text:
    C. Edward Barnett and E. G. Barnett, Trading as United Stokers Company, Appellants, v. G. R. Kennedy, Trading as Kennedy Laundry, Appellee.
    Gen. No. 9,327.
    Heard in this court at the February term, 1942.
    Opinion filed May 20, 1942.
    C. Victor Cardose, of Springfield, for appellants; Homer D. McLaren, of Springfield, of counsel.
    S. Phil Hutchison, of Springfield, for appellee; James E. Londrigan of Springfield, of counsel.
   Mr. Justice Fulton

delivered the opinion of the court.

Defendant appellee, contracted to buy from the appellants one Twin United Stoker and controls pertaining thereto. The agreed price for the purchase and complete installation was fixed at the sum of $1,672.80, to be paid as follows: $275 cash due 30 days after the installation, and five notes in the sum of $232.96 each, the first one becoming due six months after date.

A written memorandum of agreement was entered into dated April 20, 1939. Among other provisions it contained ■ the following preliminary statement: “Whereas, Party of the Second Part (Appellants) has made an engineer analysis of the adaptability of such stoker to the laundry plant, and has made a computation as to the probable consumption of coal in said plant and upon such computation is desirous of installing such stoker in said plant for a trial period of thirty days based upon the following understanding.”.

After stating the specifications of the stoker and the manner in which payments should be made, the contract was premised on the condition that installation of the stoker would save defendant 20 per cent on the coal tonnage. A 30-day trial operation was specified, dating from the date of installation and that if the installation of the stoker did not save the appellee 20 per cent on the cost of the coal, that appellants agreed to remove the stoker and restore the heating equipment to its original condition and to bear all costs of such removal.

The facts show that C. Edward Barnett, one of the appellants, solicited the sale of the Twin Stoker to the appellee, for about the period of one year before the sale was made. Appellee was in the laundry business and had tried out one stoker theretofore which failed to work. After the stokers were installed by appellants, the appellee Kennedy repeatedly complained to appellants that he could not get up sufficient steam pressure to operate his laundry and appellant made many trips to the plant endeavoring to correct the trouble. There is much conflict in the testimony but appellee testified that some 60 days after installation he gave to appellant a check for $275, and executed a conditional sales contract on the representations of appellant that his company was after him and that if ap-pellee would sign such contract, he, the appellant, would see that the stoker was made to work; that if it did not work he would remove it and return to Kennedy the $275.

The court permitted testimony as to the oral representations made by Barnett in respect to the sale of the stokers and also his promises to see that the stokers would work as provided in the contract.

A great deal of testimony was introduced showing continued difficulty with the new plant and it is quite apparent that it never worked satisfactorily and never saved anything by way of fuel consumption. Appellee knew nothing about the construction or operation of a stoker and left everything to the judgment of appellant.

In the conditional sales contract signed on July 19, 1939, there appeared the following clause: “No warranties have been made by the seller unless endorsed thereon in writing.” It is the contention of appellant that the conditional sales contract supersedes all prior negotiations and that parol evidence is inadmissible to prove an implied warranty beyond the terms of such written contract.

The appellee insists that the stoker definitely failed to perform the duties for which it was purchased and that under the circumstances of this case there was an implied warranty that the stoker was reasonably fit for the particular purpose for which it was purchased.

The case was tried before the circuit court of Sangamon county and resulted in a finding and judgment in favor of the appellee. This appeal seeks to reverse such judgment.

Chapter 121%, par. 15, sec. 1, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 121.19], provides: “Where the buyer expressly or by implication makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller’s skill or judgment (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be reasonably fit for such purpose.”

Appellee was in the laundry business. He was approached by one of the appellants who sought to sell him a Twin Stoker that would operate more efficiently than firing his boiler by hand, and after considerable urging signed a contract for the purchase of the stoker, which was subsequently installed. There is testimony by many witnesses that the stoker never worked properly. The fireman in charge of the plant stated that when hand firing he could raise the steam pressure to 100 pounds in one hour but with the new stoker it took him two hours to get 60 pounds pressure, and that the steam pressure was insufficient to operate the laundry successfully. Clinkers formed in large masses because of the intense heat in the fire box. This condition frequently caused the shearing of the pins and replacement of new ones. Other defects were testified to and not denied. The cost of coal was not reduced and Mr. Barnett, one of the appellants, was appealed to on repeated occasions to remedy the difficulties. For several months the appellee relied upon the said appellant to place the plant in good working order but finally notified him to remove the same and restore the heating plant to its original status.

The appellants made no attempt to prove that the stokers were fit for the particular purpose for which they were intended to serve but relied entirely on the conditional sales contract being a complete agreement which negatives any warranties not definitely a part of the contract because of the following clause: “No warranties have been made by the seller unless endorsed hereon in writing.” We believe the cases cited by appellants in support of their position do not apply to the present case. In Sterling-Midland Coal Co. v. Great Lakes Coal & Coke Co., 334 Ill. 281, it was stated that if the original contract purported on its face to be a complete expression of the whole agreement, it is presumed that the parties introduced info it every material item and term, and oral evidence is not admissible to add another term to the agreement about which the contract is silent. However, in the present case the conditional sales contract was no part of the original agreement, and the circumstances of the case are such that the appellee had a right to defend on the ground of an implied warranty. The court properly admitted oral testimony not for the purpose of varying the terms of the original agreement, but because it tended to establish the existence of an implied warranty of the reasonable fitness of the stoker for the particular purpose for which it was intended to serve.

Appellants knew when the sale was made for what purpose the stoker was intended. Furthermore, they were given every opportunity to remedy the defects but failed to do so.

We do not believe the appellants had a right to limit their liability by the securing of the conditional sales contract under such circumstances.

The court was fully warranted from the testimony in finding the existence of an implied warranty in this case. Lidgerwood Mfg. Co. v. S. R. H. Robinson & Son Contracting Co., 183 Ill. App. 431; Lathrop-Paulson Co. v. Perksen, 229 Ill. App. 400.

Believing the facts in this case clearly establish that the stoker definitely failed to perform the duties for which it was purchased and that by operation of law under the particular facts in this case there existed an implied warranty that the stoker was reasonably fit for the particular purpose intended, the judgment of the circuit court of Sangamon county is affirmed.

■Affirmed.


source: Caselaw Access Project

author: Mr. Justice Fulton

license: Public Domain

text:
    Frank Lorsbach et al., Appellees, v. Hartford Fire Insurance Company and Erna M. Stephens, Appellants.
    Gen. No. 9,332.

      Heard in this court at the February term, 1942.
    Opinion filed May 20, 1942.
    Williams & Williams, of Pittsfield, and Samuel Levin and Myers & Snerly, all of Chicago, for appellants.
    Weaver & Jenkins, of Pittsfield, for appellees.
   Mr. Justice Fulton

delivered the opinion of the court.

This is an appeal from an order of the circuit court of Calhoun county granting a motion to strike the petition of Erna M. Stephens which prayed for an order of court directing the plaintiffs and one Carl Cordon to answer questions propounded to them on the taking of depositions in the above entitled cause.

The original action was brought by the appellees against the appellant, Hartford Fire Insurance Company, to recover damages to property of the said ap-pellees under the terms of a fire insurance contract. After the filing of the original complaint the appellant Fire Insurance Company filed a motion to strike certain allegations of the said complaint. With the pleadings in this condition the said appellant elected to take the depositions of the four appellees and one Carl Gordon. Notices were served of the time and place of the taking of such depositions before Erna M. Stephens, a notary public. The appellant further caused the said notary public to issue subpoenas summoning said witnesses to appear and testify.

The witnesses appeared at the time and place stated and were sworn to testify but each of the witnesses refused to answer certain questions there propounded to them. Thereupon the said Erna M. Stephens filed in this cause in the circuit court of Calhoun county her petition setting out the questions which the witnesses refused to answer and praying that the court enter an order directing the said four appellees, and the said Carl Gordon to attend before her at a time and place to be fixed by the court to answer said questions and such further questions as might be pertinent and material.

The appellees entered their limited appearance and moved to strike the petition from the files' which motion on hearing was granted and an order entered striking the said petition. It is apparent from the record and the briefs of counsel that the petition was not heard upon its merits and the appellees contend that the action of the court should be sustained because :

First: The order appealed from is not a final order and the appeal should be dismissed.

It is not claimed by appellees that the appellants had no right to take said depositions nor that the said Erna M. Stephens failed to comply with the preliminary requirements of the Evidence and Depositions Act, sec. 36, ch. 51, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 107.101], in so far as issuing subpoenas or serving notices of the intention to take depositions upon the offending witnesses were concerned. In such a situation the said section 36, provides, as follows: “When any such witness wilfully neglects or refuses to obey any such subpoena, or to testify, or to subscribe his deposition when correctly taken, the commissioner or officer issuing such subpoena, shall at once file a petition or complaint against the offending witness in the Circuit Court of the County in which such deposition is desired, to be or has been taken or has been attempted to be taken and shall set forth therein the facts of such wilful refusal or neglect, accompanying the same with a copy of the commission or other authority received by nim, together with a copy of the subpoena and the return of service thereof and shall apply for an order requiring such witness to attend and testify, or produce books and papers before such commissioner or officer, or to subscribe his deposition at such time and place as may be specified in such order. Any Circuit Court of this State, or any judge thereof, either in term time or vacation, upon the filing of such petition or complaint and upon due notice to the offending witness, may, in the judicial discretion of such court or such judge, order the attendance of such witness, the production of books and papers, and the giving of testimony, before any such commissioner or officer, and the subscribing of the deposition of the witness.”

The granting of the motion to strike the petition filed by Erna M. Stephens to compel the witnesses to testify did in effect prevent the appellant Fire Insurance Company from taking depositions under the authority granted by Rule 19 of the Supreme Court. It was not a preliminary order in the pending suit but was a final determination of the proceeding brought to compel witnesses to answer questions on the taking of depositions before trial.

In the recent case of Durkin v. Hey, 376 Ill. 292, the Supreme Court had under consideration a similar question. In that case a proceeding was instituted under section 12, of the Unemployment Compensation Act, and on the motion of the plaintiff the trial court entered an order requiring the defendants to submit to inspection their general ledger and other records. The defendants moved to vacate this order, which the court denied, and the defendants prosecuted an appeal from such ruling. The appellees in that case moved to dismiss the appeal on the ground that the order denying the motion to vacate was not a final appealable order but merely interlocutory. The Supreme Court held the order a final and appealable order citing a number of federal cases where like rulings were made. Ellis v. Interstate Commerce Commission, 237 U. S. 434; Interstate Commerce Commission v. Baird, 194 U. S. 25. In the light of these holdings we believe the granting of the motion to strike the Stephens petition without any hearing on the merits was a final and appealable order.

It is further contended by the appellees that the ruling of the trial court should be sustained because Erna M. Stephens is not a party to the suit and, therefore, has no right to an appeal, and that her petition should have been filed against the offending witnesses in a separate action. They admit that appellants, in the first instance, followed the proper procedure for the taking of depositions, but insist that they did not follow the proper procedure to secure an order of court directing the witnesses to answer the questions propounded.

While this exact question does not appear to have been passed upon by the reviewing courts of this State, the same procedure of filing a petition for a rule upon offending witnesses to show cause in the original action and not in a separate action has been followed. People ex rel. Metropolitan Casualty Ins. Co. of New York v. Calumet Nat. Bank, 260 Ill. App. 603; Pennsylvania Tank Line v. Jordan, 341 Ill. 94.

Prior to the enactment of section 36 of the Evidence and Depositions Act, heretofore quoted, our courts have held that if a party has a right to take a deposition there must be power in the court to enforce the right. Hill v. Thomas B. Jeffery Co., 292 Ill. 490; Schmidt v. Cooper, 274 Ill. 243.

In the case of People ex rel. Ickes v. Rushworth, 294 Ill. 455, it was held that the power to punish for contempt is inherent in every court of justice. The petition in that case wa,s an independent action because the original case was pending in a foreign country. It is significant to notice that the appellant in that case argued that while a court had power to compel the attendance of witnesses before a commissioner appointed by the court which hears the contempt proceeding, such power did not apply to a case where the commissioner was appointed by a foreign court.

We believe that the filing of the petition in this case by Erna M. Stephens, the notary public designated to take the depositions, in the original action, was the proper procedure to be followed under the provisions of said section 36. To require such petition to be filed in an independent suit would impede and delay the power of the court to secure testimony by deposition as provided by our statute. Any other construction of section 36, would deny the right of litigants to have speedy and final determination of the substantive rights of the parties. Courts have inherent power to punish for contempt any acts calculated to obstruct or embarrass the orderly administration of justice. In the present case the petition in question was a separate, ancillary action to the main cause and properly filed therein.

The order of the trial court striking the petition is, therefore reversed and the cause remanded with directions to the circuit court of Calhoun county to hear the petition of Erna M. Stephens, on its merits.

Reversed and remanded with directions.


author: Mr. Justice Riess

text:
    Arlie Stivers, Appellant, v. Black and Company, Ap-pellee.
    Gen. No. 9,318.

      Heard in this court at the October term, 1941.
    Opinion filed May 20, 1942.
    Joseph L. Moore, of Springfield, for appellant.
    Giffin, Winning, Lindner, Newkirk & Jones, of Springfield, for appellee; Logan Giffin and Robert Brunsman, both of Springfield, of counsel.
   Mr. Justice Riess

delivered the opinion of the court.

Plaintiff appellant, Arlie Stivers, filed suit against Defendant Appellee, Black and Company, a corporation, in the circuit court of Sangamon county, Illinois, seeking recovery of damages alleged to have been sustained through the negligence of the defendant’s truck driver Andrew Gehrken, in striking and seriously injuring the plaintiff, a pedestrian, while crossing North Main street in an easterly direction with due care and caution for his own safety on a certain crosswalk located on the northerly intersecting line of Main and Green streets in the City of Decatur. Upon trial by jury, a verdict of not guilty was returned in favor of the defendant; plaintiff’s motion to set aside the verdict and grant a new trial was denied and judgment in bar of suit was entered against the plaintiff, from which judgment this appeal was taken.

The complaint charged that defendant’s truck was proceeding in a southerly direction at a speed of 45 miles per hour and failed to yield the right of way on the crosswalk to the plaintiff who was then passing over the same, in violation of the provisions of sec. 171, ch. 95%, of the Ill. Rev. Stat. [Jones Ill. Stats. Ann. 85.203], and thereby negligently struck and injured the plaintiff while so operating the truck on the left side of the highway in a negligent and unlawful manner. The defendant joined issue by denying the operation of the truck by its employee at a high and reckless rate of speed as alleged; or that it unlawfully drove on the left side of the street or failed to yield the right of way to the plaintiff as a pedestrian crossing* at a crosswalk with due care and caution; or that the injury was due to any negligence on the part of the defendant, but averred that the injury complained of, if any, was due to plaintiff’s own negligence while crossing in traffic and walking into the side of the defendant’s passing truck. Plaintiff has assigned prejudicial error on the part of the trial court in denying his motion for a new trial on the ground that the verdict was contrary to the manifest weight of the evidence, and that the court had erroneously refused to give certain indicated instructions tendered by the plaintiff and had given certain prejudicial instructions on behalf of the defendant.

It appeared from the evidence that North Main street in the City of Decatur was also the route of a State and Federal improved concrete highway; that as plaintiff stepped off the curb, he noticed an oncoming car about 250 feet north of him; that when at the center of the street, he saw defendant’s truck coming south around the left side of another truck at a speed estimated at 45 miles per hour, which struck him at a point 10 or 15 feet from the east curb towards which he was advancing; that no warning signal was given by the defendant’s truck driver. Defendant’s testimony tended to show that the truck driver, driving 20 to 25 miles per hour, blew the horn and swerved to the left and the plaintiff walked east between two other cars and was seen coming from in front of one of them by the driver of the truck when 10 feet distant, when the driver swerved to the left and heard a thud néar the rear of his truck and thereupon stopped on the intersection and returned where he found the injured plaintiff on the highway. Both plaintiff and the truck driver were corroborated in their respective contentions by certain other witnesses.

In view of the conflict in the testimony, plaintiff contends that accurate instructions should have been given to the jury and insists that the verdict was contrary to the manifest weight of the evidence. While the testimony as to what occurred at and immediately before the defendant was injured was conflicting, we do not deem the verdict to have been contrary to the manifest weight of the evidence. It, therefore, only remains for us to determine whether or not the instructions fairly and substantially stated the law upon the issues joined and submitted to the jury in a manner as not to be prejudicial to the plaintiff as contended by him.

Plaintiff insists that the trial court erred in its refusal to give the jury its instructions numbered 13, 14 and 16. Instruction No. 13 gave the language of sec. Ill of ch. 95% of Ill. Rev. Stat. [Jones Ill. Stats. Ann. 85.143], defining a crosswalk, which instruction, by its terms, was abstract in form and was not made applicable to the facts, and was, therefore, properly refused as tending to confuse the jury. Burke v. Zwick, 299 Ill. App. 558, 562, 20 N. E. (2d) 912; Williams v. Stearns, 256 Ill. App. 425.

Plaintiff’s refused instruction No. 14 quotes the language of paragraphs A and B of sec. 171, ch. 951/2, of Ill. Rev. Stat. [Jones Ill. Stats. Ann. 85.203], reciting various duties of motor vehicle drivers upon approaching crosswalks, including slowing down, stopping or passing, yielding the right of way to pedestrians upon marked or unmarked crosswalks at intersections, and in approaching or passing other stopped vehicles at any such crosswalks. The instruction then directs a verdict if the jury believes that the driver of the truck “disregarded the provisions of the above Statute, and that as a direct and proximate result of said disregard the plaintiff was injured, etc.,” and concludes that if the jury find that the “plaintiff was exercising due care and caution for his own safety, then you are instructed to find the defendant guilty.” This instruction makes no reference to the particular charges of alleged negligence in the complaint, but directs in effect that a disregard of any of the provisions of said statute is negligence per se and that a verdict be returned for plaintiff. An instruction which directs a verdict and authorizes recovery generally, without limiting negligence to that charged in the complaint or reference thereto, is reversible error. Rasmussen v. Wiley, 312 Ill. App. 404, 408 and citations, 39 N. E. (2d) 57. This court has also repeatedly held that the mere failure to perform a statutory duty would "not constitute negligence per se; that failure to perform a statutory duty may be negligence if the circumstances under which the failure to observe the statute indicate any neglect of duty, but that mere failure to perform a statutory duty may not be negligence. Brachett v. Builders Lumber Co. of Decatur, 253 Ill. App. 107, 112; Burhe v. Zwick, supra. The rule, supported by the weight of authority in Illinois is that the violation of an ordinance or a statute, by acts, either of commission or omission, is only prima facia evidence of negligence. Miller v. Burch, 254 Ill. App. 387.

Plaintiff’s refused instruction No. 16 stated in substance that if the driver of defendant’s truck, “by using his faculties with ordinary and reasonable care in looking out for danger, could have avoided the accident, if any, and that he negligently failed to do so, and that such negligence on his part, if any, as shown by the evidence, was the proximate cause of the injury, then you should find the defendant guilty, provided such negligence is alleged in the complaint, or some count thereof, as explained in these instructions, and proved by a preponderance of the evidence and that plaintiff was exercising reasonable care and caution for his own safety.” This instruction leaves it to the jury to determine what charges of negligence are set forth in the complaint or some count thereof, although the complaint does not go to the jury, nor do any other instructions set forth the charges alleged in the counts of the complaint, and then directs the jury to return a verdict for the plaintiff without undertaking to set forth the material allegations of any count. It has been frequently held by our courts of review that it ia the province of the court to define the issues to the jury in the instructions without referring the jury to the pleadings to ascertain what they are. Bernier v. Illinois Central R. Co., 296 Ill. 464, 472,129 N. E. 747; McFarlane v. Chicago City Ry. Co., 288 Ill. 476, 123 N. E. 638; Randall Dairy Co. v. Pevely Dairy Co., 274 Ill. App. 474, 486.

The trial court committed no error in its refusal to give plaintiff’s instructions Nos. 13, 14 and 16 in the form in which they were submitted. Furthermore, a party cannot complain that the court has not given an instruction containing a correct statement of the law and applying same to facts in evidence, unless a proper instruction or instructions have been prepared and tendered by the party for that purpose. Osgood v. SJcinner, 211 Ill. 229, 240, 241, 71 N. E. 869; Drury v. Connell, 177 Ill. 43, 52 N. E. 368; Potter v. Chicago M. & St. P. Ry. Co., 208 Ill. App. 363, 374.

Plaintiff further contends that instructions numbered 3, 6 and 12 given on behalf of defendant, were erroneous and prejudicial.

Instruction No. 3 is a stock form of instruction frequently given in negligence cases and in this instance it tells the jury that before the plaintiff can recover, he must prove, by a preponderance or greater iveight of the evidence:

1. " That the defendant by its agent or servant was guilty of negligently operating its truck at the time and upon the occasion of the collision in volved;

2. That such negligence, if any, was the proximate cause of the injury to the plaintiff, if any be proved;

3. That at the time and upon the occasion of such collision, the plaintiff was in th§ exercise of due care and caution for his own safety as set forth and defined in the instructions, and unless the plaintiff proves all of said elements, then they should find the defendant not guilty.

The material allegations of the complaint, which charged negligence, specifically set forth the above three elements of the plaintiff’s alleged cause of action, all of which it became necessary for the plaintiff to prove by a. preponderance of the evidence in order to sustain his cause of action. An instruction embodying the above elements of the plaintiff’s cause of action in negligence cases has been frequently approved by courts of review of this State. Illinois Cent. R. Co. v. Oswald, 338 Ill. 270, 170 N. E. 247; Chicago Union Traction Co. v. Mee, 218 Ill. 9, 75 N. E. 800; Chicago City Ry. Co. v. O’Donnell, 208 Ill. 267, 70 N. E. 294, 477; Gordon v. Current, 263 Ill. App. 435.

In Devine v. Northwestern Elevated R. Co., 265 Ill. 641, 107 N. E. 118, appellant, as here, complained of an instruction which told the jury, among other things, that in order to find a verdict for appellant they must believe, from the evidence, that the deceased was in the exercise of “due and proper care and caution for her own safety, as defined in these instructions, at and just before the time of the accident complained of.” The Supreme Court commented as follows: “The argument especially criticises the using of the words ‘due and proper care and caution’ without defining what those words mean, counsel insisting that the jury might be misled as to their meaning unless further defined. With this we cannot agree. The words are not technical. They are in common use. To require the definition of all words or expressions used in instructions would often tend to confuse rather than aid the jury.” The court then refers to the case of Schmidt v. Sinnott, 103 Ill. 160, wherein it was held that the use of the words “due and proper care” were not misleading. Counsel in this case contend that the language “due care and caution for his own safety, as set forth and defined in these instructions, ’ ’ was prejudicial in that it referred to another instruction while directing a verdict which required that all elements be stated in the instructions given. It may be noted that in the Devine case, supra, the language there complained of also read “due and proper care and caution for her own safety, as defined in these instructions,” and it was there held that the jury could not be misled as to their meaning although not further defined. The rule of law as to what constitutes contributory negligence was fully covered by other instructions. We hold that the plaintiff could not have been prejudiced by the giving of this instruction.

Given instruction No. 6 was a similar stock instruction stating that “The plaintiff is required by law to prove his case by the greater weight or preponderanee of the evidence before he can recover, and if the plaintiff has not so proven his case, or if the evidence is evenly balanced so that the jury are unable to say on which side is the greater weight of the evidence, or if the greater weight' of the evidence is in favor of the defendant, then in either such case your verdict should be in favor of the defendant.” This instruction does not fall within the class of cases cited by appellant wherein this court and the Supreme Court have criticised the use of the qualifying phrase “preponderates although but slightly,” which is justly condemned as minimizing the requirement that plaintiff must prove his case by a preponderance of the evidence. The law, as stated in the above instruction, has been approved by the Supreme Court in Koshinski v. Illinois Steel Co., 231 Ill. 198, 83 N. E. 149; Chicago City Ry. Co. v. Nelson, 215 Ill. 436, 74 N. E. 458; Vischer v. Northwestern Elevated R. Co., 256 Ill. 572, 100 N. E. 270; Barretta v. Chicago Rys. Co., 214 Ill. App. 455. An identical instruction was approved by this court in the recent case of Stollery v. Sprague, 301 Ill. App. 209, 22 N. E. (2d) 276, wherein the court said at page 215 that “Instruction 10 also was a stock instruction to the effect that plaintiff must prove her case by a preponderance of the evidence; that if the evidence was evenly balanced or preponderated in favor of defendants, the verdict should be not guilty,” and concluded that “obviously this instruction was proper.”

In defendant’s given instruction No. 11, the court instructs the jury that there is no presumption of negligence arising against the defendant Black and Company from the fact in and of itself that Arlie Stivers may have received some injuries. Somewhat similar instructions have been criticised by our courts. However, in the cases cited by appellant, it will be noted that the term “accident” is used and we hold that when considered with all the other instructions in this case the instruction was not prejudicial. In the case of Martini v. Donk Bros. Coal & Coke Co., 169 Ill. App. 139, it was held that an instruction did not constitute prejudicial or reversible error, which read that “The jury were not to say that the defendant Company was negligent solely because the plaintiff was injured, etc.” We find no prejudicial or reversible error in the instructions, given or refused, and since the evidence in the case was of such nature that the controverted questions of fact, and the credibility of the witnesses were matters peculiarly within the province of the jury to determine, we cannot say from the record herein that the verdict was contrary to the manifest weight of the evidence. The judgment of the circuit court of Sangamon county will be affirmed.

Judgment affirmed.


author: Mr. Presiding Justice McSurely

text:
    William Roger McEathron, Minor, by Mable McEathron, Mother and Next Friend, Appellant, v. Township of Worth et al., Defendants. Township of Worth and Mrs. Elmer Litke, Appellees.
    Gen. No. 41,916.

      Heard in the first division of this court for the first district at the February term, 1942.
    Opinion filed June 1, 1942.
    Soll J. Schnitz, of Chicago, for appellant.
    Erwin W. Roemer and Klenk & Klein, all of Chicago, for certain appellee.
    Klenk & Klein, of Chicago, for certain other ap-pellee.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

The principal question presented by this appeal is whether a township is, in the absence of statute, exempt from tort liability.

Plaintiff, a minor, brought suit to recover damages because of an attractive nuisance said to be maintained by defendants. The complaint alleged that in July 1936 the Township of Worth, one of the defendants, through its agents leased and controlled a certain lot in the township which was vacant and unfenced and adjacent to the streets; that it kept stored there various sorts of road machinery and highway equipment ; that it knew that minor children would naturally be attracted to such machinery and could be seriously injured; that plaintiff, of the age of 5 years, was seriously injured while playing on the machinery. The complaint also alleged that the defendant Mrs. Elmer Litke was the owner of the lot and violated her duty in permitting the attractive nuisance on her premises.

A motion to dismiss was filed on behalf of all the defendants, which was sustained as to the Township of Worth and Mrs. Elmer Litke, and plaintiff appeals from this order. The motion to dismiss as to defendant Dan Crandall, individually and as highway commissioner, was overruled.

Plaintiff argues that the theory of nonliability of a quasi-municipal corporation, like the township here, arose from an old English case decided in 1789 (Russell v. Men of Devon, K. B. 100 Eng. Rep. 359); that the exemption of the defendant in that case was predicated upon the fact that defendant, Men of Devon, had no authority to collect taxes to make the repairs to a defective bridge which was the occasion of plaintiff’s injuries. Plaintiff here argues at some length that the rule in that case has been abandoned or changed by later decisions in our various courts.

Examination of our statutes and of the decisions leads to the conclusion that the highway commissioner, Dan Crandall, is the only one of the defendants who must defend this tort action.

Section 42 of the Boads and Bridges Act (ch. 121, par. 48, approved June 27, 1913 [Jones Ill. Stats. Ann. 120.050]) creates the office of township highway commissioner, and he has been held to be a statutory officer, Euziere v. Highway Commissioner, 346 Ill. 131. Section 50 of this Act [Jones Ill. Stats. Ann. 120.058] vests in the commissioner the power and imposes upon him the duty to construct, repair and maintain roads and highways within the township and to determine the amount of taxes necessary to be levied for these purposes. There is also a provision that the highway commissioner shall direct the expenditure of all moneys collected for road and bridge purposes ; shall, let contracts for labor or the purchase of material and machinery and “To take possession of and keep under shelter, when not in use, all scrapers, plows and other tools belonging to the town or district wherever the same may be found and not allow the same to go to waste. . .”

With reference to taxes, section 56 of this Act [Jones Ill. Stats. Ann. 120.066] requires that the commissioner shall determine the amount necessary to be raised by taxation for maintenance and repairs of roads and bridges and certify that amount to the board of county commissioners, and if this is approved by the county board, or so much as the board shall approve, shall be extended by the county clerk as taxes against the taxable property of the township.

The act clearly gives' the commissioner exclusive control over the roads and highways of his township, and the machinery and equipment used in that connection. He is not required to obtain the consent or concurrence of other township officials. In the present case the commissioner had exclusive control and charge of the road machinery and equipment on which plaintiff is alleged to have been injured, so that whatever negligence there may have been in connection with it was not the negligence of the township.

Under par. 3 of sec. 3, art. 4 of the Township Act, approved March 4,1874 (ch. 139, par. 39, Ill. Rev. Stat. 1941) the electors present at the annual town meeting were given the power to direct the raising of money by taxation for repairing roads. But in Robinson v. McKenney, 239 Ill. 343, 349, the court had under consideration the effect of the later Roads and Bridges Act, which was approved June 27, 1913, on the prior Township Act. In that case the electors of a township undertook to levy road and bridge taxes and it was argued that they had concurrent jurisdiction with the highway commissioner to levy such taxes. The court held to the contrary, saying that the sole taxing authority was the highway commissioner. In Roumbos v. City of Chicago, 332 Ill. 70, 75, is an extended discussion of township liability. It was there said that municipal corporations, such as villages, towns and cities, which are incorporated by special charters or voluntarily organized under general laws, are liable in tort actions, but that the rule is otherwise with public “involuntary quasi corporations . . . These latter, — such as counties, townships, school districts, road districts and other similar quasi corporations,— exist under general laws of the State, which apportion its territory into local subdivisions for the purposes of civil and governmental administration, and impose upon the people residing in said several subdivisions precise and limited public duties and clothe them with restricted corporate functions co-extensive with the duties devolved upon them. In such organizations the duties, and their correlative powers, are assumed in invitum, and there is no responsibility to respond in damages, in a civil action, for neglect in the performance of duties unless such action is given by statute.”

In County of Cook v. City of Chicago, 311 Ill. 234, 239, the same distinction is made between the ordinary municipal corporation voluntarily organized or under charters issued by the State, and quasi municipal corporations such as townships; that the latter are but local organizations created “without the consent of the inhabitants thereof, for the purpose of the civil and political administration of government . , .” In other words they are “local subdivisions of the State created by the sovereign power of the State of its own will, without regard to the wishes of the people inhabiting them.” And “township organizations are created in this State with a view to aid in carrying out the policy of the State at large for the administration of matters of political government, . . . The powers and functions of county and township organizations, therefore, as distinguished from municipal corporations, have a direct and exclusive bearing on and reference to the general, rather than local, policy of government of the State.” This is supported by 1 Dillon on Mun. Corp. (4th Ed.) § 23, and a number of decided cases in this and other States. One of the leading cases outside of this State is Hill v. Boston, 122 Mass. 344, where most of the cases reported in this country and England are analyzed, and the opinion concludes that both upon reason and authority a township is not liable in a tort action, except under a statute expressly or by necessary implication giving such a remedy.

It should be borne in mind that under article 1 of the Township Act of'1874 the voters of a particular locality do not decide whether they shall have a township organization of their locality, but if 50 or more voters of the entiré county petition, the question of the organization of the township is-'submitted to all of the voters in the county and a majority of these decide. Thus, a township may be created regardless of whether the inhabitants of that particular locality favor the establishment of a township, and if the inhabitants of a township so voted neglect or refuse to have officers, the county board may" elect or appoint such necessary officers until their successors are elected or appointed. (Ch. 139, par. 17, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 133.017].)

Almost all of the opinions in the cases from this jurisdiction and also in other States describe township organizations as having exclusive reference to the general policy of the government of the State and therefore partake of the immunity from such actions enjoyed by the State. The conclusion of the trial court in dismissing the Township of Worth as a party defendant was proper.

Plaintiff’s amended complaint did not allege that Mrs. Elmer Litke, defendant, retained or had possession or control of the premises where the machinery was stored. It is argued that as she lived close by the premises she must have seen little children playing on the machinery and known that an attractive nuisance was being maintained. We know of no rule which requires a landlord to supervise premises which he has leased so as to prevent negligence by his tenant. Weston v. Hicks, 203 Ill. App. 491; Miller v. McElin, 208 Ill. App. 605; West Chicago Masonic Ass’n v. Cohn, 192 Ill. 210, 218. The order dismissing as to defendant Mrs. Elmer Litke was also proper.

The reply brief (page 20) has added another to the “barbarisms” which this court has emphatically condemned. Tarjan for use of Lefkow v. National Surety Co., 268 Ill. App. 232, 240. Some of these “abominations” are found in City Nat. Bank & Trust Co. v. Davis Hotel Corp., 280 Ill. App. 247, 252-253, lead by the notorious “and/or.” To these the reply brief adds “for/to.” This freak, appearing twice in one short paragraph, makes the meaning doubly obscure.

For the reasons above indicated the orders of the trial court are affirmed.

Affirmed.

Matchett and O’Connor, JJ., concur.


text:
    Dunwoody and Company, Appellee, v. J. S. Washington and Ida Davis, Defendants. Appeal by J. S. Washington, Appellant
    Gen. No. 41,962.
    Heard in the first division of this court for the first district at the October term, 1941.
    Opinion filed June 1, 1942.
    George B. Holmes, of Chicago, for appellant.
    C. Jerome Bisesi, of Chicago, for appellee.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Defendant J. S. Washington appeals from that portion of a judgment entered in the above entitled canse which ordered the issuance of a capias against him.

The action was originally against Ida Davis, alone, upon a promissory note, and judgment was rendered against her by confession on February 15, 1940; subsequently, January 10,1941, on motion of plaintiff this judgment was vacated and leave was granted to change the form of action from contract to tort and to make J. S. Washington an additional party defendant.

March 22, 1941 an amended statement of claim was filed; May 29 an order was entered finding Washington in default and the case was set down for trial on the same day before a jury, which, in answer to an interrogatory as to whether malice was the gist of the action, returned an answer, irregular in form, but which might he construed as in the affirmative. On the same day the court entered an order that plaintiff have judgment on the verdict and recover from defendant Washington damages of $560, and concludes, “ . . . and that execution issue therefor, and that body execution issue against defendant.” Motion to vacate the judgment was denied and defendant Washington appeals from that part of the judgment ordering body execution against him.

There are at least two reasons why this appeal must prevail. In plaintiff’s statement of claim there is no prayer for a writ of capias. In Kryl v. Zelezny, 290 Ill. App. 599 (Abst.), the judgment was reversed for the reason that the complaint did not ask for a finding that malice was the gist of the action, and therefore the court was without jurisdiction to enter such an order.

The other reason is that in Ingalls v. Raklios, 373 Ill. 404, our Supreme Court held that before an execution for the body of the defendant shall issue, the judgment must show on its face that malice was the gist of the action. The instant judgment fails to show this.

While the appeal was pending in this court and the record and defendant’s brief filed, plaintiff on November 12,1941 secured from the trial court an order purporting to amend, mine pro tunc, the judgment entered May 29, 1941 by inserting a finding that “malice is the gist of the action.” This order is void for many reasons — principally because when the appeal to this court was perfected, any further proceedings by the trial court were barred. Hohenadel v. Steele, 237 Ill. 229.

That part of the judgment of May 29, 1941 which ordered that body execution issue against the defendant, is reversed.

Reversed in part.

Matchett and O’Connor, JJ., concur.


author: Mr. Presiding Justice McSurely Mr. Justice Matohett

text:
    B. F. Hirsch, Inc., Appellant, v. C. T. Gustafson Company, Inc., and J. J. Broucek, Defendants. J. J. Broucek, Appellee.
    Gen. No. 42,004.
    Heard in the first division of this court for the first district at the October term, 1941.
    Opinion filed June 1, 1942.
    Lane & Jacobson, of Chicago, for appellant; William E. Lane and Albert Schwartz, both of Chicago, of counsel.

      Goldman, Allshouse & Healy, of Chicago, for appellees ; Robert G. Dreffein and F. V. Healy, both, of Chicago, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Plaintiff, a New York jewelry concern, sent to the Lewy & Goodman Co., Chicago, manufacturer’s representative who had represented plaintiff for many years,- certain items of jewelry to be sold; Lewy & Goodman Co. delivered these items to defendants, who are jobbers in the jewelry business, to be sold; the items were delivered to defendant Broucek, who initialed the written memoranda accompanying the delivery indicating the character of the transaction; Broucek took the jewelry in his automobile to Detroit, and plaintiff charges that while there he so carelessly and negligently handled it that it was stolen and lost. The action was to recover the value of this jewelry.

Upon trial by the court judgment was entered against the Gustafson Co. for $2,885, but defendant Broucek was found not guilty. Plaintiff appeals from the judgment in favor of Broucek.

In a statement made by Broucek in connection with the theft of the jewelry he said that he operated as a wholesale jeweler, with offices in Chicago, under the trade name of C. T. Gustafson Co., an Ulinois corporation. This is another case of doing business under what is generally known as a “corporate veil.”

It is admitted that Broucek took the jewelry to Detroit in his automobile, arriving in the evening; that he parked the automobile in a parldng lot, covered the grips containing the jewelry with a blanket, left them there and, locking the car, went to a hotel; the following morning he discovered that his car had been broken into and the grips in which the jewelry was carried were gone; he went to the office of the hotel, reported the robbery and asked them to call a police officer. At the time he parked his ear he was given a receipt which read: “We assume no responsibility for articles left in cars. No attendant has authority to accept responsibility therefor in behalf of company. No attendant after parking hours.”

That Broucek was negligent in thus leaving these valuable articles in his car all night long, with no attendant, is amply proven, and it does not seem to be seriously contended to the contrary.

The defense asserted is that these goods were delivered to Gustafson Co. under agreement “on sale or return,” by which Gustafson Co. took title to the jewelry. The memoranda accompanying the delivery of the jewelry do not support this defense. Section 18 of the Sales Act (ch. 121%, par. 18, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 121.22]) provides that the title to property so delivered is according to the intention of the parties, and that for the purpose of ascertaining this intention “regard should be had to the terms of the contract” and the circumstances of the case. Section 19 states certain rules for ascertaining the intention of the parties as to the time at which the property in the goods passes to the buyer. Rule 3 provides that when goods are delivered to the buyer “on sale or return,” or on other terms indicating an intention to make a present sale, the property under such circumstances passes to the buyer on delivery.

These rules have no application to the memoranda before us. These recite the delivery by Lewy & Goodman Co. of the items of jewelry, with the prices, and the following words: “The goods described below remain our property and subject to our order and shall be returned to us on demand. Held at your risk.” And at the bottom of each memorandum are the words, “Prices subject to change without notice.” This clearly indicates an intention of Lewy & Goodman Co. that the title to the goods shall remain in it and that the items shall be returned to it on demand.

The trial court was of the opinion that the delivery of the goods constituted a contract of sale or return and not a bailment, hence, as the goods were not returned, plaintiff was entitled to judgment against Gustafson as if the action were in assumpsit, but not against Broucek, who was said to be an employee of Gustafson Co. Apparently the trial court followed People v. Feldstein, 273 Ill. App. 47, where it was held the consignments of jewelry to Feldstein were not bailments but contracts of sale or return. That case was a criminal prosecution and there was evidence that Feldstein pawned the goods in accordance with a common practice of a vendee, by this means raising the money to pay for them, thus showing an intention to keep them. Moreover, the president of the consigning company testified that he had several notes given in payment for the diamonds, and would not say that he had not received these notes from Feldstein in payment for the diamonds described in the consignment.

That is not this case. Here is an action based upon the negligent acts of Broucek, which permitted the jewelry to be stolen. It cannot be said Broucek’s negligence in this respect was the exercise of any acts of ownership. Moreover, it is well established that in an action for the recovery of damages, both the employer and the employee whose negligence while in the line of his employment caused the damage, may be sued and held liable. Broucek in the statement by him in connection with the theft, said that plaintiff was the owner of the property stolen. He did not claim that title passed from plaintiff upon delivery of the jewelry to him.

We hold that defendant Broucek, as well as Gustaf-son Co., should have been held guilty on the issue of negligence as bailees, and that judgment should be entered against Broucek for $2,885, plus interest thereon at 5 per cent per annum from March 17, 1941, to date, or $3,059.30.

Judgment as to Broucek reversed and judgment entered in this court against him for $2,885, with interest at 5 per cent per annum from March 17, 1941.

O’Connor, J., concurs.

Mr. Justice Matohett

specially concurs. I concur in this result, with some doubt on the theory that the manifest intention of the parties, of which Broucek knew, was that title should remain in plaintiff. As between the parties why should that intention not prevail and control?

Technically, I do not doubt the transactions were “on sale or return” and that as between plaintiff and third parties, plaintiff could not be heard to say title did not pass. This case is not distinguishable from the Feldstein case except in the fact that there a criminal prosecution was based on the transaction.


text:
    Lucille Seeder, Appellant, v. George N. Zoros, Appellee.
    Gen. No. 42,025.

      Heard in the first division of this court for the first district at the October term, 1941.
    Opinion filed June 1, 1942.
    Harold L. Eisenstein, of Chicago, for appellant; Abner Goldenson and Carl B. Aplon, both of Chicago, of counsel.
    Lord, Bissell & Kadyk, of Chicago, for appellee; L. Duncan Lloyd and Theodore C. Diller, both of Chicago, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Plaintiff sought to recover from defendant, as bailee, $1,500, the value of a mink coat which she had delivered to him for storage and repairs and which he failed to return on demand. Defendant filed an amended motion to dismiss the complaint and plaintiff filed counter-affidavits. After considering the respective affidavits the court sustained defendant’s motion and dismissed the cause. Plaintiff subsequently moved to have this order vacated, which was denied, and she appeals.

In this court she asks that both these orders of the circuit court be reversed and the cause remanded with directions to the court to hear and determine disputed questions of fact.

Defendant’s affidavit in support of his motion to dismiss alleged that he was a furrier, in the business in Chicago for many years; that plaintiff delivered to him at his place of business a mink fur coat for the purpose of ascertaining whether its color could be changed; that afterwards, while he was exercising due care and caution for its safety it disappeared, presumably having been stolen; that immediately he notified plaintiff about this and she advised him that the coat was covered by an insurance policy issued by the Northern Assurance Company; that shortly thereafter a Mr. Fabans, an agent of the insurance company, called on defendant and requested him to cooperate in furnishing plaintiff with a new coat to replace the missing one. Defendant then offered to make a mink fur coat greatly superior to the original one, for $1,200 — the designing and supervising of its construction and the foregoing of all profit on the new coat to be contributed by defendant to the replacement of the lost coat. To this the agent of the insurance company assented.

The crux of the controversy is the next paragraph of defendant’s affidavit, which is as follows: “8. Thereafter defendant did make a new full length mink fur coat of a current market value of approximately $2000.00, being greatly superior to the original coat in quality and of much greater value, and on or about November 29, 1940, the defendant delivered said new fur coat tu the plaintiff who accepted said new coat and stated that it was much finer and more valuable than the original coat and that she was completely satisfied with it.” The affidavit then alleges that the insurance company issued its check for $1,236, representing the $1,200 which it agreed to pay, and $36 representing the 3 per cent occupational tax, which check was payable to both plaintiff and defendant. It was indorsed by both and paid to the defendant.

The first counter-affidavit of plaintiff was by S. B. Fabans, which denied in general terms that he ever had any conversation or agreement with the defendant concerning the coat. There was also an affidavit by Anton Drabik asserting that he was an employee of the Marine Survey & Adjustment Co., and that he and L. M. Fellows, investigated for the Northern Assurance Company the disappearance of the coat from the premises of the defendant; that they had numerous conferences and conversations with defendant relative to this, and negotiated for the purchase of a mink coat to be made by defendant to the satisfaction of plaintiff. Drabik denied that either he; or Fellows accepted defendant’s offer to make a new fur coat superior to the original coat at the cost of $1,200. It also stated that defendant did make a new coat for plaintiff and delivered it to her, but asserted that defendant received payment from her for the new coat.

Plaintiff argues that the denial by Fabans that he negotiated with defendant raised an issue of fact upon which the court should have heard evidence. We do not think this is important. Apparently plaintiff made a mistake only as to the name of the insurance agent, which was Fellows instead of Fabans, for the counter-affidavit admits that the insurance agent Fellows, with Drabik, negotiated with the defendant. There was no dispute of defendant’s averment that he delivered a new mink coat worth $2,000 to plaintiff, who accepted it stating that she was “completely satisfied with it.”

In her complaint plaintiff placed a maximum value of $1,500 on the coat which was lost. In Neal v. Sandley, 116 Ill. 418, 423, it was held that payment of a lesser sum is not a satisfaction of a greater sum, but if the claimant receives something of greater value it will be held to be in satisfaction, otherwise the plaintiff would not have accepted it. See also Kaufman v. Sorrels, 164 Ill. App. 324. And in 6 Williston on Contracts (Rev. Ed.) § 1855, the author says: “If the parties are dealing orally with one another and the debtor offers the creditor a check in full satisfaction which the creditor takes, it must be inferred that he assents to the terms.” In the instant case, regardless of any negotiations with the agent of the Northern Assurance Company, when plaintiff accepted the new coat from defendant and expressed herself as completely satisfied with it, she automatically released her claim against defendant for the loss of the old coat.

It appears in the motion to vacate the judgment that this suit was brought for the benefit of the Northern Assurance Company, which had insured plaintiff. This company has no greater right than the plaintiff, and if plaintiff has released her claim, any claim of the insurance company is also released. Platt v. Richmond, Y. R. & C. R. Co., 108 N. Y. 358.

Plaintiff’s brief argues that she paid for the new coat when the defendant received payment on the insurance company’s check for $1,236. The check was payable to both plaintiff and defendant and neither could collect without the indorsement of both. Hoffman v. First National Bank, 299 Ill. App. 290. When the check was issued plaintiff had received a new coat and had released all claims against defendant. Apparently the inclusion of her name in the check was for the purpose of obtaining her release from the liability of the insurance company. The fact that the check was made payable to defendant also, who received payment, confirms the averment in his affidavit that the insurance company agreed to pay him $1,200 toward the cost of the new coat.

Apparently this suit on behalf of the insurance company is an attempt by it to minimize the amount of its liability to plaintiff under its policy. If it should prevail it would not only recoup the amount of its check— $1,236, but have a profit of the difference between this amount and $1,500, recovered from defendant. This cannot be.

Plaintiff might have had an enforceable claim against the insurance company and also her claim against the defendant. Byalos v. Matheson, 243 Ill. App. 60 (affirmed in 328 Ill. 269). But it does not follow that the insurance company has any claim against the defendant, especially after plaintiff’s claim against defendant has been released. There were no contractual relations between the insurance company and the defendant.

We hold that the action of the trial court in dismissing the complaint, and the order denying plaintiff’s motion to vacate this order, were proper, and they are affirmed.

Affirmed.

Hatchett and O’Connor, JJ., concur.


author: Mr. Justice Matchett

text:
    Leo A. Ryan, Administrator of Estate of Chauncey Esch, Deceased, Appellant, v. Chicago and Northwestern Railway Company, Appellee.
    Gen. No. 42,012.

      Heard in the first division of this court for the first district at the October term, 1941.
    Opinion filed June 1, 1942.
    Ryan, Condon & Livingston, of Chicago, for appellant ; John M. Tuohy, of Chicago, of counsel.
    Nelson J. Wilcox and I. C. Belden, both of Chicago, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.

Plaintiff administrator sued for damages under the statute because of alleged negligence of the defendant railway, through which the decedent lost his life. The complaint averred that defendant, on January 21, 1938, was in possession and control and was operating a steam railroad system on a right-of-way in Oak Park in Cook county, Illinois; that plaintiff’s decedent was a police officer employed by the village of Oak Park and a few moments before the occurrence complained of, in pursuance of his duties, apprehended a prisoner he had detected in the commission of a crime and placed him under arrest upon defendant’s right-of-way, and was walking with the prisoner in an easterly direction along a portion of defendant’s premises used by defendant in boarding and discharging passengers ; that while in the exercise of due care, the train of defendant struck him, causing injuries from which he died.

The original complaint described negligence of the defendant, which it averred was wilful and wanton.

The complaint was afterwards amended, and defendant answered admitting possession, control and operation of the steam railroad system at the time and place in question; that the decedent was a police officer and was struck and killed by a locomotive of defendant, but denied decedent was in the exercise of ordinary care or the defendant guilty of any negligence. By leave of court plaintiff afterwards filed an additional count in which he set up the same facts but alleged negligence without averring that it was wanton or wilful.

The cause was tried before a jury. At the conclusion of plaintiff’s evidence the court, on motion of defendant, instructed a verdict for defendant and entered judgment on it, from which plaintiff appeals.

The question for decision is whether the evidence (giving to plaintiff the benefit of all facts proved and all just inferences therefrom) presented an issue of fact which should have been submitted to the jury. Pollard v. Broadway Central Hotel Corp., 353 Ill. 312; Blumb v. Getz, 366 Ill. 273, and Emge v. Illinois Cent. R. Co., 297 Ill. App. 344.

Before ruling on the motion to direct a verdict the court struck certain testimony given by Loyal Wilcox as to the customary use the defendant made of the space on which deceased walked when hit. Two exhibits (pictures intended to illustrate this testimony) were not admitted in evidence. Defendant states it has no objection to treating this stricken testimony and these two exhibits as if in evidence. So considered, there was evidence from which the jury might reasonably have inferred the following facts.

The accident in which Esch, the deceased, lost his life occurred about 6:30 p.m., January 21, 1938, on the right-of-way of defendant in Oak Park, near the intersection of Marion street and North Boulevard. Marion street runs north and south; North Boulevard east and west. Defendant’s tracks- at the place where the accident occurred rests on an elevation about 15 feet above the ground. Steps lead from the ground below to the station and platform connected with it, which are located on the north side of the elevation near the intersection and on defendant’s right-of-way. The west boundary of the platform of the station was at a point where Marion street passed under the railroad tracks. There was an underpass on the street running under the tracks. The underpass was about 66 feet wide, designed for vehicular and pedestrian traffic. At the west end of the platform was an iron railing extending the entire width of the platform and west of the platform over the top of the underpass to a point west of where the accident occurred. At this place five tracks of defendant ran generally in an east and west direction over the right-of-way. The north track was used for eastbound traffic. Between the north rail of the most northerly track and the guard rail at the top of and on the north side of the elevated structure was a space of ground about 6 feet wide.

Decedent was an Oak Park policeman on duty at this intersection. A culprit from Sterling snatched the purse of a lady on the street and ran. She cried out; others cried out, and the culprit ran. Esch pursued him. He ran up the steps leading to defendant’s depot, then back of the tracks toward the west, with the officer in hot pursuit. - The culprit ran southwesterly about 400 feet west of the west line of the platform and passed from the north to the south of the five tracks. The officer fired his revolver, called the fugitive to halt, which he did, and the officer arrested him. The officer then started to walk his prisoner north across the tracks. It was noticed the culprit had lost his hat. They went back together and got it. They then walked north to the space of ground between the north rail of the north track and the guard rail on the elevation, then walked east, side by side, the prisoner near the guard rail, the officer near to the north rail of the north track. At a point about 107 feet west of the west edge of the station platform the officer, Esch, was struck by the rear or lead car of defendant’s train of empty cars, which was backing up from Elmhurst (a village about 16 miles west) to defendant’s yards at California avenue in Chicago, about 6 miles east of Oak Park. The evidence tends to show the train was backing at a speed of about 30 miles per hour. The train consisted of five empty coaches. Decedent was struck by the step on the northeast step of the lead coach and thrown under the train, which came to a stop 440 feet from the point of impact. Decedent’s legs were severed from the body, the body itself thrown north on the north rail of the eastbound track. The body was found impinged under the engine at a point directly beneath the cab. Deceased was taken to the hospital, where he died that night.

This train was in charge of defendant’s brakeman, Frank Kane, who lived in West Chicago. He was in the front coach which was a roller bearing type coach and would seat about 90 passengers. The vestibule of this coach was a regular coach platform, and on the end of it wás a tail gate and tailboard. The train was not scheduled to make any stops on this trip. A rule of the defendant company required the brakeman to be on the rear platform of the lead car. This was necessary in case it was desired to stop the train. ' The purpose of stopping it would be in case of an emergency — if anything was on the track, any train ahead, any “signal” against him. Kane was the person on whom the duty rested to stop the train in case of emergency. The brakes were operated by a tail hose, a long rubber hose with a valve on the end of it. The valve was opened to set the air and set the brakes by a metal lever which the brakeman held in his hand. The only operation required to set the brakes was to push the lever back. There was an air whistle on the hose which operated from the same valve and from which there were two openings. When the valve opened the whistle blew. To sound the whistle it was only necessary for the hrakeman to place his finger on the lever.

The trainman or hrakeman (Kane) was called by plaintiff and testified. He gave some evidence in conflict with the facts as above stated and facts testified to by other witnesses. He said he was standing in the center of the vestibule, two and one half or three feet back of the opening; that he was holding the lever in his hand at the time of the accident, and that Esch the police officer came right across in front of the train and was struck by the step on the northeast corner of the train.

The accident was seen by an unusual number of witnesses, persons who, after the hue and cry, were watching the pursuit by the officer. Several of these testified there was no hrakeman on the rear end of the platform of the coach, where the air hose, etc., were located; that no whistle was blown, as the train approached the depot, no warning of any kind given prior to the accident; that there were no lights in any of the coaches and no headlight burning on the lead coach. From these and the further fact that the train ran 440 feet after hitting the decedent before it came to a stop, and 120 feet before the application of the brakes was made, it is argued the brakeman was not in his usual position where he could have a lookout for persons in danger and warn them, but was inside the coach some distance from his proper position until after the deceased was struck.

Plaintiff contends the evidence being thus, it should have been submitted to the jury not only on the question of whether defendant was guilty of any negligence, but also on the issue of whether the negligence was wilful and wanton.

The trial court was of the opinion that under the evidence the deceased, Esch, was at the most a mere licensee on defendant’s right-of-way, and that their relationship was such that the only duty of the defendant railroad company was not to injure him wantonly or wilfully. The trial judge was persuaded to this view by two cases which are relied on in defendant’s brief. These are Gibson v. Leonard, 143 Ill. 182, 192, and Casey v. Adams, 234 Ill. 350, 355, 356. After a careful consideration of both cases this court is of the opinion that neither was applicable.

In the Gibson case, Gibson was a member of the fire insurance patrol and responded to an alarm of fire at a building on west Lake street in Chicago on Leonard’s premises. He was directed with others to go to the basement, and for that purpose got on an elevator and was let down by means of certain ropes. The rope which held the counterweight broke and the elevator fell a distance of about 16 feet to the bottom of the basement. One of Gibson’s legs was injured so badly that it had to be amputated. He sued Leonard the owner. The court held he was a mere licensee and could not recover, that defendant was not obligated to keep its premises in reasonable condition for his benefit.

In the Casey v. Adams case an administrator sued Adams to recover damages under the statute for alleged negligence resulting in the death of his decedent. At the close of the evidence for plaintiff the court directed a verdict of not guilty. Judgment was entered for defendant and plaintiff sued out a writ of error to this court. The judgment was affirmed, Judge Baker dissenting, 137 Ill. App. 404. The case went to the Supreme Court by certificate of importance. The decedent was one of a number of police officers detailed during a strike to protect property carried by various common carriers in the city of Chicago, at request of the carriers. On the day of the accident a tenant in the building of defendant engaged an express company to transport goods of the tenant from the building. The express wagon came to the building for the merchandise and was driven into an alley and backed up to an opening leading into an elevator shaft. The deceased had been ordered by his superior officer to ride on and remain with the wagon to protect the property and employees of the company and the goods carried by the wagon from strikers. There was an elevator some distance above the opening, coming down loaded with goods to be taken away. It was a dark, cloudy day, and the wagon was a large covered one, open only in front and rear. Immediately after it stopped the deceased, who was riding inside the wagon, stepped sideways and a little backward on the tailboard of the wagon, and then apparently stepped upon the bottom sill of the doorway or opening and disappeared into the elevator shaft below, receiving injuries from which he died. The Supreme Court said that if he went into the building as a matter of mere convenience he was a trespasser; if he stepped into the building that he might better perform his duties as a police officer he was licensed to do so by the law itself, but that as a mere licensee the defendant would owe him no duty except to refrain from inflicting, a wilful .or wanton injury. The judgment was affirmed.

Both cases are distinguished from this instant case in the fact that the alleged negligence in each had to do solely and alone with the actual condition of the premises, by reason of which the injury occurred, while here the negligence alleged is that which came about by the active operation of defendant’s train of cars by a person placed in charge of the train by defendant.

In Professor Bohlen’s “Studies in the Law of Torts” the duty of a land owner toward those entering his premises of their own right has been given careful consideration in Division III, pp. 156-201. In it- he analyzes the case of Meiers v. Fred Koch, Brewery, 229 N. Y. 10, 127 N. E. 491, where a bare majority of the conrt of appeals affirmed a judgment for plaintiff. Meiers, a fireman who responded to a call to put out a fire that was burning defendant’s barn, while on his way by the usual path fell into an unguarded coal hole and was injured. Professor Bohlen points out that decision limited liability to persons rightfully using the approaches prepared by the owner for access to his property. He says: (p. 161) “The numerous dicta and the few cases which deny recovery to a fireman, policeman or other public officer, who in the performance of his duty is injured by the bad condition of premises which as such public officer he has the right to enter, proceed upon the accepted American formula. Even though the owner had actually invited the visit of such an officer, even though his services are needed for the owner’s protection, yet since the right is based on general public necessity and is not dependent on the owner’s will (and would exist notwithstanding his most emphatic protest, if there was need of the visit, and, would exist even though the visit was of no benefit to the owner), it was correctly held that such consent as was given, and such benefit as in fact there was to the owner added nothing to a right perfect without them, and that therefore such officer was not an invitee. But it seems odd that once having so held, the courts should have regarded the officer as a mere licensee, for a license is as much creature of consent as an invitation, the only difference being in the owner’s interest or lack of interest in the visit.

“But that a public officer is not an actual licensee does not solve the problem. The question remains whether, though he is not an actual licensee, there is not authority and reason for an obligation in the landowner broad enough to include him under such circumstances as those in the recent New York case.”

The author goes on to show that the decisions as to the liability in such cases group themselves into two classes; first, those in which the injuries are caused by the owner’s acts, and, second, those which are caused by the condition of his premises. He points out that the rule that the only duty of a land owner to a trespasser or a licensee was not to wilfully or wantonly injure him arose from the feudal conception that the owner was sovereign within his own boundaries and as such might do what he pleased on or within his own domain. The King’s law stopped at the boundary of the owner’s sovereign territory except in felonies and in trespass actions, which were originally punitive and extensions of appeals for felonies and violent misdemeanors. The whole history of the law on this subject shows a tendency to whittle away the rule and place limitations on it.

It may be well to notice the actual relationship which existed between this defendant and the deceased at the time he was injured. The deceased' was an officer of the law. Division 6, paragraphs 654, 655, § 1 and § 2, Ill. Rev. Stat., ch. 38, p. 1197 [Jones Ill. Stats. Ann. 37.629, 37.630], makes it the duty of every such officer of any incorporated town or village, when any criminal offense is committed or attempted, to “forthwith apprehend the offender.” Section 3 [Jones Ill. Stats. Ann. 37.631] provides that to that end every male person above the age of eighteen, when commanded by an officer to assist in arresting or securing the offender, shall obey such command. Section 6, paragraph 659 [Jones Ill. Stats. Ann. 37.634], provides that the arrest may be made at any time of the day or night. This statute merely states the general rule of law. See Bestatement of the Law of Torts, §204. “The privilege to make an arrest for a criminal offense carries with it the privilege to enter land in the possession of another for the purpose of making such an arrest, if the person sought to be arrested is on the land, or if the captor reasonably believes him to be there.”

It is clear, therefore that Esch in pursuing and capturing and returning his prisoner was not a trespasser. It is just as clear (it seems to us) that he was not a mere licensee. The owner did not give him permission to go upon the right-of-way. He did not need a license from anyone to do that. The law not only gave him permission to go, it commanded him to do so. Employees of the railroad company would have no right to forbid him to do otherwise. If they had attempted to interfere with him in the performance of his duty, they would have been guilty of resisting an officer, or perhaps compounding a felony. The executive officers of the road could not have rightfully ordered Esch to get off the premises. He was on the right-of-way by a right as ancient and absolute as any known to the law. It was his duty (indeed, it was the duty of every other citizen) when the “hue and cry” was raised to assist in the pursuit and capture of the criminal. A rule of law which holds one thus upon the land of another as a mere licensee is like putting “new wine into old bottles.” The complex and difficult questions of right arising out of our modern civilization cannot be decided by a worn out formula based on feudal customs which have passed away.

In Prosser on Torts (published last year) the author says, at page 628: ‘ The courts have encountered considerable difficulty in dealing with public officers, firemen and the like, who come upon the land in the exercise of a legal privilege and the performance of a public duty. Such individuals do not fit very well into any of the more or less arbitrary categories which the law has established. They are not trespassers, since they are privileged to enter. The privilege is independent of any permission or license of the possessor, and there is no right to exclude them. . . .

“Some courts have gone so far as to say that there is no duty to a licensee other than to refrain from inflicting wilful or wanton injury upon him. As in the case of trespassers, however, an increasing regard for human safety has led to a retreat from this position. It is now generally held that as to any active opera tions which the occupier carries on, there is an obligation to exercise reasonable care for the protection of a licensee.”

"The author cites Restatement of Torts, § 341, and adds: ‘ ‘ He must run his train, operate his machinery, or back his truck with due regard for the possibility that the permission given may have been accepted and the guest may be present. The obligation is higher than that owed to trespassers, because the possessor is required to look out for licensees before they are discovered. Reasonable care is all that is required, and ordinarily a proper warning will be sufficient. The licensee has no right to demand that the occupier change his method of conducting activities for his safety, and in the usual case, if he is fully informed as to what is.going on, or it is obvious to him, he has all that he is entitled to expect, and assumes the risk thereafter. ’ ’

Neice v. Chicago & A. R. Co., 254 Ill. 595, illustrates the tendency of the courts to limit this rule that the only duty of the land owner to a trespasser or licensee is not to wantonly injure him. The administrator sued under the statute and recovered judgment. The evidence showed decedent was on a station platform of the railway for the purpose of obtaining a ride on a freight train without paying for it and contrary to the rules of the company. While he was standing on the platform a freight train ran past at a speed of from 25 to 40 miles per hour, without any headlight and without ringing a bell or blowing a whistle. The end of the pilot beam struck Neice and threw him 25 feet, causing his death. The court held he was a trespasser and that if it had been a mere question of negligence on the part of those in charge of the train there could have been no recovery. The court said: “To run a train in the night time over unlighted station grounds without a headlight, and without any warning by bell or whistle, along a platform where persons may reasonably be expected to be, is evidence tending to prove a wanton and reckless disregard of the safety of such persons. In such a case it is not necessary that there should be specific knowledge of an individual on the track or platform or specific ill-will toward or an intention to injure an individual. ’ ’ The judgment was affirmed.

In the instant case, if, as the testimony tends to show, defendant’s brakeman in charge of its train was not at his place of duty and ran the train without a headlight, and without warning by whistle or otherwise, upon approach to this station, then following the Neice case and assuming the deceased was a mere licensee, we hold plaintiff would be entitled to have submitted to the jury the question of whether defendant was wantonly negligent. However, we hold the decedent was neither trespasser nor mere licensee but was rightfully on defendant’s right-of-way, when injured, upon business which required his presence there, and that defendant was obligated to the use of reasonable care not to injure him. There was evidence from which the jury could find the defendant was not in the exercise of due care. There was also the question of whether defendant under all the circumstances was negligent, but these questions were for the jury. It was error for the court to direct a verdict and enter judgment on it, and for that error the judgment is reversed and the cause remanded.

Reversed and remanded.

McSurely, P. J., and O’Connor, J., concur.


text:
    William E. Waugh, Appellee, v. Nellie Poiron et al., Appellees, and Ethel Seidel Wiechering, Appellant.
    Gen. No. 42,032.
    Heard in the first division of this court for the first district at the October term, 1941.
    Opinion filed June 1, 1942.
    Rehearing denied June 16, 1942.
    Winston, Strawn & Shaw, of Chicago, and Bouck, Hilton & Dempsey, for appellant; James H. Cartwright and George B. Christensen, both of Chicago, and William C. Bouck, of counsel.
    George Yellen and Murray R. Haddon, both of Chicago, for appellees.
   Mr. Justice Matchett

delivered the opinion of the court.

Ethel Seidel Wiechering appeals from a decree construing the will of her aunt, Nellie P. Brown. The will was executed December 24, 1936; testatrix died October 3, the will was admitted to probate November 22, proof of heirship was made October 14, all in 1940; the complaint was filed April 10, 1941; the decree entered July 22, 1941.

The will consists of nineteen numbered and two unnumbered paragraphs. Construction is asked of the 16th. It is: “I give, devise and bequeath the rest, residue and remainder of my estate, real, personal and mixed, and wheresoever situated, to my brother, James W. Poiron, my sister, Minnie Hodge, my sister, Annie Enslin, and my niece Ethel Seidel, share and share alike, and to the survivor of them.” James Poiron died in 1937; Annie Enslin in March 1937; Minnie Hodge in 1938, prior to the death of the testatrix. Annie left no issue; the brother James left issue — two daughters, Nellie and Bessie, and a son Philip; Minnie Hodge left only her daughter Ruth. Thus Ethel Seidel (also known as Ethel Wiech-ering) is the only legatee named in the will who was living at the death of the testatrix.

Ethel contends she is entitled to the entire residue of the estate, apparently of the value of about $30,000. The three children of James Poiron and the daughter of Minnie Hodge contend that the phrase in the residuary clause, “and to the survivor of them,’'’ ought to be construed to give to each of them the portion of the estate which their respective parents would have taken if living at the time of the decease of the testatrix. The court accepted their theory. The decree directs: “That the rest, residue and remainder of the estate of Nellie P. Brown, deceased, and estate now pending in the Probate Court of Cook County, Illinois, ... "be distributed as follows: to Nellie Poiron one-ninth; to Bessie Poiron Young one-ninth; to Philip Poiron one-ninth; to Euth Hodge Wise one-third, and to Ethel Seidel Wiechering one-third.”

The decree finds the amount the testatrix intended to give was made certain and definite by the language used, and the beneficiaries certain and named, and that there was no intention on the part of the testatrix to disinherit these children of James and Minnie, and that it was not the intention of the testatrix “to prefer Ethel Seidel Wiechering, defendant, over said other defendants heretofore named.”

The question is squarely raised on this record whether the above construction conforms to the intention of the testatrix. The rules applicable are well settled; citation of authorities unnecessary. The object of the construction of a will is to ascertain the intention of the person who made it. The intention is to be determined from the writing within the “four corners” of the instrument. Where the language is plain and simple no construction is necessary. In case of ambiguity, oral evidence is admissible, not to change the writing but to make the meaning of it clearer. Where such evidence is admissible the court sometimes, as it is said, sits in the “arm chair” of the testator and receives evidence tending to clear up any obscurity or ambiguity. No evidence was taken or offered in this case. There is no dispute as to any material fact.

We have decided the decree misconstrues this residuary clause of the will, and that under a proper construction Ethel Seidel Wiechering takes the residue of the estate to the exclusion of others. We so determine because of the precise language of the paragraph. It is complete in a single sentence. The testatrix says, I give the rest, residue and remainder to my brother James, my sister Minnie, my sister Annie, and my niece Ethel, “share and share alike, and to the survivor of them.” Webster says ‘6survive” means “to live longer than.” Here the word ‘‘survivor ’ ’ is modified by the phrase 11 of them. ” “ Them’ ’ manifestly refers to James, Minnie, Annie and Ethel. The “survivor of them” is Ethel, because she lived after the death of the others. Bouvier defines a “survivor” as “the longest liver of two or more persons.” Of the four names in the residuary clause, Ethel Seidel lived longest and was the only one of the four living at the death of the testatrix. It would seem nothing could be clearer than that she is “the survivor of them. ’ ’

If we assume the four claimants to be legatees and try to insert into the will a sentence which would express that intention, the difficulty becomes apparent. The language of paragraph 16 is not the language a lawyer would use, assuming the testatrix made known to him her intention to provide for this distribution to the children in case of the death of their, parent. The will on its face bears evidence it was not the work of a layman; that it was prepared by a lawyer. Therefore, not only the actual language used but also the language not used makes quite impossible the construction adopted by the decree.

Consideration of the will as a whole persuades to the same decision. In almost every paragraph this will shows careful discrimination as to the blood relatives of the testatrix. She gives to her brother Albert one dollar. If he refuses to accept, it shall become a part of the residuary estate. A similar bequest is made to a nephew, Lester Seidel. By this clause she practically disinherits these two, who if the trial court had carried his theory of construction to its logical conclusion would (Annie Enslin dying intestate) take a substantial part of the estate. The courts will not sustain such a construction, Maddock v. Haines, 88 F. (2d) 350, 302 U. S. 690. These four who now claim as nieces and nephew were living at the time the will was made. Their parent legatees passed away while the testatrix was still living and (presumably) competent to change her will in case she wished to do so. The simple language of the residuary clause, the whole language of the will, all the circumstances under- which it was made, point to the conclusion that in case of the death of the others named it was the intention of testatrix Ethel Seidel would take the entire residue of the estate.

The appellees say the word “survivor” is a flexible term and should be moulded by the context and spirit of the will. Attention is called to the statement in Encyclopaedia of Forms and Precedents, Second Edition, p. 494, to the effect that “the word ‘survivors’ is in itself a trap and should never be used without careful consideration for it may be and frequently is construed as meaning ‘others.’ See Indewick v. Tatchell, (1903) AC 120; Re: Benn (1885) 29 Ch D 839; . . . , ” all of which is probably true, not only of this but of almost any other word in our growing language.

A wealth of authority has been cited, little of which has any bearing upon the issue here. This case does not involve the construction of a will creating any future estate. The gift here is immediate on the death of the testatrix. There is no gift over upon a contingency or otherwise to descendants or to issue, or even to children of any deceased legatee. Cases involving legacies of that kind are of no help in deciding this case. Nor is there any question here of whether the residuary legacy is a gift to a class or distribution to named individuals. That question is eliminated by the clause “and to the survivor of them.” The numerous cases cited involving that question are therefore without value. Nor have we here any ambiguous or obscure language calling for the application of presumptions of law. When cases of these three kinds are excluded, there is little left to plaintiff’s argument except an abiding conviction testatrix ought not to have made this and should have made another will.

Of the cases cited one has points of similarity to the instant case. This is In re Estate of Barr, 2 Pa. St. 428. John Barr made a will directing the residue of his property should be equally divided among his brothers and sisters, of whom he mentioned seven, “or their survivors.” One of the sisters named died 42 years before the will was made; a brother named died 10 years before the will was made, and another 6 years before its execution. The testator knew of the death of these three legatees. The will was written by a layman, a schoolmaster, who used a book of forms and did not know the meaning of legal terms. The will without discrimination named as legatees persons living and dead and directed that the residuum should be equally divided among them, “or their survivors.” The children of these persons who were dead when the will was made claimed a share of the estate upon the theory that the phrase “or their survivors” referred to them. The court recognized the fact that such a construction would be unusual. The opinion says: “I am aware, that in strict legal sense, the word survivor means the longest liver of two joint-tenants, or of any two persons joined in the right of a thing; he that remains alive after that the other be dead, 3 Com. Law. Dic. 55; Brooke, 33. . . .”

Nevertheless, in order to give effect to the manifest intention of the testator the court held that the' testator meant not that the dead legatees should take upon his death, but their legal representatives. This case is far different. This will is not clumsily drawn. It bears on its face proof that the draftsman knew legal terminology. It makes no bequests to people dead at the time of its execution.

A review of all cases cited in the briefs would embellish the opinion without elucidating the law applicable. We, however, note a few cases most relied on.

In Rivenett v. Bourquin, 53 Mich. 10, 18 N. W. 537, the will bequeathed the bulk of the estate to four children (naming them) and provided that in the event of either dying before the death of testatrix the estate should be divided “among the survivors, or their legal representatives, share and share alike.” Two children were given the share their mother would have taken if living. The court said that to hold they could not take would be to leave the words “legal representatives” without any meaning. Then, too, a Michigan statute construed was controlling.

In Schneller v. Schneller, 356 Ill. 89, the residuary clause of the will was “To my three children” (naming them) “or to the survivors or survivor of them.” A son (one of the three) predeceased the testator, leaving a daughter who contended she was entitled to take the share of her father. The Supreme Court held that under the common law she would not, but that section 11 of the former statute of Descent and Distributions (Ill. Rev. Stat. 1939, ch. 39) was applicable and that by virtue of that statute it would pass to her. That section is now superceded by section 200, chapter 3 of the new Probate Code (Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 110.297]). Neither the old nor new section is applicable here since the bequest is to collaterals and not to lineal descendants.

In Harris v. Berry, 7 Bush (Ky.) 113, the testator bequeathed a defeasible fee with a condition over. The court said the will gave estates “in fee, defeasible on the condition of death without issue.”

Executor of Brierly v. Nelson, 228 Ky. 116, 14 S. W. (2d) 201, is another case in which the will created a future interest. The will gave the net income from the residue of the estate to the testator’s nieces and nephews for their natural lives with the remainder “to their lawful issue and if any of them die without lawful issue then to the survivors and their issue.” The Supreme Court of Kentucky said that the question arose on the construction of the phrase “then to the survivors and their issue”; that if it was to be given a strict literal interpretation it would mean only the individual nieces and nephews of the testator, who. were living when such a one died, but if it was to be given a comprehensive and liberal interpretation it meant the class of beneficiaries surviving such a one, namely, the nieces and nephews living and the issue of those who had predeceased him. Pointing out that the controlling object of the courts in construing a will was to promote the expressed intention of the testator, the court said the bequest ‘of only the income to the nieces and nephews indicated desire to preserve the corpus for their children; that although divided into two groups, there was nothing to indicate an intention to deprive any of the ultimate beneficiaries of their share if their parent should happen to die before one of the life tenants who had no children, and that to confine the distribution of the estate to four surviving children of the testator and cut off the surviving representatives of the dead children would seem to conflict with his own evident purpose of equality. That case is not helpful here.

For the reasons stated the decree will be reversed and the cause remanded with directions to enter a decree in conformity with the views herein expressed.

Reversed and remanded with directions.

McSurely, P. J., and 0 ’Connor, J., concur.