text:
    Alex Peters, Plaintiff in Error, v. James Madigan, Defendant in Error.
    Gen. No. 8,246.

      Opinion filed September 4, 1931.
    Frank E. Maynard, for plaintiff in error.
    Welsh & Welsh, for defendant in- error.
   Mr. Justice Jett

delivered the opinion of the court.

This suit was instituted by Ales Peters, hereinafter referred to as plaintiff, against James Madigan, for convenience called defendant, for personal injuries and damage to an automobile growing out of a collision. A jury trial was had with a finding in favor of the defendant. Motion on the part of the plaintiff for a new trial was by the court denied, and this writ of error was sued out.

The declaration consists of two counts. In the first it is averred that the defendant negligently and carelessly ran, drove, managed and controlled his automobile so that by and on account of said negligence and carelessness of the defendant, the automobile of the defendant ran into and struck the automobile which plaintiff was then and there driving and then and thereby seriously and permanently injured the plaintiff in and about his head, body and limbs; in the second count it is averred that the defendant negligently and carelessly ran, drove, managed and operated said automobile so that by and on account thereof the automobile of defendant ran into and struck with great force and violence the automobile in which plaintiff was then and there driving and then and thereby caused great damage to the automobile of the plaintiff.

To the declaration the defendant pleaded the general issue. On the trial Peters, the plaintiff, testified that he lived in a suburb north of Rockford, Illinois, and was on his way home at about 11:30 at night driving north on a north and south hard surfaced highway known as North Second Eoad, and that he was driving at about 30 miles per hour; that he was on the right-hand side of the road or east side of the north and south road, going north, when the automobile belonging to the defendant approached from the north on the left-hand side of the road, being the east side of the north and south road; that when the defendant’s automobile got within 200 or 300 feet of the plaintiff’s automobile it was still on the east side of the road and plaintiff tooted his horn three times as a signal to the defendant to get over on the proper side of the road but the defendant kept coming south on the left-hand side of the road. The plaintiff further testified that as he was going north the defendant kept coming straight ahead “so instead of running into his car I thought maybe I could pass him by getting on the other side of him but I couldn’t do it; he struck me on my right-hand side fender and I tipped over. His car was on the east side of the road going south. Mine was on the west side. It was not raining or slippery that night. No ice nor snow on the roadway. The first finger of my right hand was cut and I had four ribs broken. I had a 1926 Hudson. It was in first class running condition and in good working order. My automobile was totally wrecked. There was a ditch about four feet deep at the east side of the road and on the other side the ditch was probably a foot and a half deep.”

A witness by the name of Murphy called by the defendant testified that he was driving an automobile about 250 feet back of the car of the defendant at the time of the collision; that the defendant’s car was traveling in about the center of the road; that the road is sort of crested or rounded; that the left-hand wheels of the defendant’s car were about the center of the road possibly a foot or so over the center; that he, Murphy, saw the plaintiff’s car coming on the right-hand side or east side of the road; that the plaintiff’s car was on the east side of the road coming from the south towards the north traveling about 35 miles per hour; that as the cars came together the plaintiff’s car swerved to the west side or left-hand side of the road and tried to pass around the defendant’s car coming from the north and that the cars came together, the right-hand side of the defendant’s car striking the right front side of plaintiff’s car and plaintiff’s car turned over on the west side of the road.

The defendant James Madigan testified that he was driving south on the north and south road about 25 or 30 miles per hour and that the road is a tarvia road crowned in the center; that his left-hand wheels were on the crown of the road; that he was driving on the west side of the road; that the plaintiff was traveling a good deal the same as he was with his left-hand wheels on the crown of the road; that the plaintiff’s car did not slack up but kept coming right on; that as the cars came closer together defendant attempted to pass around on his left-hand side or the east side of the road; that the collision occurred at about the center of the road; that the right front tire of the right front wheel was struck and punctured on the defendant’s car. On cross-examination the defendant testified he saw the headlights of the plaintiff’s car and that they were both lit; that on the west side of the roadway there was a gradual incline or grassy spot along the road; that there is no drop off on the west side of the road and that he traveled the road once or twice a week; that he turned sharply to the east and saw the plaintiff turn also to the east; that he must have started to turn to the east before the plaintiff started to turn towards the east.

Mable Ward, who was riding in the car with the defendant, testified in his behalf that she saw the lights of the plaintiff’s ear coining about a half a block away; it appeared to be in the center of the road; it appeared to be in the center of the road until it got close to us; that the plaintiff’s car turned abruptly towards the east; that the defendant turned his car abruptly towards the east; that the defendant’s car struck the plaintiff’s car on the right-hand side.

Esther Bursiek was riding with Murphy and testified on the part of the defendant that the defendant’s car was in about the center of the road going south; that the wheels on the left-hand side of the defendant’s car were probably a little over the center; that the plaintiff’s car was coining from the south towards the north on the right-hand or east side of the road; that when the cars got near together the plaintiff swerved his car to the left-hand side of the road.

It is the contention of the plaintiff that in view of the state of the record, the court gave instructions on the part of the defendant that were misleading and erroneous.

We have carefully examined the evidence as disclosed by the record and find that upon the material questions of fact involved in this cause the testimony is conflicting. If the evidence is conflicting upon the material questions of fact then the rule is, that unless it shall appear that the instructions to the jury given on behalf of the successful party stated the law with accuracy and were free of all error calculated to mislead the jury, the judgment must be reversed and the cause sent back for a new trial. Lake Shore and Michigan Southern R. Co. v. Elson, 15 Ill. App. 80, 83; Chicago & Alton R. Co. v. Murray, 62 Ill. 326; Volk v. Roche, 70 Ill. 297; Wabash R. Co. v. Henks, 91 Ill. 406; Ruff v. Jarrett, 94 Ill. 475; Swan v. People, 98 Ill. 610.

It is the contention of the plaintiff that instructions 3, 4, 5, 7 and 16 given on behalf of the defendant must be read in the light of the explanation and definition of the word “accident” as used in the said fourth instruction. It is said that each instruction refers to the collision as an accident and the jury was misled thereby, and that instruction 16 is otherwise erroneous. Instructions 3, 4, 5, 7 and 16 are as follows: ■

“3. If the jury believe from the evidence that the injury complained of and the damage resulting to the plaintiff in this case was the result of a mere accident and a collision between automobile driven by the plaintiff and the defendant James Madigan, without any negligence on the part of said defendant contributing to the said injury and damage, then the jury should find for the defendant.

“4. The jury is instructed that the word ‘accident’ as used elsewhere in these instructions means an occurrence or event which happened without the fault of any person and without any negligence, or an event happening unexpectedly and without fault, or a casualty which could. not be prevented by ordinary care and diligence.

‘ ‘ 5. The Court instructs the jury that if they believe from a preponderance of the evidence that the plaintiff Alex Peters, at the time of the accident in question in this case, was driving his car at a greater speed than was reasonable and proper, having regard to the traffic and use of the way, or so as to endanger the life or limb or injure the property of any person, at or about the time of the accident in question, and if you still further believe from the evidence that the said driving by the said plaintiff Alex Peters of his automobile at such a speed was negligence and contributed in any manner to the injury and damage complained of in this case, then you are instructed that there can be no recovery against the defendant.

“7. The Court instructs the jury that the mere happening of the accident, together with proof of the exercise of the degree of care by the plaintiff Alex Peters, as defined in these instructions, does not raise a presumption of negligence on the part of the defendant. The Court further instructs the jury that the burden of proof is not upon the defendant to show that he is not guilty of specific negligence charged in the declaration, but the burden is upon the plaintiff in this case to prove that the defendant was guilty of such negligence and this rule as to the burden of proof is binding in law and must govern the jury in deciding this case. The jury has no right to disregard said rule or adopt any other in lieu thereof, but in weighing the evidence and coming to a verdict the jury should apply said rule and adhere strictly to it. No presumption that the defendant was negligent arises from the mere fact that the accident happened.

“16. The Court instructs the jury that if they believe from a preponderance of the evidence that as the plaintiff’s car and the defendant’s car approached each other on the North Second road, and that the plaintiff’s car was on the east side of the said road running in a northerly direction, and the defendant’s car was also on the east side of the same road running in a southerly direction, and you further believe that the plaintiff Alex Peters in fact observed and saw the said defendant’s car coming south on the east side of the said road, 350 feet or more to the north, and that the said plaintiff did not stop, but continued in a northerly direction on the east side of said road; and, further, that the said plaintiff took no steps to avoid colliding with the defendant’s car and failed to exercise that degree of care and caution that a reasonably prudent man would have done under the circumstances, and the accident in question thereby occurred, you are instructed that the plaintiff, as a matter of law, was guilty of contributory negligence and your verdict should be for the defendant.”

If the collision occurred as the result of negligence then it was improper to give instruction's three and four. The collision that resulted in injury to the plaintiff and his automobile was the result of negligence and the negligence was that of either the plaintiff or the defendant. There is no evidence in the record that tends to show that the collision was the result of an accident. There must be evidence on which to base an instruction. The cause was not tried upon the theory that the collision was the result of an accident. Instruction two indicates the position assumed by the defendant on the trial in the circuit court. Instruction two is as follows:

“2. The Court instructs the jury that before the plaintiff Alex Peters can recover in this case he must prove by a preponderance of the evidence the two following propositions:

1. That at the time of the accident the plaintiff Alex Peters was in the exercise of ordinary care and caution for his own safety.

2. That the defendant James Madigan was guilty of some negligence which contributed to the injury and damage complained of by the plaintiff in this case.

If the plaintiff fails to prove either oiie or both of these propositions by a preponderance of the evidence, then your verdict must be for the defendant.”

In Cornwell v. Bloomington Business Men’s Ass’n, 163 Ill. App. 461, the court defined the meaning of the word “accident.” In the Cornwell case a skyrocket was fired at a Fourth of July celebration and a spectator was injured. It was insisted that the injury occasioned to Cornwell by the explosion of the skyrocket was a mere accident and the court in its opinion at page 467 said: “It is insisted that the injury was caused by a mere accident, without any fault or neglect on the part of the defendants and that by reason thereof defendants are not liable, and that the court erred in refusing to give an instruction based upon this contention. An accident, as defined by legal authorities, for which no liability exists is one which is the result of an unknown cause or is the result of an unusual and unexpected event happening in such an unusual manner from a known cause that it could not be reasonably expected or foreseen and that it was not the result of any negligence. "While a party is entitled to have an instruction upon its theory of the case, the instruction must be either based upon some evidence or by reason of lack of evidence in the case, and where the evidence discloses such a condition as to leave no basis upon the evidence for the theory to exist, then refusal of such instruction is not error; there is nothing in this record upon which to base the instruction offered.”

We are of the opinion that instructions three and four should not have been given. Said instructions! are not applicable to the facts in the case and had to do with the question of the collision being a mere accident. It is not insisted by either the plaintiff or defendant that the collision was the result of an accident. Instruction number seven also uses the word “accident” but we believe that taking this instruction as a whole the plaintiff was not seriously injured by the giving of the same.

Instruction 16 states among other things that if the jury “believe that the plaintiff Alex Peters in fact observed and saw the said defendant’s car coming south on the east side of the said road, 350 feet or more to the north, and that the said plaintiff did not stop, but continued in a northerly direction on the east side of said road; and further, that the said plaintiff took no steps .to avoid colliding with the defendant’s car and failed to exercise that degree of care and caution that a reasonably prudent man would have done under the circumstances, and the accident in question thereby occurred, you are instructed that the plaintiff, as a matter of law, was guilty of contributory negligence and your verdict should be for the defendant.” This instruction is bad because it told the jury what amounted to negligence which was a question for "the jury to determine. The instruction clearly invades the province of the jury. Furthermore the effect of this instruction is to tell the jury that the defendant could drive down the road on either side to suit himself having no regard for any other person rightfully upon the highway and if the other person did not stop or get off of the road to avoid a collision and injury that the plaintiff would be guilty of contributory negligence and the defendant would not be guilty. The instruction calls attention to particular facts in the testimony on one side and omits any reference to certain facts shown on the part of the plaintiff.

In Scott v. Snyder, 116 Ill. App. 393, an instruction is erroneous which singles out and gives undue prominence to certain facts while ignoring other facts proven of equal importance in a proper determination of the case.

In Tanner v. Clapp, 139 Ill. App. 353, at page 354 it is said: “An instruction which purports to summarize the principal facts is erroneous where it directs the attention of the jury only to those facts which are favorable to one of the parties.”

We are of the opinion that the giving of instruction 16 constituted reversible error. There are .other instructions criticized but in view of what we have said it is not necessary to discuss them in this opinion.

We conclude, therefore, that the judgment of the circuit court of Winnebago county should be reversed and the cause remanded for a new trial, which is accordingly done.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Jett

license: Public Domain

text:
    Helen Hyland, Appellee, v. Chicago & Northwestern Railway Company, Appellant.
    Gen. No. 8,265.

      Opinion filed September 4, 1931.
    D. T. Smiley, Nelsoh J. Wilcox and Nelson Trottman, for appellant.
    Frank E. Maynard, for appellee.
   Mr. Justice Jett

delivered the opinion of the court.

This is an action on the case brought in the circuit court of McHenry county by Helen Hyland, appellee, to recover damages for alleged injuries sustained by her when, struck by one of the trains of Chicago & Northwestern Bailway Company, appellant, at Benton street crossing in the City of Woodstock, Illinois. A jury trial was had which resulted in a finding in favor of appellee and against the appellant for the sum of $4,000, upon which judgment was entered and this appeal followed.

For convenience the appellee will be referred to as the plaintiff and the appellant as defendant.

The declaration consists of five counts. The first avers that the crossing in question was hazardous, subject to heavy traffic and in the heart of the business district of the City of Woodstock; that the defendant had previously maintained gates at said crossing but had removed the gates and had failed to place a watchman at said intersection to warn the public of the use of its tracks and that when the plaintiff with due care and caution for her own safety was walking on the eastern side of said street, approaching said crossing, there was a freight train passing southeasterly over said crossing making a loud and tumultuous noise; that plaintiff observed the rear end of the train approaching and attempted to cross said track when a passenger train of the defendant approached going in a northwesterly direction and without any warning or signal she was struck causing the injuries complained of. The second and fourth counts aver that the plaintiff being in the exercise of due care, caution and diligence for her own safety, the defendant carelessly and improperly drove and managed the passenger train at a high and dangerous rate of speed, namely, 50 miles per hour through the City of Woodstock and across street intersections with railroad tracks, and that by and through the negligence and improper conduct of the defendant the engine of the train struck and injured plaintiff. The third count charges wilful and wanton conduct. The fifth count as amended charges that a freight train was running easterly on the northerly track and making a loud and deafening noise; that the defendant had installed and maintained at the crossing four gongs or alarm bells electrically controlled or operated so that when a train was on or near the crossing the gongs and alarm bells rang incessantly and continuously and created a bedlam of noise, all of which were ringing loudly, which together with the noise of the freight train, were deafening to plaintiff; that because of this noise plaintiff could not hear any other sound or noise; that appellant approached the crossing, saw the freight train passing easterly on the northerly track, came to a stop and stood waiting for the freight train to pass by and observed the end of the freight train approaching; and that plaintiff having due regard and caution for her own safety, defendant drove its train at a high and dangerous rate of speed without sounding any alarm bell or whistle, with full knowledge that plaintiff was standing upon or dangerously near the track, with utter disregard for life and limb of plaintiff, and knowing that plaintiff was unaware of the approach of the train, carelessly and improperly drove and managed the train thereby injuring the plaintiff. The record discloses that at the close of plaintiff’s testimony the third count was withdrawn from the consideration of the jury.. “Wilful” and “wanton” were stricken from the fifth count on motion of the plaintiff. The defendant moved to strike the first count. In reply to the motion the trial court said: “I don’t just feel like taking the responsibility of saying in this case at this time as a matter of law that there was no negligence. ’ ’

To the declaration the defendant pleaded the general issue.

A number of reasons are assigned and argued for a reversal of the judgment. It is first contended by the defendant that the plaintiff was guilty of contributory negligence as a matter of law. It appears that the plaintiff and her mother were struck by one of defendant’s passenger trains at an intersection of the defendant’s railroad tracks and Benton street in the City of Woodstock. The tracks run in a northwesterly and southeasterly direction and the street runs north and south, and, accordingly, the tracks do not cross the street at right angles. The evidence shows that the plaintiff and her mother were walking on the east sidewalk on Benton street toward the crossing in question at about five o’clock in the evening of September 15, 1928. A freight train traveling in a southeasterly direction was passing ovér the crossing on the northerly tracks. At this crossing there was a wigwag and bell signal in the center of the street on the south side of the tracks about 14 feet, south of the center line of the nearest or south track, measured parallel to the sidewalk line. Measured at right angles with the rail the testimony discloses the distance is 11 feet. The wigwag was operating as plaintiff and her mother approached the track. The bell attached to the wigwag was ringing. The evidence tends to show that plaintiff and her mother were looking away from the direction from which the passenger train was approaching, and toward the northwest from which direction the end of the freight train was coming. The evidence is to the effect that immediately after the plaintiff and her mother reached the southerly track they were struck by a passenger train coming from the southeast. The train consisting of a locomotive, baggage car and six coaches was approaching Woodstock from Chicago. The station is just west of Benton street crossing. The evidence shows that as the train rounded a curve 2,510 feet east of the crossing it was traveling about 50 miles per hour; that the engineer applied the service brakes and reduced the speed preparatory to making the station stop. It appears that the plaintiff and her mother first came into view of the engineer and fireman when the engine was over the Jackson street crossing which was about 660 feet east of the Benton street crossing. The evidence discloses that the engineer immediately applied the emergency brakes and sounded several short sharp blasts with his whistle but was unable to avoid the collision. At the time the emergency application was made the speed of the train approaching the station was estimated to be 35 miles per hour by a witness for the plaintiff, and at 25 miles per hour by the engineer and fireman.

It was incumbent on the plaintiff to prove that she was in the exercise of ordinary care for her own safety at the time and immediately before she was struck by the train of the defendant company. The records fails to show any .negligence on the part of the defendant unless the speed of the train as it approached the station constituted negligence.

Whether the whistle was sounded or the bell on the engine rung is not involved in this cause.

.The averments of the first count of the declaration relative to the fact that the defendant removed the safety gates present no issue in this case. The record establishes the presence at the crossing in question of the wigwag protection working properly. The character of protection at crossings in municipalities is a question which the legislature has intrusted to the Illinois Commerce Commission whose jurisdiction over such matters has been held to be exclusive.

In City of Witt v. Cleveland, C., C. & St. L. Ry. Co., 324 Ill. 494, at 495, 496, the court said:

“While prior to January 1, 1914, cities in this State had power to pass ordinances regulating the speed of trains while passing through such cities, the General Assembly by the passage of ‘An act to provide for the regulation of public utilities,’ approved June 30, 1913, in force January 1, 1914, created the Public Utilities Commission, and by ‘An act concerning public utilities,’ approved June 29, 1921, in force July 1, 1921, (Cahill’s St. ch. 111a, ¶ 16 et seq., Laws of 1921, p. 702), created the Commerce Commission and vested it with general supervision of all public utilities, including the power, by general or special orders, rules or regulations, or otherwise, to require every public utility to maintain and operate its plant, equipment or other property .in such manner as to promote and safeguard the health and safety of its employees, passengers, customers and the public, and to this end to require the performance of any act which the health or safety of its employees, passengers, customers or the public may demand. (Cahill’s St. ch. 111a, ¶ 76, Laws of 1921, sec. 57, p. 733.) By this act the General Assembly, in its discretion, withdrew from cities and villages the power theretofore exercised by them with reference to the speed and operation of railway trains and suph power is now vested in the Commerce Commission, another agency of the government. Village of Atwood v. Cincinnati, Indianapolis and Western Railroad Co., 316 Ill. 425; Northern Trust Co. v. Chicago Rys. Co., 318 Ill. 402.”

As bearing upon the question as to whether or not the plaintiff was guilty of contributory negligence, it is well in passing to examine the record which discloses that she testified on direct examination as follows:

“As to just how I went down to the railroad tracks and what I saw and what I did there at that time, I walked down Benton Street and I stopped, oh I guess it was about — about ten feet from the track and I looked up and down and I didn’t see anything coming, no train, but a freight train was passing. The freight train was passing on the other track. It was on the second track going to the right as we were going north. It was going to the east. Then we saw the end of the train, the freight train. It was about three car lengths I guess away from me to the left. And then I stood there oh gee, I don’t know how long, a very very short time anyway; it was less than a minute, less than a second, and it was — the freight train was just going to pass and we were just going to cross and then — I heard an awfully loud whistle and then — a loud, a very loud whistle, I looked around and there the train was almost — gee, it almost seemed it was on top of me.”

“As to how far I could see up the track when I looked, oh about between sixty to a hundred feet I guess. Sixty to a hundred feet; I don’t know; it is hard to tell the distance. As to how long it was from the time that I looked up the track until I stepped down to where the train struck me, well, it wasn’t a minute, it was less than a minute; about forty-five seconds, something like that. It is hard to tell.”

On cross-examination she put the place where she stopped and looked at ten or twelve feet from the track. She testified further:

“Q. So that after you passed this ten foot spot where you had already looked to the east you didn’t look again to the east until you were struck, is that true? A. No, I didn’t.
Q. That is, you didn’t look? A. I didn’t look again, no. "What was the use? I had just looked. What do you want me to do stand there and stand?
Q. What did you think those bells meant when you heard them ringing? A. I thought they were ringing because the freight train was passing.
Q. You knew, of course, they were ringing for a train, didn’t you? A. Yes.
Q. You know, do you not, that when the bells ring it is because-a train is coming? A. Yes.
Q. And it means look out, doesn’t it?
Mr. Maynard: That is objected to. A. Yes.”

The evidence shows that plaintiff and her mother were both inside of and had passed the line of the wigwag and that they had their backs toward the oncoming passenger train. The wigwag was working and bell signals were ringing on both sides of the track at Benton street crossing. The defendant in operating the wigwag and sounding the bells had done everything that was required of it in the way of crossing protection and in protecting the traveling public. The wigwag was flashing danger and waving a red light back and forth and the bell was ringing loudly and this was the proper operation of the wigwag and bell. The proper application of the wigwag and the sounding of the bell is now urged as an excuse for not seeing or hearing the approach of the passenger train. We have this peculiar question presented by the record. The defendant company is confronted with a duty to warn travelers upon a highway of the approach of a train and at the same time, in view of the contention of the plaintiff, is under a duty to omit its warning signals, lest their noise constitute a diverting circumstance excusing the highway traveler, who wholly disregards the warning from using any care whatever, to ascertain whether a train is approaching. The warning given by the defendant company by the operation of the wigwag and the sounding of the bell was not merely of the presence of the freight train. It was a warning of the possibility of any train approaching the crossing in question. The plaintiff admits she only looked once and that 10 feet from the track. She seeks to excuse her failure to see the train by stressing the obstructions to her view. The modern wigwag and bell, like its predecessors, the crossing flagman and the crossing gate, serves as a warning to persons approaching the track that a train is to be expected.

In Chicago & E. R. Co. v. Sutherland, 88 Ill. App. 295, a pedestrian approached and went upon a crossing of a double tracked railroad where the gates were up, but where on the farther of the two tracks a train was approaching from the north. He testified he waited for this train to pass; that it made “a terrible noise”; that, feeling it was too close he stepped back, and then was struck by a north-bound train on the nearer track, which was the first intimation he had of the approach of the north-bound train. In its opinion the court at page 298, among other things, said:

‘1 The only remaining ground upon which the charge of appellants’ negligence rests, is that gates were not lowered on the east side of the crossing, from which appellee approached when he turned to go back across the tracks, according to his own version, just before the accident. It appears that there was nothing to obstruct his view of the tracks in either direction. He heard and saw the train approaching from the north, and stopped to let it pass. We said in Theobald v. C., M. & St. P. Ry. Co., 75 Ill. App. 208, on p. 215, that gates are put up to give warning that trains are passing or about to pass; and when the appellee saw a train going by in front of him, he had all the warning that the gates could have given, even if a dozen trains had been approaching. - The train which struck him was in full view. Its approach was not concealed by the train going south which he says was passing before him. He was injured because he remained so near the rail as to be struck by the right side of the pilot beam of the engine of the north bound train. The evidence affords no ground for concluding that his being in such position was the result of any negligence on the part of appellants. See, also, Bjork v. I. C. R. R. Co., 85 Ill. App. 269, and I. C. R. R. Co. v. Batson, 81 Ill. App. 142-153.”

Ludolph v. Chicago & Northwestern Ry. Co., 116 Ill. App. 239, was a case that resembles the instant one very much and in its opinion, among other things, the court said: “When railroad crossing gates are lowered where two or more tracks are crossed by a street, they are a signal, not merely of the use of the crossing by one train, but by all trains that may then approach and desire to pass; and no one is justified, so long as the gates remain down no longer than a reasonable time, to cross over on the supposition that another train will not pass over.”

In Greenwald v. Baltimore & Ohio R. Co., 332 Ill. 627, the court has recently reaffirmed the doctrine that it is the duty of a highway traveler in approaching a railroad track to look where it will do some good where no circumstances are shown to excuse him from looking and that failure so to do constitutes a lack of ordinary care as a matter of law, and at page 631 said:

“The rule has long been settled in this State that it is the duty of persons about to cross a railroad track to look about them and see if there is danger, and not to go recklessly upon the track but to take proper precaution to avoid accident. It is generally recognized that railroad crossings are dangerous places, and one crossing the same must approach the track with the amount of care commensurate with the known danger, and when a traveler on a public highway fails to use ordinary precaution while driving over a railroad crossing, the general knowledge and experience of mankind condemns such conduct as negligence. (Graham v. Hagmann, 270 Ill. 252; Lake Shore and Michigan Southern Railroad Co. v. Hart, 87 id. 529; Chicago, Burlington and Quincy Railroad Co. v. Damerell, 81 id. 450; Toledo, Wabash and Western Railway Co. v. Jones, 76 id. 311.) One who has an unobstructed view of an approaching train is not justified in closing his eyes or failing to look, or in crossing a railroad track in reliance upon the assumption that a bell will be rung or a whistle sounded. No one can assume that there will not be a violation of the law or negligence of others and then offer such assumption as an excuse for failure to exercise care. The law will not tolerate the absurdity of allowing a person to testify that he looked but did not see the train when the view was not obstructed, and where, if he had properly exercised his sight, he must have seen it.”

In Specht v. Chicago City Ry. Co., 233 Ill. App. 384, plaintiff was a passenger on a truck which was struck by a street car at a street intersection. As plaintiff and his driver approached they looked in the direction from which the car was coming and saw no car. They did not look again until too late to avert a collision. In its opinion at page 387, the court, among other things, said: “No reasonable minds can arrive at a different conclusion than that plaintiff’s undisputed evidence shows that he was not free from contributory negligence in failing to look at a time and place when he knew a car might be coming. The contention that because it was the duty of plaintiff to look in both directions, and that because he had looked east as he reached the building line and ‘could not look west at the same time without stopping, ’ furnishes no valid excuse for proceeding to the center--of the street and to a known point of danger without taking a second look in the opposite direction before reaching it. Besides, everyone knows that a momentary glance to the west after looking to the east would have disclosed the danger in ample time to have avoided it, and could have been taken without stopping the truck.”

Whether the plaintiff stepped up to the tráck just before she was struck is, for the purposes of this case, a matter of no consequence. The essential fact is that without looking she approached the place of danger on foot from a point 10 or 12 feet from the track. She did this notwithstanding the fact that the wigwag was flashing and the bell ringing. She passed within the line of the wigwag and when in the zone of danger, failed to look and ignored every warning given her. She failed to use the sense of sight with which she had been endowed. Such conduct can be explained only on the theory that she was wholly absorbed in conversation with her mother and was completely oblivious to her surroundings.

This suggests to our minds the following language from the opinion of the court in Chicago, B. & Q. R. Co. v. Mahara, 47 Ill. App. 208, where at p. 212 it was said: “It is clear that he was paying but little, if any, attention to his surroundings and was giving no heed to the approach of the train, which he came there to take. His thoughts were elsewhere, and so far as this train was concerned, he was making no use of any of his senses, nor paying any attention to the business that brought him to the station. . . . Upon the evidence, the accident can only be accounted for upon the belief that he became so abstracted in thought that he was oblivious of his surroundings. It seems clear to us that he was guilty of negligence, which was the proximate cause of his injury.”

In Greenstreet v. Atchison, T. & S. F. Ry. Co., 234 Ill. App. 339, plaintiff, riding in a motor truck, looked more than 50 feet back from the track at a point where his view was obstructed and it appeared that if he had looked thereafter he could not have failed to see the train. In its opinion at pages 345, 346, the court said: “Proof by the plaintiff that he was in the exercise of ordinary care for his own safety is essential to his recovery and the only evidence of anything that the plaintiff did to avoid the injury is that he looked for a train more than 55 feet back of the track at a point where it is undisputed that his view was obstructed. There is no evidence of any kind to show that from the time he passed the obstructions until the collision he did anything to ascertain whether a train was approaching the crossing or to warn the driver of its approach. If he had looked, he could not have failed to see the train. ’ ’

It will be remembered that the plaintiff was on foot as she approached the crossing in question and was in a position to easily avoid approaching danger. In Dax v. Chicago, M. & St. P. Ry. Co., 185 Wis. 432, 201 N. W. 736, the court said: “In the case of a foot traveler the zone of danger is so narrow and it is so easy for the traveler to reach a place of safety or to remain there, that no close comparison can be made between one traveling on foot and one driving a team or an automobile. . . . The foot passenger has perfect and instinctive control of himself and can almost instantly step outside the zone of danger.”

In view of the state of the record we conclude that the question of plaintiff’s contributory negligence was, under the facts, not one for the jury. We are of the opinion that the plaintiff was not in the exercise of ordinary care for her own safety at the time of and immediately before she received the injury of which she complains.

In view of the conclusion we have reached we do not deem it necessary to discuss any of the other questions that are raised upon the record in this cause.

We conclude, therefore, by finding and holding that the judgment of the circuit court of McHenry county should be reversed, and the judgment is accordingly reversed.

Judgment reversed.


author: Mr. Justice Wolfe

text:
    J. F. Smith and Henry H. Antrim, Trustees of the Last Will and Testament of Daniel C. Stover, Deceased, v. Porter S. Stover et al. W. A. Hance et al., Defendants in Error, v. Margaret Winger et al., Plaintiffs in Error.
    Gen. No. 8,324.

      Opinion filed September 4, 1931.
    William S. Wilson and Stanley M. Vance, for plaintiffs in error.
    Oscar R. Zipf and R. R. Tiffany, for defendants in error W. A. Hance, Ethel S. Altemeier and M. B. Antrim.
    Hall, Baker & Hall, for defendants in error Gladys Stover Lyon, Margaret Stover Foster, Stover C. Winger and Clare Winger Harris.
    Charles H. Green, guardian ad litem for William Parker Lyon (the third), Barbara Louise Lyon and Murray Foster, Jr.
    Robert R. Mitchell, guardian ad litem for Margaret Winger, Clyde Harris, Donald Harris and Lynn Thackery Harris.
   Mr. Justice Wolfe

delivered the opinion of the court.

W. A. Hance, Ethel S. Altemeier, and M. B. Antrim filed a petition in the circuit court of Stephenson county asking that the compensation for their services as trustees under the last will and testament of Daniel C. Stover, deceased, be fixed at a reasonable sum to be determined by the court. The petition set forth that Daniel' C. Stover in his lifetime made his last will and testament leaving his estate in trust and appointing trustees to administer the same; that by a provision of the will the trustees were to each receive as compensation for their services the sum of $1,200 per year.

The petition further states that Daniel C. Stover died during the year 1908; that the estate has been fully administered, and that the trustees have had charge of the estate and managed it since the death of the testator; that at the time of the death of Daniel C. Stover, the estate amounted to approximately $600,000; that at the present time the estate has a value of approximately $2,225,000; that the amount of work to care for the estate has greatly increased; that a great part of the assets of the estate is invested in farm mortgages and the trustees have been compelled to take over quite a large number of farms to save the mortgaged debt; that in their opinion $1,200 a year for each of the trustees is inadequate compensation, and the court should fix a higher rate for each of the trustees. A hearing was had on the petition; the court found that $1,200 for the services of each of the trustees was inadequate and fixed the amount at $4,000 each as a reasonable amount.

The case came to this court on a writ of error. It is first contended that the court erred in fixing the compensation for the trustees for the reason that the will of Daniel C. Stover, deceased, expressly provides, “It is my will that my said executors and trustees shall receive in full compensation for settling my said estate, six per cent upon the value of my personal estate, the same to be divided among them equally, and that they shall also receive each the sum of $1,200 per year, commencing 18 months after my decease, for their services as trustees in carrying out the trusts hereby imposed upon them.” That the amount as fixed by the testator in the will is binding upon the court and the trustees, and the court had no jurisdiction to change the amount as fixed by the testator.

The law is well settled in this State that the courts cannot put themselves in the place of the testator, and have no right to change the compensation fixed by the testator, except in case of an exigency, or an emergency. Such exigency or emergency must be of such a nature and character which threatens a proper administration of the trust, or endangers a full and complete carrying out of the testator’s intention. If such an exigency or emergency is shown to exist, then the law is otherwise, and the court has authority to see that the will of the testator is properly carried out. Gavin v. Curtin, 171 Ill. 640; Hale v. Hale, 146 Ill. 227.

In.this case no such situation is shown to exist. The trustees complain that they don’t receive adequate compensation for the work required of them to properly administer the trust. The evidence does not show that the trust could not be fully administered by these trustees, or others qualified who would be willing to accept the duties imposed upon them for the compensation as fixed by the testator. Unless such a. showing is made a court would not be justified in fixing a greater compensation than provided for in the will.

The evidence shows that the estate is now worth approximately two and one-fourth million dollars; that the gross income from the estate for the year 1928 was $97,143. The record does not disclose how the estate was increased in value, whether by an advance in the value of lands or by investments. What the taxes on the estate for that year were does not appear. The taxes, insurance, secretarial work, clerk’s hire, office expenses, traveling expenses and cost of administering the estate, deducted from the gross income would not leave a great amount of net profit to be distributed to testator’s beneficiaries.

It is the duty of the courts to protect the beneficiaries in all trust estates. In this case the record does not show any exigency which would warrant the court in fixing the allowance of the trustees at a larger sum than was provided for in the testator’s will. If an exigency really exists the case can then be presented to the court by' competent evidence, and it would then be the duty of the court to take such action to see that the beneficiaries got the greatest amount of advantage under the provision of the will which can be given them consistent with the proper management of the trust estate. If it shall appear that the estate is handicapped or cannot be properly managed because of a provision of the will in respect to the compensation of the trustees, then the court has authority to remedy the situation; but there is no justification for the allowance of an additional compensation to the trustees because they are dissatisfied and demand more pay.

The evidence in this case is not sufficient to justify the court in changing the compensation. The judgment of' the circuit court of Stephenson county is hereby reversed and case remanded.

Reversed and remanded.


text:
    The People of the State of Illinois, Defendant in Error, v. James Hadley, Plaintiff in Error.
    Gen. No. 8,350.

      Opinion filed September 4, 1931.
    Hadley & Weaver, for plaintiff in error; Willard E. Cain and John S. Woodward, of counsel.
    C. W. Reed, State’s Attorney, and Russell W. Keeney and William E. Hooper, Assistant State’s Attorneys, for defendant in error.
   Mr. Justice Wolfe

delivered the opinion of the court.

James Hadley, plaintiff in error, was an acquaintance of Mary Dolan and Gertrude Natoli, who were being tried in the county court of DuPage county on information charging them with petit larceny. On the 4th day of March, while the case was on trial, about 11 o’clock in the morning a recess was taken and the jury permitted to leave the jury box. The plaintiff in error was near the door of the court room at the time the recess was taken and went into the corridor and then into the wash room some distance away from the main court room. The corridor and wash room were used by the jurors and the witnesses in the case.

It is contended by the People in this case that the plaintiff in error had a conversation with the juror in this wash room and attempted to intimidate one of the jurors named McNichols by threatening him with physical violence if the jury did not find each of the defendants not guilty. The juror told the sheriff what he claimed that Hadley had said to him. The sheriff and the juror then informed the judge of what had been done. The judge called in the attorneys interested in the trial, a juror was withdrawn and the case continued. The next day the court directed that a warrant be issued commanding the sheriff to arrest the said Hadley to answer unto the People for and concerning the crime of criminal contempt. Hadley obtained counsel, came into court, and asked that the writ be quashed, because there was on file no complaint, affidavit or petition to support the writ, and he also asked that the plaintiff in error be discharged. The court denied the motion, heard the evidence relative to the charges, found the defendant guilty of contempt of court and sentenced him to imprisonment in the county jail for 30 days. To reverse this sentence Hadley brings the case to this court on a writ of error.

The county court was in error in proceeding in a summary manner without giving the defendant an opportunity to purge himself of the charge of contempt. The authorities hold that where the court is in session it is present in every part of and place set apart for it's own use and for the use of its officers, jurors, and witnesses, and any misbehavior in such place is misbehavior in the presence of the court, and such misbehavior has been uniformly held to constitute a direct contempt of court.

It is not in every case of direct contempt of court that the court can proceed against the alleged offender in a summary manner as was done in this case. In In re Savin, 131 U. S. 267, the court in discussing the proceeding for contempt of court, say: “It is true that the mode of proceeding for contempt is not the same in every case of such misbehavior. Where the contempt is committed directly under the eye and within the view of the court, it may proceed ‘upon its own knowledge of the facts, and punish the offender without further proof, and without issue or trial in any form’ whereas, in cases of misbehavior of which the judge cannot have such personal knowledge, and is informed thereof only by the confession of the party, or by the testimony under oath of others, the proper practice is, by rule or other process, to require the offender to appear and show cause why he should not be punished” for such contempt. In the case of the People v. Cochrane, 307 Ill. 126, in which the Savin case, supra, and many others are quoted, Justice Cartwright expresses the view, “the presence of the court means in the ocular view of the court or where the court has direct knowledge of the contempt.”

The court in this case had no knowledge of his own upon which to base a judgment but had to rely solely upon the testimony of witnesses for the facts, and under the rule as laid down in People v. Cochrane, supra, such contempt was not in the presence of the court. People v. Rongetti, 344 Ill. 107. Following the rule as laid down in the cases as stated above, it is manifest that the correct procedure against the defendant Hadley would have been to enter a rule against him to show cause why he should not be punished for contempt of court, Under the circumstances in this case the court was not justified in following a summary course, thereby depriving the defendant of the right to answer or purge himself of contempt if he could.

The judgment of the county court of DuPage county is hereby reversed.

Reversed.


text:
    Howard Millinery Company, Appellee, v. The Royal Cloak Company, Trading as Klein’s, Appellant.
    Gen. No. 8,353.
    Opinion filed September 4, 1931.
    Hunter, Kavanagh & McLaughlin, for appellant.
    Shurtleff & Niehaus, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.

The appellant was the owner of a number of department stores operating throughout the middle west, and had one store located at Davenport, Iowa. Its main offices were in Peoria, Illinois. On January 15, 1918, the appellant corporation entered into a written lease with the International Millinery Stores, and with D. M. Lazarus, as lessees, whereby certain floor space and certain services were granted to the lessees in the Davenport, Iowa, store. The lease was for a term beginning January 15,1918 and ending January 15,1920, at an agreed rental of 15 per cent on all cash sales made by the lessees, and 17% per cent on all charge sales of said leased department. At the expiration of the lease in 1920, the plaintiff continued as tenant of the defendant and paid the rent as agreed upon in the original lease. During the year 1919, the lessees assigned their interest to the Howard Millinery Company which took over the business formerly conducted by D. M. Lazarus as an individual, also by the International Millinery Stores. There was no assignment of the written lease, but they continued as lessees of the defendant and paid the rent as provided for in the original lease.

In the month of December, 1925, a meeting took place in the office of the defendant company at Peoria, Illinois, at which time Mr. D. M. Lazarus represented the Howard Millinery Company and Mr. Harry Klein and Mr. Harold Lund represented the Royal Cloak Company, the defendant. There is very little, if any, dispute as to what took place at that meeting. Mr. Klein said, “if the appellee wanted to maintain and operate the Davenport department, that the percentage of 15 per cent on the cash sales and 17% per cent on the charge sales would have to amount to $3,000 a year if he wanted to maintain that department for the year 1926.” Mr. Lazarus testified to that, effect, and Mr. Lund on behalf of the Royal Cloak Company testified to the same thing. Mr. Lund testified that appellee could remain in the Davenport store “only on one condition, and that is, you guarantee our rental will not be less than $3,000 per year. ’ ’

Prom a review of this evidence we think it is clearly established that in December, 1925, Mr. Lazarus agreed that if they remained in the store after the expiration of the yéar, which ended in January, 1926, that the rent should be $3,000 per year. The appellee remained in possession of the store and at the end of the year 1926, the percentage on sales did not amount to $3,000. The defendant sent a statement to the appellee stating that there was due from the appellee to the appellant as rent under the lease the sum of $850. Thereupon the plaintiff remitted to the defendant that amount.

The percentages as provided in the lease for the year ending January 15, 1928, failed to equal $3,000, and the defendant deducted from his remittances to the plaintiff the sum of $1,222.50, which they claimed was the guaranteed deficit. Shortly after this occurrence the plaintiff moved out of this department store at Davenport, Iowa, and brought this suit in the circuit court of Peoria county, Illinois, for the recovery of the amount so deducted. The plaintiff recovered a judgment on a verdict for the full amount of the demand, and the case is brought to this court on appeal.

The plaintiff recovered upon the theory that it was a tenant holding over from year to year and that the agreement to guarantee that the percentage would equal $3,000 per year was without consideration; therefore, the defendant had no right to deduct the amount sued for from the amount which it should have remitted to the plaintiff. We do not think that the plaintiff was a tenant in the year 1926 holding over under the lease of 1918. It had been holding over as such tenant up until the end of the year 1925, but in December, 1925, there was a new lease entered into whereby it was agreed that the rent should be at least $3,000 for a period of time, which was yet to commence and which could not be construed, or be admitted, as a part of the year he was holding over. This new agreement related to the period starting January 15, 1926. In support of the plaintiff’s claim they cite Goldsborough v. Gable, 140 Ill. 269. An examination of this case discloses that the facts are entirely different from this case. In the Goldsborough case it relates to rent which would be payable during the year the tenant was then holding over. In Higgins v. Halligan, 46 Ill. 173, it is held that where a tenant under a lease from year to year is notified by his landlord before the expiration of his term that if he occupies the premises another year, he must pay a certain increased rent, and the tenant holds over, such act will be construed as an implied agreement that he shall hold the premises upon the new terms imposed. In the case of Weber v. Powers, 213 Ill. 370, 385, the court says: “The rule that, where a tenant for a year or years holds over after the expiration of his lease, the landlord, at his election, may treat the tenant as a tenant for another year upon the same terms as in the original lease, is subject to the condition, that such holding over after the expiration of the lease is not under any new arrangement, made by the landlord with the tenant. The rule does not apply where there is a new contract between the landlord and tenant, under which the latter remains in possession.” It will be observed in this case the new agreement for the future occupancy of the premises was entered into while the tenant was holding over in the year 1925.

The appellees also urge that the agreement of 1925 is not enforceable because of the statute of frauds. This objection might have had some force had it been made as to the rents of 1926, but it was not made as to such rent, but when the statement for the balance due was rendered, the plaintiff, without objection, remitted the amount demanded according to the new agreement. It is a well settled rule of law that the statute of frauds has no application to executed contracts. The full performance of that contract validated it and the hold over in 1927 could only be upon the terms which existed in 1926, and the plaintiff recognized the verbal agreement by paying the additional rent for that year. For the reasons above stated we think the plaintiff was not entitled to recover in this suit and the trial court erred in not directing a verdict in favor of the defendant. The judgment of the circuit court of Peoria county is hereby reversed.

Reversed.


text:
    Hazel R. Batson, Appellee, v. Herbert M. Batson, Appellant.
    Gen. No. 8,258.
    Opinion filed September 4, 1931.
    Frank T. Jordan, for appellant.
    Hadley & Weaver, for appellee.
   Mr. Justice Jett

delivered the opinion of the court.

The record discloses that on the 26th day of May, 1930, Hazel R. Batson, appellee, filed a verified bill of complaint in the circuit court of DuPage county against Herbert M. Batson, appellant, praying that he be required to furnish her separate maintenance and support. Appellee alleged in her bill that on or about the first day of January, 1920, she and appellant were married at Extor, England, and they lived as husband and wife until on or about the 16th day of March, 1930, when the appellant without any reasonable or just cause deserted her in DuPage county; that she first met the appellant in France when he was a major in the British army; that she owned 490 acres of land in Logan county, Illinois, worth about $200,000, subject to a mortgage; that the appellant advised appellee to sell her property and to bring the proceeds to England, where he could invest it, and they would be able to live on the income; that appellee returned to the United States but found that she could not readily dispose of her farm land although she was receiving an income of about $8,000 a year; that after said marriage appellant withdrew from the British army for the purpose of coming to the United States to enable appellee to sell her property and to turn the proceeds over to him for investment; that upon their arrival in the United States they found farm lands were depreciating in value and they were unable to sell the same; that appellee turned over to the appellant all the income from the said farm and they lived upon that until he finally obtained a position in a Chicago trust company at a salary of $75 a month; that the said appellant is a man of ability and of judgment and obtained increases in salary until at the time of the filing of the bill in this cause he was assistant vice president of the National Bank of the Republic at a large salary; the exact amount is unknown to appellee, but she is informed and believes his salary to be not less than $7,500 a year and that he has drawn a salary of substantially that amount for the past several years; that the appellee’s farm land depreciated in value and acting on the advice of the appellant she deeded it to the bank that held the mortgage; that upon the execution of the deed there became a marked change in the attitude of the appellant towards appellee and he then began a course of unkind, cruel and cold indifference to her; that in the fall of 1929 he went to England on a visit and upon his return he advised appellee he would no longer live with her but that she must permit him to obtain a divorce because that was the way it was done in England and it would be too much of a disgrace for him to allow her to obtain a divorce; this she refused to do and appellant thereupon threatened to leave appellee and never contribute to her support unless she would permit him to get a divorce. The appellant, accordingly, on the said 16th day of March, 1930, abandoned appellee and refused to live with her without fault on her part; that appellee has no property of any kind or character; that she has been for years sickly and unable to earn a livelihood; that the said appellant has failed and refused to make contributions towards her support and she was relying upon the charity of friends to provide her with funds; that appellant purchased certain premises in the village of Grlen Ellyn which were occupied by appellee and appellant as a home when they lived together and the said appellant has been endeavoring to force her to vacate said premises.

The record further discloses that a summons was issued on the 26th day of May, 1930, and was returned on the 9th day of June, 1930, reciting that the appellant was not found. An alias summons was issued returnable at the October Term. The alias summons was served upon the appellant on the 13th day of June, 1930. On the 15th day of July, 1930, appellee served notice upon the appellant and his solicitor that on the 18th day of July, 1930, she would appear before the circuit court and ask for an order for temporary alimony. On the 18th day of July, 1930, appellant and appellee appeared before the circuit court and appellee filed her verified petition for temporary alimony which petition set forth that the appellant had no property of her own except personal effects and her interest in the premises described in the bill of complaint, and that the appellant had failed to pay or to give her any money since he deserted her on the 16th day of March, 1930; that at the time appellant deserted her she had the sum of $315 all of which had been expended except the sum of $150 which she was retaining to apply upon obligations already incurred, and that she was the object of charity of friends and relatives; that she had incurred grocery bills, telephone bills and various and sundry other bills for living expenses since the appellant deserted her and that on or about the first day of January, 1930, when the appellant first urged her to grant him a divorce, he offered to furnish her with a home and 20 per cent of his income and to furnish life insurance but because of her great love for said appellant she refused to consent to a divorce and he threatened that if she would not give bim a divorce he would leave her and never make any contribution towards her support until she would consent to a divorce; that she was advised when she filed the bill for separate maintenance that the appellant was receiving about $7,500 a year and since that time she had been informed he was earning between $8,000 and $10,000 a year and receiving in addition thereto certain bonuses; that the appellant had told her he had purchased certain stock and bonds of the value of about $20,000 but had sold and assigned his interest in them; that she has no money or funds with which to employ counsel to prosecute said suit.

On the said 18th day of July, 1930, appellee filed an affidavit setting up substantially the same facts as were found in her petition.

To the petition the appellant appeared and filed what purports to be an objection to the jurisdiction of the court. It is urged that since he was summoned to appear on the first day of the October Term 1930, the court did not have jurisdiction to hear the motion for temporary alimony prior to the said October Term of court.

The chancellor on overruling the objections of the appellant heard the motion of appellee and entered an order on the said appellant decreeing that he pay to appellee the sum of $50 per week until the further order of the court, and this appeal followed.

The appellant has overlooked the provisions of the statute that is the basis for the proceeding by appellee. Cahill’s St. ch. 68, ¶ 22; paragraph 22, ch. 68, Smith-Hurd Rev. St. 1929, provides as follows: “That married women who, without their fault, now live or hereafter may live separate and apart from their husbands, may have their remedy in equity, in their own names respectively, against their said husbands in the Circuit Court of the county where the husband resides, for a reasonable support and maintenance while they so live or have so lived separate and apart; and in determining the amount to be allowed the court shall have reference to the condition in life of the parties at the place of residence of the husband, and the circumstances of the respective cases; and the court at any time, after service of summons and proper notice to the husband, may make such allowance of temporary alimony, attorney’s fees, and suit money as may appear just and equitable, as in cases of divorce; the court may, however, in its discretion, reserve the question of the allowance of attorney’s fees and suit money until the final hearing of the case, and may then make such order with reference thereto as may seem just and equitable, regardless of the disposition of the case.”

As we have already seen, the bill was filed on the 26th day of May, 1930, to the June Term of the circuit court. Service was not obtained. An alias summons was issued on the 9th day of June, 1930, which was served on the appellant on the 13th day of June, 1930. This was not returnable until the first Monday in October, 1930. Notice of the presentation of the petition for temporary alimony was served upon appellant, notifying Mm that on the 18th day of July, 1930, appellee would appear before the circuit court and ask. for an -order for temporary alimony. It was to meet a situation as is presented by the bill, petition and affidavit in this cause, that the legislature enacted the statute hereinabove quoted giving- to the court the power to enter an order for temporary alimony. It is disclosed by the record that the bill had been filed, service had, notice given of the intended application, and that the appellant appeared and did not seek to avail himself of the opportunity of making a defense upon the merits of the cause. He did not deny the allegations in the bill of complaint, petition or affidavit as to his property holdings and earmng capacity. The filing of the. bill constituted a cause pending, and the court, upon the filing of the same had jurisdiction of the subject matter, and upon the service of the summons the court had jurisdiction of the person of the appellant. It is true this jurisdiction for certain purposes could not be exercised until the October Term, but by reason of the provisions of the statute above cited the court had jurisdiction for other purposes as is contemplated by the petition in this cause, as soon as the summons had been served and proper notice given. It therefore follows that the court had jurisdiction of the appellant for the purpose of entering the order in question regardless of whether the appellant had entered a general or special appearance. The court had jurisdiction of the subject matter as well as of the person of the appellant and had full authority to enter the order in question. Furthermore, the provisions of the statute itself are declaratory of the general equity powers of a court of equity. The power to allow temporary alimony is necessarily included M the jurisdiction over the subject matter of separate maintenance and support. Separate maintenance is the main object of this proceeding. The duty of the husband to support his wife is a continuing one. As soon as the appellant was served with summons and notice given the court had jurisdiction to hear and to require him upon a proper showing to support his wife in keeping with his ability, her need and their condition in life. It appears from the record the bill and petition were filed in good faith, and by reason of the showing made the court had jurisdiction and was authorized under the law to enter the order of which the appellant complains.

It will be remembered that there is no objection made other than to the jurisdiction of the court.

We conclude, therefore, that the order entered by the circuit court of DuPage county should be affirmed, which is accordingly done.

Order and decree affirmed.


text:
    The People of the State of Illinois, Upon the Relation of and in the Name of Oscar Nelson, Auditor of Public Accounts of the State of Illinois, v. American Trust & Savings Bank of Kankakee, County of Kankakee and State of Illinois. Intervening Petition of Alphonsine Denoyer to Have her Judgment Allowed as a Preferred Claim, Appellee, v. Oscar Nelson, Auditor of Public Accounts of the State of Illinois, and Fred G. Snow, Receiver of American Trust & Savings Bank of Kankakee, Appellants.
    Gen. No. 8,328.

      Opinion filed September 10, 1931.
    Oscar E. Carlstrom, Attorney General, and Eben B. Gower, for appellants.
    Vernon G. Butz, Irwin 0. Taylor and Chas. D. Henry, Jr., for appellee.
   Mr. Justice Jett

delivered the opinion of the court.

The record discloses that the American Trust and Savings Bank of Kankakee, Illinois, was taken charge of and closed by Oscar Nelson, auditor of public accounts of the State of Illinois. The American Trust and Savings Bank was the successor of the Legris Trust and Savings Bank. Subsequent to the taking charge of the said American Trust and Savings Bank by the auditor of public accounts, one Fred Gr. Snow was appointed receiver thereof.

It appears that Alphonsine Denoyer was a depositor in the Legris Trust and Savings Bank and on the 3rd day of April, 1924, she went to Fred E. Legris, Jr., the cashier, and told him she desired to buy some notes secured by a first mortgage. Legris replied that he had what she desired and sold her three $1,000 notes bearing interest at the rate of 6% per cent per annum. The amount paid by her for the three notes included interest and totaled the sum of $3,045. She received the interest for a number of years and finally the said American Trust and Savings Bank of Kankakee closed its doors as hereinabove indicated. She had not received the interest for the year in which the bank was closed and she consulted with the attorney for the bank who- informed her that the notes she possessed were not secured by a first mortgage but were secured by a second mortgage. Thereupon she brought an action in the circuit court of Kankakee county in which she charged fraud and deceit. A trial was had and she recovered a judgment against the bank for $3,200. The American Trust and Savings Bank had resources amounting to $729,915.48 on December 29, 1929, according to its books as set forth in the decree appointing the receiver.

The record further discloses that on September 27, 1930, an intervening petition was filed by Alphonsine Denoyer against the American Trust and Savings Bank of Kankakee. In her intervening petition the said Alphonsine Denoyer prayed that her claim be held to be a preferred one and paid before the claims of general creditors. At the hearing on her petition she introduced the judgment she had obtained for $3,200, the files and the oral testimony, all for the purpose of showing that her claim was founded on fraud and deceit and to further show that as a result thereof a trust arose in her favor. The court found in favor of the intervenor and gave her claim a preference, and this appeal followed.

The question arising on this record is whether or not under the showing made the court erred in allowing the claim of the intervening petitioner as a preferred one and ordering it paid before the general creditors were paid. The intervenor was bound to establish that her claim was founded on fraud and deceit and to show as a result thereof, a trust arose in her favor. She had a right to do so by the introduction of oral testimony or by introduction of the record and the pleadings in the case in which she recovered a judgment at law, or by both, by oral testimony and by documentary evidence.

It is urged that the court committed error in the admission of the judgment obtained in the suit at law against the bank together with files in said cause. The declaration in the suit at law averred that the intervenor paid the bank $3,045 for notes represented by the bank to be secured by first mortgage on real estate which security was good; that the intervenor relied upon the statements and was deceived; that the statement was false, that the notes were secured not by a first mortgage but a second mortgage and were worthless. We can see no good reason why such evidence should not have been heard by the court, wherein it was incumbent upon the intervenor to establish the fact that fraud and deceit had been practiced upon her. This evidence was not conclusive within itself but the declaration and averments thereof, together with the judgment, were proper to be taken into consideration by the court in determining the issues involved. It is conceded by the appellant that the documentary evidence offered, if it was admissible, tended to prove the contention of the intervenor. The testimony of the intervenor herself sustains the allegations of the petition. It shows that the petitioner had the money in the bank before she purchased the notes.from the bank. It shows and stands in ■ the record uncontradicted that when she went to the representative of the bank and mentioned the fact that she desired to purchase notes secured by first mortgages she was informed that the bank had such paper as she desired and that it was secured by a first mortgage; that she relied upon the statement of the cashier of the bank and that the notes were not as represented; that instead of being secured by a first mortgage they were secured by a second mortgage and the second mortgage security was worthless; that the property was not worth more than the indebtedness secured by the first mortgage and that the first mortgage was in process of foreclosure. If these facts be true, then was it not proper for the court to hear them in order that it might determine whether or not fraud and deceit had been practiced upon the intervenor? We think such testimony was admissible.

It is also conceded by the appellant that if the testimony of the intervenor is admissible it sustains the allegations of her petition. If the intervenor had not obtained a judgment against the bank, and had filed her claim basing it on the notes, she would have been a competent witness to testify in her own behalf. Her evidence established the facts set up in her petition. The fact that a judgment was entered on the notes does not preclude the petitioner from establishing by oral testimony the fraud and deceit.

A judgment in assumpsit does not waive the facts upon which it is obtained. In Nelson v. Petterson, 229 Ill. 240, at 247, it is said: “We are of the opinion that if, as contended by plaintiff, the fraudulent representations and concealments of defendant alleged in the declaration created a liability from which the law implied a promise to pay, so that indebitatus assumpsit would lie, still the liability results from a tort and not a contract. If the tort might be waived and an action of assumpsit maintained, still the very foundation of the action is the tort, and it is only by a fiction of law that a promise to pay is said to be implied. ’ ’

Fraud and deceit by a bank, whereby the bank obtains money of a customer, creates a trust in favor of the customer.

A constructive trust is held to be where one clothed with some fiduciary character, by fraud or otherwise, gains something for himself which equity will fasten upon his conscience, converting him into trustee of legal title. To raise a constructive trust there must have been some element of fraud at the time of the transaction, or a confidential relation and influence whereby one obtained legal title to property which he ought not, according to the rules of equity and in good conscience, to hold and enjoy. Streeter v. Gamble, 298 Ill. 332.

The argument of the appellant is to the effect that although the fund in question is impressed with a trust that this will avail the petitioner nothing, because the fund was so mixed with other funds in the bank’s possession as to lose its ‘ identity, and in fact was dissipated by the bank, therefore, the petitioner stands merely as a creditor.

In Storey on Equity Jurisprudence, Yol. 2, sec. 1258, the rule is thus stated:

“The general proposition which is maintained both at law and in equity upon this subject is, that if any property in its original state and form is covered with a trust in favor of the principal, no change of that state and form can divest it of such trust or give the agent or trustee converting it, or those who represent him in right (not being bona fide purchasers for a valuable consideration without notice) any more valid claim in respect to it than they respectively had before such change. An abuse of a trust can confer no rights on the party abusing it or on those who claim in privity with him. This principle is fully recognized at law, in all cases where it is susceptible of being brought out, as a ground of action or of defense in a suit at law. In courts of equity it is adopted with a universality of application.”

In People v. Auburn State Bank, 215 Ill. App. 133, at 137, the court, after quoting from Storey on Equity Jurisprudence, says:

“This rule is supported by citations; also supporting it are White v. Sherman, 168 Ill. 589, and Breit v. Yeaton, 101 Ill. 242; 2 Perry on Trusts, secs. 835-36, and, conspicuously, the case of Woodhouse v. Crandall, 197 Ill. 104. In the last-mentioned case the court distinguishes most of the decisions which are now presented by the bank in support of its contention. It was there held that in such cases it is not necessary that the money or bank bills should be identified; that the suit is not to recover a specific thing but a certain sum of money held in trust, and that it is the identity of the fund and not the identity of the money which is to be established; that it makes no difference if the fund was mingled with other moneys so as to lose its identity as currency; that the character of the fund held by a bank in fiduciary capacity is not changed by being placed with other moneys. It was also held that where moneys are so mingled the law will presume that the trustees drew out their own money first, and what remained belonged to the trust, but if it could be shown that the entire fund was withdrawn or actually dissipated so that none of it remained, the rule would necessarily be different; that if the fund has once been disposed of no charge can be made against the general estate to the exclusion of other creditors, but the fact that the same bills or currency were not retained or that the fund was traced into a larger sum of money in the same bank does not destroy its identity.”

In In re Northrup, 152 Fed. 373, it is said: “It would be extremely and ridiculously technical to assert that where a wrongdoer, so far as he can, rights a wrong committed in converting the money of another, by substituting at a subsequent time other money of his own to make good that converted, the beneficial owner may not claim and. hold the substituted money or property as impressed with precisely the same trust as the original fund. ... It does not lie with the wrongdoer, or his assignee or trustee in bankruptcy who has made the substitution, to say that the substituted thing is neither the trust property itself, nor its proceeds.”

In Macy v. Roedenbeck, 227 Fed. 346, the rule is thus stated:

“Where a trustee mingles trust funds and makes payments out of the common fund, there is a sufficient identification of the remainder, not exceeding the smallest amount the fund contained subsequent to the commingling, because the legal presumption is that he regarded the law, and neither paid out nor invested in other securities or property the trust fund, but kept it sacred. . . . The modern and more equitable doctrine permits the recovery of a trust fund from one not an innocent purchaser, and into any shape into which it may have been transmuted, provided he can establish the fact that it is his property, or the proceeds of his property, or that his property has gone into it and remains in a mass from which.it cannot be distinguished. ’ ’

It will be remembered that on the hearing of the intervening petition it was .stipulated at the time the judgment was rendered that there were more than $4,000 of cash assets in the bank.

In view of the facts as disclosed by the record, and of the rules as herein announced, we conclude that the circuit court was right in allowing the claim of the intervenor as a preference, and the decree of the circuit court of Kankakee county is affirmed.

Judgment affirmed.