text:
    Elbert M. Oliver, Appellant, v. Retirement Board of the Municipal Employees’ Annuity and Benefit Fund of Chicago, Appellees.
    Gen. No. 41,712.
    Heard in the third division of this court for the first district at the December term, 1940.
    Opinion filed June 25, 1941.
    John F. Cusack and James J. Cusack, Jr., both of Chicago, for appellant; Robert Irmiger, of Chicago, of counsel.
    Barnet Hodes, Corporation Counsel, for appellee; George F. Mulligan, Assistant Corporation Counsel, of counsel.
   Mr. Presiding Justice Burke

delivered the opinion of the court.

Elbert M. Oliver was born on May 27, 1897. On August 27, 1927, he was appointed to the position of motor truck driver in the classified service of the city of Chicago. On October 14, 1932, while so employed he injured his right knee. Because of this injury he was forced to quit working on January 8, 1933. At the time he was injured he was the father of four children under 18 years of age, namely, Erna, born August 10, 1919; Elbert, Jr., born July 9, 1921; Harry, born July 17, 1923, and Ira, born April 17, 1925. Since such injury Erna and Elbert, Jr. have arrived at the age of 18 years. Ira died on May 19, 1933. The youngest child, Harry, will become 18 years of age on July 17, 1941. Oliver was a contributor to and a participant in the fund being administered by the Retirement Board of the Municipal Employees Annuity and Benefit Fund of Chicago, and on February 17, 1933, that Board granted to him a ‘‘ Duty Disability Benefit ’’ and a “Child’s Disability Benefit.” From January 9, 1933, to February 28, 1935 he received “Duty Disability Benefit” of approximately 75 per cent of his salary as of July 1, 1931. During this period he also received a “Child’s Disability Benefit” of approximately 15 per cent of his salary as of July 1, 1931. However, on April 1, 1935 the Board claimed that his payments from January 9, 1933 to February 28, 1935 were excessive, and though he still had eligible dependent children, his total payments were reduced to approximately 75 per cent of his salary as of July 1, 1931. The Board asserted that the overpayments amounted to $741.95 and this amount was deducted from subsequent payments. His salary on July 1, 1931 was $2,250 per year. During this period of economic distress experienced by the city during 1931 and subsequent years, a reduction of one and one-half days’ pay per week, or 78 days per year, amounting to practically 21 per cent, was made by authority o^ the city council in the wages paid to city employees subsequent to July 1, 1931. This reduction brought plaintiff’s salary down to $1,811.64. On February 9, 1940 Oliver served a notice on the Board for payment of benefits under the provisions of pars. 1089 and 1100½, ch. 24, Ill. Rev. Stat. 1939 (secs. 46 and 57½) [Jones Ill. Stats. Ann. 100.051, 100.066]. On May 17, 1940 the Board rejected Oliver’s demand. Thereupon he filed a complaint in the superior court of Cook county for a writ of certiorari and the writ was issued. The return to the writ set up the facts substantially as above recited. The court entered judgment that the writ of certiorari be quashed. The court certified that a constitutional question was involved. Plaintiff appealed to the Supreme Court, which in turn transferred the case to this court. (375 Ill. 641). In transferring the case the Supreme Court said (642):

“The trial court certified that a constitutional question is involved. Counsel for appellant here states that he has some doubt about the existence of a constitutional question in the appeal, but that because of the certificate of the trial court he felt the matter should be presented here. Cases involving only the construction of a statute do not involve a constitutional question and the certificate of the trial judge that a constitutional question is involved does not confer upon this court jurisdiction on direct review.” As suggested by the Supreme Court, this case involves the construction of two sections of a statute. In the briefs filed in the Supreme Court neither party contended that any part of the two sections was unconstitutional. Sec. 46 (par. 1089) ch. 24, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 100.051], reads:
“Benefit to be known as ‘Duty Disability Benefit’ shall be provided for municipal employees in the service who shall become disabled as the result of injury incurred in the performance of any act or acts of duty.
“Benefit to be known as 'Child Disability Benefit’ shall be provided for municipal employees disabled as stated in the preceding paragraph who shall be the parents of any unmarried child or children less than eighteen (18) years of age.
“Any municipal employee less than sixty-five (65) years of age, who shall become disabled ... as the result of injury incurred ... in the performance of any act or acts of duty, shall have a right to receive Duty Disability Benefit, during any period of such disability for which such municipal employee shall not receive nor have a right to receive salary, of an amount equal to seventy-five (75) per cent of his salary as it shall be at the time of such injury; . . . Any such municipal employee shall also have a right to receive Child’s Disability Benefit of amounts of ten (10) dollars a month on account of each child (the issue of such municipal employee) less than eighteen (18) years of age; provided, the total amount of Child’s Disability Benefit which shall be granted or paid to any such municipal employee shall not exceed fifteen (15) per cent of the salary as aforesaid, to such municipal employee. . . .” Sec. 57½ (par. 1100½) reads:
“Notwithstanding the provisions of any foregoing section or sections of this Act, it shall be assumed that, for the compensation annuity and disability benefit purposes of this Act, the annual salary of any participant in or contributor to this fund, shall be the amount, not in excess of three thousand dollars ($3,000.00), set out and appropriated for the position held by such participant or contributor in the annual budget or appropriation bill of such city: Provided, however, that for the purpose of computing compensation annuity and duty disability benefit under this Act, from and after July 1, 1931, where the disability or death has resulted or shall result from injury incurred on or after July 1, 1931, such salary shall be assumed to be not less than the same amount, not in excess of three thousand dollars ($3,000.00), that such salary was on July 1, 1931. ...” The act providing for the employees’ annuity and benefit fund was approved by the Governor on July 29, 1921. Sec. 46 (par. 1089) was amended in 1923, 1931 and 1935. Sec. 57½ (par. 1100½ ) is an added section approved October 4, 1932. Because of an “emergency clause” sec. 57½ , became effective immediately. As plaintiff was injured on October 14, 1932, after this added section went into effect, his rights in the instant case are governed by sec. 46 (par. 1089) and sec. 57½ (par. 1100½ ). Sec. 57½ (par. 1100½ ) provides that for the purpose of computing duty disability benefits the salary of the employee affected shall be assumed to be not less than such salary was on July 1, 1931, but does not mention the “Child’s Disability Benefit.” Although sec. 46 (par. 1089) was amended in 1935, the provision for a “Child’s Disability Benefit” was not altered. Before the enactment of sec. 57½ , the minimum “Duty Disability Benefit” was 75 per cent of the salary of the employee at the time of his injury and while incapacitated he would receive 25 per cent less than his salary during such period. When the city reduced the salaries of all employees in 1931, this 25 per cent added to the reduction of 21 per cent, left an injured employee receiving as duty disability allowance 40 per cent less than the salary he would receive if he were working. The legislature sought to remedy this evil and so enacted sec. 57½ , which provided that duty disability benefit should be allowed on the basis of the employee’s salary as of July 1, 1931, if such salary were “not in excess of $3,000.00 per year.”'

Plaintiff refers to the salary fixed as of July 1, 1931 as the “pegged salary.” It is conceded that the effect of sec. 57½ is to give the injured employee a duty disability benefit of practically 94 per cent of his actual salary at the time of such injury, without taking into consideration any right he may have to a “Child’s Disability Benefit.” Plaintiff contends that the provisions for “Child’s Disability Benefit” (sec. 46) are not in any way affected by sec. 57½ , and that since the salary basis for computing “Child’s Disability Benefit” is not changed by sec. 57½ , the “Child’s Disability Benefit should be computed under sec. 46 on the basis of the present salary. He maintains that “Duty Disability Benefit” should be based on his salary as of July 1, 1931, and the “Child’s Disability Benefit” on his salary as of the time he was injured. Plaintiff insists that sec. 57½ does not furnish an excuse to the Board for wiping out the “Child’s Disability Benefit.” If the contention of plaintiff is upheld, he will receive approximately 108 per cent of his actual salary as of the day he was injured. Respondent suggests that to so hold would render see. 57½ unconstitutional, and cites the case of Porter v. Loehr, 332 Ill. 353, in support of the proposition that an act increasing a pension after the services have been rendered is unconstitutional. In that case the Supreme Court struck down certain enactments increasing the pensions of retired policemen for services previously rendered, as in violtion of sec. 19, art. 4, of the Constitution of this State, which provides, among other things, that “the general assembly shall never grant or authorize extra compensation, fee or allowance to any public officer, agent, servant or contractor, after service has been rendered or a contract made. ’ ’ The principle recognized in the Porter case is not applicable to the instant case because at the time of plaintiff’s disabling injury, both secs. 46 and 57½ were in full force and effect. The cases cited by defendant are cases wherein employees already receiving pensions attempted to take advantage of pension increases provided by subsequent legislation.

Our Supreme Court has held that pension statutes are to be liberally construed in favor of the persons to be benefited thereby. Our view is that the language of secs. 46 and 57½ is clear and unambiguous. In Colton v. Board of Trustees, Firemen’s Pension Fund, 287 Ill. 56, our Supreme Court said (59):

“In the construction of statutes courts should consider every part and give sensible and intelligent meaning to every provision so far as possible, but the legislative intent must be found in the act and the court must take the words found in the statute according to their ordinary and usual meaning.” Sec. 46 provided for two separate and supplemental benefits to disabled employees, namely, a “Duty Disability Benefit” and a “Child’s Disability Benefit.” It will be noted that in providing for a “Duty Disability Benefit” this section states that any such employee shall “also” have a right to receive a “Child’s Disability Benefit.” It is obvious that by providing for a “Child’s Disability Benefit” in addition to a “Duty Disability Benefit” the legislature intended that employees with eligible dependent children should receive larger benefits than employees without eligible dependent children. Sec. 57% affects only the salary basis for computing “Duty Disability Benefits” and does not purport to alter any of the provisions regarding* “Child’s Disability Benefit”; nor does this section mention the percentages of salary to be applied in arriving* at the amount of the employee’s benefit. We are of the opinion that the provisions for a “Child’s Disability Benefit” were not in any way affected by the act of October 4, 1932. In fact, “Duty Disability Benefit” and “Child’s Disability Benefit” are only two of the many different kinds of payment provided for by the act. Sec. 57½ merely establishes a pegged instead of a fluctuating salary basis for computing compensation annuity payments and “Duty Disability Benefit” only. No other classes of payments are mentioned therein. As we have seen, the legislature amended sec. 46 in 1935. At that time the members of the General Assembly knew of the existence of sec. 57½. Had they wished to provide for a different basis of paying “Duty Disability Benefit” and “Child’s Disability Benefit” they would in all probability have done so at that time. Sec. 57½ is not and could not be an amendment to sec. 46. Sec. 13 of art. 4 of our Illinois Constitution provides that when it is sought to amend, the section amended shall be inserted at length in the new act. The legislature did not set a maximum ratio of benefits to present salaries. The effect of the ruling of the Board and of the trial court is to virtually wipe out a “Child’s Disability Benefit” to employees with eligible dependent children whenever a reduction in salary amounted to 16% per cent or more.

Respondent urges that while the instant proceeding appears on its face to be certiorari to review the action of the Board taken on May 17, 1940, it is in reality an attempt to have the court review the action of the Board taken in March 1935, reducing plaintiff’s “Duty Disability Benefit” payments. Respondent suggests that proceedings to review the order of the Board entered in March 1935 should have been filed within a reasonable time after the entry of such order, that more than five years elapsed before the petition for certiorari was filed, and that the procedure followed by plaintiff of filing his claim in February 1940 for the purpose of procuring a review of the order of the Board entered in March 1935, amounts to a circumvention of the law and should not be permitted. Under the heading of Points and Authorities, respondent does not mention the proposition of laches. We have carefully read the record and do not find that the respondent at any time raised the point that the complaint for a writ of certiorari was not filed in due time. It is a well-established rule that a point not raised in the trial court cannot be urged in this court.

Because of the views expressed, the judgment order of the superior court of Cook county is reversed and the return to the writ of certiorari is quashed.

Judgment order reversed and return to writ of certiorari quashed.

Hebel and Denis E. Sullivan, JJ., concur.


source: Caselaw Access Project

author: Mr. Justice Hebel court.

license: Public Domain

text:
    J. H. Gobeli and Charles R. Collin, Appellees, v. M. E. Braga et al., Appellants.
    Gen. No. 41,530.
    Heard in the third division of this court for the first district at the December term, 1940.
    Opinion filed June 25, 1941.
    Erwin A. Stanicek, of Chicago, and Guy C. Guerine, of Melrose Park, for appellants.
    Roman E. Posanski, of Chicago, for appellees; William Jacobs, of Chicago, of counsel.
   Mr. Justice Hebel court.

delivered the opinion of the

This is an appeal by the respondents, officials of the Village of Broadview and the Village of Broadview, from a mandamus order, entered by the circuit court of Cook county, ordering and directing the respondents to issue a building permit, for the construction of improvements, for the purpose of utilizing the property in question, as a retail gas service station.

The original petition for a writ of mandamus was filed on behalf of J. H. Gobeli and against John W. Taylor, clerk. A motion to strike this petition was sustained, and an amended petition was subsequently filed, on behalf of J. H. Gobeli and Charles R. Collin, against the members of the board of trustees and the Village of Broadview, a municipal corporation. A motion to strike this amended petition was overruled and the respondents were ordered to answer. An answer was thereafter filed by respondents and a reply by the petitioners to the answer. After a hearing on the questions of fact and the issues involved, a writ of mandamus was ordered to issue and it is from that order that the respondents appeal.

The facts as appear in the record are that the respondents are, respectively, the clerk, president, and board of trustees of the Village of Broadview, a municipal corporation. On the 4th day of May 1940, a petition for mandamus against J. W. Taylor, village clerk, was filed by J. H. Gobeli, seeking a building permit for the purpose of utilizing a piece of property, as a retail gasoline service station. The property in question is located at the southeast corner of 17th avenue and Harrison street, in the Village of Broad-view. The space to be used is between the building on the corner, used as a residence and drug store, and a residence to the south of the alley. The plans, introduced in evidence, show that the gasoline station would be within five feet of the residential portion of the building on the southwest corner of Harrison and Seventeenth and within sixteen feet of the residence to the south.

In 1926, the Village of Broadview passed an ordinance prohibiting the erection and operation of gas service stations, unless a majority of the property owners, within a distance of 250 feet, consented to such use. It does not appear from the facts in this record that prior to 1919, when the act to regulate the sale of volatile liquids was passed, the Village of Broadview had another ordinance in effect regulating the sale of gasoline. Upon the questions involved in this case regarding ordinances, the court takes judicial notice of all general ordinances of municipalities within its territorial jurisdiction (chap. 51., secs. 48 (a), 48 (b), Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 107.122, 107.123]).

It was testified to by petitioner, J. H. Gobeli, that on the 3rd day of May 1939, he entered into a contract, for the purchase of the property in question, from Mr. Collin, but that this contract had been abandoned by him and Mr. Collin; that on the 21st day of May 1940, he had entered into an option with Mr. Collin, to purchase the above property, on different terms; that this option was based upon the obtaining of a permit; that he did not own the property in question; that he had abandoned the original contract and had entered into a sixty-day option on May 21, 1940, after he had filed the present suit. .

The first application for a building permit was filed on May 13, 1939, and a check in the sum of $12, together with plans, were submitted in connection with this application. The application was signed by Gobeli. Under the name of J. H. Gobeli, the words “For Charles R. Collin” appear written in different ink than the ink used in the name of J. H. Gobeli. Mr. Gobeli testified that he placed the words “For Charles R. Collin” on the application prior to filing it; that the application and plans were turned over to the village clerk, a few minutes prior to the board meeting, in May 1939; and that the Board discussed it and told him that he would have to obtain the consent of the property owners.

The officials of the Village of Broadview testified that the words “For Charles R. Collin” were not on the application at the time it was filed; that the matter was not taken up at the regular meeting, but was held in abeyance; that about a month later, Mr. Gobeli called and asked to withdraw the application; and that he did withdraw his plans, together with his check for the building fees. Nothing was done by the village, or either of the petitioners, until May 6, 1940, when the same application, together with the same plans were given to the village clerk. On May 4, 1940, the original petition for mandamus was filed in the circuit court of Cook county, in the name of J. H. Gobeli and on May 22, 1940, an amended petition was filed on behalf of J. H. Gobeli and Charles Collin, which is the first time that Charles E. Collin appears as requesting a permit.

On September 1, 1938, -the Department of Insurance adopted rules and regulations, covering the sale and storage of motor fuel. These rules and regulations were introduced in evidence as respondents’ exhibit. As required by these rules, the minimum distance, between tanks and adjoining property, is twenty feet for a 3,000 gallon tank. The plat and plans presented, by the petitioners, to the village clerk, were never approved by the Illinois State Department of Insurance. The plans show that the distance, between the station and the home of George Cote, is sixteen feet and the distance, between the tanks and the residence portion of the building to the north, is five feet. There is no allegation, in the original petition filed May 4, 1940, nor in the amended petition filed May 22, 1940, alleging when the permit was applied for, or when it was refused.

The respondents in this action maintain that it was essential for the petitioners to allege what the requirements of this ordinance were, and that it was also necessary for the petitioners to allege the specific acts which had been performed, by them to show a compliance with the provisions of the ordinance. The general allegation, that the requirements of the ordinance had been complied with, it is suggested, is not sufficient, and the following cases are cited, McGann v. People ex rel. Coffeen, 194 Ill. 526; People v. Busse, 248 Ill. 11; People v. City of Chicago, 280 Ill. 576. As to the petitioner’s right, to a license or a permit, such right is based upon their position that they had complied with the building ordinance of the Village of Broadview and with its provisions. The record is devoid of any proof as to what those provisions were, or as to what was done, by the petitioners, in compliance. It is necessary, before a writ of mandamus is issued against officials, compelling them to perform some act, that persons, seeking such a writ, must show a clear right to its issuance. People v. City of Chicago, 277 Ill. 394. They must also show that their interest, in the subject matter, must be a material one and must have existed, at the time the petition was filed. Murphy v. City of Park Ridge, 298 Ill. 66. It is then urged that it is a well-recognized principle of law that a petition for mandamus, like a complaint at law or in chancery, should allege some specific time when the cause of action accrued, and that in the instant case, neither the original petition, nor the amended petition attempt to allege or plead either specifically, or generally, when the action, or cause of action arose.

It appears in the record that the first petition was filed on behalf of J. H. Gobeli, and that subsequently, an amended petition was filed, in which Charles B. Collin was made petitioner, and the president and members of the board of trustees of the Village of Broadview and the Village of Broadview, were made respondents. Leave of court was not obtained, to make additional parties plaintiff, or defendants. The trial was had and it does not appear that any evidence was introduced nor the court’s attention called to any facts other than those as alleged by petitioners. It does appear that the original petition was filed on May 4, 1940, and that seventeen days later, on May 21, 1940, J. H. Gobeli obtained an option to purchase the property in question on different terms than those set forth in the first agreement, executed in 1939, and which had been terminated by the parties long before this suit was instituted.

The order entered by the court directed that a writ of mandamus issue, directed to the Village of Broadview, a municipal corporation, M. E. Braga, president of the Village of Broadview, J. W. Taylor, clerk of the Village of Broadview, Don Zugenbuehler, James Karl, R. Horn, F. Tiefenthal, T. C. Peterson and E. E. Breseman, trustees of the Village of Broadview, to issue forthwith the necessary building permit for the construction of the improvement, in accordance with the plans and specifications heretofore filed and to do any and all acts necessary and requisite to the end that petitioners be given their building permit to construct the proposed building and improvements for the purpose of utilizing said property “as a retail gas service station.” The petitioners challenge the respondents’ contention that the Village of Broadview had authority to pass an ordinance in 1926 regulating the sale, storage and use of gasoline. The Supreme Court upheld in the case of City of Ottawa v. Brown, 372 Ill. 468, an ordinance of the city of Ottawa as being within the exception of the act of 1919 (par. 351-3, Ch. 38, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann.]) in favor of cities or villages which had in full force and effect a regulatory ordinance for keeping, storage, transportation, sale or use of gasoline and volatile oils. The opinion of the court states:

“. . . The 1916 ordinance regulated the storage of gasoline and was in full force and effect when the 1919 act became effective. The city had sufficiently exercised the power to enable it either to amend the ordinance or to adopt a broader one. This being true, the ordinance of July 3, 1930, was authorized and was valid. This conclusion is supported by our holding in the case of Fligelman v. City of Chicago, 348 Ill. 294.” After quoting from this opinion, it is contended that it therefore, follows that unless the Village of Broad-view had entered the field of regulation prior to July 1, 1919, it lost its power to so regulate on said date, and since by its own terms and recitals, this ordinance was adopted in 1926, seven years after the power to pass such an ordinance was expressly taken away from all cities and villages by the Legislature, it necessarily follows that such ordinance was of no force and effect.

It does not appear from the record that the Village of Broadview had entered the field of regulation prior to July 1, 1919, so as to thereby reserve the power to regulate within the exception in the statute of July 1, 1919, which transferred the power to the department of trade and commerce. Petitioners contend that the issues as determined by the pleadings in the case placed the burden upon the respondents to show that there were some valid requirements which the petitioners had not complied with as a prerequisite to the issuance of a building permit; and suggest that both counsel for respondents admitted in their argument that no such ordinance existed July 1, 1919, or at any time prior thereto.

The Supreme Court in the case of Kizer v. City of Mattoon, 332 Ill. 545, said:

“It is contended by appellants that the legislature has taken the power of regulation from cities with reference to the storage, keeping and sale of gasoline, volatile oils and illuminating oils, which are attempted to be regulated by the ordinance, and has vested it in the Department of Trade and Commerce of the State, and that there was no power or authority in the city of Mattoon, at the time the ordinance was enacted, to pass the same.
“Clause 65 of section 1, article 5, of the Cities and Villages act, (Smith’s Stat. 1927, p. 340,) which was first enacted in 1874, gave city councils power as follows: ‘To regulate and prevent storage of gunpowder, tar, pitch, resin, coal oil, benzine, turpentine, hemp, cotton, nitroglycerine, petroleum, or any of the products thereof, and other combustible or explosive material and the use of lights in stables, shops, and other places, and the building of bonfires; also to regulate, restrain and prohibit the use of fireworks, firecrackers, torpedoes, Roman candles, sky-rockets, and other pyrotechnic displays.’ ...
“The power to pass ordinances such as the one here in question was delegated to cities by the State through its legislature. Where the State delegates such power to a municipality it may resume it through legislative action and thus deprive the municipality of the right to exercise it. (City of Chicago v. Phœnix Ins. Co., 126 Ill. 276; Wilkie v. City of Chicago, 188 id. 444.) Prior to July 1, 1919, the exclusive power of regulation here involved was lodged in cities and villages by virtue of clause 65 above quoted. By its act to regulate the storage, transportation, sale and use of gasoline and other volatile oils, in force July 1, 1919, the State withdrew from municipalities this exclusive power of regulation and gave to the Department of Trade and Commerce exclusive power to make and adopt reasonable rules and regulations governing the keeping, storage, transportation, sale or use of gasoline and volatile oils, except in cities or villages where regulatory ordinances upon the subject were in full force and effect. In accordance with such authority the Department of Trade and Commerce immediately adopted and put in force on July 1, 1919, comprehensive rules and regulations on the subject which were applicable to and effective in the entire State, except in municipalities where regulatory ordinances on the subject were in full force and effect. The city of Mattoon on July 1,1919, not having in full force and effect regulatory ordinances on the subject, its delegated power to enact such ordinances was automatically withdrawn by the State and the exclusive power to make such regulations for the city of Mattoon became vested in the Department of Trade and Commerce. The city of Mattoon having been divested of this power by the State, could not by its own action reacquire such power, but could only regain it by subsequent action on the part of the legislature. The city council at the time it adopted the ordinance in question having no power to adopt the same, it was invalid and of no effect. The circuit court therefore erred in holding it valid and in not granting the relief prayed for in appellants’ amended bill of complaint.” The ordinance that was passed by the trustees of the Village of Broadview in the year 1926, conld not have such authority unless on July 1, 1919, the village had in force an ordinance on the subject, which would bring the village within the exception contained in the act of July 1, 1919, whereby the regulatory power was withdrawn from cities and villages and was transferred to the department of trade and commerce. As we have already indicated there is no evidence in the record that the Village of Broadview had entered the field of regulation prior to July 1, 1919, so as to thereby reserve the power to regulate within the exception of the Act of 1919, which transferred the power to the department of trade and commerce.

When we come to consider the ordinance that was passed by the Village of Broadview in the year 1926, the village was without authority, as we have indicated, for the reason that prior to July 1, 1919, there was no ordinance, as far as this record is concerned, that would bring the village within the exception created by the Act of 1919 (pars. 351-353, ch. 38, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 93.12-93.14]). Not having the power to pass the ordinance of 1926, the Village of Broadview having been divested of any right to pass the ordinance by the Act of July 1, 1919, unless it had in force a regulatory ordinance on the subject on July 1, 1919, the said ordinance of 1926 was invalid and of no effect. Therefore, under the conditions provided for in the statute, the regulatory power having been vested in the department of trade and commerce, the court erred in entering the order that the building permit be granted to construct the proposed building and improvements for the purpose of utilizing the property in question “as a retail gas service station,” since it was not shown that the rules and regulations of the department of trade and commerce had been complied with.

Under the facts and circumstances appearing in this record and the law that has been presented, we are of the opinion that the court erred in entering the mandamus order for petitioners, and such mandamus order will, therefore, be reversed.

Mandamus order reversed.

Burke, P. J., and Denis E. Sullivan, J., concur.


author: Mr. Presiding Justice Hebel

text:
    Victor Cohn, Appellee, v. Rose Litwin, Appellant.
    Gen. No. 41,657.

      Heard in the third division of this court for the first district at the April term, 1941.
    Opinion filed June 25, 1941.

      Joseph F. Elward, of Chicago, for appellant; Raymond F. McNally, Jr., of Chicago, of counsel.
    McInerney, Epstein & Arvey, of Chicago, for appellee; George L. Siegel, of Chicago, of counsel.
   Mr. Presiding Justice Hebel

delivered the opinion of the court.

This is an appeal by the defendant, Rose Litwin, from a final judgment for possession, entered in a forcible entry and detainer action, in favor of Victor Cohn, plaintiff, of the premises at 4217 South Maplewood avenue, Chicago, and legally described as follows: Lots 28 and 29 in Block 3 of Phare & Sackett’s Subdivision of the North 12 acres of the South 32 acres of the East Half of the North East Quarter of Section 1, Township 38 North, Range 13 East of the Third Principal Meridian, in Cook County, Illinois. From the record in the case, it appears that foreclosure proceedings were filed on September 21, 1933, in the superior court of Cook county, by Anton Litwin and Agnes Litwin to foreclose a $4,500 mortgage. The foreclosure decree entered on January 30, 1937, found there was due to Anton Litwin the sum of $5,790.68 plus other sums for attorney’s fees, expenses and costs, and directed the sale of the premises to satisfy the indebtedness. The decree contained the usual provisions that if the premises are not redeemed, a master’s deed shall issue to the holder of the certificate of sale; that upon the execution of the deed the grantee be let in possession of the premises, and that any of the parties to the cause who may be in possession of the premises and any person who since the commencement of the suit shall have come into possession under them, or either of them, shall surrender possession to said grantee. On June 21, 1938, the defendant filed her petition alleging an assignment of the certificate of sale by Anton Litwin, and praying that the special commissioner be ordered to issue his deed to her. To this petition Anton Litwin filed an amended answer and a cross-petition alleging that the assignment had been procured through the deceit and fraud of the defendant, and praying that the assignment be set aside and that the special commissioner issue the deed to him. On February 19, 1940, the superior court entered an order whereby the assignment of the certificate of sale was set aside, and a master in chancery was ordered to issue his deed to Anton Litwin or his assignee.

Subsequent to the decree of foreclosure, the special commissioner’s sale was held on February 25, 1937, and Anton Litwin purchased the property and acquired the certificate of sale. On April 3, 1937, the special commissioner’s report of sale was approved and filed. The defendant filed her petition on June 21, 1938, in which she alleged: that the special commissioner’s certificate of sale, which had been issued to Anton Litwin on February 25, 1937, had been assigned to her on April 14, 1937; and that on May 26, 1938 (After the expiration of the period of redemption) she had presented the certificate and assignment attached thereto to the special commissioner, who had refused to issue his deed to her. The prayer of the petition was that the special commissioner be ordered to issue his deed to her.

Anton Litwin, husband of the defendant, filed his amended answer to the petition, in which he alleged that the assignment had been executed by him through fraud in the inducement; the amended answer prayed that the certificate of sale be turned over to him and for an accounting of rents. He also filed a cross-petition praying for the removal of a certain affidavit as a cloud on the title, for an accounting, and that the assignment be set aside and that the special commissioner. issue the deed to him. The registrar of titles of Cook county was made a party to the proceedings.

On February 19, 1940, the superior court of Cook county entered its final order whereby the certificate of sale was ordered returned to Anton Litwin, the assignment was set aside and a master in chancery was ordered to issue his deed to the premises to Anton Litwin or to his assignee, and the defendant, Rose Lit-win, was ordered to account to Anton Litwin. The defendant, Rose Litwin, appealed from this final order direct to the Supreme Court and that court (in the case of Litwin v. Litwin, 375 Ill. 90) said — upon the contention that the court was without jurisdiction for the reason that a freehold was not involved — in its opinion:

“. . . The rule is that a freehold is involved where the necessary result of the decree is that one party gains and another loses a freehold or the title is put in issue by the pleadings so that determination of the case decides that issue. (Hursen v. Hursen, 209 Ill. 466; Harper v. Sallee, 372 id. 199.) Here, the controversy involves a master’s certificate on which the period of redemption expired before this proceeding was instituted. The petition prayed that a deed be issued to appellant and the order of the trial court directed that a deed be issued to appellee. Therefore, the necessary result of the suit is that one of the parties will get title to the premises to the exclusion of the other. It is true that a master’s certificate does not convey title to the purchaser and only confers a right to obtain a title subject to redemption, (Kronenberger v. Heinemann, 190 Ill. 17; Allison v. White, 285 id. 311;) but more than mere ownership of the certificate is involved here. The period of redemption has expired and the right to obtain title subject to redemption has ripened into an absolute right to a deed. A freehold is involved.” The court there further said:
“Appellant contends the court below erred in affirming the master’s report which included a finding that the assignment of the certificate of sale was procured by fraud. She claims there was a valuable consideration for the assignment, namely, the promise to pay and actual payment of taxes on the property and the master’s fees in the foreclosure proceedings. Appellant testified she negotiated a loan from her son and used the money for the tax payments and master’s fees. Some of the largest payments were made before she claims to have received such money. The evidence tends to show that the money for these expenses came from her husband’s earnings, since she had no other source of income during this period. Moreover, appellant says the assignment was made by her husband because he had no money to pay the charges. Yet the evidence shows he was working during this time and earning $60 to $75 per week. Her son testified the loan was made from Ms safety deposit box during the month of April, 1937. The bank records show that he had not been to Ms box during April, and his testimony varies from that of appellant as to the time and amount of the loans. The evidence on behalf of appellant as to consideration does not support her claim. The argument that the assignment by her husband was a gift to appellant, besides being inconsistent with the claim that consideration was given, is not supported by any evidence.” The court then passes upon and finds that the determination of the chancellor that the assignment of the certificate of sale was procured by fraud on the part of appellant is well supported by the evidence. The court there further said:
* ‘Appellant contends that the court below erred in affirming that part of the master’s report which found for appellee on the charge of fraud and no consideration for the assignment of one-half interest in the trust deed in 1936. In her bill for separate maintenance, appellant alleged her husband owed her $1000, life savings which he borrowed from her, and that he had deserted her. On cross-examination she admitted the allegation as to the money was false. Appellee testified ‘she kicked me out from the home.’ His testimony was not contradicted. There is nothing in the record which tends to show appellant had any ground for separating from her husband or for separate "maintenance. Therefore, when promising to resume her marital status, she was merely promising to do what she was already in duty bound to do. A promise of that kind was not a sufficient consideration for the assignment. (Smith v. Gray, 316 Ill. 488; Goldsborough v. Gable, 140 id. 269.) "While dismissing a suit or surrendering a claim is good consideration for a promise or an act, the suit or claim must be entertained in good faith. (Dougherty v. Duckels, 303 Ill. 490; Janci v. Cerny, 287 id. 359.) Appellant did not meet the issue of no consideration or the claim of fraud. She made no claim that it was a gift, and cannot in this court, for the first time, claim the assignment was a gift.” The court then in passing upon the questions affirmed the order of the superior court except to modify the order by striking therefrom the sum of $403.65 as master’s fees and inserting the sum of $103.65 in lieu thereof.

It appears from the record before this court that on July 8, 1940, the master’s deed was issued to the plaintiff, Victor Cohn, as assignee of Anton Litwin. On August 22, 1940, an original Torrens certificate issued in the name of the plaintiff. Subsequently, on September 19, 1940, the plaintiff caused to be served a demand for possession of the premises upon the defendant.

It further appears from the facts as they are in this record that plaintiff was the nephew of J. S. Cook and that Mr. Cook and his associate, Mr. Joseph Bergman, had been attorneys for Anton Litwin in the superior court foreclosure case, and also in a divorce case filed by Anton Litwin against the defendant, Bose Litwin. The substance of plaintiff’s testimony was that he had “bought” the propery from Anton Litwin on July 11, 1940, with a loan from Mr. Cook to him. The plaintiff had signed nothing to evidence this loan ($2,750), had never seen the property, and had nothing further to do with the transaction than to permit his name to be used as grantee.

The defendant testified that she lived on the premises involved, that she married Anton Litwin on October 3, 1934, and that in December, 1937, she and her husband moved into the building in question. They lived there until June 11, 1938, at which time he left and she continued to reside there.

There was introduced into evidence a decree of the superior court of Cook county, entered May 18, 1940, in the suit entitled “Anton Litwin, plaintiff, v. Rose Litwin, defendant,” No. 38S 4785, which decree found the issues for Rose Litwin and against Anton Litwin, found that on June 11, 1938, he had wrongfully deserted her and had thereafter persisted in his desertion, and dismissed Anton Litwin’s suit for divorce and ordered him to pay separate maintenance to the defendant, Rose Litwin.

Defendant contends that the trial court had no jurisdiction of the case, as the only section of the Forcible Entry and Detainer Act under which the action could possibly lie was the sixth clause of section 2, which defendant contends does not cover the case at bar. This contention of defendant is contradicted by plaintiff, the plaintiff contending that the action is maintainable under the second and sixth clauses of section 2 of the Forcible Entry and Detainer Act. The Forcible Entry and Detainer Act (Ill. Rev. Stat. 1939, ch. 57, sec. 2 [Jones Ill. Stats. Ann. 109.264]) provides that the person entitled to the possession of land may be restored thereto:—

“. . . Second, When a peaceable entry is made and the possession unlawfully withheld. . . . Sixth, Wh.en lands or tenements have been conveyed by any grantor in possession, or sold under the judgment or decree of any court in this state, or by virtue of any sale in any mortgage or deed of trust contained and the grantor in possession or party to such judgment or decree or to such mortgage or deed of trust, after the expiration of the time of redemption, when redemption is allowed by law, refuses or neglects to surrender possession thereof, after demand in writing by the person entitled thereto, or his agent.”

In discussing this question it would be well to have in mind the provisions of the Homestead Act. Section 1 of the act (Ill. Rev. Stat. 1939, ch. 52, sec. 1 [Jones Ill Stats. Ann. 107.124]) provides:

“That every householder having a family, shall be entitled to an estate of homestead, to the extent in value of $1,000, in the farm or lot of land and buildings thereon, owned or rightly possessed, by lease or otherwise, and occupied by him or her as a residence; and such homestead, and all right and title therein, shall be exempt from attachment, judgment, levy or execution, sale for the payment of his debts, or other purposes, and from the laws of conveyance, descent and devise, except as hereinafter provided.”

At the date of the execution and delivery of the master’s deed to plaintiff as well as at the time of the service of the demand for possession on September 19, 1940, the plaintiff, Victor Cohn, was chargeable with knowledge of all persons in possession of the premises that he claims are subject to the forcible entry and detainer action. At that time and long before the defendant, Rose Litwin, upon whom the demand for possession was served, was in actual possession of the premises as her residence. She claims a homestead estate as provided for by the statute and that this action of forcible entry and detainer is not available to plaintiff to dispossess her. Section 2 of the Homestead Act (Ill. Rev. Stat. 1939, ch. 52, sec. 2 [Jones Ill. Stats. Ann. 107.125]) further provides: that the ex-eruption of homestead “shall continue after the death of such householder, for the benefit of the husband or wife surviving, so long as he or she continues to occupy such homestead, . . . and in case the husband or wife shall desert his or her family, the exemption shall continue in favor of the one occupying the premises as a resident.”

Upon an examination of the Husband and Wife Act (Ill. Rev. Stat. 1939, ch. 68, sec. 16 [Jones Ill. Stats. Ann. 64.16]) we find the provision that:

“Neither the husband nor wife can remove the other or their children from their homestead without the consent of the other, unless the owner of the property shall, in good faith, provide another homestead suitable to the condition in life of the family; . . . There is nothing appearing in this record that any provision was made for “another homestead” for defendant, Rose Litwin, by the husband, Anton Litwin. She continued to reside in the property as her homestead, and she thereby acquired certain rights which she is entitled to, and of which she cannot be deprived unless another homestead is provided or unless an estate of homestead is set apart for her.

The question that is really involved is whether the trial court has jurisdiction to entertain and enter a final judgment order for possession of the premises in favor of plaintiff. As already stated, it appears that plaintiff was the nephew of J. S. Cook, who with his associate, Joseph Bergman, had been attorneys for Anton Litwin in the foreclosure case and in the divorce case filed by Anton Litwin against defendant, Rose Litwin; that the substance of plaintiff’s testimony was that he had bought the property from Anton Litwin with a loan from Mr. Cook to him; that he (plaintiff) had signed nothing to evidence this loan, had never seen the property, and had nothing further to do with the transaction than to permit his name to be used as grantee.

Plaintiff urges that prior to the delivery of the master’s deed the holder of a certificate of sale has neither legal nor equitable title, nor does he have any right to possession, and that, therefore, Anton Litwin, as owner of the certificate of sale, did not because of such ownership acquire a homestead in the premises which can now inure to the benefit of defendant. It is contended that until the issuance of a master’s deed, the holder of a certificate of sale has neither legal nor equitable title, does not have any right of possession, and that his rights in those respects are the same before and after the expiration of the redemption period. However, when we consider the opinion of the Supreme Court in Litwin v. Litwin, supra, the court there stressed the rule that a master’s certificate does not convey title to the purchaser and only confers a right to obtain a title subject to redemption, but the court (upon the facts as they appear in this record) held that “. . . more than mere ownership of the certificate is involved here. The period of redemption has expired and the right to obtain title subject to redemption has ripened into an absolute right to a deed. A freehold is involved.” A freehold estate is, of course, having a right of title to the land in question. The defendant, Bose Litwin, being in possession and ascertaining a right to an estate of homestead could not be dispossessed by a judgment entered in a forcible entry and detainer litigation. (Van Winkle v. Weston, 276 Ill. App. 66.) The court in its judgment could not pass upon the question of title and set off a homestead estate such as was involved in this action.

The court in Van Winkle v. Weston, supra, said:

"The sole question remaining for consideration is whether or not =an action of forcible entry and detainer under the statute may be maintained to recover possession of premises occupied as a homestead. No cases have been cited in support of this position. This action is a statutory action and should be strictly followed. There is no doubt but that in a proper action relief could be obtained, but in such an action it would be necessary to establish the value of the homestead right in order to ascertain how far this right extended and this we believe cannot be done in such a proceeding as the one before us. . . . The right of homestead is conferred by statute and can be divested only in the manner provided. Hubbell v. Canady, 58 Ill. 425. . . . Under the authorities cited we are of the opinion that the action of forcible entry and detainer will not lie to secure the possession of premises occupied as a homestead. Plaintiff contends, however, that in view of the fact that the premises consisted of a three-apartment building with the land underneath, the judgment should be sustained as to the two vacant apartments on the theory that these were not occupied as a homestead and we are referred to the case of Potter v. Clapp, 203 Ill. 592. In support of this contention plaintiff offered testimony showing that the value of the property was $8,000 at the time of the commencement of the action. The case referred to by plaintiff, however, was an action in equity asking for the assignment of dower and homestead in the real estate involved in that proceeding. It was intimated in that opinion that a person occupying a separate apartment might be in the position of one keeping a home on a separate lot. It is true that a homestead might not extend to the whole building where only one apartment was occupied as a homestead, particularly in the present age and generation where the apartment buildings are so huge and occupied by so many tenants. Such a situation, however, can be easily taken care of in a proper proceeding where evidence can be shown for the purpose of arriving at the value of the homestead and proper steps taken to protect the homestead rights, but we are still of the opinion that forcible entry and detainer is not a proper action to dispossess one claiming under such a title. If this were permitted cases of this character might resolve themselves into questions of value and surrounding conditions which would require the introduction of evidence which is not contemplated under the action here.” The court in that case reversed the judgment of the municipal court for the reasons stated in the opinion.

The plaintiff, however, contends that the Torrens certificate of title is conclusive evidence of plaintiff’s right to possession, and that the master’s deed and Torrens certificate show title in plaintiff, and even in absence of statute this makes a prima facie case of plaintiff’s right to possession. It is stated by plaintiff that the act for the registration of titles (Ill. Rev. Stat. 1939, ch. 30, sec. 86 [Jones Ill. Stats. Ann. 132.042]) provides that except in case of fraud no person taking a transfer of registered land or any interest therein shall “be affected with notice, actual or constructive, of any unregistered trust, lien, claim, demand or interest; and the knowledge that any unregistered trust, lien, claim, demand or interest is in existence shall not of itself be imputed as fraud.”

The reply to this contention of the plaintiff is that section 18 of the act concerning land titles (Ill. Rev. Stat. 1939, ch. 30, sec. 62 [Jones Ill. Stats. Ann. 132.018]) provides:

“. . . The examiner may receive in evidence any abstract of title or certified copy thereof issued in the ordinary course of business by makers of abstracts; but the same shall not be held as more than prima facie evidence of title, and any part or parts thereof may be controverted by other competent proofs.”

The court in Brooke v. Glos, 243 Ill. 392, in passing upon the question whether there must be evidence presented to the examiner and preserved in the record establishing whether the premises were vacant or unoccupied, said:

“As to the second proposition, the statute (paragraph e of section 11) provides the application shall state ‘whether the land is occupied or unoccupied, and, if occupied by any other person than the applicant, the name and post-office address of each occupant, and what estate or interest he has or claims in the land;’ and section 18 provides, among other things, that the examiner to whom the case shall be referred shall ‘proceed to examine into the title and into the truth of the matter set forth in the application, and particularly whether the land is occupied, the nature of the occupation, if occupied, and by what right, and make report in writing to the court, the substance of the proof and his conclusions therefrom.’ These provisions of the statute we think clearly mandatory. This court has repeatedly held that the applicant must show in himself a title against the whole world; (Glos v. Kingman & Co. 207 Ill. 26; Glos v. Cessna, id. 69; Glos v. Holberg, 220 id. 167); and without proof as to who is in possession of the premises if occupied, or that they are vacant and unoccupied, it would be impossible for the court to determine whether the title in fee rested in the applicant or not.” For a failure on the part of the applicant to establish by proof, in accordance with the averments of her application, that the premises were vacant and unoccupied,, the decree was reversed.

In the instant case there is no evidence upon this question, so that from that fact the certificate of title that was issued under the provisions of the Torrens law is not conclusive'against the defendant. As we have already stated in this opinion the plaintiff received the conveyance of the title to the premises but he made no effort to investigate and determine from the facts whether the land was occupied or unoccupied. Under such circumstances and under the decision of the Supreme Court in Brooke v. Glos, 243 Ill. 392, it was error in not making such proof and for the reasons stated it was error in not maldng the proof required.

It is contended that the Torrens certificate was not conclusive evidence against the defendant because plaintiff held title for the purpose of defrauding her of her dower and homestead rights: Section 88, ch. 30, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 132.044], provides in substance that in an action for the possession of land the certificate of title of the registered owner shall, except as to a person not bound by the decree of court, “or by some limitation herein or in some other statute contained,” be held to be conclusive evidence of title to the land. However, chapter 30, section 84, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 132.040], provides in part that the registered owner shall hold title subject only to certain charges and to charges noted on the certificate, “except in cases of fraud to which he is a party, or of the person through whom he claims without valuable consideration paid in good faith.” The facts are that plaintiff is an insurance broker using the office of his uncle, J. S. Cook. Another lawyer in the office is Joseph Bergman. Both these attorneys represented Anton Litwin in his divorce suit and in the suit between him and the defendant involving the assignment of the certificate of sale of the real estate, Mr. Bergman’s name appearing in the final order in regard thereto. It further appears from the evidence that the only conversation the plaintiff ever had with Anton Litwin was in Mr. Cook’s office sometime in April, 1940. Messrs. Cook and Bergman were both present, and at that time plaintiff was told that this was the man from whom he was buying the property. Plaintiff had never seen the property, and had not seen it at the time of the trial. Nothing was said about the price. According to plaintiff’s testimony the “sale was completed on July 11, 1940.” The master’s deed was issued in the name of the plaintiff on July 8, 1940. Plaintiff testified that he borrowed from his uncle $2,750 for the purpose of buying the property, and that payment was by cashier’s check payable to the order of Anton Litwin. Here is presented a question of fact, as immediately thereafter the plaintiff testified the money came from Mr. Cook’s account in a cashier’s check payable to plaintiff’s order. The check was turned over to Mr. Litwin,. according to plaintiff’s testimony, and although the one time the plaintiff had ever met Mr. Litwin was in April, 1940, the check passing was on July 11, 1940. The obvious deduction is that plaintiff simply holds title for Anton Litwin or for Mr. Litwin’s lawyer, Mr. Cook. In either case, the effect of the implied trust is to keep the title out of Anton Litwin’s name in an effort to bar the defendant from her dower . and homestead.

As we have indicated from this opinion, the court erred in entering judgment for possession for the plaintiff in the forcible entry and detainer case against the defendant. For the reasons stated, the judgment is reversed.

Judgment Reversed.

Denis E. Sullivan and Burke, JJ., concur.


author: Mr. Justice Denis E. Sullivan

text:
    J. F. Martin Cartage Company, Appellee, v. Dempster Bros., Inc., Appellant. Thomas G. Dempster and H. Schiner.
    Gen. No. 41,559.
    Heard in the third division of this court for the first district at the December term, 1940.
    Opinion filed June 25, 1941.

      James A. Dooley, of Chicago, for appellant.
    Harold Corey, of Chicago, for appellee; Erwin M. Pearl, of Chicago, of counsel.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.

Defendant Dempster Bros., Inc., brings this appeal from a judgment entered against it in favor of plaintiff J. F. Martin Cartage Company for $300, and said judgment found the defendants Thomas Gr. Dempster and H. Schiner not guilty. The action was one in tort for damages alleged to have been sustained by plaintiff as the result of a collision between its truck and that of the defendant Dempster Bros., Inc., while the latter vehicle was being driven by the agent of Dempster Bros., Inc., one H. Schiner (also called Scheuer) who was also a defendant. A counterclaim was filed by Dempster Bros., Inc.

Plaintiff’s theory of the case is that while its truck driver was in the course of due care for its safety, its truck was damaged through the negligence of one Harold Scheuer, also a defendant and employee of either Thomas Dempster or Dempster Bros., Inc., while said Harold Scheuer was acting in the course of his employment by either Thomas Dempster or Dempster Bros., Inc., and that plaintiff proceeded under the doctrine of respondeat superior.

The theory of the defendant Dempster Bros., Inc., is that since there was a verdict and judgment entered in favor of Harold Scheuer, its servant, it is hereby exonerated under the doctrine of respondeat superior; that since this judgment in favor of Harold Scheuer was not appealed from, it is a bar to any further action against this defendant, and hence there can be no second trial of this case.

From the foregoing it appears that both plaintiff and defendant are proceeding under the doctrine of respondeat superior and argue that the negligence of the defendant Scheuer is chargeable to his employer Thomas Dempster or Dempster Bros., Inc. Inasmuch as the judgment in favor of Harold Scheuer was not appealed from, that judgment is final. This brings us to the question as to whether or not the defendant Dempster Bros., Inc. could be found guilty, although its agent who was actually driving the truck and performed the acts which it is charged caused the damage, is found not guilty.

A somewhat similar case was decided by this court in 1934, being Appellate Court Gen. No. 37,253, which was not reported in full and which is entitled, Greenberg v. Chicago Cab Co., 274 Ill. App. 666 (Abst.). In that case an action was brought against the Chicago Cab Company and Leon Edell, to recover damages for personal injuries claimed to have resulted from a collision between an automobile in which plaintiff was riding, and a cab belonging to the defendant cab company and driven by defendant Edell, at the intersection of LaSalle and Division streets, Chicago. The jury returned a verdict finding defendant Chicago Cab Company guilty and assessing plaintiff’s damages at $21,250, and finding defendant Edell not guilty. Judgment was entered on the verdict and the cab company prosecuted a writ of error. In discussing the question of the liability of the defendant cab company, this court in that case said:

“Defendant contends the basis of plaintiff’s case was the negligence of the driver of the taxicab, and therefore defendant could be held liable only under the doctrine of respondeat superior; that since the jury by its verdict found the driver of the cab not guilty and judgment having been entered on the verdict and no appeal having been taken, the judgment is conclusive in favor of the defendant cab company. It is obvious that if the driver of the cab was not guilty of negligence in driving the cab at the time in question, the defendant cab company could not be held liable on the doctrine of respondent superior. Chicago Tel. Co. v. Hayes, 121 Ill. App. 313; Anderson v. West Chicago St. R. Co., 200 Ill. 329; Billstrom v. Triple Tread Tire Co., 220 Ill. App. 550.”

So, in the instant case, the defendant Dempster Bros., Inc., could not he guilty and, at the same time, their agent and servant be found not guilty. It necessarily follows that the trial court committed error in entering judgment against the defendant Dempster Bros., Inc.

For the reasons herein given the judgment of the municipal court entered against Dempster Bros., Inc., is hereby reversed and judgment is entered here for costs against plaintiff.

Judgment reversed and judgment here.

Burke, P. J., and Hebel, J., concur.


text:
    Frank E. Wilson, Jr., and Grace McNally, Appellees, v. Arthur S. Nichols, Appellant.
    Gen. No. 41,631.

      Heard in the third division of this court for the first district at the February term, 1941.
    Opinion filed June 25, 1941.
    Rowe & Bailey, of Chicago, for appellant; Joseph A. Bailey and Henry H. Caldwell, both of Chicago, of counsel.
    Klein, Harrow & Wilkinson, of Chicago, for appellees; Arthur W. Klein and John O. Wilkinson, of counsel.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.

Defendant Arthur S. Nichols brings this appeal from a judgment entered in the municipal court in favor of plaintiffs for the sum of $365. The action was one to recover for damages to an automobile owned by Frank E. Wilson, Jr., one of the plaintiffs, and to recover damages for personal injuries alleged to have been sustained by Grace McNally, the other plaintiff herein. Defendant’s motion for a new trial was overruled, hence this appeal.

In plaintiff’s statement of claim filed October 31, 1938, plaintiff Frank Wilson alleges that he was the owner of an automobile being driven in a northerly direction on Harlem avenue in the vicinity of 66th street in the city of Chicago, on or about January 23, 1938; that said plaintiff and his passenger were both in the exercise of reasonable care for their own safety; that the defendant Arthur Nichols was operating an automobile on the viaduct and that his negligence consisted in unlawfully parking his automobile on the viaduct in violation of section 90 of the Uniform Act regulating traffic; that defendant unlawfully parked his automobile without lights and unlawfully parked his automobile at an angle so that the lights were not visible ; that he brought his automobile to a stop without warning or signal and that he wilfully and wantonly drove his automobile into the automobile of plaintiff Frank Wilson; that as a result of defendant’s negligence the automobile of said Frank Wilson was damaged and the passenger Grace McNally received personal injuries.

Defendant’s answer denies that the plaintiffs were in the exercise of due care and caution for their safety; denies that he was guilty of any negligence or carelessness in operating or maintaining his automobile; denies that plaintiff’s automobile was damaged or that the plaintiff Grace McNally was injured.

The trial court found that Arthur S. Nichols is guilty in the manner and form as charged in plaintiff’s statement of claim and assessed plaintiffs’ damages at the sum of three hundred forty ($340) in favor of the plaintiff Frank E. Wilson, Jr.

The court also found that the defendant Arthur S. Nichols is guilty in the manner and form as charged in plaintiffs’ statement of claim and assessed plaintiffs ’ damages at the sum of $25 in favor of Mrs. Grace Wilson, Jr. [who was Grace McNally at the time suit was instituted, but who has since married the plaintiff Frank E. Wilson, Jr.].

Plaintiffs’ theory of the case is that the statement of claim is grounded upon violations of the Uniform Act regulating traffic upon the highways of this State; that in said statement of claim it is alleged that the defendant unlawfully parked his automobile upon a viaduct; that defendant unlawfully parked his automobile upon a viaduct without lights and he unlawfully parked his automobile upon the viaduct at an angle so that the lights on said automobile were not visible; that defendant brought his automobile to a sudden stop without warning or signal, and, that he wilfully and wantonly drove his automobile into the automobile of the plaintiff Frank E. Wilson, Jr.; that the statement of claim also alleges that as the result of the alleged acts of negligence the plaintiff, then Grace McNally, was injured about her person.

Defendant’s theory of the case, as set forth, is that it is the contention of the defendant that there was a failure of proof as to each allegation of negligence and that there was a fatal variance between the proofs and the findings of the court.

Plaintiff Prank E. Wilson, Jr., testified that the collision took place on January 23, 1938, about 2:00 o’clock in the morning on the Harlem avenue bridge just south of 63rd street; that he was driving a Ford coupe; that the place where the accident occurred is a viaduct which is shaped like an “S”; that the length of the viaduct is about 4 blocks long, from the beginning of the incline to the other side and it is a 4-lane bridge; that there is a painted line between the northbound and southbound lanes and that line extends the entire length of the viaduct; that there are two lanes of traffic in the northbound portion; that the grade of the viaduct is about 25 or 30 percent grade; that there is a wire fence along the roadway which starts at the bottom of the incline and goes up to the bridge top and on the bridge there is a cement railing.

Further testifying said plaintiff stated that the collision occurred approximately three-fourths of the way up the incline or the approach to the bridge; that the collision did not occur on the bridge proper; that the collision occurred approximately 75 feet from the bridge proper; that the other plaintiff was in the car with him; that they were returning from a social call and were bound for Grace McNally’s home in Summit, Illinois; that the weather was foggy and the roads were slippery; that both windows to their car were open and he was sticking his head out of the window on his side of the car and his companion was sticking her head out of the window on her side of the car so “that they could watch”; that he had his lights on at the time; that the condition of the road was slippery as it had been drizzling all day and it had turned cold and frozen and was very foggy; that the visibility was very poor.

Further testifying said plaintiff stated that at the time he entered the approach there was no traffic directly ahead of him; that he first saw a car ahead of him in the northbound lane when he was within 10 feet of defendant’s car; that at that time his, plaintiff’s, car was approximately three-quarters of the way up the incline; that plaintiff’s car was at that time in the inner lane and the car ahead of him was parked crosswise on a right angle to plaintiff’s car and across the two northbound lanes, it was straddling the dividing line in said two lanes of traffic; that at the time plaintiff first saw defendant’s car it was stopped facing in a westerly direction, or, because of the angle of the road, more to the northwest; that he could see no lights on defendant’s car; that when he saw defendant’s automobile he tried to stop by putting on his brake and pulling to the right as he was afraid to go over on the other lane; that after he turned his car to the right he bumped into defendant’s car; that the front of his, plaintiff’s, car hit defendant’s left fender and the left panel of the body of his car; that at that time they were still in the right or northbound lane of traffic; that defendant’s car was facing west at the time of the collision and was to the right of the center line of the highway.

Further testifying said plaintiff stated that after he hit defendant’s car, he, the plaintiff, stopped and another car bumped into the back of his car; that said plaintiff and defendant got out of their automobiles and Mr. Nichols said, “Well, I am sorry. It seemed like it was unavoidable. ’ ’; that defendant handed plaintiff his card and that was all that was said; that defendant did not tell plaintiff why his car was crosswise on the northbound lane; that plaintiff’s companion was knocked to the floor of his car at the time of the impact and that at the time of the collision he, plaintiff, was not traveling over 15 miles an hour; that after the impact defendant’s car veered over a little more to the northwest and plaintiff’s car turned right along side defendant’s; that they were then both facing the same direction.

Further testifying said plaintiff stated that after he got out of his car he did not see any other car stopped or moving in front of defendant’s car; that after he talked with defendant he, the plaintiff, said he had better summon the police and that the defendant said, “Well, come on. Get in my car and I will take you to town so you can call the police.”; that they got into defendant’s car and he started to back up against the fence protecting the embankment; that plaintiff’s companion yelled that she wanted to get out of the car, so they jumped out and plaintiff had to flag a car down to call the police.

On cross-examination said plaintiff testified that' there was not much damage done to his car when he hit defendant’s car; that his, plaintiff’s front bumper came into contact with defendant’s left rear fender; that plaintiff and his companion were still in plaintiff’s car when another automobile hit plaintiff’s automobile in the rear and knocked plaintiff’s automobile up against defendant’s automobile again; that after the second collision plaintiff and his companion Grace McNally got out of plaintiff’s automobile; that plaintiff and his companion then went over to the shoulder of the road and that the defendant also went over there and that after that plaintiff’s automobile was struck by another car; that six or seven automobiles ran into his, plaintiff’s, car after the collision with defendant’s car and his car was also struck by an automobile going south.

The defendant testified that on the night of the accident he was driving a Buick automobile and he and his wife were coming from Gary, Indiana; that the accident took place between 2:00 and 2:30 a.m.; that they proceeded north on Harlem avenue and the pavement was a solid sheet of ice; that the atmosphere was foggy, the visibility poor and there was a mist or sleet which froze on the windshield of the car and on the running board; that as he proceeded north on Harlem avenue he was driving about 15 or 20’ miles an hour as he approached the bridge over the Chicago & Outer Belt Railway line; that as he approached the bridge there was a truck driving in front of him; that he noticed a red light of a truck ahead of him; that the truck was proceeding in the same direction and as it turned with the road to the left to begin the ascent of the incline, it flashed its spotlights on; that at that time he, the defendant, applied his brakes normally and his car skidded, first it skidded to the left across the road and then it returned to the right side of the road with the front part of the automobile on the shoulder; that it had rebounded about a foot or two but not much more from the fence on that side of the road; that his car was not only skidding but it was also spinning because the road sloped at that point and was covered with ice; that the car turned around more than once and when it stopped its nose was facing northeast; that the front end of his car was two or three feet from the guard rail and about five feet of the length of his car was in the northbound traffic lane; that his car was facing directly east after the time it skidded.

Further testifying defendant stated that after his car skidded his wife became unnerved and he stopped and hesitated for a minute, thinking as to whether the safest thing to do would be to get out of the car or whether he and his wife should stay there; that they were both very confused and had stopped there about 30 seconds to a minute before the collision with plaintiff’s car; that defendant’s right rear fender was struck and the left side of defendant’s car was not damaged at all; that when defendant’s car was struck by plaintiff’s car, defendant got out and assisted his wife and took her behind the guard rail and stayed there himself; that at that time, for possibly 3 to 10 minutes, there were several more collisions and cars piling up on the icy pavement; that one of the automobiles struck his car but that defendant’s automobile was not struck by any automobiles that were going south; that before his car was struck by plaintiffs’ car his, defendant’s, lights were burning; that after the collision defendant was able to drive his car away and the lights were still burning.

On cross-examination defendant stated that when he was following the truck at a distance of from 50 to 150 feet and the truck was flashing for a stop, that he, the defendant, was driving at the rate of 15 or 20 miles an hour; that when he saw the signal for- a stop he applied his brakes normally and his car skidded; that he did not have a collision with the truck; that when he skidded his car went about one and three-quarters times the distance of the roadway; that he did not think he skidded very far forward; that his car had two impacts with barriers and was crosswise on the road; that it was impossible for him to drive his car ahead because of the fact that there was a steel barrier located there.

Counsel for the respective parties have stipulated that the damage to plaintiff’s automobile amounted to $340.

We have set out the testimony of plaintiff and defendant in detail, even at the expense of prolixity, in an endeavor to present a word picture of the unusual situation which existed at the time of the collision herein involved, and because of which defendant is charged with negligence. Plaintiff relies on the assertion that in some way defendant violated the statute. Chapter 95½, par. 187, sec. 90, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 85.219], reads as follows:

“ (a) No person shall stop, stand, or park a vehicle, except when necessary to avoid conflict with other traffic or in compliance with the directions of a police officer or traffic control device, in any of the following places: . . .
“13. Upon any bridge or other elevated structure upon a highway or within a highway tunnel; . . .

We do not think defendant’s automobile was parked in violation of the statute. The roadway was slippery and defendant’s car had skidded into that position. Visibility was almost zero as it was foggy and misty and control of the automobile was rendered very difficult, if not impossible, and the only feasible thing to have done was to stop the automobile, if possible. We believe that ordinary care and caution would naturally require that one endeavor to bring the automobile to a complete stop under the circumstances as heretofore described. We have been unable to find any evidence of negligence on the part of the defendant. The truck which was proceeding him gave a stop signal, so he naturally applied his brakes to avoid crashing into the truck. Defendant’s car remained at the place to where it had skidded about 30 seconds or a minute, when it was struck by plaintiff’s car. Defendant was a victim of the elements which he was trying to overcome and we do not think he could be charged with negligence because of the consequences. Many cases similar to this have been passed upon by the courts of this State.

In James v. Motor Transit Management Co., 260 Ill. App. 246, the defendant’s bus could not be moved because of mud. The weather was foggy and the plaintiff was driving at a speed of about 25 miles an hour and could see no more than 30 feet ahead of his car. He did not see the bus until his car was about 30 feet away. At page 258, the court said:

"This court held in Collins v. McMullin, 225 Ill. App. 430: ‘The mere act of leaving an automobile standing on the proper side of a public road, however, cannot be regarded as negligence; it is a matter of common knowledge that it is not an infrequent occurrence to see an automobile standing in the public road; sometimes this occurs on account of an accidental break in machinery, or a defect in the mechanism peculiar to the car or because of a puncture in a tire, or because the car has run out of gasoline. Persons operating cars often have no choice about leaving a car standing-in the road, until a remedy for the mishap is found. ’ ’ ’

The instant case presents a chain of circumstances which resulted in the collision which was unavoidable. We cannot find from the evidence or the law relating thereto, that the defendant is any more guilty than is the plaintiff in this case. Wedig v. Kroger Grocery & Baking Co., 282 Ill. App. 370; Johnson v. Kushler, 269 Ill. App. 553. It cannot be said that the defendant in the instant case “parked” his automobile on the road, it was only standing there because the car had skidded on the icy pavement. We cannot find there was sufficient evidence to justify the finding and judgment of the trial court.

For the reasons herein given the judgment of the municipal court is reversed and judgment is entered here for costs against plaintiff.

Judgment reversed and judgment here.

Burke, P. J., and Hebel, J., concur.


author: Mr. Justice Matchett

text:
    Myrtle M. Salzman, Appellant, v. William E. Boeing et al., Copartners Trading as E. Pierce and Company, Appellees.
    Gen. No. 41,678.

      Heard in the first division of this court for the first district at the April term, 1941.
    Opinion filed June 30, 1941.
    Rehearing denied July 14, 1941.
    Fyffe & Clarice, of Chicago, for appellant; John Harrington and Albert J. Smith, both of Chicago, of counsel.
    Levinson, Becker, Peebles & Swiren, of Chicago, for appellees; Harold M. Keele and Eugene P. Florsheim, both of Chicago, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.

This cause was before us on a former appeal. (Salsman v. Boeing, 304 Ill. App. 405.) The suit is to recover money said to have been lost in wheat transactions through Pierce & Company on the Chicago Board of Trade. The complaint states these constituted gambling contrary to the Criminal Code and seeks to recover the amount lost under § 132 of chapter 38 of the statutes. On the former appeal it appeared the trial judge at the close of plaintiff’s case, on motion of defendants, found in their favor and entered judgment. We held this ruling erroneous, reversed the judgment and remanded the cause. On the second trial (as the first, before the court without a jury) defendants again moved at the close of plaintiff’s evidence for a finding in their favor, which the court denied, and defendants now argue cross-errors. Defendants did not stand on their motion but offered evidence thus waiving any right to argue error on that motion. Popadowski v. Bergaman, 304 Ill. App. 422; Kahler v. Marchi, 307 Ill. App. 23. On the second trial at the close of all the evidence defendants made a motion for a finding in their favor. This was granted and judgment again entered for defendants from which plaintiff again appeals.

The questions for decision are whether under the evidence the . transactions in question amounted to gambling within the meaning of the statute and whether the finding is clearly and manifestly against the weight of the evidence. Plaintiff argues both propositions and asks this court to again reverse the judgment of the trial court and enter judgment here in her favor for the net amount of her loss, $18,345.53.

Points made require a review of the evidence. Defendants are co-partners, brokers in stocks and commodities, doing business under the name of E. A. Pierce & Company. The co-partnership was a member of the Chicago Board of Trade and of stock exchanges in New York, Chicago and other cities. Winthrop H. Smith was the resident manager in charge of the Chicago office. Messrs. Pahlke, Boulanger and Hargrave were employees known as “customer’s men.” Defendants’ Chicago office was at 105 Adams street.

Plaintiff is a housewife residing with her husband at 128 South Parkside avenue, Chicago. Her husband by a former marriage passed away in 1923, when she took over his business (a motion picture theater) at Chillicothe, Illinois. She conducted it for six and one-half years, sold it and moved to Chicago, where she at first worked for film companies for about two months, then took over an apartment hotel of 44 furnished apartments, which she managed. She gave this up about May 1, 1936, because (she says) the rent was prohibitive. She had about $3,000 on hand after the sale of the furniture and decided to try the securities market. She- went to defendants’ office for the first time July 24, 1936. She had theretofore dealt with banks and through them purchased some stocks and bonds. She had never before been to a broker’s office or had an .account with a broker’s business. She says she “just walked through” and asked a customer how to go about buying stocks. The customer suggested she see Mr. Pahlke, who would tell her all about it. She did so, and opened an account depositing $3,000. She was then the owner of property worth from $20,000 to $25,000. She did not tell Pahlke she was remarried but stated she had been a “lone wolf” since the death of her husband.

Within the year plaintiff through defendants purchased and sold securities to the amount of $118,445.64. Monthly statements were sent by defendants to plaintiff. Her first order for securities was given July 24, 1936. She sold the last of these securities July 23, 1937. During the year she made 25 purchases and 25 sales. The largest purchase was 200 shares. She did not at any time own more than 650 shares. July 23, 1937, she closed her securities account with defendants at a profit of $482.23. During the year she paid defendants commissions of $186.63. She deposited with them in cash and securities $20,599.04. She made cash withdrawals of $3,105 and received in dividends on the securities $681.25.

In July, plaintiff changed her account from securities to commodities and entered the wheat market. She says she did this on the advice of Pahlke who told her he thought the wheat market would “fascinate” her. ' She also testified that she informed Pahlke of the particulars of her financial condition. This and other testimony to the same effect is denied by Pahlke and others with whom she talked. The trial judge expressed . the opinion that both Pahlke and plaintiff stretched the truth a bit, which seems probable.

July 10, 1937, plaintiff bought 10,000 bushels of wheat, July 14 an additional 10,000 bushels of September and 10,000 of Winnepeg. July 16, she sold 60,000 bushels and July 17, 20,000 bushels. Her net profit from wheat to that date was $3,195.41. She did not cease to be interested. Between July 17 and July 20 she purchased 140,000 bushels of wheat at the price of $180,412.50. The market declined. On August 4 her account was liquidated. It was wiped out. She owed defendants $156. July 17, when she purchased 100,000 bushels of wheat, her account with defendants was $21,262.64.

From these facts it is said the necessary conclusion must be that neither plaintiff nor defendants ever intended to take delivery since it is said it was impossible for plaintiff to pay for the wheat bought, a fact which, it is urged, Pahlke well'knew to be true.

Section 130 of the Criminal Code (Ill. Rev. Stat. 1939, ch. 38, par. 328, p. 1162 [Jones Ill. Stats. Ann. 37.258]) provides in substance that where in such a transaction, it is the intention of both parties that settlement shall be made “not by the receipt or delivery of such property but by the payment only of differences in prices thereof,” such a transaction is criminal and the contract void. Section 132, par. 330, provides that the losing party may sue and recover money thus lost.

All the transactions which plaintiff had through defendants in stocks as well as commodities, were upon her written order- and executed either on the stock exchange or the Board of Trade where the rules required actual delivery of the property. It was stipulated defendants purchased and sold all of the wheat upon regular boards of trade for the account of plaintiff under contracts which provided for future delivery -by the sellers of the wheat to the purchaser. The names of the sellers and purchasers, the prices at which the commodities were sold and the dates were set forth in the stipulation. Plaintiff did not say it was her intention the wheat should not be delivered or settlement made upon differences, or that anyone said to her that the transactions would be conducted in that manner. She did say her only intention was to purchase the wheat and sell it as soon as she had a profit, and that she discussed this with Mr. Pahlke. Mr. Smith (the resident partner) testified it was the intention of defendants to make delivery and that defendants were at all times prepared to do so. Pahlke testified that it was his intention if plaintiff owned the wheat contract at delivery time she would take delivery and as to the securities she could have had them at any time she wanted them.

The statute has been many times construed, and it is well settled that a plaintiff, to recover in a suit of this kind, must show that both parties had the intention to settle by payment of differences in price only and not by the receipt or delivery of the property purchased. Riordon v. McCabe, 341 Ill. 506; White v. Turner-Hudnut Co., 322 Ill. 133; R. E. Pratt & Co. v. Ashmore, 224 Ill. 587. It of course follows that if either of the parties had no such intention the transaction is valid. Riordon v. McCabe, 341 Ill. 506; Pelouze v. Slaughter, 241 Ill. 215; Johnson v. Milmine, 150 Ill. App. 208.

It is true, however, that what the parties to the transaction may say as to their respective states of mind is not always controlling or conclusive. Circumstances surrounding a transaction are more persuasive, and an examination of the cases indicates it is usual for the courts to so regard these particular circumstances. The fact that the transactions were carried out on the Board of Trade where the rules required delivery is an important circumstance in favor of defendants’ theory, but it is not controlling. Dickson v. Uhlmann Grain Co., 288 U. S. 188; R. E. Pratt & Co. v. Ashmore, 224 Ill. 587; Salzman v. Boeing, 304 Ill. App. 405; Miller v. Sincere, 273 Ill. 194.

In Ehrlich v. Rothschild, 292 Ill. App. 511, this court stated the rule applicable and pointed out that the intention of the parties might be determined from circumstances such as the lack of facilities of a buyer to accept delivery in the quantity ordered, whether they were in a business requiring the use of the particular commodity in the particular quantities, the previous dealings between the parties as well as subsequent dealings, the fact that only small deposits were required of a customer, the financial ability or inability of a customer, etc. The plaintiff here says her inability to pay for the large amount of wheat purchased by her shows conclusively that the intention was not to take delivery and that settlement should be made upon differences. The conclusive answer to this contention seems to be that, as a matter of fact, she was able to take delivery and took it, although it seems to have wiped out her account. "Whether defendant knew the extent to which this would wipe out her entire estate is an issue of fact on which the finding of the trial court must be considered as against her.

Plaintiff cites cases such as Riordon v. McCabe, 341 Ill. 506; Jamieson v. Wallace, 167 Ill. 388; R. E. Pratt & Co. v. Ashmore, 224 Ill. 587; Towne v. Buckley, 230 Ill. App. 573; Ohlendorf v. Bennett, 241 Ill. App. 537; and White v. Turner-Hudnut Co., 322 Ill. 133. In the last case the customer was an elevator corporation of which the brokers through stockholdings were part owners. In the other cases the relationship between the parties was so intimate and long-continued that defendants were held in each case to have an intimate knowledge of the plaintiff’s affairs. Here plaintiff came to defendants a stranger. She was not solicited to come. She deposited cash, met all margins and her financial situation seems to have been disclosed fully for the first time after her trouble in regard to her speculations in wheat came on. We find nothing in the stock transactions indicating there was to be a settlement on differences instead of delivery. Plaintiff gave evidence of what she called a “free ride,” which was secured by purchasing stock and selling within three days without putting up margins. She says Pahlke suggested this method to her, but he denies it. When her disastrous wheat deals became apparent she took the matter up with Mr. Smith, the resident partner. He explained to her that the banks would loan her money and she could in that way take delivery. He told her she must be prepared so to do if she continued to carry the wheat. She did not say she had not intended to take delivery. She did not blame Pahlke for her difficulties. She did not mention any intention of herself or anybody to settle on differences. She did not tell Mr. Smith that Pahlke had illy advised her or that he was acquainted with her financial situation. If the facts had been as she now relates it is impossible to believe that she would have failed to tell Mr. Smith at this time. There is a stipulation of the parties to the effect that defendants actually bought and sold every bushel of wheat on which this action is based, and the names of the concerns from which they bought and to which they sold are attached to the stipulation. As defendants point out, the total commission of defendants on plaintiff’s wheat transactions was $350. This is the extent of their profits from the wheat transactions. It is difficult to believe that in order to earn this comparatively small sum a reputable institution would risk the results which it is now sought to impose. Johnson v. Milmine, 150 Ill. App. 208, expressed a similar opinion of a similar transaction. In the trial court the question was whether plaintiff had proved her case by a preponderance of the evidence. In this court on this appeal the controlling question is whether the ruling and judgment of the trial court are clearly and manifestly against the weight of the evidence. Broderick v. O’Leary, 112 Ill. App. 658; Hovald v. Cunningham, 159 Ill. App. 134; Alton Banking & Trust Co. v. Alton Building & Loan Ass’n, 289 Ill. App. 177.

Within the last twenty years the subject of speculation in grain futures has come to be regarded as a matter of national concern as indicated by the enactment of the Grain Futures Act. U. S. Code, 1934, Title 7, chapter 1, p. 109; U. S. Code, Supplement 5, Title 7, p. 49, §§ l-17a. It is interesting to note in this case that the margin required by defendants was larger than that required in the administration of the national statute. Only in primitive situations is the delivery of a grain manual. In the great centers of population delivery is usually made by the transfer of warehouse receipts and other methods. Williston, Contracts, Vol. 6, § 1673, p. 4725. The evidence here is to the effect that plaintiff’s business was done in the usual way, and so far as the brokers were concerned there was no intention whatsoever of doing it in any other way. It is to be regretted plaintiff sustained a loss she could illy afford to bear. She was, however, responsible for her own misfortune notwithstanding the observance of every restriction provided by law for her protection. The law has emancipated women.

The judgment will be affirmed.

Judgment affirmed.

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