text:
    Alma Le Pitre, Appellant, v. Chicago Park District, Appellee.
    Gen. No. 39,160.
    Opinion filed May 19, 1937.
    Nelson & Kidder, Wiley W. Mills and Oscar E. Carlstrom, of Chicago, for appellant.
    Charles Center Case, of Chicago, for appellee; Philip A. Lozowick, of Chicago, of counsel.
   Mr. Presiding Justice Denis E. Sullivan

delivered the opinion of the court.

This appeal is brought by the plaintiff from an order of the superior court entered on May 27, 1936, dismissing the above entitled cause at plaintiff’s costs on motion of the court.

One has but to read the proceedings which took place in the trial court, as set forth in the record, to come to the conclusion that the order must be reversed because of errors committed by the court.

On January 16, 1932, suit was commenced against defendant South Park Commissioners, a municipal corporation, for the sum of $50,000. A declaration was filed on that day consisting of six counts and alleged in substance'that the defendant had theretofore laid out, established, improved and maintained certain parks, boulevards and ways within the territorial limits of the City of Chicago; that defendant as such municipal corporation was possessed of and had control of a certain public street, called the Outer Drive which was open for public travel as a driveway by means of motor and other vehicles; that the said defendant should have kept the same in good and safe repair and condition as such driveway and free from unsafe and dangerous obstructions; that in disregard of this the defendant wrongfully and negligently caused to be erected and maintained a certain unsafe and dangerous obstruction or lamppost upon a concrete base at or near the middle of said driveway and near the junction or extended intersecting line of said driveway with Thirtieth street and wrongfully, negligently and carelessly permitted and suffered the said lamppost to be and remain on said driveway in an unsafe and dangerous condition and without any light, or other device to warn drivers of motor and other vehicles of the location and existence of said lamppost; that plaintiff was riding in a motor car driven by her husband and exercising all due care for her safety, and that while exercising such care and caution said automobile in which plaintiff was riding struck the lamppost with great force severely injuring the plaintiff.

The declaration further alleges that the Chicago Park District was the successor, and assumed the powers and liability of the South Park Commissioners, a municipal corporation; that the said South Park Board was dissolved and asked to have the South Park Commissioners substituted for the original defendant; that said defendant voluntarily undertook and did prior to and at the time aforesaid own and operate a certain electric light plant for its own advantage and to protect its corporate interests; that said electric light plant was used and operated for the purpose of lighting said Outer Drive and other public streets and boulevards; that it used certain poles and wires along its streets and boulevards to supply electric current to the lamps operated along said street; that it failed to light these electric lamppostsoon said Outer Drive; that the night of the accident was dark and the said concrete lamp post which plaintiff’s automobile struck could not be seen unless the same whs lighted and that the said defendant knowingly and negligently permitted the said lamppost to remain out of order and unlighted.

Plaintiff’s declaration further alleges that defendant wrongfully and improperly did erect and maintain said electric lamppost as well as other lamps along said Outer Drive, and permitted them to become and remain out of order and to remain dark, thereby becoming an unlawful obstruction upon said public street so as to render it unsafe and dangerous to persons passing along the same.

In another count of the declaration plaintiff alleges the erection of said post, defendant’s knowledge of its danger, and defendant’s refusal to remove the same.

In another count plaintiff alleges that neither plaintiff nor the driver of the automobile had any knowledge or warning of the obstruction and that defendant permitted this dangerous obstruction to remain at the place where the accident occurred.

In all the counts it is alleged that the defendant is a voluntary municipal corporation.

Plaintiff contends that defendant did perform corporate, private and ministerial functions; that such corporations, when exercising corporate or proprietary functions, are liable for tort and for the particular damages sustained by the plaintiff as the result of its negligence.

February 3, 1932, defendant filed a demurrer to plaintiff’s declaration which demurrer was on September 17, 1934 overruled by the court and the defendant required to answer within 15 days.

Thereafter on October 23, 1934, an answer was filed by defendant in which it calls for strict proof of the allegations and denies that it possessed or had control of the Outer Drive; denies most of the allegations of fact as contained in the declaration; denies the allegation of due care on the part of the plaintiff or that her husband, with whom she was riding, exercised due care.

On October 24, 1934, the Chicago Park District was substituted as defendant.

Thereafter on’ December 3, 1934, the Chicago Park District entered its appearance and on December 4, 1934, made a motion to dismiss the suit alleging in said motion certain denials of allegations set forth in said declaration, 'also raising some questions of law and stating that no notice of the accident was served upon the defendant according to the statute. This motion was heard on December 22, 1934, and denied, and the defendant was ordered to file an answer within 20 days from said date.

On January 10, 1935, an answer was filed denying the allegations of fact and the conclusion to be derived therefrom in said answer and denied the legal interpretation which the plaintiff puts upon the powers and liability of the General Assembly under the law.

Thereafter on February 1,1935, plaintiff made a motion to strike the answer and on April 27, 1935, by agreement of the parties leave was given to the plaintiff to withdraw her motion to strike the answer of the defendant and leave given plaintiff to file an amended declaration instanter and defendant was required to answer the amended declaration within 15 days.

On the same day plaintiff’s amended declaration was duly filed which contained some six counts and in its allegations of fact as to the functions which were being-exercised by the Chicago Park District, the successor to the South Park Commissioners, it charged them with exercising such functions as a corporation, which were not governmental in their character and with the consequent liability.

Thereafter on May 10, 1935, a demurrer was filed by the defendant Chicago Park District, which on May 27, 1935, was overruled and the defendant required to file its answer within 10 days from that date.

On June 3, 1935, a plea of not guilty was filed by the Chicago Park District.

On May 27, 1936, the cause being at issue was called for trial before Judge David, whereupon an order was entered which in part reads as follows:

“On motion of Court it is ordered that the plea of the general issue heretofore filed herein by the defendant be and the same is now withdrawn.”

The order further recites that “this cause is now coming* on to be heard upon the demurrer of the defendant to the amended declaration which was heretofore filed herein by the defendant and which was overruled and after argument of counsel and due deliberation by the Court aforesaid demurrer is sustained and the plaintiff elects to stand by his amended declaration. ’ ’ The order then concludes as follows:

“It is therefore ordered that the plaintiff Alma Le Pitre take nothing by her aforesaid action but that the defendant the Chicago Park District a Municipal Corporation go hence without day and do have and recover of and from the plaintiff its costs and charges in this behalf expended and have execution therefor.

“The Court now fixes the appeal bond for the plaintiff at the penal sum of Two Hundred Dollars. . . .”

The court dismissed the suit at plaintiff’s costs and plaintiff thereupon appealed, complaining that she should have been permitted, so long as the case was at issue, to proceed with the trial on its merits.

From the record, the action of the court is confusing. We cannot understand why on the “motion of the court, ’ ’ a plea of the general issue should be ordered withdrawn when the court had, prior to that time, ordered that it be filed after overruling a demurrer which was at that time on file.

The order also states: “and after argument of counsel and due deliberation by the Court aforesaid demurrer is sustained. . . .” At that time there was no demurrer pending. It had prior thereto on May 27, 1935, been disposed of by Judge Frankhauser. The order of Judge Frankhauser had not been vacated nor does Judge David’s order purport to do so. Certainly, it is not the general practice of a court to order a plea withdrawn, without any reason, concerning which no one complains and which was filed in pursuance of a prior order of court, without at least vacating such prior order.

The cause was properly at issue prior to its appearance on Judge David’s call and, in our opinion, should have remained at issue. We think plaintiff rightfully complains that as her cause was at issue she should have been permitted to have said cause tried on its merits. This is particularly true because of the contradictory orders that were entered by the same court, and which has resulted in this confusion.

For the reasons herein given the order of May 27, 1936, entered by Judge David, is hereby reversed and the cause is remanded with directions that the plaintiff be permitted to try her case on the issues made and set forth in the declaration and plea.

Judgment reversed and cause remanded with directions.

Hbbel and Hall, JJ., concur.


source: Caselaw Access Project

author: Mr. Presiding Justice Denis E. Sullivan

license: Public Domain

text:
    Valida Densby Carboni, Administratrix of the Estate of Marshall O. Densby, Deceased, Appellant, v. Frederick H. Bartlett, Appellee.
    Gen. No. 39,206.

      Opinion filed May 19, 1937.
    Vincent Gf. Gallagher and Bernard McDevitt, Jr., both of Chicago, for appellant.
    Cooke, Sullivan & Ricks, of Chicago, for appellee.
   Mr. Presiding Justice Denis E. Sullivan

delivered the opinion of the court.

This is an appeal from an order sustaining a demurrer filed by defendant to a replication filed by plaintiff and also overruling a demurrer filed by the plaintiff to a plea filed by defendant and dismissing a suit for personal injuries sustained by plaintiff’s intestate. The administratrix, as plaintiff, is seeking to recover damages for injuries alleged to have been sustained by her husband, Marshall 0. Densby, as a result of defendant’s negligence.

The order dismissing the suit was the sequence of • decisions made by the trial court on questions of law arising on the pleadings and the suit was dismissed without a trial, from which plaintiff appeals.

The original plaintiff, Marshall 0. Densby, who has since died, filed his suit on August 30, 1926. On October 22, 1926, he filed his declaration and la’ter an amended declaration. He alleges in his amended declaration that on June 23, 1918, the defendant was engaged in selling real estate in the City of Chicago and that he, the plaintiff, was a prospective purchaser in the sale of lots being sold by defendant; that in and about the defendant’s business he maintained and operated automobiles operated by his servants for the purpose of carrying persons from defendant’s subdivision to their homes and represented himself as owning and operating said automobiles and the drivers of said automobiles as his servants in that behalf; that on said day he, the plaintiff, at the invitation of the defendant Frederick H. Bartlett, became a passenger in said automobile and while in the exercise of ordinary care, the automobile was so negligently driven by defendant’s servant that it ran over a safety island at 33rd and South Park avenue in Chicago, as a result of said negligent conduct, his failure to drive to the right of the center of the street, and also because of his driving at an excessive rate of speed, that he, the plaintiff was injured.

Plaintiff in his amended declaration further alleged that he was grievously damaged by being injured and that he lost profits in his baking business following the accident because of the injuries he sustained.

To this amended declaration the defendant filed four pleas, as follows:

First, the plea of not guilty;

Second, the 2 years Statute of Limitations;

Third, nonownership and operation of the automobile; and

Fourth, that of former adjudication.

To the pleas of the defendant the plaintiff thereafter filed as follows:

To defendant’s first plea of not guilty, the plaintiff tendered issue by filing a similiter ;

To defendant’s second plea of the statute of limitations, the plaintiff took issue by filing a replication;

To defendant’s third plea, that of nonownership, and operation plaintiff tendered issue by filing a similiter; and

To defendant’s fourth plea, that of former adjudication [wherein they alleged in substance that plaintiff had recovered a verdict of $40,000 in a former suit and that judgment was entered for $25,000 upon a remittitur which judgment was later affirmed by the Appellate Court for the First District of Illinois, which judgment was thereafter reversed' by the Supreme Court of Illinois in the case entitled, Densby v. Bartlett, 318 111. 616, and that the said judgment of the Supreme Court decided on the merits of the controversy that the defendant was not liable] a general and special demurrer was filed by the plaintiff, .and for the special causes of demurrer the plaintiff contends:

(a) That the plea does not show the defenses, supposed to have been presented by the defendant to plaintiff’s suit in the circuit court, are part of the cause of action as contained in plaintiff’s declaration;
(b) That the plea does not show that all matters presented by the plaintiff’s declaration now on file were joined in issue and disposed of in the former cause of action;
(c) That the Supreme Court of Illinois did not have the power to determine the former suit upon the merits as this would be a usurpation of the power and province of the jury and the exercise of power by said Supreme Court prohibited by the Constitution of the State of Illinois;
(d) That the Supreme Court was without the power to determine the issue of fact involved in said suit;
(e) That the Supreme Court was without the power to pass upon the merits of said suit;
(f) The averment in said fourth plea that said Supreme Court held there was no evidence in said cause tending to prove defendant liable to plaintiff for said supposed grievances and that said defendant did not own, possess, or control said automobile and was not the master or employer of the operator of said automobile and that plaintiff was injured by reason of any supposed negligence of the defendant as by the records of said cause most fully appears, is a pleaders ’ conclusion and not the pleading of matters of fact from which this court can determine the nature and character of the judgment of the Supreme Court;
(g) That said Supreme Court has no power to make findings of fact in actions at common law coming before it for review as in said fourth plea is averred;
(h) That said plea is defective as a plea of former adjudication because it does not set up the legal judgment or the substance of the legal judgment that the Supreme Court was authorized by law to enter in said former suit.

The defendant also filed a general demurrer to the replication filed by the plaintiff to defendant’s plea of the statute of limitations.

The order that was entered by the court sustaining defendant’s demurrer to the replication and also overruling plaintiff’s fourth plea of former adjudication was entered on July 17, 1936, and reads in part as follows:

“. . . and leave is given to the defendant to file a demurrer instanter to plaintiff’s replication to the defendant’s second plea, and the Court having heard the arguments of counsel and authorities having been submitted, and being fully advised in the premises, the Court sustains the demurrer of the defendant to the replication of the plaintiff to defendant’s second plea to plaintiff’s second amended declaration, and plaintiff elects to abide by her replication, and the Court overrules the demurrer of the plaintiff to defendant’s fourth plea to plaintiff’s second amended declaration, and the plaintiff elects to stand by her demurrers.”

In the second amended declaration of the administratrix-plaintiff, it is alleged that Densby’s death was not caused by the injuries sustained by him at the time of the accident.

In the former suit which was brought by Densby against the defendant Bartlett, one Saracino was made a codefendant, and the Supreme Court held that the facts proved the driver of the automobile was the servant of the guneral employer, Saracino, who hired and paid him, and who, alone, under the proof, was responsible for his negligence in driving the car. When the case came for trial in the circuit court the defendant Saracino was given an instructed verdict of not guilty, which action was affirmed by the Appellate Court. When the case was decided in the Supreme Court, that court in Densby v. Bartlett, 318 Ill. 616, said at page 628: “The proof does not show Saracino surrendered the manner in which the car should be driven wholly to the control and direction of appellant. The driver, while performing a special service for appellant, was performing work of his employer, Saracino, within the scope of his employment, viz., driving cars for persons who hired them from his employer. Many of the cases above cited expressly hold that the right of the hirer to direct the driver when and where to go, whom to haul and the route to travel does not place the driver under the control of the hirer as to the manner of driving the car. In that regard he is doing the work of the general employer and is not subject to the control of the hirer. In this case appellant was not authorized to discharge a reckless driver and replace him with another driver. At most he could dismiss the car and driver. In the absence of an agreement to do so, it cannot be inferred that the owner of cars of considerable value and requiring competent and skilled persons to drive them, and who employed as drivers men he was willing to trust, would authorize one to whom he hired them to discharge the drivers for any reason. ... In obedience to the overwhelming weight of authority, not only of other jurisdictions but also of this State, we must hold that under the facts proved the driver of the car was the servant of the general employer, Saracino, who hired and paid him, and who, alone, under the proof, was responsible for his negligence in driving the car. . . . The proof does not show that appellant held himself out as owner of the car and master of its driver. ’ ’

Counsel for plaintiff contends that the Supreme Court is bound by the finding of fact in the Appellate Court,

The decision in the case of Densby v. Bartlett, 318 Ill. 616, was referred to in the case of Shannon v. Nightingale, 321 Ill. 168, at page 174, the court in the latter case, said:

“The Bartlett case, after stating the rule that one in the general service of an employer may be transferred to the service of another for a particular work so as to become the servant of the latter in respect to that particular work, states that the most universal and unfailing test for determining the relation of master and servant is the power of the person for whom the work is done to discharge the servant; that where there is such power the relation of master and servant exists, and where the person for whom the work is done has not such power the relation of master and servant does not exist. It is not necessary to repeat the reasoning of that case, to refer to the authorities mentioned, or to recite further the principles of law considered. The application of those principles to the evidence was necessary to the determination of the question whether or not Pratt was the servant of the plaintiffs in error, and the determination of that question by the jury, approved by the judgment of the circuit court, which has been affirmed by the Appellate Court, in the absence of error of law precludes any review of the question by this court.”

From these two cases it will be seen that the merits of the controversy were passed upon by the Supreme Court and whether the Supreme Court had the power to do so or not, it is sufficient to say that, from our interpretation of the language, used by said court, they did pass on the merits of said controversy.

It is further contended by plaintiff that this being a new suit, the plea of former adjudication, under the statute, could not be interposed, and that they have a right to maintain the suit by virtue of chapter 83, par. 26, sec. 2, Ill. State Bar Stats. 1935; Jones Ill. Stats. Ann. 107.285, wherein it is stated:

“In any of the actions specified in any of the sections of said Act, if judgment shall be given for the plaintiff, and the same be reversed by writ of error, or upon appeal; or if a verdict pass for the plaintiff, and, upon matter alleged in arrest of judgment, the judgment be given against the plaintiff; or, if the plaintiff be nonsuited, then, if the time limited for bringing such action shall have expired during the pendency of such suit, the said plaintiff, his or her heirs, executors, or administrators, as the case shall require, may commence a new action within one year after such judgment reversed or given against the plaintiff, and not after. ’ ’

We do not believe that the legislature intended to give the right to a litigant, after having had his case reversed by a reviewing court, to commence the suit again where the case had been tried upon its merits and the reviewing court in passing upon the question submitted to it, also decided upon the merits of the controversy.

In the case of Smith v. McNeal, 109 U. S. 426, wherein the right to bring suit under a statute of Tennessee permitting suit to be brought within a year after reversal was considered, the court quoting from the case of Hughes v. United States, 4 Wall. 232, said:

“ ‘In order that a judgment may constitute a bar to another suit it must be rendered in a proceeding between the same parties or their privies, and the point of controversy must be the same in both cases, and must be determined on its merits. If the first suit was dismissed for defect of pleadings or parties, or a misconception of the form of proceeding, or the want of jurisdiction, or was disposed of on any ground which did not go to the merits of the action, the judgment rendered will prove no bar to another suit. ’ See also Greenleaf’s Evidence, sections 529, 530, and cases there cited.”

In the case of In re Estate of Stahl, 227 Ill. 529, the court at page 533, said:

“Where some controlling fact or question material to the determination of a cause has been adjudicated in a former suit before a court of competent jurisdiction and the same question is again at issue between the parties, its adjudication in the first case, properly presented, wil be conclusive of the same question in the latter suit, irrespective of the question whether the cause of action be the same in both suits. (Hanna v. Read, 102 Ill. 596; Leigh v. National Hollow Brake-Beam Co., 224 id. 76; Blackaby v. Blackaby, 189 id. 342; Pratt v. Griffin, 223 id. 349.) ”

In the case of Rice v. Dougherty, 194 Ill. App. 462, wherein a bill in chancery was filed and a special demurrer sustained because a former suit was brought within a year and claiming that the case was governed by chapter 83, section 25, Hurd’s Rev. Stats., which is the same as the present Ill. State Bar Stats., the court said: “Section 25 applies only to a case where there has been no final adjudication upon the facts upon which the claim is based. Larkins v. Terminal R. R. Ass’n of St. Louis, 122 Ill. App. 246. ‘The intent of the statute (section 25) was that the time occupied in an unsuccessful litigation touching a demand — the statutory limitation expiring during the litigation— should not prove a bar, where the merits of the controversy had not been determined, but that a period of one year should be allowed after the expiration of the unsuccessful litigation to bring a proper action to enforce the demand; and this whether the unsuccessful litigation be at law or in equity.’ (Italics ours.) Lamson v. Hutchings, 55 C. C. A. 245.”

We think the fourth plea of the defendant in which he sets up the facts of the former adjudication was a complete defense to the declaration filed and, when the plaintiff filed his demurrer, he admitted the truth of the facts therein set up and, having elected to stand by his demurrer, the court was correct in dismissing the suit as there was no issue to try on that plea.

In 34 C. J. 1064, sec. 1503, it was said:

“Wherever there are any facts which will avoid the bar of a former adjudication, they should be set up by a reply to the plea, and not by demurrer. Nul tiel record is the proper reply where the former judgment is not a sufficient bar.”

In 15 R. C. L. 1047, it is said:

“If a plea of former judgment is interposed, and the plaintiff admits the existence of the record, that ends the matter, for the plea bars his suit, but if he wishes to deny it, he should do so by replying that there is no such record, and praying that it be inquired of by record.”

It is next contended by plaintiff that the court should not have entered judgment with costs against the administratrix and point to the language of the order: “. . . and that the defendant recover his costs in this behalf expended.” We think a fair construction of this language would mean that the defendant in the suit below should recover from the plaintiff, who was the administratrix, and in his contention we think the defendant is correct and the order should be so amended as to read: “That the defendant recover his costs against the plaintiff, as administratrix, in due course of administration.”

For the reasons herein given the order of the superior court is affirmed in part and reversed in part with directions to amend the said order making the costs recoverable from the administratrix in due course of administration.

Judgment affirmed in part; judgment reversed in part and remanded with directions.

Hebel and Hall, JJ., concur.


author: Mr. Justice Hall

text:
    Continental Illinois National Bank and Trust Company of Chicago, Appellee, v. Gertrude Ann Doud Kelley et al., Appellees. Appeal of Charles B. Kelley et al., Appellants.
    Gen. No. 38,742.
    Opinion filed May 19, 1937.
    Herman A. Fischer and Raymond P. Fischer, both of Chicago, for appellants.
    Packard, Barnes, McCaughey & Schumacher, of Chicago, for appellant Jessica Davidson Riely; George Packard, of counsel.

      Thomas H. Fisher, of Chicago, for appellees.
   Mr. Justice Hall

delivered the opinión of the court.

A petition for rehearing was granted in this cause, and after a further review of the record, the court files a new opinion, as follows:

This is an appeal from a decree of the circuit court of Cook county, construing a deed of trust, and directing the distribution of certain income of a trust estate.

On March 1,1900, David P. Kelley and Sarah Kelley, his wife, conveyed real estate, situated in the city of Chicago, to the Illinois Trust & Savings Bank, in trust, for the purposes set forth in the deed of conveyance. After providing for the maintenance of the property in the matter of the payment of taxes, water rates and other costs in connection therewith, and the renting of the property, and the collections of the rents to be derived therefrom, the deed of .trust provides that the trustee is given power to sell and convey the real estate so conveyed, and to invest and reinvest the proceeds thereof, provided that the trustee may not sell, convey or dispose of the same during the joint lives of Addison D. Kelley and Paul D. Kelley, sons of the grantors, without the consent in writing of these sons, and it is further provided that in case of the death of either of the sons, during the lifetime of the survivor, the trustee may not sell or convey the property without the consent of the survivor. It also provides for the payment of $200 per month to each of the grantors during their lives, or during the life of the survivor. Sections 3 and 4 of the deed are as follows:

“3. During* the existence of the trust hereby created, said trustee shall apply and pay the net rents, issues and profits arising* from the property hereby conveyed or the net rents, interest, income and return upon any substituted investment (subject, however, to the contingencies hereinafter provided for and set forth) during the joint lives of Addison D. Kelley and Paul D. Kelley, sons of the party of the first part, in quarter-yearly installments, or at more frequent intervals if practicable, to each, the said Addison D. Kelley and Paul D. Kelley (in person and not upon any written or verbal order nor upon any assignment or transfer by them, or either of them) one-half of the net income arising from said property, and upon and after the death of either thereof, shall pay in like manner to his widow, if any (in person and not upon any written or verbal order nor upon any assignment or transfer by her) his (her deceased husband’s) proportion of said income, until her death or remarriage, or until the end of twenty-one years after the death of the last survivor of them, said Addison D. Kelley and Paul D. Kelley, which ever shall first occur, and upon the death of either, the said Addison D. Kelley or Paul D. Kelley, leaving no widow him surviving, or in case he shall leave a widow him surviving, upon her death or remarriage within the period of twenty-one years above mentioned, shall pay in like manner to his heirs-at-law his proportion of said net income until the termination of this trust.

“á. The income arising from said property shall not be subject to alienation or assignment by said Addison D. or Paul D. Kelley, or either of them, and in case they, or either of them, shall die, leaving widows surviving, such income shall not be subject to alienation or assignment by such widows, or either of them, nor shall such income be subject to be charged, incumbered or in any manner lessened or affected by any act of said Addison D. or Paul D. Kelley, or either of them, in the lifetime of either of them, or by the act of the widows of them, or either of them, in case of the survivorship of such wife or wives. Nor shall same be subject to the payment of his, her or their debts or obligations in any manner of form, nor shall'they or either of them have any vested interest in said income, or any installment thereof, until the same is actually paid over to him, her or them by said trustee, nor shall any payment thereof be anticipated by said trustee, nor shall said income be subject to garnishment or other legal process, but on the contrary shall be free from interference or control of his, her or their creditors, the intent being that said income shall be preserved and held for the personal use, benefit, maintenance and support of said Addison D. and Paul D. Kelley, and their respective widows, or the survivor or survivors of them, upon the terms hereof, and if said Addison D. and Paul D. Kelley, or either of them, shall at any time hereafter attempt to alienate, charge or dispose of their respective shares of said income, or any part thereof, or any interest therein, or if, in the event of survivorship, the widows of them or either of them, shall at any time attempt to alienate, charge or dispose of their respective proportions of said income, or any part thereof, or if by reason of such attempted alienation, charge or disposition, or by reason of his, her or their insolvency, or by reason of any legal proceeding being taken or legal process issued against them, or any, or either, of them, or by reason of any other event happening at any time hereafter, said net income shall, wholly or in part, cease to be personally enjoyed by said Addison D. and Paul D. Kelley, or either of them, or in the event of their survivorship, by their said widows, or either of them, the provisions herein contained for the disposition of said income shall thereupon cease and determine in respect to the proportion thereof so affected, and thereupon said income as to the proportion thereof going to the person or persons whose interest or interests is or are or may be so affected, shall be held by said trustee during all the then residue of the life of the person whose interest is, or may be, so affected, as the case may be, in the manner following, that is to say: said trustee shall in its absolute discretion and as it shall see fit, pay and apply said income to the personal support, comfort and maintenance or otherwise, as the judgment of the trustee shall approve, for the benefit of the person whose interest shall lie so affected, exclusive of all other persons being* or claiming to be alienees, grantees, or creditors of such person, and in such event said trustee shall have power to appoint some person as its agent and representative to whom it may pay over said income and such person so appointed shall have full power and authority in his absolute discretion, and as he shall see fit, to so pay and apply said income to the personal support and maintenance or otherwise for the benefit of the person whose interest is so affected; provided, however, that in such event the interest or interests of the remaining* beneficiaries of this trust not affected by such attempted alienation, charge or disposition, or by the claim of creditors or by legal proceedings taken, or process issued against the same, shall continue in full force and shall not be affected by the application of the provisions last above set forth in respect to the interests so affected.”

The deed also provides that the trustee shall have the power to borrow money for certain purposes. Section 9 of the trust deed is as follows:

“9. In case said trustee shall borrow money, and mortgage or convey said property, or any substituted investment, for the repayment thereof as aforesaid, it shall have power to pay all necessary and reasonable commissions and expenses, incurred in making such loan, out of the proceeds thereof, or out of the income, rents, issues and profits of said trust estate, as it may deem best, and it shall also have power to pay any and all interest, to accrue upon said loan, out of the income, rents, issues and profits aforesaid, and shall also have power to reserve and set aside, out of the income, rents, issues and profits of said trust estate, at any and all times during the existence of any such mortgage debt, such proportion or percentage of such income, rents, issues and profits (not exceeding however a sum equal to ten per cent per annum of the principal of all such outstanding loans) as may, in its judgment, be reasonably necessary for the purpose of accumulating a sinking fund for the payment of such loan or loans, and shall have power to invest and reinvest such sums so set aside and reserved, and the income and profits arising therefrom, and to ultimately apply such sinking fund, and the increase and increment thereof, to the repayment and satisfaction of the principal debt or debts secured by mortgage, trust deed or otherwise, as aforesaid. It is the intent and desire of the grantors however, that such sinking fund shall interfere as little as may be practicable with the distribution of the rents and incomes arising from said trust estate to and amongst the beneficiaries hereunder, and it is expressly provided that, at all times during the lives of the grantors, at least twenty-four hundred dollars per annum shall be reserved and taken out of said rents and income, in preference and priority to such sinking fund, said sum so taken out to be applied as provided in paragraph 5 hereof, upon the contingencies therein set forth, otherwise provided in paragraph 3 hereof, and after the death of the grantors a like sum shall be reserved and taken out at all times, so long as either said Addison D. or Paul D. Kelley or any widow (not remarried) or minor child, of either, shall survive, such sum to be distributed as provided in paragraph 3 aforesaid. And if upon repayment of all loans secured upon the trust estate as aforesaid, a surplus shall remain in the sinking fund aforesaid, such surplus be divided amongst, and paid over to, the several parties then entitled to the net income of the trust estate as they shall then exist, in the proportion in which the rents, issues and profits are divisible at the time such surplus is distributed; provided that the trustee shall in any event be entitled to have, receive and retain out of said sinking fund all proper expenses and disbursements (including a reasonable compensation for its services) incurred, disbursed and earned in and about the handling, investing, reinvesting, caring for, looking after, disbursing and distributing said sinking fund, and the increase and increment thereof. ’ ’

Sections 12 and 13 of the trust deed are as follows:

“12. This trust shall terminate and end upon the happening of any of the following contingencies: (a) Upon the death of the survivor of said Addison D. and Paul D. Kelley, if neither leave surviving him a widow or descendants; (b) When and if (at any time subsequent to the death of both said Addison D. and Paul D. Kelley and within twenty-one years after the death of the survivor of them) there shall be in esse no lineal descendant of either of them and no widow (not remarried) of either of them; (c) In any event, at the expiration of twenty-one years from and after the death of the last survivor of them, said Addison D. and Paul D. Kelley.

“13. Upon the termination of the trust hereby created at the time and upon the happening of the events set forth in the last preceding clause hereof, or either of them, said trustee shall convey said property by proper instruments of conveyance, to be acknowledged according to law (such conveyance to vest in the grantees a fee simple title, free, clear and discharged of the trusts hereby created) in the following manner and to the following persons, to-wit: (a) If at the time of such conveyance there shall be living and not remarried, widows, and descendants of both said Addison D. and Paul D. Kelley, then to the widow of each an undivided one-sixth, and to the children or descendants of each, an undivided two-sixths, as tenants in common; (b) If at said time widows of both said Addison D. and Paul D. Kelley shall be living and not remarried, and no children or descendants of either shall then be living, then to each of said widows an undivided one-half; (c) If at said time no widow of either shall be living and unmarried, then to the heirs at law of each an undivided one-half as tenants in common, or if the heirs at law of both be the same persons, then to such persons the whole thereof; (d) If at such time there be living and not remarried the widow of one thereof only, and also a child or children or descendants of the deceased husband of such widow, then to such widow one-sixth, and to such child, children or descendants, two-sixths, as tenants in common, and to the heirs at law of the other, the remaining one-half, as tenants in common; (e) If, at such time, there be living, and not remarried, the widow of one only, and no children or descendants of her deceased husband, then to such widow one undivided half of said estate, and to the heirs at law of the other the remaining half thereof, as tenants in common.”

We have quoted these sections of the trust agreement in full for the reason that a complete understanding of the issue involved cannot be had without doing so. It is apparent that this trust indenture was intended to and did create a spendthrift trust for the benefit of certain persons mentioned.

The Continental Illinois National Bank & Trust Company, which had become trustee of the trust estate by reason of certain bank consolidations, filed a petition in the circuit court of Cook county, in which the terms of the trust agreement are recited. In this petition it is alleged that at the time of the execution and delivery of the indenture of trust, Addison D. Kelley and Paul D. Kelley, the sons of the grantors, in whose interest principally the trust was created, were both alive and were bachelors; that thereafter Paul D. Kelley married but once and then to Jessica S. Kelley, and that Addison D. Kelley married but once and then to Gertrude Ann Doud Kelley; that on October 25, 1900, David D. Kelley died, leaving a will and surviving him, as his only heirs and next of kin, Addison D. Kelley and Paul D. Kelley, his sons, and Sarah J. Kelley, his widow, and that by the terms of this will, all of his estate was devised to Sarah J. Kelley, his wife, absolutely, in the event that she survived him, and that she did survive him; that on May 4, 1913, Paul D. Kelley died, leaving surviving as his only heirs at law and next of kin, Jessica S. Kelley, his widow, Addison D. Kelley, his brother, and Sarah J. Kelley, his mother; that Paul D. Kelley left a will, by the terms of which his property was devised and bequeathed to his widow, Jessica S. Kelley; that on October 14, 1923, Addison D. Kelley died, leaving a will, by which he made sundry devises, none of which referred to or included any interest of Addison D. Kelley in the trust estate, and that all the residue of his property was devised and bequeathed to Gertrude Ann Doud Kelley, his widow, who still survives, and is unmarried; that on January 17, 1926, Sarah J. Kelley died intestate, leaving as her surviving heirs at law and next of kin, Anne L. Meadowcroft, her niece, Elizabeth Wood McLean, her grandniece, and Ellery L. Wood and Augustus R. Wood, her grandnephews, and that thereafter letters of administration on her estate were issued to Anna L. Meadowcroft; that on January 15, 1923, the real estate conveyed by the trust deed to the trustee was sold by the trust company, and that Addison D. Kelley, the then surviving son of Sarah J. Kelley, consented to such conveyance by signing the deed, that the trustee invested the proceeds in income bearing securities, and that the payments provided to be made by the trustee to the persons therein mentioned, had been made as provided in the trust deed; that on February 20, 1931, Jessica S. Kelley, the widow of Paul D. Kelley, died testate, leaving Jessica A. Davidson, her daughter by a former marriage, as her only heir at law, and that by the terms of her will, all of her property was devised and bequeathed to Jessica A. Davidson; that after making the payments provided for in the trust deed, there remained in the hands of the trustee on February 20, 1931, the date of the death of Jéssica 8. Kelley, the sum of $7,172.62 in cash, such sum being accumulated income from the trust estate which was then held undistributed by the trustee; that it, the trustee, intends to and will pay to Gertrude Ann Doud Kelley her proportion of said sum, and that Jessica 8. Kelley would be entitled to the same amount as Gertrude Ann Doud Kelley, were she alive; that a question has arisen as. to whether the estate of Jessica 8. Kelley'is entitled to any portion of her distributive share in the income of this trust estate, or whether it should be distributed to those who are referred to as the heirs at law of Paul D. Kelley, deceased. The bill prays that, because of such conflicting claims, that the court construe the trust deed, and that the trustee be advised as to its legal duties in the premises.

In addition to Gertrude Ann Doud Kelley, widow of Addison D. Kelley, and Jessica A. Davidson, daughter by a former marriag*e of Jessica 8. Kelley, deceased, Annie L. Meadowcroft, Elizabeth Wood McLean, Ellery L. Wood and Augustus Rawson Wood, heirs and next of kin of Sarah J. Kelley, deceased, Charles B. Kelley, George E. Kelley, Nettie A. Dickerman, David D. Kelley, Harriet E. Jones, Abbie C. Wallace and Mary Kelley Schufeldt, first cousins of Paul D. Kelley, together with husbands and wives of certain of these cousins, are made parties defendant to the bill. Answers were filed by all of these persons, except Gertrude Ann Doud Kelley, who entered her appearance in the cause.

The cause was referred to a master, who made a report, and thereafter and after a hearing on the report, the court entered a decree in which it found the salient facts to be substantially as set forth in the petition. In addition the court found, from evidence adduced, that at the time of the entry of the decree, the value of the trust estate was approximately $240,000; that up until the date of the death of Jessica S. Kelley, the trustee had made distributions of the income of the property in monthly instalments to the persons entitled thereto, and that at the time of the death of Jessica S. Kelley, the sum of $7,172.62 in cash had accumulated and was undistributed; that at that time, one-half of such accumulated income, less a pro rata share of certain taxes and other expenses of administration, were payable to Gertrude Ann Doud Kelley, and was paid to her, and that the other half of such sum is still held by the trustee, for the reason that the question has arisen as to whether or not the amount held should be paid to the estate of Jessica S. Kelley. The court also found that interest had accrued on this last mentioned sum; that the net income from the trust estate is apportion-able as of and to the date of the death of Jessica S. Kelley, and that a one-half share of all said prior accruing income (including both that which was collected and that which had accrued and which was uncollected) subject to proper expense deductions, was the property of said Jessica S. Kelley at the moment of her death, and is payable by the trustee to the defendant, Jessica A. Davidson, as the sole devisee under the will of Jessica S. Kelley; that as to the proportionate share of Paul D. Kelley of the income of the trust estate accruing after the death of Jessica S. Kelley, that the designation “his (i. e., Paul’s) heirs at law,” be taken to mean the heirs of Paul D. Kelley, including his mother, Sarah J. Kelley, and his brother, Addison D. Kelley, but excluding his widow, Jessica S. Kelley; that the “heirs at law” in the income of the trust accruing after the death of Jessica S. Kelley, were interests in real estate, and were vested at the time of Paul D. Kelley’s death, and that Paul D. Kelley’s “proportionate share” (i. e., one-half share of the net income of the trust) is payable by the trustee as follows : One-third to Annie L. Meadowcroft, one-ninth each to Ellery L. Wood, Elizabeth Wood McLean and Augustus Rawson Wood, and one-third to Gertrude Ann Bond Kelley, and that each of such persons has a vested interest in the fixed proportion of the income. The court found that the other defendants had no interest in the trust estate. It was ordered and decreed that the income be paid to the persons mentioned in the various proportions, as above set forth, and found by the court to be due and owing. The court also found that it would be premature to determine the corpus of the estate. It is evident that the trial court considered only the interest of Paul D. Kelley, his widow and-heirs at law, and determined that future contingencies should not be anticipated. To both the latter conclusions, we agree.

Separate appeals from the decree are here prosecuted by Jessica A. Davidson and by certain others who claim to be the heirs at law of Paul D. Kelley. On the part of Jessica A. Davidson, it is contended that the terms “heirs at law” in the trust agreement should be construed as referring to the heirs at law of Paul D. Kelley at the date of his death, and that since the property devised by his will to Jessica S. Kelley is in the nature of personal property, it should go according to the statute of descent to her deceased mother, the widow of Paul D. Kelley, and to Jessica A. Davidson as her devisee. She insists that Jessica S. Kelley, widow of Paul, her mother, had a vested right in the income collected but undistributed at the time of her death, and in the income accrued though not collected. This latter she also claims. The theory of Charles B. Kelley and the other collateral heirs of Paul D. Kelley, appellants, is that the words “heirs at law,” as used in the deed of trust with reference to both the income and the corpus of the trust estate, were intended by the grantors in the deed of trust to refer to the nearest living relatives of Paul D. Kelley at the date fixed for distribution, that is to say, those who would have been his heirs if he had died at the time appointed for distribution. As to Annie L. Meadowcroft and the other heirs at law of Sarah J. Kelley, appellants, it is contended that the words “heirs at law” in the deed of trust should be construed as referring to the heirs at law of Paul D. Kelley at the date and time of his death, excluding Paul D. Kelley’s widow, and that these last mentioned persons have succeeded to the rights of such “heirs at law,” all of whom had died before the date fixed for distribution. There is no question of fact raised, and as stated, nothing is involved here but the disposition of the interest in the trust of Paul D. Kelley, who died on May 4, 1913, and left as his heirs at law Jessica S. Kelley, his widow, Sarah Kelley, his mother, and Addison D. Kelley, his brother, as set forth in the bill and found by-the decree. Here it is pertinent to call attention to the fact that the trust deed provides specifically that neither the sons, nor their widows, should “have any vested interest in said income until it was actually paid over to them.” In stating the intention of the grantors, with respect to the trust, the following recitation appears in the trust indenture, and bears repetition: “The intent [of the trust indenture] being that said income shall be preserved and held for the personal use, benefit, maintenance and support of said Addison D. and Paul D. Kelley, and their respective widows, or the survivor or survivors of them, upon the terms hereof, and if said Addison D. and Paul D. Kelley, or either of them, shall at any time hereafter attempt to alienate, charge or dispose of their respective shares of said income, or any part thereof, or any interest therein, or if, in the event of survivorship, the widows of them or either of them, shall at any time attempt to alienate, charge or dispose of their respective proportions of said income, or any part thereof, or if by reason of such attempted alienation, charge or disposition, or by reason of his, her or their insolvency, or by reason of any legal proceeding being taken or legal process issued against them, or any, or either of them, or by reason of any other event happening at any time hereafter, said net income shall, wholly or in part, cease to be personally enjoyed by said Addison D. and Paul D. Kelley, or either of them, or in the event of their survivorship, by their said widows, or either of them, the provisions herein contained for the disposition of said income shall thereupon cease and determine in respect to the proportion thereof so affected, and thereupon said income as to the proportion thereof going* to the person or persons whose interest or interests is or are or may be sp affected, shall be held by said trustee during all the then residue of the life of the person whose interest is, or may be so affected, as the case may be, in the manner following, that is to say: said trustee shall in its absolute discretion and as it shall see fit, pay and apply said income to the personal support, comfort and maintenance or otherwise, as the judgment of the trustee shall approve, for the benefit of the person whose interest shall be so affected, exclusive of all other persons being or claiming* to be alienees, grantees, or creditors of such person, and in such event said trustee shall have power to appoint some person as its agent and representative to whom it may pay over said income and such person so appointed shall have full power and authority in his absolute discretion and as he shall see fit, to so pay and apply said income to the personal support and maintenance or otherwise for the benefit of the person whose interest is so affected.”

As stated, the record shows that Paul D. Kelley made and executed a will dated September 29, 1909. By the terms of this will he devised and bequeathed all his property and “all the property, income, right or benefit of every sort, kind or description of which I have or may have the right to dispose of, or name the beneficiary of” to his wife, Jessica S. Kelley, or that in the event that she predeceased him, to Jessica Al-ward (now Jessica A. Davidson) daughter of his wife by a former marriage. Jessica S. Kelley executed a will dated February 25, 1929, by the terms of which she willed and bequeathed all her property to Jessica A. Davidson, her daughter.

From a careful reading of the trust indenture, we arrive at the conclusion that it contains three outstanding provisions which are pertinent to the inquiry here, to wit: (1) Neither of the sons, of the grantors for whose provisions the trust is created, nor their widows, nor any beneficiary thereunder, acquired any vested interest in the trust fund provided for until the same was actually paid over to them. (2) It is provided that neither of said sons, nor in the event of the death of either, their widows shall have any enforceable interest in the trust created, nor in the funds derived therefrom, should they alienate, or attempt to alienate, their respective proportions of the income. (3) It is provided in the deed of trust that “upon the death of either, the said Addison D. Kelley or Paul D. Kelley, leaving no widow him surviving, or in case he shall leave a widow him surviving, upon her death or remarriage within the period of twenty-one years above mentioned (21 years after the death of the survivor of the two sons), the trustee shall pay in like manner to his heirs at law his proportion of said net income until the termination of this trust.”

In view of the fact that by the terms of the indenture of trust, neither Paul D. Kelley, nor his widow, acquired any vested interest in any portion of the trust fund until the same was actually paid over, and of the further fact that by their wills they attempted to alienate their prospective rights in the fund created, there might be some doubt as to whether or not Jessica A. Davidson has any right whatever in the proportion of the fund accumulated and undistributed at the time of her mother’s death, if it were not for the fact that, as shown by the bill, this fund was accumulated, due and owing and should have been paid by the trustee to Jessica S. Kelley during her lifetime. As to the last proposition, we can arrive at no other conclusion than that the makers of the indenture of trust intended that the term “heirs at law” of Paul D. Kelley was intended to and does mean the heirs at law as of the date of his death, and that his widow was intended to be and was excluded from this class.

In McGinnis v. Campbell, 274 Ill. 82, a husband by Ms will, devised a life estate in his real and personal property to his widow, and it provided that upon the death of Ms wife, another person should have a life estate in the property, both real and personal, and that upon the death of this other person and the wife of the testator, the estate, both real and personal, should go to the legal heirs of the testator ‘ ‘ at the time of my decease.” The testátor died in 1898, and the widow died in 1907, leaving a number of collateral kin of her blood as her heirs. It was contended that the widow inherited as an heir of the testator, and that the widow’s collateral heirs inherited from her. In holding ag’ainst such contention, the court said:

“It is not contrary to law or public policy to devise an interest in the fee to one who has been given a life estate in the premises, and where a devise is to the testator’s heirs it would prima facie include all heirs; but this technical construction of the word ‘heirs’ will give way to the intention of the testator if it appears from the language of the will that it was not intended to include all persons who would answer that description but only to a class of heirs. (Blackmore v. Blackmore, 187 Ill. 102; Black v. Jones, 264 Ill. 548.) ”

In Smith v. Winsor, 239 111. 567, the court had before it the construction of a will by which certain property was devised by the testator to his wife for life, with power to dispose of such property by deed, and to reinvest or loan the proceeds of the sale thereof, or to use the same for the comfort or advantage of the wife, or for charitable purposes, with the provision that the remainder, if any, should descend to the heirs at law, as provided by the Illinois statute of descent. In addition to the above, the will provided that if the wife did not survive the testator, then the estate should descend to the testator’s heirs at law under the Illinois statute of descent. The wife died a short time after the death of the testator, and the wife’s heirs claimed through her a one-half interest in all the real estate owned by the testator at the time of his death. The claim of these heirs of the wife was based upon the contention that the words “heirs at law” in the testator’s will, included his widow. The court there held that the words “heirs at law, ” meant heirs of his blood. From the statement of the ease made by the court, we conclude that the will in this case provided for two contingencies: one, the testator surviving the wife, and the other, the wife surviving the testator. In its opinion, the court said:

“It has frequently been held by this court that the word ‘heirs’ in a will does not necessarily have a fixed meaning. It may mean children. If it may mean children, it may also, where there are no children, mean some other one class of heirs (not including all the heirs,) if the context of the entire will plainly shows such to have been the purpose of the testator. In the construction of a will greater latitude is allowed than in the construction of a deed. (Webbe v. Webbe, 234 Ill. 442,) and while, as above stated, the technical meaning of the word is the one which prima facie should prevail, yet such meaning* will not be given effect to the extent of defeating an obvious general intention of the testator. (Blackmore v. Blackmore, 187 Ill. 102; Johnson v. Askey, 190 Ill. 58.)' ‘Heirs’ and ‘heirs-at-law’ are in a legal sense the same.”

In our opinion the decree of the court ordered the distribution of the income of this trust estate in accordance with the intent of the creators of the trust. Therefore, it is our opinion that the decree should be, and it is, affirmed.

Affirmed.

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


text:
    Katherine Schmidt, Appellee, v. The Equitable Life Assurance Society of the United States, Appellant.
    Gen. No. 38,905.
    Opinion filed May 19, 1937.
    Rehearing denied June 2, 1937.

      Mater, Meter, Austrian & Platt, of Chicago, for appellant; Miles Gr. Seelet, of Chicago, of counsel.
    Bangs, Crane & Slater, of Chicago, for appellee; Drennan J. Slater, of counsel.
   Mr. Justice Hall

delivered the opinion of the court.

This is an appeal from a judgment of the circuit court of Cook county entered on February 29, 1936. A motion by plaintiff to strike defendant’s plea and affidavit of merits for insufficiency, and to enter a finding and judgment for plaintiff on two additional counts filed to her second amended declaration, was sustained. The defendant chose to stand by its plea and affidavit of merits, and the court entered judgment by default against defendant for the sum of $10,242, and costs of suit.

This matter was previously before this court, and is reported in Schmidt v. Equitable Life Assurance Society of the United States, 282 Ill. App. 439. In the trial court, defendant had denied liability because of default in the payment of premiums, and judgment had been entered there for defendant. The opinion was filed November 20, 1935. A clear understanding of the issues involved here can only be had from a review of the opinion filed in that case, wherein most of the pertinent facts are recited. The portions of the opinion which we deem pertinent are as follows:

“This appeal by the plaintiff is in this court for the purpose of a review of the record wherein a judgment was entered in favor of the defendant in plaintiff’s action in assumpsit on two life insurance policies executed by the defendant and issued upon the application of Edward C. Schmidt, the insured, wherein the plaintiff, his wife, was named as beneficiary in each of the policies. Upon the death of the insured, plaintiff was to receive from the defendant the sum of $5,271.60, being the amount due on each policy. The court sustained defendant’s demurrer to plaintiff’s second amended declaration, and upon plaintiff’s election to stand by her declaration, the court entered judgment for the defendant.

“The material allegations of the second amended declaration are that the policies sued on were issued by the defendant on October 20, 1925. They were applied for by the insured on September 17,1925, and the initial premiums were paid on October 16,1925. Bach policy provided that the second and succeeding annual premiums were to become due on August 13, 1926, and each year thereafter.

“It further appears from the allegations of the amended declaration that the consideration for the payment of the face value of the policies, upon the death of Edward C. Schmidt, was the annual payment in advance of premiums on each policy of $293.26. August 13th was the annual premium date. Seven annual payments on each policy were made by the insured to and including August 13, 1931.

“Edward C. Schmidt died on September 16, 1932. The defendant was notified of his death the next day, but thereafter denied liability on the ground that the policies had lapsed because of a default three days prior to the date of death, being more than 30 days allowed under the terms of the policy within which to make payment of the premium due on August 13,1932.

“It is true that the insured was in default, but the policies themselves determine whether the beneficiary is without relief, based upon the fact of the death of the insured subsequent to a default. Certain options are provided for in the policies, which are, in substance, that after three full years ’ premiums have been paid, on default of any subsequent premium and within three months after such default, the policy may be surrendered by the insured, who may elect one of the following options: (a) receive cash surrender value, (b) purchase paid-up insurance, (c) continue the insurance for the face amount as paid-up extended term insurance for the period shown by the table appearing in the policy. In the event of default in payment of premium after this policy has been in force three full years, if the insured does not select one of said options within three months after default, the insurance shall he continued as provided in option (c). If there is any indebtedness against the policy, the cash surrender value shall be reduced thereby, the paid-up insurance shall be reduced proportionately, and the extended term insurance shall be for the face of the policy, less indebtedness, and for such period as the reduced cash value will purchase. (Italics ours.)

“It is not disputed that the insured paid more than three full years’ premiums. It necessarily follows that the policies by the terms thereof, were still in force after nonpayment. Before the expiration of the time to exercise the option, the insured died. Action on the policies survived, and as a result the plaintiff is in a position as beneficiary to recover the amount due from the defendant, as provided for by the policies themselves. . . .

“In construing this provision of the insurance contract, the language employed in these policies is controlling, and our conclusion that the policies were still in force is based upon the fact that after three full years’ payment of premiums where the insured defaulted, he was required to select one of three options within the fixed time, and upon failure to exercise the option selected, the policies automatically continued for the face amount of the policy as paid-up extended term insurance for the period shown by the table in the policy. But death interfered with the exercise of any of the options provided for in the contract, and by its terms, the contract was still in force and the right of action by the plaintiff survived, and she can maintain this suit to recover as beneficiary.”

The cause was reversed and remanded, and after being redocketed in the circuit court of Cook county, an additional count was filed to the declaration, in which it is set forth that:

“By means whereof the defendant then and there became liable to pay to plaintiff the sum of $5,271.60 as in and by said policy by it promised and agreed, less loan and interest against said policy of $905.24, or a total of $4,366.36, together with interest on said last mentioned sum at the rate of five per cent per annum from the time said notice and proof of death were furnished to said defendant as aforesaid.” This allegation is made as to each policy.

On February 13, 1936, a plea of the general issue to the third and fourth counts of the second amended declaration, was filed, supported by an affidavit of merits. Among other things, this affidavit of merits recites that:

“On August 13th, 1932, there was an indebtedness against each of the said policies amounting with interest to said date to $905.24, and the cash value of each of said policies reduced by the amount of said indebtedness and interest amounted to $1.48 per policy.

“The amount of extended term insurance which $1.48 would purchase under one of the policies sued upon was four and one quarter days.

“The said policies, and each of them, lapsed in all respects and became for all purposes null and void and of no further force and effect, before the death of said Edward 0. Schmidt, as of August 18th, 1932.”

In the policy of insurance involved here, under the title “Provisions relating to loans and surrender value,” it is provided that:

“If there be any indebtedness against this policy, the cash surrender value shall be reduced thereby, the paid-up insurance shall he reduced proportionately, and the extended term insurance shall be for the face amount of the policy less the indebtedness and for such period as the reduced cash value will purchase.” As we understand the practice under the Civil Practice Act, the motion made by plaintiff to strike the affidavit of merits was in the nature of a demurrer, and admitted the facts, well pleaded. The pleadings filed after the reversal state the claim of each of the parties.

In Massachusetts Mut. Life Ins. Co. v. Jones, 44 F. (2d) 540, a similar situation arose as that presented in the instant case, and the court said:

“Nor are we any more impressed with the argument that the indebtedness of insured to the company for advances made by it to him from the cash value of the policy to pay premiums should not have been charged against the cash surrender value in ascertaining the amount of extended insurance which insured, after default in the premium, was entitled to. There is nothing in the policy nor is there anything in the statute of West Virginia (Code, c. 34, Sec. 34a (4), or in the statute of Massachusetts (G-. L. c. 175, Sec. 144) which would make available for this purpose the gross cash value of the policy. On the contrary, both the policy and the statutes contemplate the appropriation for the purpose mentioned of only so much of the cash value as remains after deducting the indebtedness of the insured to the insurer. If, at the time in question, insured had elected to surrender the policy and receive the cash value in money, the amount he would be entitled to was the cash value, less the amount of his debt, and this amount, and no more, was the sum available for the exercise of the other options under the policy. The advances made by the company in the payment of defaulted premiums constituted a debt which under the contract became a lien on the policy. When, therefore, the automatic non-forfeiture feature of the policy became applicable, the amount of the indebtedness was deductible' both from the face of the policy and from the available cash reserve, for in no other way could a statement of account between the insured and the insurer be made, and we so held in Pacific Mutual Life Insurance Co. of California v. Davin, 5 F. (2d) 481, 484, where, speaking through Judge Bose, we said:

“ ‘It is said, however, that in this way the company received a double payment of its indebtedness: First, by deducting the indebtedness from the cash reserve; and, second, by again deducting it from the face of the policy as has already been pointed out. Deduction from the face of the policy is an altogether immaterial matter, for, as already pointed out, what the insured loses in the amount of the policy he gains in the time for which it is extended. Q%iite obviously, for the protection of the company, it must deduct any indebtedness due the company from the cash reserve before it can apply the cash reserve to buying extended insurance, for if it did not do so, the insured would get insurance for which he had not paid, and for which, if he did not happen to die, within the period of extension, he never would pay and never could be compelled to pay.1 ” (Italics ours.)

We are of the opinion that the court was in error in striking the affidavit of merits. Therefore, the judgment is reversed and the cause remanded with the direction that the order striking the affidavit of merits be vacated, and that a hearing be had on the issues-joined.

Judgment reversed and remanded with directions.

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


text:
    Board of Trade of the City of Chicago, Appellee, v. J. K. Company, Appellant.
    Gen. No. 38,973.
    Opinion filed May 19, 1937.
    Andrew J. Farrell, of Chicago, for appellant;
    James L. Coleman and Allan J. Moore, both of Chicago, of counsel.
    John A. Bloomingston, of Chicago, for appellee; Ben W. Goldman, of Chicago, of counsel.
   Mr. Justice Hall

delivered the opinion of the court.

By this appeal, defendant seeks the reversal of a judgment for the sum of $3,500, entered in the superior court of Cook county against it and in favor of plaintiff. The trial was before the court and a jury, and the jury returned a verdict for the amount of the judgment.

On December 23, 1932, Charlton II. Duvall, an employee of plaintiff, was killed in an explosion and fire which occurred in a grain elevator owned and operated by the defendant. Prior to this suit, plaintiff paid his widow the sum of $3,500 — the amount of the judgment. It now seeks to recover the amount paid, as provided by section 29 of the Workmen’s Compensation Act of the State of Illinois, 111. State Bar Stats. 1935, ch. 48, if 229; Jones Ill;. Stats. Ann. 143.44, by which both plaintiff and defendant were bound, upon the theory that Duvall met his death through the negligence of the defendant. The suit was originally brought against the Stratton Grain Company, and pending the proceeding, the name of the corporation was changed to the J. K. Company, and the change in name was made a matter of record by proper amendment.

On December 23, 1932, the day Duvall met his death, as the record indicates, he was employed by the plaintiff as a scale inspector, and had been so employed for many years, and that on that date, Duvall arrived at defendant’s place of business about 9:30 in the morning and went upstairs to the scale room, which is about 140 feet from the ground, for the purpose of testing the scales; that while he was so engaged, there was a sudden puff of smoke and an explosion, and that an employee of the defendant named Garrity and Duvall started to run. Garrity was rescued, but Duvall has never been seen since the fire and explosion. The record further indicates that the elevator building of defendant was about 250 feet long and about 160 feet high, and had seven floors consisting of a basement floor, the work house floor, bin floor, belt floor, garner floor, scale floor and top floor. In the building there were 10 elevator legs, which are described by witnesses as consisting of endless belts with buckets bolted on each, and that each of the legs was encased in sheet iron, and extended from the basement of the building to the top, and that they were used to carry the grain dumped from a railroad car into the elevator proper. It is in evidence that adjoining the elevator proper ' were two small buildings, known as dryer and dust house, and that beyond these two buildings was an engine room, which contained two 300-horse-power engines, and that the only part of the machinery which extended into the elevator proper was a main shaft, which connected with the elevator legs. It is further shown that there was an electric alarm system used in the elevator, and that there was an automatic system connected with the alarm system, which caused a bell to ring when 165 degrees Fahrenheit was reached; that the alarm system was inspected about every two weeks, and had been inspected two weeks prior to the date of the accident. It is also in evidence that the elevator had a sprinkler system covering the entire elevator building, which consisted of water pipes and a number of valves; that these valves had lead in them, which melted when exposed to a temperature of 190 degrees, and that when the valves were released, water would flow from them; that the building had numerous windows and was lighted by electric lights, which were inspected by an employee of the Santa Fe Railway; that the elevator was equipped with vapor-proof lighting ; that there were about 800 electric globes throughout the building, and that all the electric wiring was inclosed in conduits; that throughout the building were floor sweeps, which are described as openings in the floor into which dust was swept, and which were connected with pipes and tubes, for carrying the dust to the dust house before mentioned that these tubes were of galvanized iron, and that suction was created to convey this dust, by the use of fans, — one fan being located on the main floor and one on the belt floor. It is further shown that the employees of defendant at various times swept dust from the walls, rafters and floors into these floor sweeps. The record indicates that when grain arrived at this elevator, it was loaded into hoppers and carried into the elevator.

A witness for plaintiff named Patrick Garrity testified to the effect that prior to the accident, all the floors up over the bin floor were clean, as they were swept practically every day; that only about 1,500 bushels of grain had been taken up on the morning of the accident; that at the time of the explosion and fire, there were no blowers or exhaust fans over the top of the belt housing and that there were no exhaust fans or blowers on the windows. This witness also testified that each storage bin had vents on top, but that there were no fans connected therewith.

A witness for defendant named George Spencer, an electrician, testified that he made his last inspection of the motors, lights, electric wires, etc., on October 25, 1932, and that he did some work there on November 29, 1932, and that everything looked clean to him, and that the sprinkler system and other machinery appeared to be in good condition. This witness also stated that his inspection included the whole elevator, and that about four months prior to the explosion, he saw a man blow the dust off the conduit with a hose, and that in August prior to the explosion, in an electrical storm, lightning had struck a conduit and burned a wire, but that he repaired it and left it and the other electric appliances in good condition. He also testified to the effect that there were about 800 lamps in the elevator, and that frequent vibration might cause a lamp or wire to become loose.

A witness for the defendant named Swanson, who had worked as an engineer at this institution for 14 or 15 years, described the elevator and its surroundings, and stated that he went through the main floor and basement every day, and that on December 23,

1932, the date of the accident, they were clean and that the floors were cleaned every day; that before the floors were cleaned, the timbers and walls were brushed with long handled brushes, and that the dust was swept from the floor to the floor sweeps, through which it was carried to the dust house; that there were seven floors to the elevator, and that there were two suction fans to remove the dust, one on the main floor, and one upstairs on the belt floor. Swanson also testified that he could not tell how frequently the walls of the building were brushed each year to free them from dust.

Another employee named Brazel testified in defendant’s behalf, and to the effect that after the explosion, there was a lot of dust flying through the air; that he was through the building a week before the accident and that everything was clean, and that the floors were regularly cleaned. He also described the method of conveying the dust to the dust house. He stated that there was no machinery running in the building just before the explosion. Other witnesses for defendant described the general condition of the building, but their evidence is substantially the same as that already noted.

From the evidence, it is difficult to determine whether a fire caused the explosion, or the explosion caused the fire. The witness Garrity testified that he saw smoke and flame, and in a few seconds heard an explosion. Swanson, the engineer, stated that he heard a bell on the sprinkler system ring, and that almost immediately thereafter, the building was a mass of flames. Another witness testified to the same effect, and from all the testimony, we arrive at the conclusion that there was a loud explosion, which was followed immediately by the fire which consumed the building.

Plaintiff’s position is that the doctrine of res ipsa loquitur applied in the case, and that the burden was upon the defendant to rebut the presumption that its negligence caused the explosion and fire, which resulted in Duvall’s death. Defendant, however, insists that even though the doctrine of res ipsa loquitur raises a presumption of negligence, it was clearly rebutted by the evidence in the case; also that the court was in error in instructing the jury, and that, therefore, the judgment should be reversed.

Defendant insists that the court erred in giving the following instructions offered by plaintiff:

“16. If you find, from the evidence, that Charlton Hunt Duvall was lawfully in the grain elevator of the defendant and that he was in the exercise of ordinary care for his safety, and that an explosion occurred in said elevator by reason of which the said Charlton Hunt Duvall was killed, and that the plaintiff and its employees were also in the exercise of ordinary care for the safety of Charlton Hunt Duvall, then the plaintiff has made out a prima facie case of negligunce against the defendant, and this places upon the defendant the burden of rebutting that presumption by proving that the explosion could not have been prevented by the exercise of ordinary care.

“17. When it is said in these instructions that the plaintiff was required to exercise ordinary care for the safety of Charlton Hunt Duvall, it is meant that it was required to exercise that degree of care which an ordinary prudent person situated as the Charlton Hunt Duvall was before and at the time of the accident, would have exercised for his own safety.”

The doctrine of res ipsa loquitur has been clearly stated by the Supreme Court in Bollenbach v. Bloomenthal, 341 Ill. 539, at page 547, as follows;

“The presumption raised by the doctrine of res ipsa loquitur does not require ‘evidence to the contrary of equal weight’ to overthrow it, for, . . . such presumption is not of itself evidence but arises as a rule of evidence and yields to any contrary proof. Presumptions are never indulged in against established facts. They are indulged in only to supply the place of facts, and as soon as any evidence is produced which is contrary to the presumption which arose before the contrary proof was offered, the presumption vanishes entirely. (Osborne v. Osborne, 325 Ill. 229; Sielbeck v. Grothman, 248 Ill. 435; Lohr v. Barkmann Cartage Co., 335 Ill. 335; Coal Creek Drainage District v. Sanitary District, 336 Ill. 11.) In Johnson v. Pendergast, 308 Ill. 255, this court held: ‘The existence of the prima facie case is provisional and does not change the burden of proof but only the burden of introducing further evidence. It means only that a determination of a fact shall be sufficient to justify a finding of a related fact in the absence of any evidence to the contrary. The only effect is to create the necessity of evidence to meet the prima facie case created, and which, if no proof to the contrary is offered, will prevail.’ In no case has this court held that ‘evidence to the contrary of equal weight’ was necessary to overcome the presumption arising under the rule of res ipsa loquitur.” In view of the character of the testimony before the jury, and of the holding of the Supreme Court in the case cited, the giving of instruction No. 16 on behalf of plaintiff, was error, for the reason that it placed upon the defendant the burden of proving itself not guilty, and that is not the law.

No question was raised as to whether or not plaintiff’s employees, including Duvall, were in the exercise of care for their safety. The question before the jury was whether or not the evidence offered by the defendant was “contrary to the presumption which arose before the contrary proof was offered.” The burden of proof was not shifted from plaintiff to defendant upon the mere proof that the explosion and fire happened and the presumption «that as a result Duvall met his death.

In Barnes v. Danville Street Ry. & Light Co., 235 Ill. 566, the following instruction was given:

“ ‘The court instructs the jury that the happening of an accident to the car and proof that an injury to a passenger resulted therefrom during the course of his transportation, and proof that at the time of the accident, and just prior thereto, the passenger was himself in the exercise of due care and caution for his own safety, raises a presumption that the carrier has been negligent. The burden of rebutting this presumption rests upon the carrier.’ ”

In passing upon the instruction, the court said:

“If an injury to a passenger is caused by apparatus wholly under the control of the carrier and furnished and applied by it, or by some defect in machinery, cars or track, and the accident is of such a character as does not ordinarily occur if due care is used, the law comes to the aid of the plaintiff and raises a presumption of negligence. The presumption arises, however, from the nature of the accident and the circumstances and not from the mere fact of the accident itself. The rule laid down in the instruction that the mere happening of an accident to a car and the resulting injury of a passenger, with proof that the passenger was in the exercise of due care, raises a presumption that the carrier has been negligent, is too broad. (5 Cyc. 628; 5 Am. & Eng. Ency. of Law, — 2d ed. — 624.) ”

The judgment is reversed and the cause is remanded for a new trial.

Reversed and remanded for a new trial.

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