the sale. Plaintiff further testified that
she finally said that if I would let her hold all the
money in her box in Decatur until Horace McDavid
and I could make arrangements to get the peojile to
take the money on the mortgages she would sign the
deed, and she asked me if I would put it into the con-
tract of sale that I would pay her the cash down pay-
ment and the deferred payments would go to her, and
I agreed.
A contract was entered into, after the daughter had
been there, between Mr. Simpson, the plaintiff and his
wife. There was paid, in cash, $15,000.00 and two
Page i Gen. No. 8967
notes were preioared for $5,000.00, each, and the deed
was executed. The notes were paj'able to Mrs. Brad-
shaw; and the plaintiiT sold the cattle for $3,000.00,
which was given to the wife of the plaintiff, together
■ndth the $15,000.00 ; and some other personal property
was sold, amounting to about $1,000.00, all of which
was given to Mrs. Bradshaw.
Plaintiff testified that a check for $18,000.00 was
given his wife in the settlement, and bonds were pur-
chased to the amount of $15,000.00 for which plaintiff
testified he paid a premium of $750.00 or $800.00. After
the money was turned over to Mrs. Bradshaw, plaintiff
testified some of it was used by her to make payments
on notes, on indebtedness of plaintiff in Illinois.
Although the complaint alleges that plaintiff was in-
debted on the Noble farm in the sum of $2,000.00 and
on the homestead in the sum of $2,000.00, being the in-
debtedness due the Milliken Bank, yet the mortgages
were not placed upon said tracts until after the parties
had returned to Illinois and was not indebtedness se-
cured by the mortgages on the Macon county land prior
to the date of the sale of the Kentucky farm, and that
after they returned, instead of using the money that
Mrs. Bradshaw had received from the Kentucky land,
the mortgages were placed on said tracts to secure said
notes in the bank. The two mortgages were both dated
December 14, 1932. On the same day plaintiff put a
$17,000.00 mortgage on all his property in Macon
county, in which a B. S. McGaughey was named Trus-
tee and for which plaintiff testified there was no con-
sideration, and that the same Avas made at the request
of his wife, and the notes and mortgage and the re-
lease thereof were given to her to be put in a box Mrs.
Bradshaw had in the bank.
Plaintiff produced Exhibit "K", which purported
to have the signature of Mrs. Bradshaw attached, and
which is dated August 10, 1933, written on a letterhead
of plaintiff in his own handwriting, and was an ac-
knowledgment that the bonds were held by her for her
husband, and in which it is stated she agreed that they
were to be converted into money to pay off the mort-
gage indebtedness on all property in Macon county,
owned by the plaintiff.
The plaintiff in this connection testified that his wife
signed this exhibit on a desk in the living room of their
home in Decatur ; that his wife said as soon as she
made a trip to Hot Springs she would unlock the box
and get the bonds and settle all encumbrances. The
plaintiff also testified that he wanted her to wait until
Page 5 Gen. No. 8967
their boy came in to witness the signature before she
signed, but that Mrs. Bradshaw said: "If you are go-
ing to let him know about it, I will not sign it." And
plaintiff said, All right, let it go anyhow, and she
signed it.
Mrs. Bradshaw testified that she lived with her hus-
band up to the time that he served the summons on
her in this lawsuit, and that they came to Illinois to
live a few months before their son, Noble, was born.
Mr. Bradshaw first bought a farm near Decatur, and
since then has owned a number of farms in Illinois.
Mr. Bradshaw gave her $5,000.00 to sign the deed to
a farm he wished to sell. He had the Powers farm, and
I did not want to sell that as I thought he was selling
too cheap and begged him not to do it, and he said he
would give me $5,000.00 if I would sign the deed, but
he never did. He traded a great deal in farming. The
Powers farm is the same property as the Clifton farm.
He gave me all of the proceeds of the Kentucky farm,
— telling me that it should be mine. There was a lot
of talk about the Kentucky farm, and he said, if I did
not give up, the Iroquois heirs and the Cliftons would
take it away from me, and that a half a loaf would be
better than being left ^^•ithout any bread. I finally said,
Well, if you will give me all of that for my part I will
do it ; and he said, I give it all to you for your part,
for when I go back to Decatur I can make all of the
money I need; I have made money and I can make all
I need, when I get back to Illinois.
We were living on the Kentucky farm at that time.
He promised me, before I left Decatur, I should never
have to move any more, that it should always be my
home. He kept after me to sell the Kentucky farm and
said the creditors would take his property from him.
I begged him to go to Illinois and sell in place of sell-
ing the Kentucky farm. He said those creditors are
going to come in and take what I have got away, I
don 't want to leave you penniless.
Mr. Bradshaw told me that he had made an agree-
ment to sell the farm to Mr. Simpson for $100.00 per
acre. I told him. You are fooling the farm away ; let
us keep the farm and give up the Illinois property;
this is my home and let us stay where we can have a
home. I told him when he kept telling me he was going
to lose his property and everything, — I said, sell the
Illinois property, let us keep the Kentucky farm and
make a deed to me, and then entail it to the two chil-
dren. The only thing he ever talked to me about was
to get rid of the farm and give me the proceeds, and
we could go back to Illinois.
Page 6 Gen. No. 8967
I was in Mr. Lanier's office, when the papers were
drawn up to sell the Kentucky farm. My husband said
the money was to go to me, that it was mine. After
the deed was signed certain moneys were paid over it
me. I received a draft for $18,000.00; I also got two
notes for $.3,000.00, each. I did buv Government Bonds,
one for $10,000.00 and one for $5,000.00. I had to pay
premium on the bonds. The money I had left, after
I bought the bonds, I put away in the safety deposit
box. It is $2,900.00. I turned over a part of the
money to my husband.
During the spring of 19.33 my husband and I had a
number of conversations about the purchase of more
land. Later on, in August, my husband had a conver-
sation with my brother, Jesse, and asked him to talk
to me about paying off the mortgages. She further
testified she had never seen Exhibit "K", dated
August 10, 1933, but once before and that was when
Mr. Stenning showed it to me in Judge Bald^vin's
office, after the suit was brought. I never signed it.
The signature looks like mine, but it is not; I never
signed it. The mortgages I signed, after I returned
from Kentucky and before I went back there and
bought the bonds, were one on the home for $2,000.00,
I believe, and one on the eighty acres for $2,000.00.
I never heard of the $17,000.00 mortgage that I signed,
covering various farms and the home. He would have
the mortgages laid out in front of me and would tell
me to sign there, and I would sign ; but what they were
I did not know. If I signed a $17,000.00 mortgage on
the same date I signed the $2,000.00 mortgages, it was
done always when Mr. Bradshaw would tell me what
to sign. 1 did not make a statement to my husband,
just before the Kentucky farm was sold, — unless he
would let me hold the money in my box in Decatur until
Horace McDavid and he could make arrangements to
get those people to take the money on the mortgages,
that I would not sign the deed. My husband did not
make the statement, — I would let her hold those bonds
to pay off the encumbrance. I was willing for her to
hold them and invest the money in bonds and put them
in the Milliken bank. The defendant denied all of the
testimony of plaintiff in reference to the bonds, and
denied she told plaintiff in Kentucky, I will hold the
bonds that way and will release them when you and
McDavid get things in shai3e to pay off the mort-
gages, release a few bonds to pay all of the mortgages
on the Macon county real estate. She denied that she
said. As soon as I make a trip to Hot Springs we will
Page 7 Gen. No. 8967
unlock the box and get the bonds and settle up the
mortgages. Defendant also denies that she had any
conversation with her husband in the presence of
either of her grandchildren.
Agnes Allen, daughter of the parties, testified she
visited her father and mother in Kentucky on Satur-
day before Thanksgiving. Father told me, in the pres-
ence of my mother, that they would sell the farm, and
whatever cash was realized was to be converted into
bonds and turned over to mother to clear up the prop-
erty in Macon county ; and mother said, I will not sign
a deed to the place until that is the way it is done. The
daughter also testified that the signature to Exhibit
"K" was that of her mother. A grandson, Edwin
Allen, said he remembered the trip to Kentucky in
1932, that he heard the conversation in the evening be-
tween his grandfather and grandmother and mother,
that the grandfather said he would sell the farm and
give the money to grandmother, she was to put the
money in the bank box, and they were to come back and
grandmother on a certain date was to take the money
and pay off the mortgages on the land in Macon county.
Several signatures of Mrs. Bradshaw were admitted
in evidence for comparison purposes, at the instance of
the plaintiff.
Ralph Salmon, a witness on behalf of the defendant,
after testifying to the characteristics of the various
letters composing the name, Sallie A. Bradshaw, gave
it as his opinion that she did not write the signature
on Exhibit "K".
Enoch Downs, a witness on behalf of the defendant,
testified that he was in the real estate business and
sold the Kentucky farm for plaintiff, and that every
time he talked about the sale Bradshaw said he had
to see Mrs. Bradshaw; he said. The money goes to her.
I was present when the $15,000.00 was paid over and
the two notes were made to Mrs. Bradshaw.
Ad Lanier, an attorney at Danville, Kentucky, drew
up the contract of sale for the Kentucky land. He testi-
fied that Bradshaw told him to make the two notes of
$5,000.00, each, payable to Mrs. Bradshaw. He told
me the money belonged to her, and for that reason he
wanted them payable to her. The deed was signed in
his presence. Simpson gave Bradshaw a check for
$15,000.00 and the two notes, for $5,000.00 each, pay-
able to Mrs. Bradshaw. The two notes were handed
to Mrs. Bradshaw, and the check to Mrs. Bradshaw
I think, and the deed to Mr. Simpson. Mr. Bradshaw
stated that he owned property in Illinois and he owed
Page 8 Gen. No.8967
some money and wanted to sell out and get away from
Danville. I know the values of lands in Boyle county
and have an opinion of the fair cash, market value of
Bradshaw's land, and think on December 1st, 1932, it
was worth from $125.00 to $150.00 per acre.
E. W. Cook, of Danville, Kentucky, president of the
Citizens National Bank, testified that on about Decem-
ber 6, 1932, Mr. Bradshaw stated that he wanted to
turn over the money he was getting from Mr. Simpson,
which was $15,000.00 and some other money he sold
the cattle for,— $18,000.00, to Mrs. Bradshaw, and that
he had some notes in the North West which he en-
dorsed, and was afraid they would come back on him
and he wanted to put the money in his wife's name.
Mrs. Bradshaw was present on that occasion.
The circuit court found that Mrs. Bradshaw received
$25,000.00 in Government Bonds from the sale of the
Kentucky farm to be held by her in trust, and by her,
as trustee, applied in payment of the mortgage indebt-
edness upon the real estate owned by said parties in
Macon county, Illinois, and that defendant refused to
carry out said trust, and ordered that Sallie A. Brad-
shaw be removed as such trustee and the Citizens Na-
tional Bank of Decatur, be appointed successor in
trust, and that tlie defendant pay over to said suc-
cessor all of said $25,000.00 in bonds and that the
Citizens National Bank execute the trust.
It appears from the evidence that plaintiff and
defendant are husband and wife, and that the plaintiff
voluntarily transferred all of the funds received from
the sale of the Kentucky farm, live stock and other
personal property to his wife, the defendant.
The plaintiff, John R. Bradshaw, contends that the
funds were paid over in trust for the purpose of pay-
ing off all of the incumbrances which were on the lands
owned in Macon county, Illinois ; and his wife, Sallie A.
Bradshaw, contends that the funds were a gift to her
from her husband. While it is true that a trust in per-
sonal property may be created and proven by parole,
the inquiry is as to whether from a preponderance of
the evidence the moneys was received by the defend-
ant in trust for the purpose contended for by plaintiff.
We are of opinion that the determination of this
question will be decisive of this ease, although other
questions are raised by appellant. The same rule ap-
plies in the case of a transfer of personal property as
in real estate.
Page 9 Gen. No. 8967
It is held that when a husband has bought property
and had the title transferred to his ^vife or a parent
has bought property and had the title transferred to
his child, a resulting trust is not shown to exist unless
it is established that it was not intended that the wife
or child should take a beneficial interest in the prop-
erty, because under such circumstances there is a pre-
sumption that the property was transferred to the
wife or child as a gift or an advancement. This pre-
sumption is not conclusive but may be rebutted by
proof, and whether or not a resulting trust arises in
such a case is purely a question of intention. The bur-
den of proof is upon the party seeking to establish a
resulting trust, and the evidence to be effective for that
purpose must be clear, unequivocal and unmistakable,
and if it is doubtful or is capable of reasonable expla-
nation upon any theory other than the existence of a
trust it is not sufficient. Kartun v. Kartun, 347 111.
510; 180 N. E. 423.
While it is true that when a conveyance is made to a
person occupying a relation of trust and confidence
to the grantor which confers a beneficial interest on
the grantee it is presumed that it was obtained through
fraud or undue influence, and the burden of the proof
is upon the grantee to rebut the presumption; how-
ever, this doctrine has no application to the relation
of husband and wiie. And when a husband voluntarily
conveys land to the wife or procures its conveyance to
her by a third person, a presumption arises that he in-
tended to make an absolute gift to her, and to overcome
this presumption it must appear that there was an obli-
gation on her part to hold the properfv in trust for
him. Delfosse v. Del fosse, 287 111. 251 ; 122 N. E. 484.
There is no charge of fraud or undue influence in the
complaint and no evidence that the defendant in any
way exercised any undue influence upon her husband
or practiced any fraud upon him to obtain the pro-
ceeds of this farm and personal property.
The evidence instead of being clear, unequivocal and
unmistakable that a trust was created is doubtful and
is capable of reasonable explanation upon the theory
that the money is a gift to his wife.
Aside from the testimony of the plaintiff and defend-
ant it is clear that the contract of sale provided that
the two $5,000.00 notes should go to Sallie A. Brad-
shaw, and the statement of Bradshaw to Lanier, Cook
& Downs shows that the money belonged to his wife,
and when the notes were paid she received the money.
And when they arrived back in Decatur, instead of
Page 10 Gen. No. 8967
Mrs. Bradshaw using the money to pay indebtedness
to the Milliken bank, Bradshaw placed two additional
mortgages on the unencumbered real estate to secure
his notes and also executed the $17,000.00 trust deed
upon all his property. The two notes for $5,000.00
each were endorsed to Jesse Noble, a brother of Mrs.
Bradshaw, at the suggestion of Mr. Bradshaw, and
remained a lien upon the farm in his name ; and after
they were recorded he turned them over to his sister.
These notes were paid the following February. The
draft came in the name of Jesse Noble, and he got the
letter at Mr. Bradshaw 's residence, and Bradshaw
said. Take it and go buy bonds. His sister and he and
lawyer McDavid went to buy the bonds. After this
draft was paid over they were looking at farms to buy.
Bradshaw told Noble where some of the farms were.
He said he thought they were a good buy.
We are of opinion that the plaintiff has failed to
prove his case by a preponderance of the evidence, and
the decree of the circuit court is therefore reversed.
Reversed.
(Thirteen pages in original opinion)
A. O A-...
Published in Abstbact
Viola C. Drake, Plaintiff and Appellee, v. Charles B.
Wood, Defendant and Appellant, Amy M. Wood,
Frank J. Cimral, Receiver of the Bowmanville Na-
tional Bank of Chicago, and William L. O'Connell,
Receiver for Baldwin State Bank of Delevan, Coun-
ter Defendants and co-parties.
Complaint at Law, No. 11376.
Harry C. Roberts, Executor of the Last Will and Testa-
ment of John P. Roberts, Deceased, Plaintiff and
Appellee, v. Charles B. Wood, Defendant and Appel-
lant, et al. ,r^' d~ j^
2t3 6
Complaint at Law, No. 11378.
George H. Jeckel, Plaintiff and Appellee, v. Charles
B. Wood, Defendant and Appellant, et al.
Complaint at Law, No. 11379.
Hazel L. Hanna, Plaintiff and Appellee, v. Charles B.
Wood, Defendant and Appellant, et al.
Complaint at Law, No. 11380.
William T. Kunkel, Guardian of William D. Kunkel,
Plaintiff and Appellee, v. Charles B. Wood, Defend-
ant and Appellant, et al.
Complaint at Law, No. 11381.
Appeal from Circuit Court of Tazewell County.
April Teem, A. D. 1936.
Gen. No. 8982 Agenda No. 9
Me. Justice Davis delivered the opinion of the
Court.
This is an appeal from the circuit court of Tazewell
county by Charles B. Wood, appellant, from a judg-
ment entered in said court in this case in favor of Viola
C. Drake and against appellant, and by stipulation of
the parties from judgments entered in the cases of
Roberts, Exec, v. Wood, No. 11378, Jeckel v. Wood,
Page 2 Gen. No. 8982
No. 11379, Hanna v. Wood, No. 11380, and Kunlel,
Gdn., V. Wood, No. 11381, all entered in said circuit
court of Tazewell county.
The complaint of appellee, Viola C. Drake, con-
sisted of two counts, in one of which it is alleged that
Cliarles B. Wood, appellant, made and delivered a cer-
tain mortgage note for the principal sum of $2000.00,
payable to bearer, with interest thereon at the rate of
five percent per annum, payable annually, according to
the five interest coupon notes.
The second count alleges that appellant made and
delivered his certain mortgage note in writing for the
sum of $1,000.00, payable to bearer, with interest
thereon at the rate of five percent per annum, payable
annually, as evidenced by the coupon interest notes
attaclied, and that she is the owner of said notes and
demands judgment against defendant-appellant for the
aggregate sum of said Iavo promissory notes and the
interest coupons attached, in the total sum of $3,782.32.
On the 10th day of June, 1935, appellee, Viola C.
Drake, filed her motion for a summary judgment and
filed her affidavit in support thereof, in which affidavit
appellee alleges that she is tlie legal holder and owner
of said mortgage bonds ; that they were purchased by
her and her husband, David E. Drake, from the Bald-
win State Bank, of Delavan, Illinois, on or about the
first of March, 1928, for which they paid $3,000.00, and
that the $2,000.00 note was purchased in the name of
her husband and the $1,000.00 mortgage note was pur-
chased in her name; that her husband died on or about
the 16th day of September, 1933, leaving a last will and
testament, which was admitted to probate in the
County court of TazeAvell county on November 20th,
1933, and that by the terms of which he bequeathed all
of his personal property to her absolutely, and that
said $2,000.00 note was a part of the personal property
and personal estate of her said husband, and that his
estate has been fully administered and said note was
taken and accepted by appellee as part of the personal
estate of her said husband, and that she is now the
o\TOer and holder of the same, and that no part of the
principal of said mortgage notes or the interest on said
notes from the first day of March, 1931, has been paid,
and that there is now due and remains unpaid from the
said Charles B. Wood to appellee on said principal
note and interest coupons with interest thereon the
sum of $1278.05, after allowing to said appellant all
just deductions, credits and set-offs, and prays that
judgment be ordered for her against the defendant- ap-
pellant for the sum of $1,278.05.
Page 3 Gen. No. 8982
She also filed an affidavit in support of lier motion,
made by W. "\V. Crabbs who was engaged in the bank-
ing business in the city of Delavau and had seen
Charles B. Wood write his name on various occasions
and was acquainted with his signature, who states that
he has examined the $2,000.00 note and coupons at-
tached, and has also examined the signatures on the
$1,000.00 note, dated March 1st, 1928, and the coupons
attached and that, in his opinion, judgment and belief,
the signature Charles B. Wood to each of said moi't-
gage notes and coupons is the genuine signature of
said Charles B. Wood.
Appellant, Charles B. Wood, filed an answer in said
cause and counterclaim by which he admitted certain
allegations of certain paragraphs of the complaint, but
denied that at the time of his death said David E.
Drake was the o^^^ler and holder of the promissory
note upon which Count 1 is based; and for defense
alleged that on March 1st, 1920, one Garretson bor-
rowed from the Baldwin State Bank of Delavan, Illi-
nois the sum of $21,000.00 to apply on the purchase
price of a farm in said county, and gave and executed
21 promissory notes for the principal sum of $1,000.00
each, payable to bearer; that said notes, shortly after
their execution, were sold by said bank to divers custo-
mers; that Garretson was unable to pay the mortgage
notes at maturity, and the holders of said notes author-
ized Frank B. Shelton, Trustee, to execute written ex-
tension agreements extending the maturity of said
mortgage notes ; that on March 1, 1927, Garretson, be-
ing still unable to pay, agreed to convey said mort-
gaged premises to the bank so that the same could be
sold and the obligations paid ; and that, in carrying out
this agreement, it was thought best to keep the title
of said farm in the name of an individual and appell-
ant was asked to and consented to receive and hold the
title of said premises as agent of all the parties con-
cerned until such time as said premises could be sold ;
and that said premises were conveyed to appellant on
or about the 28th of March, 1927.
On March 1st, 1928, said farm had not been sold.
An agreement was made between the holders of the
notes and the officers of the bank whereby the bank was
to obtain title to said farm and pay all the interest due
on the notes and secure new notes for like amounts,
due in five years with five per cent interest; that, in
carrying out the provisions of this agreement, the offi-
cers of said bank requested appellant to retain title to
said premises in his name, as agent or trustee for it.
Page 4 Gen. No. 8982
and to execute new notes and a trust deed, and appell-
ant consented to and did execute new notes, dated
March 1, 1928, sixteen in number, for the aggregate
sum of $21,000.00, each payable to the bearer on the
first day of March, 1933 ; and to secure the pajonent
appellant and his \vife. Amy M. Wood, executed,
acknowledged and delivered to said bank a trust deed
conveying said premises to E. R. Rhoades, trustee;
that said notes were executed without the pa^Tnent or
advancement of any money, credit or anything of value
to appellant by said bank or any other person, and
without any benefit of any kind to him; that he was in-
duced to execute said notes solely upon the express
promise and agreement of said bank, made to and with
him by all of the officers, that said bank would pay said
notes on or before maturity thereof, cancel and return
the same to him, and that he should not become per-
sonally liable for any payment or expense in connec-
tion with said notes or in connection with the
holding of the title to said premises; that said
notes, after execution, were entruster to said bank
for delivery in exchange for said Garretson mortgage
notes on condition that saic] bank assume the payment
thereof and hold the appellant free and clear from any
and all personal liability.
After the execution of said mortgage notes they
were by the officers of said Baldwin State Bank, of
Delavan, exchanged for past due mortgage notes of
said Garretson, and when so delivered all of the mort-
gage notes, signed by said Garretson, were surrend-
ered by the holders thereof to the officers of the bank,
cancelled and returned to the maker, and the trust
deed securing said notes released, and said bank paid
said holders all interest due; that when said mortgage
notes executed by appellant were delivered to the
holders by said bank each of said holders knew said
notes were secured by mortgage or trust deed upon
said Garretson farm, and that appellant had or claimed
no personal interest in said farm but held title solely
as the agent or tnistee of said bank, and that appell-
ant had not been paid, lent or advanced any money,
credit or anything of value by them or either of them,
or any other person, or by said bank on account of
signing said notes; that as further protection to said
bank and the holders of said notes signed by appellant
and as a further assurance he claimed no further in-
terest in said farm he and his wife, at the time of the
execution of said notes and trust deed, conveyed said
premises to said bank and said deed was held bv said
Page 5 Gen. No. 8982
bank and placed on record at the time of closing there-
of; that said bank paid all the interest when due on
said notes.
John H. Shade was appointed receiver of said bank
about January 25, 1932, and acted as such until the ap-
pointment of William L. O'Connell, on April 3, 1935,
as successor, and he is now acting as receiver; that
upon the closing of said bank appellant sought to have
a claim allowed against the assets of said bank, in the
hands of the receiver, on account of said mortgage
notes signed by him; that a suit was started on or
about April 20, 1932, by the holders of all said mort-
gage notes signed by appellant against the receiver
of said bank to enforce against said receiver the claims
on said notes, wliich suit is still loending.
That the note executed by appellant and delivered
to Mary M. Wood is now held by Amy M. Wood, and
the note delivered to Emma Gilmore is now held by
Emma Rubien, and the holders of all said notes, with
the exception of Amy M. Wood and Emma Rubien,
have brought suit against appellant on said notes, and
their rights are identical or similar to those who have
brought suits and should be adjudicated herein; and
appellant is informed that Frank J. Cimral, receiver
for the Bowmanville National Bank has, or claims
some interest in said note of Emma Rubien; that ap-
pellant is not indebted to appellee upon the notes held
by her; that said notes were executed wholly without
consideration, of which appellee and her husband,
David Drake, were well aware at the time the same
were negotiated to them.
Appellant makes Amy M. Wood, Emma Rubien and
Frank J. Cimral, receiver for the Bowmanville Na-
tional Bank, parties defendant ; and by way of counter-
claim against them re-alleges the affirmative defense
of his answer and requests judgment be entered here-
in finding appellant is not indebted to them, or either
of them, by reason of the mortgage notes executed by
appellant; and further makes William L. O'Connell,
receiver for the Baldwin State Bank of Delavan, an
additional party defendant; and by way of counter-
claim re-alleges the affirmative defense of the answer
and asks that his alleged defense as against further
carrying out the obligations of said bank in connection
with said mortgage notes executed by appellant be in-
quired into, and that, in case appellant be found per-
sonally liable in this cause upon any of said notes,
judg-ment be entered finding that, as between the de-
fendants and said bank, the bank was the principal
Page 6 Gen. No. 8982
debtor and that the receiver should exonerate him by
paying him and discharge such personal liability of the
defendant in so far as the assets of said bank will
ratably reach in the course of liquidation.
Appellant also demands a trial by a jury, and re-
quests the clerk to issue a summons directed to the ad-
ditional defendants, Amy M. Woods, Emma Rubien,
Frank J. Cimral, receiver, and William L. O'Connell,
receiver, returnable on the third Monday of August,
1935.
The affidavit of Carter J. Harrison, who was book-
keeper in the Baldwin State Bank from April, 1924,
until the closing of the bank in July, 1932, was filed
in support of the answer of appellant and verified the
matters set forth in said answer.
Api^ellee filed her motion to strike the answer of
appellant and the affidavit in support thereof and for
summary judgment, and for reasons alleged that
plaintiff filed her motion for summary judgment, and
that said defendant has not filed his affidavit of merits
as required by statute, and that the defense alleged in
the answer and in the affidavit in support thereof does
not show that appellant has a sufficient and good de-
fense on the merits to appellee's claim.
Appellant filed an amendment to his answer and also
filed the affidavits of William W. Garretson and W. 0.
Pendarvis in support of his answer.
Frank J. Cimral, receiver, and Amy M. Wood filed
answers and counterclaims.
The cause coming on to be heard upon motion of
Viola C. Drake, plaintitf-ai^pellee, for summary judg-
ment it was ordered that she have and recover from
the defendant-appellant, Charles B. Wood, her dam-
ages of $3928.23 and costs.
Judgment in the sum of $1309.41 was entered in
favor of Frank J. Cimral, receiver; and judgTQeut for
$1309.41 in favor of Amy M. Wood was entered.
On motion of William L. O'Connell, receiver, the
counterclaim of Charles B. Wood as against the Bald-
win State Bank, of Delavan, and William L. O'Connell,
receiver, was dismissed, and leave was given said de-
fendant, Charles B. Wood, to file a counterclaim and
amended answer.
It was stipulated between all of the parties, plain-
tiff and defendant, that Cases Nos. 11376, 11378, 11379,
11380 and 11381, of the Circuit Court of Tazewell
County, Illinois, be consolidated for the purpose of ap-
peal from the judgments in all such cases.
The defendant, Charles B. Wood, gave notice of ap-
peal to the Appellate Court for the Third District and
Page 7 Gen. No.
among other things from the judgments entered in said
causes of action in the Circuit Court of Tazewell
Count}^ on November 4, 1935, and prayed that the re-
viewing court would reverse the aforesaid judgments
of the said Circuit Court of Tazewell County, Illinois,
and remand said causes to said court with instiiiction
to enter an order, in each of said causes of action, va-
cating and setting aside the judgments for the plaintiff
heretofore entered.
While appellant gave notice of appeal from causes,
Numbered 11376, 11378, 11379, 11380 and 11381, in the
circuit court of Tazewell County, and although the rec-
ord shows that upon stipulation of all the parties,
plaintiff and defendant in said causes, it was ordered
that the said above causes be consolidated for the pur-
pose of appeal from the judgments in all such cases,
yet the record fails to show anything in relation to said
cases except in case numbered 11376 of the circuit court
of Tazewell county, being case numbered 8982 of this
court. The record on appeal fails to contain any of
the matters, required by Rule 1 of the Rules of Prac-
tice of the Appellate Court, in any of such cases other
than in case numbered 8982, Viola C. Drake v. Charles
B. Wood. There is nothing- in the record filed relating
to such cases. In the abstract of the record it was
recited that at the same time judgment was rendered
in the case of Drake v. Wood, No. 8982, that similar
judgments were entered in each of the cases consolid-
ated in that case for appeal, each of which cases is
based upon one or more notes of the same issue as sued
upon in this case, and the pleadings of which are iden-
tical ^\'ith this case. There is nothing in the record to
even show that final judgments were ever entered in
any such cases.
In order to confer upon an Appellate Tribunal juris-
diction to hear and determine a cause appealed to such
court, there must be a record of the proceedings in the
court from which such appeal was taken, and there be-
ing none in the case of Roberts, Exec, v. Wood, Jechel
V. Wood, Hanna v. Wood, and Kunkel, Gdn., v. Wood,
the court not only has nothing from which to deter-
mine the issues in said causes and no jurisdiction to
enter any judgment therein. In the case before us,
No. 8982, Viola C. Drake v. Wood, appellee made a
motion for a summary judgment, and supported the
same by her own affidavit and that of one W. W. Crabb.
Appellant answered the complaint denying liability
and setting forth a defense of want of consideration;
and in his answer he alleges that Amv M. Wood held
Page 8 Gen. No. 8982
one of the notes executed by appellant and that Emma
Rubien held one of said notes and that the holders of
all of said notes, with the exception of said two parties,
had brought suit against appellant in said court to en-
force liability, and that the rights of said two note
holders are identical or similar to those who had
brought suits and should be adjudicated in this case;
that Frank J. Cimral, receiver, claimed some interest
in said note of said Emma Rubien.
Appellant by his answer makes Amy M. Wood,
Emma Rubien and Frank J. Cimral, receiver, addi-
tional parties defendant, and by way of counterclaim
re-alleges the affirmative defense of defendant and re-
quests judgment finding the defendant is not indebted
to them, or either of them, on account of the mortgage
notes now held by them; and by his answer further
makes William L. O'Connell, Receiver of the Baldwin
State Bank of Dolavan, an additional defendant, and
by way of counterclaim re-alleges the affirmative de-
fense of his answer and asks that, in case he be found
personally liable in this cause upon any of said notes,
judgTuent be entered that said bank was the principal
debtor and that the receiver should pay and discharge
such personal liability.
The counterclaim of appellant against said addi-
tional defendant, William L. O'Connell, Receiver, was
dismissed.
WHiile none of the additional parties except William
L. O'Connell, receiver, made any objection to being
made parties to said litigation, yet we are of the opin-
ion they were not properly brought in the case of Viola
C. Drake v. Charles B. Wood. So far as that case is
concerned a complete determination of the controversy
in said case could properly be had without the presence
of these additional parties. There were several suits
pending to recover judgments against appellant on
some of the various notes executed by him and secured
by trust deed, and the addition of two more of the note
holders to the suit on trial would not assist in any way
in a settlement of the whole controversy between ap-
pellant and the various note holders and the receiver
of the Baldwin State Bank. The additional parties
were in no way interested in the matters alleged in the
complaint of appellee. The record fails to show that
the summons issued for the additional parties was
pursuant to an order of said court.
A counterclaim is any demand by one or more de-
fendants against one or more plaintiffs, or against one
or more defendants, and may be treated as a cross
demand in any action.
Page 9 Gen. No. 8982
The counterclaims filed by appellant against the ad-
ditional parties defendant, Amy M. Wood, Emma
Eubien and Frank J. Cimral, receiver, were founded
upon the defense against the claim of apfiellee and the
relief sought was a judgment of the court finding the
defendant not indebted to them, or either of them, on
account of the mortgage notes alleged by appellant
to be held by them.
Neither of said additional parties defendant, so far
as the record in this case shows, had asserted any
claim against appellant, and he sought by his answer
and counterclaim to inject into the suit between Viola
C. Drake and himself questions in which appellee was.
in no way interested, and which would only tend to
confuse the matters at issue between the parties, and
the court should have, of its own motion, dismissed out
of said suit said additional parties.
The principal contention between appellee and ap-
pellant is as to whether the court erred in granting
the motion of appellee for a summary judgment. On
the part of appellant it is contended that appellee did
not make a sufficient showing, and on the part of appel-
lee that appellant's affidavit of merits was not suf-
ficient and that the court did not err in granting such
motion of appellee and in entering judgment in her
favor.
Sec. 57 of the Civil Practice Act ; chap. 110, par. 185,
sec. 57, 111. State Bar Stats., 1935; chap. 110, sec. 181,
Smith-Hurd Ann. Stats, provides, in part, that if the
plaintiff shall file an affidavit of the truth of the facts
ui3on which his complaint is based and the amount
claimed over and above all just deductions, credits and
set-offs (if any), the court shall, upon plaintiff's mo-
tion, enter a judgment in his favor for the relief so
demanded unless defendant shall, by an affidavit of
merits ^filed prior to or at the time of the hearing on
said motion, show that he has a sufficiently good
defense.
One of the requirements that plaintiff must comply
with is that he state the amount claimed over and
above all just deductions. In her affidavit in support
of her motion for a summary judgment she alleges
there was due her the total sum of $1278.05, and prayed
judgment against appellant for said sum of $1278.05.
Her affidavit filed in support of a summary judgment
did not warrant the court in entering judgment in her
favor and against api^ellant for the sum of $3928.23,
and the court erred in so entering said judgment.
The appeal of appellant in the cases of Roberts,
Exec, V. Wood; Jeckel v. Wood; Hanna v. Wood and
Eunkel, Gdii., v. Wood, are dismissed.
Page 10 Gen. No. 8982
The judgments of the circuit court entered herein in
favor of Frank J. Cimral, receiver, and against appel-
lant and the judgment in favor of Amy M. Wood and
against appellant are reversed and remanded.
The judgment in favor of appellee and against ap-
pellant for the sum of $3928.23 is reversed and said
cause is remanded to the circuit court of Tazewell
county for a new trial ; and the court is directed to dis-
miss from said cause the additional defendants, Amy
M. Wood, Emma Eubien, Frank J. Cimral, receiver,
and William L. O'Connell, receiver.
Reversed and remanded with directions.
(Thirteen pages in original opinion.)
■y hs'i-
.^^,/>^'
;/"^*/^
Published in Abstract
--7
Josephine M. Blumb, Administratrix of the Estate of
Frank W. Blumb, Deceased, Plaintiff-Appfellee,
V. Ben Getz, Defendant-AppellanJ^;
Appeal from tJie Circuit Court of Taseivell County.
April Term, A. D. 1936.
Gen. No. 8987
Agenda No. 12
Mr. Justice Davis delivered the opinion of tlie Court.
This is an appeal by defendant-appellant, Ben Getz,
from a judgment of the circuit court of Tazewell
County in the sum of $3,000.00 in favor of plaintiff-
appellee, Josephine M. Blumb, Administratrix of the
Estate of Frank W. Blumb, deceased.
The complaint consisted of two counts, in the first
of which it was charged that Ben Getz was operating
and managing a motor vehicle in his own behalf, and
as agent and servant of Ross C. Adams, on State High-
waj' No. 9, between the cities of Pekin and Morton in
Tazewell County; that plaintiff's intestate was walk-
ing along said highway in a westerly direction and
was in the exercise of due care and caution for his
own safetj^; that the defendant, Ben Getz, carelessly,
wrongfully and negligently suffered and permitted
said automobile to run against the deceased and knock
him down upon the highway, causing fatal injuries
from which he died on December 2, 1933.
The second count alleges that plaintiff's intestate
was walking on said public highway with due care and
caution for his own safety and stopped to pick up his
glove which he had dropped on said highway, when
Ben Getz in his own behalf and as the agent of the
defendant. Boss C. Adams, then and there approached
plaintiff's intestate and negligently, carelessly and un-
lawfully failed to give any reasonable warning of his
approach, failed to stop his automobile before strik-
ing plaintiff's intestate and failed to use every reason-
able precaution to avoid injuring plaintiff's intestate,
but approached so rapidly that plaintiff's intestate was
unable to remove himself from the path of the automo-
bile, contrary to Sec. 40 of the Illinois Motor Vehicle
Act; that as a result of said negligence plaintiff" 's in-
testate was struck and fatally injured.
The defendants, Ben Getz and Boss C. Adams,
answered and denied each and all of the allegations
■^r
Page 2 Gen. No. 8987
of the complaint, and alleged that the death of in-
testate was dne to his own carelessness and negligence.
At the conclnsion of the plaintitf's case, upon her mo-
tion Ross C. Adams was dismissed as a party defend-
ant, leaving Ben Getz as the sole defendant.
It appears from the testimon}' that the accident
which resulted in the death of plaintiff's intestate
took place on State Highway No. 9, which is a hard
surfaced road between the cities of Pekin and Morton,
Illinois.
John Nord, a brother-in-law of deceased, lived on the
north side of Route 9, and about 600 feet east of his
home there is a bridge over the hard road. The road
ran straight in front of Nord's house 160 rods each
way. The deceased was at Nord's home on the morn-
ing of November 28, 1933. He and Nord left his home
to go hunting about 12:00 o'clock, noon. They went
east on the hard road towards the bridge. They had
stopped in one place and deceased lit a cigarette and
dropped one of his gloves. They proceeded on east
a short distance before he discovered he had lost his
glove. He started west after his glove, and John Nord
l^roceeded on east. After deceased started on west an
automobile passed Nord, going west. Nord walked
about 40 feet and then turned and looked west and he
saw the car sAvaying from right to left, and at that time
Nord saw an ol^ject in the middle of the road and he
started back and, before he got to the place, Mr.
Strubhar was there. He was the first one to get to
the object in the road. Air. Blumb was taken away
before Nord got there. He had been taken to the oil
station. He was unconscious and bleeding from his
mouth and the right side of his head. The oil station
was 130 feet west from where Blumb was lying on the
pavement. The jury, that heard the cause, returned
a verdict in favor of plaintiff in the sum of $3,000.00
and, after a motion for a new trial was overruled by
the court, judgment was entered on the verdict of the
jury.
Apellant assigned, as one of the errors for reversal
of the judgment, that the court erred in refusing to
direct a verdict at the close of plaintiff's case on mo-
tion of defendant.
A motion to instruct the jury to find for the defend-
an is in the nature of a demurrer to the evidence, and
the rule is the evidence so demurred to, in its aspect
most favorable to the plaintiff, together with all rea-
sonable inferences arising therefrom, nrast be taken
most strongly in favor of the plaintiff. The evidence
"'B5r7iw;sjz'~:jJ5fi»JTSP'TS77''?r=jE^FTrs?i
Page 3 Gen. No. 8987
is not -weighed, and all contradictory evidence or ex-
planatory circumstauces mnst be rejected. The ques-
tion presented on such motion is whether there is any
evidence fairly tending to prove plaintilf's declara-
tion. In reviewing the action of the court of which
complaint is made we do not weigh the evidence,- — we
can look only at that which is favorable to appellant.
Yess v. Yess, 255 111. 414; McCiine v. Ri-ynohls, 288 id.,
188; Lloyd v. Rush, 273 id. 489; Hunter v. Troup, 315
111 293-297.
It was alleged in each count of the complaint that
appellee's intestate was, at the time and place in ques-
tion, in the exercise of due care and caution for his
own safety. This is a material allegation of the com-
plaint, and plaintiff-appellee was required to prove
the same by a preponderance of the evidence before
she could recover.
The witness, John Xord, testitied that when plain-
tiff's intestate left him, as they were walking east on
Route 9, to go and get his glove that he walked east
alone and Blumb walked west in the direction of my
house. After plaintiff's intestate started back west
an automobile passed me going west. Nord testified
that after the car passed him he walked about 40 feet
and then turned and looked west and saw the car, and
it was swaying back and forth on the road, going west.
The car was over the black line on the north side.
Blumb walked down on the shoulder on the north side.
The last I saw Blumb he was on the shoulder, walking
west.
Ea;\Tnond Strubhar testitied that at the time in ques-
tion he was working for John Nord; he was in the barn
yard doing the chores, that he saw Nord and deceased
going away about 12:00 o'clock; at the time of the
accident he was just leaving the barn, headed towards
the house; he was about 200 feet from the concrete
higliAvay where the accident occurred; he saw Blumb
before the accident. Blumb took a couple of steps and
was bending over; he was facing southwest; he was
walking slow and kind of eater-cornered soutliAvest;
•he saw him take two or three steps, and then he
stooped down; he was bending over just as if he was
going to pick something up; he saw the automobile
when he saw Blumb take those steps and bend over;
it was a distance of 20 or 25 feet away from Blumb;
the automobile was going west ; after that he saw Getz
turn over to his left; he saw the running board strike
Blumb and knock him down; Blumb was picking up
his glove when he was struck; the lower hinge on the
Page 4 Gen. No. 8987
front door on the right side also came in contact with
Blumb's head.
Helen Hocker, a daughter of John Xord and who
lives with him, was in the house at the time of the
accident. The windows in the house were open. She
heard a thud and ran to the window and looked east
and south; she saw a car traveling west, the wheels
of the car were about the middle of the road on the
concrete; the car was about 20 feet from the object on
the pavement when she saw it.
This is all of the evidence concerning the accident;
and the witness, Strubhar, seemed to be the only eye
witness.
We are of opinion that there was no evidence fairly
tending to prove due care on the jjart of plaintiff's
intestate, and for that reason the circuit court should
have sustained the motion of appellant at the close of
plaintiff's case to direct a verdict in his favor.
The judgment of the circuit court of Tazewell
County is reversed.
Reversed.
Upon consideration of petition for rehearing the
opinion is modified and a rehearing denied.
(Five pages in original opinion)
jj^^^^ (14589— 10-36) 14
Published in Absteact
Josephine M. Blumb, Administratrix of the Estate of
Frank M. Blumb, Deceased, Plaintiff -Appellee, v.
Ben Getz, Defendant-Appellant.
Appeal from, the Circuit Court of Tazeivell County.
April Term, A. D. 1936.
Gen. No. 8987 Agenda No. 12
Mr. Justice Davis delivered the opinion of the
Court.
This is an appeal by defendant-appellant, Ben Getz,
from a judgment of the circuit court of Tazewell
County in the sum of $.3,000.00 in favor of plaintiff-
appellee, Josephine M. Blumb, Administratrix of the
Estate of Frank W. Blumb, deceased.
The complaint consisted of two counts, in the first
of which it was charged that Ben Getz was operating
and managing a motor vehicle in his o'wm behalf, and
as agent and servant of Ross C. Adams, on State High-
way No. 9, between the cities of Pekin and Morton in
Tazewell county; that plaintiff's intestate was walk-
ing along said highway in a westerly direction and was
in the exei-cise of due care and caution for his o^\^l
safety; that the defendant, Ben Getz, carelessly,
wrongfully and negligently suffered and permitted
said automobile to run against the deceased and knock
him down upon the highway, causing fatal injuries
from which he died on December 2, 1933.
The second count alleges that plaintiff's intestate
was walking on said public highway with due care and
caution for his own safety and stopped to pick up liis
glove which he had dropped on said highway, when
Ben Getz in his own behalf and as the agent of the de-
fendant, Ross C. Adams, then and there approached
plaintiff's intestate and negligently, carelessly and un-
lawfully failed to give any reasonable warning of his
approach, failed to stop his automobile before strik-
ing plaintiff's intestate and failed to use every reason-
able precaution to avoid injuring plaintiff's intestate,
but approached so rapidly that plaintiff's intestate was
unable to remove himself from the path of the auto-
mobile, contrary to Sec. 40 of the Illinois Motor Vehi-
cle Act; that as a result of said negligence plaintiff's
intestate was struck and fatally injured.
Page 2 Gen. No. 8987
The defendants, Ben Getz and Ross C. Adams, an-
swered and denied each and all of the allegations of
the comialaint, and alleged that the death of intestate
was due to his o^\^l carelessness and negligence. At
the conclusion of the plaintiff's case, upon her motion
Ross C. Adams was dismissed as a party defendant,
leaving Ben Getz as the sole defendant.
It appears from the testimony that the accident
which resulted in the death of plaintiff's intestate took
place on State Highway Xo. 9, which is a hard surfaced
road between the cities of Pekin and Morton, Illinois.
John Nord, a brother-in-law of deceased, lived on
the north side of Route 9, and aboiit 600 feet east of
his home there is a bridge over the hard road. The
road ran straight in front of Nord's house 160 rods
each way. The deceased was at Nord's home on the
morning of November 28, 1933. He and Nord left his
home to go hunting about 12:00 o'clock, noon. They
went east on the hard road towards the bridge. They
had stopped in one place and deceased lit a cigarette
and dropped one of his gloves. They proceeded on
east a short distance before he discovered he had lost
his glove. He started west after his glove, and John
Nord proceeded on east. After deceased started on
west an automobile passed Nord, going west. Nord
walked about 40 feet and then turned and looked west
and he saw the car swaying from right to left, and at
that time Nord saw an object in the middle of the road
and he started back and, before he got to the place,
Mr Strubhar was there. He was the first one to get
to the object in the road. Mr. Blumb Avas taken away
before Nord got there. He had been taken to the oil
station. He was unconscious and bleeding from his
mouth and the right side of his head. The oil station
was 130 feet west from where Blumb was lying on the
pavement. The jury, that heard the cause, returned
a verdict in favor of plaintiff in the sum of $3,000.00,
and, after a motion for a new trial was overruled by
the court, judgment was entered on the verdict of
the jury.
Appellant assigned, as one of the errors for reversal
of the judgment, that the court erred in refusing to
direct a verdict at the close of plaintiff's case on mo-
tion of defendant.
A motion to instruct the jury to tind for the defend-
ant is in the nature of a demurrer to the evidence, and
the rule is the evidence so demurred to, in its aspect
most favorable to the plaintiff, together A^dth all reas-
onable inferences arising therefrom, must be taken
Page 3 Gen. No. 8987
most strongly in favor of the plaintiff. The evidence
is not weighed, and all contradictory evidence or ex-
planatory circumstances must be rejected. The ques-
tion presented on such motion is whether there is any
evidence fairly tending to prove plaintiff's declara-
tion. In reviewing the action of the court of which
complaint is made we do not weigh the evidence,— we
can look only at that which is favorable to appellant.
Yess V. Yess, 255 111. 414; McCnne v. Reynolds, 288 id.,
188; Lloyd v. Rush, 273 id. 489; Hiinfer v. Troup, 315
111. 293-297.
It was alleged in each count of the complaint that
appellee's intestate was, at the time and place in ques-
tion, in the exercise of due care and caution for his
own safety. This is a material allegation of the com-
plaint, and plaintiff-appellee was required to prove
the same by a preponderance of the evidence before
she could recover.
The -v^atness, John Nord, testified that when plain-
tiff's intestate left him, as they were walking east on
Eoute 9, to go and get his glove that he walked east
alone and Blumb walked west in the direction of my
house. After plaintiff's intestate started back west
an automobile passed me going west. Nord testified
that after the car passed him he walked about 40 feet
and then turned and looked west and saw the car, and
it was swaying back and forth on the road, going west.
Tlie car was over the black line on the north side.
Blumb walked down on the shoulder on the north side.
The last I saw Blumb he was on the shoulder, walking
west.
Raymond Strubhar testified that at the time in ques-
tion lie was working for John Nord; he was in the barn
yard doing the chores, that he saw Nord and deceased
going away about 12:00 o'clock; at the time of the
accident he was just leaving the barn, headed towards
the house; he was about 200 feet from the concrete
highway where the accident occurred; he saw Blumb
before the accident. Blumb took a couple of steps and
was bending over; he was facing southwest; he was
walking slow and kind of eater-cornered southwest;
he saw him take two or three steps, and then he stooped
down; he was bending over just as if he was going to
pick something up ; he saw the automobile when he saw
Blumb take these steps and bend over; it was a dis-
tance of 20 or 25 feet away from Blumb; the auto-
mobile was going west; after that he saw Getz turn
over to his left ; he saw the running board strike Blumb
and knock him down; Blumb was picking up his glove
Page 4 Gen. No. 8987
wlien lie was struck ; the lower liinge on the front door
on the right side also came in contact with Blumb's
head.
Helen Hocker, a daughter of John Nord and who
lives with him, was in the house at the time of the acci-
dent. The windows in the house were open. She heard
a thud and ran to the window and looked east and
south ; she saw a car traveling west, the wheels of the
car were about the middle of the road on the concrete ;
the car was about 20 feet from the object on the pave-
ment when she saw it.
This is all of the evidence concerning the accident;
and the witness, Strabhar, seemed to be the only eye
witness.
We are of opinion that there was no evidence fairly
tending to prove due care on the part of plaintiff's
intestate, and for that reason the circuit court should
have sustained the motion of appellant at the close of
plaintiff's case to direct a verdict in his favor.
The judgment of the circuit court of Tazewell county
is reversed and the cause remanded for a new trial.
Reversed and remanded.
(Five pages in original opinion.)
yjf^ ^, n
. '^ /^ 'i
f7 '/
Kaywin Kennedy, Plaintiflf-Appelle, v. Grace H. Lang,
Defendant-Appellant, Lucy H. Darst, Defendant- •
Appellee, Rolla M. Darst, Intervening
Petitioner Appellee.
Appeal from Circuit County, McLean County.
Apeil Teem, A. D. 1936.
Gen. No. 8976 Agenda No. 7
Mr. Justice Allaben delivered the opinion of the
Court.
This case arises out of a bill of interpleader brought
by Kaywin Kennedy, trustee, against Lucy H. Darst
and Grace H. Lang, to determine the oAvnership of two
real estate mortgage bonds in the amount of $2,000
each. Grace H. Lang filed her answer to the bill, al-
leging ownersliip of the bonds. Lucy H. Darst filed an
answer stating that she claimed the bonds as her own,
but that she was acting for her husband, Rolla M.
Darst; that he was the owner of and entitled to the
bonds. An intervening petition was filed by Rolla M.
Darst, by leave of court, alleging that he was the hus-
band of Lucy H. Darst, and father of Grace H. Lang ;
that the bonds were his individual property ; that who-
ever had possession of them held them in trust for him.
Grace H. Lang filed a demurrer to the intervening
petition, which was overruled ; then filed exceptions to
the intervening petition, which the court had previ-
ously ordered to stand as an answer. These excep-
tions were overruled; and Grace H. Lang then filed
exceptions to the answer of Lucy H. Darst, which were
sustained. Defendant appellant then moved for judg-
ment in her favor on the pleadings, which motion was
denied. The intervening petitioner had filed a general
replication to the appellant's answer, and appellant
filed a special reply to the intervening petition. The
intervening petitioner then moved that appellalnt's
special replication stand as a general replication only,
which motion was allowed.
Appellant then by leave of court filed an amendment
to her answer which in addition to the matters set up
in the original answer alleged that Rolla M. Darst was
guilty of laches, and that he was barred by the five-year
statute of limitations. The inter\'ening petitioner's
exceptions to this amendment were sustained. An in-
Page 2 Gen. No. 8976
terlocutory decree was entered, and by order of court
reference was made to the master. By the interlocu-
torj^ decree the chancellor dismissed the original bill as
to Lucy H. Darst, because by her answer it appeared
that her interest was identical with that of her hus-
band, EoUa M. Darst, intervening petitioner.
After a hearing before the master, the master filed
his report, finding that the equities of the cause were
with the intervening petitioner; that a tnist resulted
in favor of Kolla M. Darst for said bonds; that a de-
cree be entered awarding the bonds in question to the
said Eolla M. Darst ; that the cost of the action be taxed
against the defendant, Grace H. Lang.
Objections were filed to the report of the master,
which Avere ordered to stand as exceptions. The chan-
cellor overruled the exceptions to the report and ap-
proved it, entering a decree finding the equities in ac-
cordance with the master's report, and directing that
the bonds in question be turned over by the clerk of
the circuit court to RoUa M. Darst, and taxing the costs
against the defendant, Grace H. Lang. From this de-
cree this appeal is taken.
The evidence shows that the bonds in question were
purchased by Lucy H. Darst, the wife of the interven-
ing petitioner, in January of 1925, A\-ith money given to
her by her husband, RoUa M. Darst ; that Lucy H.
Darst, wife of Eolla M. Darst, regularly transacted
his financial affairs, since he worked in Spring-field,
and was only home for short intervals. It further
shows that the bonds were bought from the First Trust
and Savings Bank of Bloomington, it being shown on
the books of the bank that they were purchased in the
name of Grace H. Lang, with interest payable to Lucy
H. Darst ; that Grace H. Lang was on the road, travell-
ing, selling books, and knew nothing of the purchase of
the bonds at the time they were paid for, and paid
nothing on the purchase price. The evidence further
shows that Eolla M. Darst at no time authorized the
purchase of the bonds in his daughter's name; that
Grace H. Lang in December of 1925 returned home
and while there was told of the purchase of the bonds.
From 1926, until July, 1933, the interest on said
bonds was collected both by Lucy H. Darst and Grace
H. Lang, being paid over to Lucy H. Darst to use as
she saw fit in the maintenance of the family. When
the bonds were purchased they were put in a box at
the bank, which was rented by Lucy H. Darst, where
they were kept until August, 1927, when the box was
Page 3 Gen. No. 8976
given ujD, at which time they were given into the pos-
session of Grace H. Lang by Lucy H. Darst, and after
which tliey were kept in her deposit box in the bank
by Grace H. Lang, until April or May of 1933, and
then they were taken to the Darst home and turned
over to Lucy H. Darst at lier request, and kept there
until July of 1933, when they were delivered by Lucy
H. Darst to KayAvin Kennedy, trustee, in whose pos-
session they remained until the filing of the bill of com-
plaint. Thereafter, by order of court, they were de-
posited "with the clerk of the court.
It is contended bj- apioellant that since the bonds
were purchased with Rolla M. Darst 's money, and en-
tered on the books of the bank at the time they were
purchased, in the name of his daughter, Grace H. Lang,
that such action creates a strong presumption that they
were transferred to the daughter as a gift, and appel-
lant cites a number of cases showing that where prop-
erty, both real and personal, is transferred by a parent
to a child such a presumjDtion arises. These cases,
however, appear to be different from the case at bar in
that the bonds in question were bearer bonds, and not
made out in the name of the appellant, or transferred
to her, the only reference to her being a notation on the
books of the bank that she was the ijurchaser ; Avhereas,
in the cases cited by appellant the transfer was by a
deed or bill of sale, directly to the person claiming the
transfer as a gift.
"We believe the correct rule to be that the burden is
upon the donee to prove by clear and convincing evi-
dence the delivery of the property in question by the
donor to the donee with intent to pass title, and that
the law never presumes a gift. {Bolton v. Bolton, 306
HI. 473; Cusack v. Cnsack, 253 111. App. 288; Fanning
v. Russell, 94 111. 386; Telford v. Patton, 144 111. 611.)
There are many complaints made by the appellant
on the rulings of the court over the various i^leadings
filed by the various parties in connection witli the in-
tervening petition. Without going into detail, we be-
lieve that the trial court was correct in every ruling,
except for one technical mistake in one of the orders,
which is so plainly apparent it is of no consequence.
It seems to us that appellants do not understand the
purpose or function of a bill of interpleader. The
plaintiff in such a bill sets ixp that he holds property
to which he has no claim ; avers that there are several
claimants, and he does not know to whom the prop-
erty in his hands should go; and that there is no col-
lusion between himself and any of the parties defend-
Page 4 Gen. No. 8976
ant. The purpose is to determine the o-miership of the
property involved, which the plaintiff offers to tender
into court. It is appellant's complaint that one who
is not named as a party defendant can not ask and be
given leave to become a party defendant where he
claims the property to be his. There is no merit in
this complaint, and the court properly permitted the
defendant, RoUa M. Darst, to intervene. {Wightman
V. The Evanston Yaryan Company, 217 111. 371.) It
appears to us to hold otherwise would reach a ridicu-
lous result. Appellant complains because she says she
was not permitted an oppoi'tunity to plead the statute
of limitations, and laches. An examination of the
pleadings discloses that this is not true, but that the
defense of the statue of limitations, or laches, couM
not successfully be maintained as to intervening peti-
tioner, Rolla M. Darst, because same would not com-
mence to run until he had knowledge that there was
some one claiming title to this property other than
himself, and this he did not know until two days before
the filing of the bill.
Intervenor, Rolla M. Darst, claims that he furmshed
the money with which the bonds were purchased. There
is no evidence to the contrary, and the court was cor-
rect in so finding. His wife testified that she received
the money from him for the specific purpose of buying
these bonds for him, and that she had no other
authority.
It is contended that the wife should not have been
permitted to testify in this case. In our opinion, on
the authority of Section 5, Chapter 51, Cahill's Re-
vised Statutes, as construed by our appellate court in
Kirman v. Hutchinson, 254 111. App. 469, no error was
committed by the trial court in permitting her to testi-
fy, since she was the agent of her husband in that
transaction. (Also Sargeant v. Marshall, 38 111. App.
642.) In any event this ruling was not assigned as
error for reversal and can not be questioned on appeal.
{Brown v. Higgins, 259 111. App. 34).
It is further contended by the appellant that she
gave up a position whereby she earned $100 a week,
on the representation that she would be taken care of ;
and that the gift to her of these bonds was the method
bv which she was "taken care of." However, it ap-
pears that property valued at $9,000 was given to her,
and that a mortgage of $2,000 which was on it, was
later removed. So, certainly, it was not necessary that
Rolla M. Darst divest himself of all his property in
Page 5 Gen. No. 8976
order to fulfill the promise to take care of this
daughter.
There is some evidence which seems to bear out the
contention that some bonds, whether the bonds in-
volved in this litigation, or not, were diverted to this
appellant lA-ithout the knowledge of Eolla M. Darst,
and that much secrecy was maintained concerning
them.
A great deal of the abstract and much of the argu-
ment is devoted to detailing some very unfortunate,
one might almost say "scandalous" acts by various
members of this family, but we do not see that they in
any way prove or disprove anything concerning this
particular transaction, or are at all pertinent to the
issues.
There are a number of matters concerning which the
testimony can not be harmonized. In all of these cases
the master, who heard the testimony, had the oppor-
tunity of observing the witnesses, their candor or lack
of it, their opportunity of knowing the facts concern-
ing which they testified, and we see no reason why this
court should disturb his findings of fact, which were
confirmed by the trial court.
It seems to us that the manner in wliich appellant,
Grace H. Lang, treated these bonds, as if placed in
her box for safe keeping (Lucy H. Darst and KoUa
M. Darst having surrendered their own safety deposit
bos) does not comport with a belief on her part that
she was the sole owner. Some of the interest was col-
lected by Lucy H. Darst, all of the balance which was
collected by Grace H. Lang she immediately turned
over to Lucy H. Darst. In the spring of 1933 she took
these bonds out of her box, brought them to her moth-
er 's home, and gave them to her mother, at her moth-
er's request. Her mother kept them in her home for
several months, and then turned them over to the
plaintiff in this suit. It might well be noted that at the
same time these bonds were taken out of the box of
Lucy H. Darst and Holla M. Darst, and turned over to
Grace H. Lang to be placed in her box that there were
numerous other papers accompanying them to which,
apparently Grace H. Lang makes no claim.
All of this is as consistent ^\itll the theory that they
were turned over to her merely for safe keeping as
with the theory that they were turned over to her as
a gift. Complaint is made that Rolla M. Darst made
no inquiry concerning the bonds or what had become
of them, and that he should have been put on notice to
Page 6 ■ Gen. No. 8976
investigate. He knew that the bonds had been pur-
chased; that his wife was receiving the income. So
long as that was the situation he had no occasion to
make inquiry.
For the reasons heretofore set forth it is our
opinion that there is no reversible error in this record,
and that the decree of the trial court should be affirmed.
Decree afj
(Eleven pages in original opinion)
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Published in Absteact
Louise Lavin, Plaintiff Appellee, v. Yellow Cab Co., a
Corporation, Springfield Yellow Cab -€0., Inc., a
corporation, Defendant-Appellant. Carl R.
Ferguson, doing business under the style
and firm name of Ferguson Grocery
Company, Defendant.
Appeal from Circuit Court, Sangamon County.
April Term, A. D. 1936.
Gen. No. 8995
Agenda No. 19
Mr. Justice Allaben delivered the opinion of the
Court.
This case is an appeal from the judgment entered
by the circuit court of Sangamon county in an action
for alleged personal injuries sustained by plaintiff ap-
pellee in a collision between a taxi cab and a delivery
truck in Springfield, Illinois. The complaint, consist-
ing of four counts, alleged that the plaintiff was a
passenger in a taxi cab of the defendant appellant, and
that the cab and the delivery tinick of the co-defendant,
Carl R. Ferg-uson, collided in the 900 block in South
Second street, Springfield, Illinois. The first count
charged both of the defendants with driving and oper-
ating their motor vehicles negligently. The second
count charged the carelessness and negligence of the
drivers was due to the high rate of speed at which they
were travelling. The third and fourth counts charged
that the defendants drove their vehicles out of the
regular line of traffic, and attempted to pass other ve-
hicles. Each of the said counts alleged due care on the
part of the plaintiff and contained an ad damnum of
$4,000.
Defendants filed separate answers to the complaint,
denying the allegations of the respective counts. The
case was tried before a jury, and a verdict was re-
turned in the sum of $1,000 against the defendant ap-
pellant, but found the Ferguson Grocery Company, the
co-defendant, not guilty. Motion for new trial was
filed, and denied. The court entered judgment in ac-
cordance with the verdict. From this judgment and the
denial of the new trial this appeal is prosecuted.
From the evidence in the case it appears that the
plaintiff, Louise Lavin, was a passenger for hire in the
taxi cab owned and operated by a servant of the de-
r
^
Page 2 Gen. No. 8995
fendant appellant; that the said taxi cab ^vas being
driven south on South Second street in the 900 block
in the citv of Springfield, Illinois; that a commercial
delivery truck owned by Carl R. Ferguson, and oper-
ated bv his ag-ent was proceeding north on the same
street,"and in\he same block; that a collision occurred
approximately in the north quarter of the block; that
after the collision the cab was out of control, proceeded
in a southeasterly course, over the curb, side-walk,
and yard of a dwelling house, at 918 South Second
street, and came to a stop after striking the lower por-
tion of the foundation of the house, breaking some ot
the bricks in the foundation. The delivery truck after
colliding with defendant appellant's vehicle, collided
with a cab, Ford car, and a parked car. Mrs. Lavm,
the plaintiff, testified that the cab turned to pass an-
other car; that she noticed an increase m speed oust
before the crash with the delivery truck of Ferguson
There was testimony that the cab was travelling at
from 45 to 50 miles an hour after the crash, and that
before the collision it was running at from 30 to 35
miles an hour. The driver of the taxi cab testified hat
he was behind a truck; that there were cars parked on
both sides of Second street; that traffic was fairly
hea\T; that except to try the foot brake he did nothing
to stop or slow down the speed of the taxi cab.
One of the exhibits offered and admitted m evidenc^e
was a photograph showing the tire tracks of the cab,
showing deep imprints in the ground which the tires
had made after the cab had gone over the curb, it
further appears from the evidence that when the cab
struck the foundation of the house, some distance be-
yond the curb, it broke the bricks; that the doors on
the right side of the cab could not be opened ; that the
seat of the cab was pushed out of place, glass l^roken
fly wheel housing broken, and the radiator smashed
some. -
Mrs. Lavin was stunned, and her mother sultered a
broken leg. Further testimony showed that plaintiff
was in good health prior to the accident; that after
the accident she lost weight; that she was suffering
from traumatic neurosis, which the physicians stated
is always due to a shakeup or severe blow on the head
or spinal column; that she was improving slowly; that
she would recover from her injury in two years; that
her condition was not permanent, but was considered
as having an effect of mental depression, resulting in
loss of sleep, appetite and weight ; that if such condi-
tion progresses it developes into nervous deteriora-
tion, and lowers the resistance of the body.
Page 3 Gen. No. 8995
In reciting the errors relied upon an appeal appel-
lant complains that the court admitted improper, in-
competent and highly prejudicial evidence. No refer-
ence is made to this alleged error in appellant's brief
of authorities, and it is only discussed indirectly in ap-
pellant's argument, where attention is called to the
fact that certain witnesses did not see the accident oc-
cur ; and that the witness, Dr. Eosen, diagnosed the ill-
ness of the plaintiff as traumatic neurosis, which he
testified was based on the fact that she had been in-
volved in an accident. Arguing from this the defend-
ant appellant says there is no basis or justification for
the amount of the verdict. However, if facts and cir-
cumstances are proved, which lead to a conclusion that
other facts and circumstances are true, such conclu-
sions based upon circumstantial evidence may be ac-
cepted and acted upon by the jury. {Mahlstedt v.
Ideal Lighting Co., 271 111. 154). In many instances
circumstantial evidence is all that exists, and is fre-
quently as satisfactory in drawing a conclusion as to
the existence or occurrence of a fact, as direct evi-
dence. {Wilkinson v. Aetna Life Insurance Co., 144
111. App. 38; Kennedy v. Aetna Life Insurance Co.,
148 111. App. 273.) This should be particularly true
where there is no evidence given to controvert the cir-
cumstantial evidence offered. Even where the evidence
is conflicting a reviewing court will not reverse the
finding of a jury in relation to disputed questions
of fact unless the finding of the jury is manifestly
against the greater weight of the evidence. (Lyons v.
Stroud, 257 111. 350; Noyes v. Heffernan, 153 111. 339.)
Appellant complains that the court refused proper
instructions, and admitted improper instructions. No
discussion of the improper instructions is made by the
appellant and we, therefore, deem it unnecessary to
discuss this question. As to the improper instructions
which were refused the defendant appellant refers to
the instruction offered which referred chiefly to the de-
gree of care required in sudden and apparent danger,
and cites the case of Letush v. New York Cent. R. R..
267 111. App. 526, from which appellant quotes the
statement: '"^he law does not require of a common
carrier 'unreasonable or impracticable vigilance.' " It
is insisted by appellant that such an instruction was
necessary because the court had given an instruction
regarding the fact that the defendant appellant was
a common carrier, and that the jui-y evidently mis-
understood or was not informed as to what the legal
responsibility of a common carrier was. The instruc-
Page 4 Gen. No. 8995
tions given on that point were more favorable to ap-
pellant than to appellee and we, therefore, feel that
the failure to give the requested cautionary instruc-
tions did not constitute error.
Defendant appellant's brief of authorities and argu-
ment is partially devoted to the contention that the
plaintiff must show by affirmative proof that she was
in the exercise of due care for her own safety just be-
fore and at the time the accident occurred. However,
there is no showing on the part of the plaintiff appel-
lee of any want of due care, and it is obvious that the
plaintiff and her mother could not have been guilty
of any want of due care and contributory negligence
when the}' were passengers in a common carrier. Such
due care can be established as any other fact by cir-
cumstantial evidence. {Cliicago & E. I. R. Co. v.
Beaver, 199 111. 34). The allegation of due care on
the part of the plaintiff we think was substantiated by
the evidence adduced in her behalf. The other errors
relied upon by appellant, to-wit: The alleged im-
proper admission of exhibits; that the verdict was a
result of passion and prejudice ; that it was erroneous
in finding the issues against the defendant appellant,
and not against the defendant, Carl E. Ferguson; in
denying the motion of defendant appellant to set
aside the verdict, are without merit, as the jury is the
sole judge of the facts. The alleged improper admis-
sion of the exhibits is not argued, and no authorities
are cited in connection with the ruling on the motion.
For the reasons given the judgment of the trial court
is affirmed.
Judgment affirmed.
(Eight pages in original opinion)
L-^'i^'^-^
Published isr Abstract /
,^- 0 ^
Erma Templeman, Appellant, v. IT. G. Usher, Nick
Kish, Appellees.
Appeal from Circuit Court, Sangamon County.
Apeil Teem, A. D. 1936.
Gen. No. 8970
Agenda No. 5
Me. Justice Fulton delivered the opinion of the
Court.
This is an action of replevin brought by the Appel-
lant, Erma Templeman, against the Appellees IJ. G.
Usher, a constable and Nick Kish proprietor of a
garage for the possession of an automobile. On April
20th, 1922, one Marie Phillips recovered a judgTnent in
a Justice of the Peace Court against J. W. Temple-
man, husband of Appellant, for the sum of $375.00. An
execution was issued out of said Court and on Febru-
ary 11th, 1934, Appellee Usher, as constable, seized a
Chevrolet coach on said execution and placed the same
in the garage of Appellee Kish. On February 14th,
1934, the Appellant, claiming to be the sole o^^^ler of
said automobile, filed her rei^levin suit before a Justice
of the Peace to recover possession of the automobile.
The case was tried before the Justice, who found the
issues for the defendants. An appeal was taken to the
Circuit Court of Sangamon County where the case was
tried before a jury and a verdict returned for the de-
fendants. The present appeal is from a judgment upon
said verdict.
It is the contention of the Appellant that she was
the sole owner of the automobile in controversy, sub-
ject to the ijayment of a balance due to the General
Motors Acceptance Cori^oration, and that her husband,
J. W. Templeman had no interest or legal title to the
car. The evidence shows that J. W. Templeman, hus-
band of the Appellant, bought a Chevrolet coupe in
May 1934 as his own individual property; that he
purchased a new Chevrolet coach on September 20th,
1934 and traded the old coupe in on the new car for
which he was allowed the sum of $430.00 in trade. The
balance remaining unpaid on the new coach was the
sum of $180.66 and in order to finance this balance the
Ai^pellant and J. W. Temi^leman entered into a condi-
tional sales contract with the Company from whom
they purchased the car. The instrument was signed
Page 2 Geu. No. 8970
by both Appellant and her husband J. W. Templeman.
The automobile company then assigned to J. W. Tem-
pleman and Erma Templeman the certificate of title
wliich assignment Avas approved by and filed with the
Secretary of the State of Illinois. The conditional sales
contract dated September 20th, 1934, was paj'able in
six monthly installments of $30.11 each, and was as-
signed and sold to the General Motors Acceptance Cor-
poration. Appellant testified that she had made three
pajTnents on the car amounting to $85.33, as part pay-
ment under the conditional sales contract, for which
she presented receipts showing such j^ayment. The
certificate of title from the Secretary of State was is-
sued to J. W. Templeman and Erma Templeman
jointly.
There is further testimony showing that the car was
driven without any license plates attached thereto ;
that the car was used by J. W. Templeman for both
business and pleasure and that the Appellant could not
drive and did not drive the car in question; that J. W.
Templeman told the i^roprietor of the garage that the
car was his property. Appellant testified that the Chev-
rolet coach was her own property because she had paid
off a judgment to the Wayne City National Bank in the
sum of $525.00 where she was co-signer or surety on
a judgment note of her husband. The judgment on
this note was taken by confession against both J. W.
Templeman and the Appellant in the Circuit Court
of Sangamon County on August 5th, 1931. An issue
of fact was therefore presented to the jury as to
whether or not the Appellant was the sole owner of the
car replevined or whether she o'wnied a joint interest
\\'ith her husband, J. W. Templeman. On this ques-
tion the jury found in favor of the Appellee and there
being sufficient evidence to support their finding this
Court would not be warranted in disturbing such find-
ing. In order to maintain replevin Plaintiff must show
title, special property interest, or right of possession.
Horn V. Zimmer, 180 ApjD. 232. A party bringing an
action of replevin must either be the owner or the per-
son entitled to the possession of the property sought
to be replevined. Sivain v. First National Bank, 100
App. 31. Eeplevin cannot be maintained by one part-
ner against an officer levying upon the interest of the
other partner. Weher v. Hertz, 188 111. 68. Shoe v.
Wehh, 87 App. 522. In this case the jury having found
adversely to the Appellant it follows that J. W. Tem-
pleman had a substantial interest in the automobile
in question and a right to the possession thereof and
Page 3 Gen. No. 8970
an officer with an execution based upon a judgment
against J. W. Templeman was authorized to make a
levy upon Templeman 's interest in the property.
Appellant also objects to one instruction given by
the trial Court as not stating the law correctly but
under Rule 8 of this Court and Rule 38 of the Supreme
Court the Appellant was required to prepare and tile
a complete abstract in accordance with the rules in
order to have the instructions considered which they
failed to do. It has been repeatedly held that ques-
tions on instructions will not be considered by the re-
viewing Court where the complete series is not ab-
stracted for the benefit of the Court on review. Reavley
V. Harris, 239 111. 526.
The Appellant further urges that Appellees were
not entitled to a trial by a jury because no request or
demand was made by either of the parties in writing
before the trial. On and after the June Term, 1935,
Rule 24} of the Supreme Court provided that in cases
of appeal from a Justice of the Peace, where a trial
by jury may be permitted, either party desiring a trial
by jury shall, before trial, but in any event not later
than the second return day following the filing of a
transcript on appeal, file a written demand for a jury
trial. This cause however, was tried during the month
of April 1935, prior to the passage of such rule. At
that time there was no lorovision in the New Practice
Act or in the rules of the Supreme Court which re-
quired the filing of a -written demand for a jury trial
and it was therefore not error for the trial Court to
permit a trial by jury to either of the parties to this
cause.
"We believe that the main question in this case was
one of fact which has been determined by the jury
upon competent evidence to support the verdict and
finding no substantial error in the record the judginent
of the Circuit Court of Sangamon County is affinned.
Affirmed.
(Four pages in original opinion)
/ -
Published ix Abstract |
Elizabeth Bailey, Appellant, v. H. B. K^ck, Sheriff of
Logan County, Appellee. /
Appeal from County Court Logqn County.
Apeil Term, A. D. 1936. 2 H O
f^O
Gen. No. 8993
Agenda No. 17
Mr. Justice Fulton delivered the opinion of the
Court.
On the 31st of October A. D. 1935, Appellant filed her
complaint in the County Court of Logan County
against the Appellee as Sheriff of said County. In
her original complaint the Appellant claims from the
Appellee the sum of $22.5.00 which she alleged Appellee
had in his hauds as Sheriff. The original complaint
was dismissed on motion of the Appellee and leave
given Appellant to file an amended complaint. The
amended complaint was also dismissed on motion of
the Appellee as not stating a cause of action, and
.iudgment for costs entered against the Appellant.
The sole issue in the case was whether or not the
amended complaint contained sufficient facts to state
a cause of action.
Paragraph two of the amended complaint alleges
that Appellee had in his hands $225.00 belonging to the
Appellant ; that said money was joaid to the Appellee,
as Sheriff of Logan County, by Jess A. Bailey to have
and to hold said money at the direction and assignment
of said Jess A. Bailey; that no other person had arjy
interest in said money except Jess A. Bailey and that
said money had been furnished to Jess A. Bailey by
the Appellant out of the proceeds of her business.
Paragraph three of the amended complaint alleges an
assignment from the said Jess A. Bailey to the Appel-
lant and paragraph five alleges that the Apijellant
made a written demand on the Appellee demanding
that he pay over to her the said sum of $225.00. No
other facts are stated in the amended complaint tend-
ing to show upon what terms or under what circum-
stances the money was paid to the Appellee or attempt-
ing to show any contract, bailment or trust relation
of any kind between Jess A. Bailey and the Appellee.
All the averments of the Appellant are conclusions of
the pleader and no where does the amended complaint
allege facts which disclose the real basis of a claim
Page 2 Gen. No. 8993
against tlie Sheriff of Ebgan County. Such a plead-
ing does not tend to advise a defendant of the nature
of the action which will enable him to prepare a proper
defense and it is hard to see how the Appellee could
answer specifically the general averments and conclu-
sions set forth in the amended complaint.
While the provisions of the New Civil Practice Act
require that all pleadings shall contain a plain and
concise statement of the pleaders cause of action in an
attempt to simplify procedure, still this court has held
in WMlen v. Trvin City Barge Co., 280 App. 596, that
those substantial averments of fact heretofore neces-
sary to state a cause of action are in no way affected
by any provisions of the New Civil Practice Act. Our
Courts have always held that general allegations of in-
debtedness, without any statement of fact supporting
them, are mere conclusions and are not sufficient to
state a legal cause of action.
An examination of the amended complaint discloses
only a series of legal conclusions on the part of the
pleader and the trial Court properly sustained the
Appellee 's motion to dismiss and the judgment of said
Court should be aflSrmed.
Affirmed.
(Two pages in original opinion.)
Pl^blished IX Abstract
Minnie Osbom, Appellee, v. William L.
Receiver of Gibson City State Bank,
Corporation, Appellant.
Appeal from County Court Ford
April Term, A. D. 1936.
Gen. No. 8968
Agenda No. 4
Mr. Justice Fulton delivered the opinion of the
Court.
Appellant obtained a judgment, by confession, on
Noveml^er 24, 1933, in the County Court of Ford
County, 'Illinois, for the sum of $2868.54, and costs
against William A. Osborn of Gibson City, Illinois.
An execution was issued on said judgment and was
served by the Sheriff on March 25, 1935, and levied
upon the jDroperty in controversy in this proceeding,
as the property of William A. Osborn.
On March 26, 1935, Appellee, Minnie Osborn, caused
a notice of claim of ownersliip to the property levied
upon to be served upon the Sheriff requesting him to
notify the Judge of the County Court of said County
of her claim. The County Judge, upon receiving said
notice, set said claim for hearing. At the request of
both parties the trial was had before a jury. The
cause was tried on April 11, 1935, and the jury re-
turned a verdict in favor of the Appellee. After a
motion for new trial was overruled, judgment was ren-
dered on the verdict finding that Appellee was the
owner of the property and directing the Sheriff to
forthwith return the same to her from which judgment
Appellant has perfected this appeal.
On a trial of the right of property the only ques-
tion to be decided is whether the property belongs to
the Claimant. Marshall v. Cuuniugham, 13 111. 20.
Tipsivord v. Doss, 273 App. 1.
On the trial of the cause testimony was introduced
showing that Appellee and William A. Osborn were
married on June 12, 1929, and had lived together con-
tinuously at Gibson City, Illinois, since December,
1932; that at the time of her marriage Appellee was
the owner of property in her own right which she had
acquired independently of her husband; that her hus-
band, W. A. Osborn, was in the seed business at Gibson
City continuously from 1920 to Februarj^ 1, 1933 ; that
Page 2 Gen. Xo. S968
in December 1932, the Gibson City State Bank was
closed by the Auditor of Public Accounts and a Re-
ceiver appointed; that W. A. Osborn knew he was in-
debted to the Receiver Of the said bank on February
1, 1933 and that the bank held some of his notes; and
that he was also a creditor of the bank for the sum of
$54-0.54 ; that on March 10, 1931, Appellee loaned W. A.
Osborn, the sum of $5000.00, a part of which was rep-
resented l)y a note for the sum of $2500.00.
On February 1, 1933, W. A. Osliorn sold his seed
business to Appellee for the sum of $555.00, and that
amount was endorsed on the $2500.00 note. The seed
business was then carried on by Appellee with her
husband in active charge of the same. It was con-
ceded that all of the seed turned over to Appellee on
February 1, 1933 had been sold prior to the levy made
by the Sheriff, and that the seed levied upon was not
the seed transferred on the date of the sale.
Appellee testified that at all times since her marriage
her 23roperty had been kept separate and apart from
that of her husband and that all the seed levied upon
by the Sheriff on March 25, 1935, was bought with
her own money and paid for out of her separate bank
accounts. She further showed that she put up money
to keep the business going. Many checks were intro-
duced in corroboration of the fact that the business was
conducted in her name and many witnesses testified
of transacting business with the seed company and
that it was carried on in the name of Appellee. Her
evidence also showed that she hired her husband W. A.
Osborn, to manage the seed business for her and
allowed him the sum of $50.00 per month, which
amount was endorsed on the $2500.00 note each month.
Appellants brief contains thirty-six errors relied
on for reversal but we will only consider those urged
most seriously by counsel. It is earnestly contended
by Appellant that this case is controlled by the opinion
in Wilson v. Loomis, 55 111. 352. In that case Mrs.
Rosette Roe and C. S. Roe were the wife and husband
concerned. She purchased a general lumber business
with i^roperty and money derived from sources inde-
pendent of her husband. At first she was in partner-
ship with another man and her husband managed the
firm business and then the firm dissolved, and the busi-
ness was continued for Mrs. Rosette Roe by her hus-
band as manager under the name, "C. S. Roe, Agent."
Some of the property was sold to one Loomis and at
the time of the purchase there was an execution in the
hands of the Sheriff against C. S. Roe. Soon after.
-.s».i«5e<**«. L -■
Page 3 Gen. No. 8968
Loomis acquired possession of the property it was
seized by the deputy Sheriff by virtue of the said exe-
cution and suit was instituted to recover the possession
of the property. Tlie Court held tlie rule to be that
if the wife advance her own separate money and place
the same in the hands of her husl)and for the purpose
of carr;sang on any general trade and the husband, by
his labor and skill in that undertaking, increase the
funds, the entire capital embarked in the enterprise,
together with the increase, Avill not constitute the sepa-
rate estate of the wife, but will he lialile for the delits of
her husband. While realizing the force of that opinion
we believe it differs from the case at bar in one or
two important particulars. In that case the husband,
C. S. Roe, was not indebted to his wife for anything.
The business was conducted in his name and through
his skill and labor it was increased many times over
and the Court held that the increase, under such cir-
cumstances, belonged to the husband and not to the
wife. In this case Osborn had become largely indebted
to his wife and sold her the business to apply upon
the indebtedness. There was no proof of any large
profit from the operation of the business. In the case
of Luthy £ Co. v. Paradis, 299 111. 380, it was held that
where a husband makes a voluntary conveyance to his
■^^dfe and afterwards becomes insolvent, the burden of
proof is on him to disprove the implication of fraud
as to creditors at the time of making the conveyance.
A husband may, however, deal with his wife or rela-
tives in business matters and protect them by convey-
ance in satisfaction of existing indebtedness, if done
in good faith. Relationship is merely a circumstance
that may excite suspicion, but will not, of itself,
amount to proof of fraud or show the absence of a
bona fide debt, citing Ayers Nat. Bank v. Barber, 287
111. 182, and other cases. There is no evidence of fraud
in this case.
Appellant further insists that Appellee did not show
compliance with the Bulk Sales Act nor with the Hus-
band and Wife Statute requiring that transfers be-
tween and wife be recorded. If the property levied
upon had been any part of the property transferred
it would have been incumbent upon Appellee to have
shown and proven that the provisions of the Bulk
Sales Act were complied with but that is not the situa-
tion here because it was stipulated that all the seed
contained in the transfer of February 1, 1933, had
been entirely sold and disposed of long before the levy
was made by the Sheriff.
Page 4 Gen. Xo. 8968
The jury were instructed in narrative form as pro-
vided by tlie Civil Practice Act at the time of the trial
and Appellant objects to many of the paragraphs con-
tained in snch instruction. While the instruction is
subject to some criticism, it does not contain any sub-
stantial or prejudicial error.
Great stress is made by Ajspellant about the conduct
of counsel for the Appelle and the record contains
many discourteous and unethical remarks by the
la\\'y'ers for both sides. It is evident that the trial
Judge allowed the Attorneys to quarrel among them-
selves more than proper court room decori;m permits
but it is doubtful if the remarks of counsel are so un-
fair and lorejudicial as to influence the verdict of the
jury. We do not commend or uphold disrespectful or
rude remarks to opposing counsel in the trial of any
cause but where the facts have been quite fully pre-
sented to a jury as in this case, and where there is
evidence in the record to amply sustain the verdict,
the Court will not disturb the judgment except for
substantial error. In our opinion the judgment of the
County Court should be afSrmed.
Affirmed.
(Five pages in original opinion)
-10-36) 14 ^ga-^gMv
RESEr.VE BOOK
111. Unpublished opinions
286
77252
This reserved book is not transferable and
must not be taken from the library, except
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