author: Mr. Justice Jett

text:
    Andrew Hanusik, Appellee, v. James Hanlon, Appellant.
    Gen. No. 8,115.

      Opinion filed February 4, 1930.
    Rehearing denied June 24, 1930.
    Murphy O. Tate, L. M. Tarpey and C. B. Chapman, for appellant.
    M. D. Morahn and Butters & Butters, for appellee.
   Mr. Justice Jett

delivered the opinion of the court.

This suit was brought by Andrew Hanusik, appellee, in the circuit court of La Salle county, against James Hanlon, appellant, to recover damages to his car, and for an injury to himself, occasioned in an automobile collision. A jury trial was had resulting in a verdict in favor of appellee, for the sum of $1,500. After overruling the motion for a new trial, the court rendered judgment on the verdict of the jury, from which judgment this appeal is prosecuted by appellant.

The declaration avers that on September 13, 1925, appellee owned an automobile, which he was driving-south on the public highway extending from Ottawa to Grand Ridge; that the appellant also owned an automobile, which he, on said day, was driving south on said highway, two miles south of the City of Ottawa; that it was his duty in driving said automobile to drive at a reasonable rate of speed, having regard to the traffic, and to exercise reasonable care in order to operate the same so that it would not collide with other automobiles, lawfully driven upon the highway, but that the appellant so carelessly and negligently drove and managed his automobile, that while appellee was driving past appellant’s automobile, in the exercise of due and ordinary care, appellant’s automobile ran against and struck appellee’s automobile with great force and violence, causing* appellee’s automobile -to run into the ditch on the left, or east side of the road, and that the force of the impact wrecked appellee’s automobile and rendered it of no value; that the value of the automobile was $1,500; that appellee was thrown out of his seat in the automobile, against divers parts of it, and his right shoulder and side severely bruised; his right arm and head cut and bruised; divers bones of his body dislocated, and he was rendered sick, sore, lame and disordered, and has ever since so remained, and suffered great pain, and been obliged to pay out large sums of money for medical services, and has been rendered unable to carry on his usual business, and lays his damages at $3,000.

To the declaration, appellant pleaded the general issue and a special plea, denying ownership and use of the automobile. No question is raised, however, based upon the special plea, denying ownership and use of the automobile. The record discloses that appellee was riding in the rear of the automobile, in which certain other members of his family were riding, and which was driven by his son. The automobile of appellant was driven by himself. His wife was riding with him. Both of said cars were traveling in a southerly direction on the Bloomington Boad, south of Ottawa; appellee’s car was following appellant’s.

The testimony of appellee’s witnesses is to the effect that at a point about two miles south of Ottawa, between the cars of appellant and appellee, was a third car driven by a man by the name of Stephenson, and that appellee’s son started to drive around the cars of Stephenson and appellant; that when appellee’s car was along side of appellant’s car, appellant turned to the east and appellant’s car struck appellee’s car. Appellant insists that he started to turn east on an east and west highway, and that appellee’s car struck his car. Appellee was injured and his car was damaged. No question is raised with reference to the amount of the damages assessed by the jury.

It is insisted by appellant that he was not negligent in turning to the left as he did. The evidence discloses that appellant did not indicate by holding out his hand that he was intending to turn east on said east and west highway, off of the Bloomington Boad, but he insists that his stop light indicated that he was stopping, and that that should have been sufficient notice that he was likely to turn; that appellee’s car had been following immediately behind appellant’s car, and that the driver of appellee’s car should have-seen said stop light.

It is also urged by appellant that instructions one and two, given on behalf of appellee, are erroneous, and that said instructions, and each of them, directed a verdict; that neither of said instructions required appellee to prove due care on Ms part just prior to and at the time of the collision.

In view of the conclusion we have reached, we will not discuss in detail the testimony, but will say that in our opinion, it was a question of fact for the jury to determine whether or not appellant was guilty of the negligence complained of in the declaration. Instruction number 1 reads as follows:—

“The Court instructs the jury that this is a suit brought by Andrew Hanusik, plaintiff, against James Hanlon, defendant, to recover damages occasioned to the plaintiff’s person and to his automobile on account of the alleged negligence of the defendant, in the driving and operating of Ms said automobile, on or about September 13, 1925, at a point about two miles south of the City of Ottawa; and if the jury believe from the evidence that the plaintiff, at the time in question, while riding in his automobile, then being driven by his son upon the State concrete highway extending from Ottawa, through the Village of Grand Eidge to Streator, Illinois, and at a point about two miles south of the City of Ottawa, overtook the defendant, who was driving his said automobile in the same direction, and that the driver of the plaintiff’s automobile, while in the exercise of ordinary care and skill in the driving of his said automobile, turned to the left side of said concrete highway to pass by the defendant’s automobile, which was then being driven at a slower rate of speed, and that as the plaintiff’s automobile approached upon the left or east side of the defendant’s automobile, in view of the driver of the defendant’s automobile upon said Mghway, the defendant carelessly and negligently turned his automobile towards the left or east side of said highway, and that thereby the same came in contact with, and struck the plaintiff’s automobile and caused it to run into the ditch or lower level at the side of said road, by reason of which the plaintiff’s automobile was damaged, and the plaintiff himself, while riding in said automobile, received personal injuries, then the jury should find the defendant guilty.”

It will be seen (1) that the instruction directed a verdict in case of the finding by the jury of certain facts, (2) that it directed a verdict for appellee if his son was not guilty of negligence, but the defendant was, (3) that the plaintiff was not required to use any care for his own safety, (4) that the driver of appellee’s automobile was not required to use any care in passing appellant’s automobile; he was only required to use care when he was turning out to pass.

There is no evidence in the record showing what appellee was doing at the time his son turned out to pass appellant’s car, nor at the time of the collision. Appellee was not a mere passenger at the time, he was the owner of the car and his son was his servant, driving the car for him. The driver therefore was under his authority and direction.

It is conceded that instruction number one, complained of, directs a verdict, and that it does not require appellee to have been in the exercise of due care and caution for his own safety. It was necessary before appellee was entitled to recover to prove that he was in the exercise of ordinary care immediately before and at the time of the injury. In Gage v. City of Vienna, 196 Ill. App. 585-591, the court, speaking through the late Justice McBride, said: “Where an instruction undertakes to state the facts necessary to be proven to entitle a plaintiff to recover, it must contain all of the material facts, and where an instruction directs a verdict, a failure to include all such facts is fatal, and cannot be cured by other instructions in the case. It has always been held that ‘where a court directs a particular verdict, if the jury should find certain facts, the instruction must embrace all the facts and conditions essential to such a verdict.’ Illinois Iron & Metal Go. v. Weber, 196 Ill. 531.”

In Watson v. Wilber Mercantile Agency, 183 Ill. App. 231, 232, it was held: “Where an instruction assumes to direct a verdict, if the jury believe from the evidence that certain stated facts are true, it is error to omit from the hypothesis any material disputed element of fact as to which there is any competent evidence, and such an error cannot be cured by other instructions.”

Grifenhan v. Chicago Rys. Co., 299 Ill. 590, was a case in which the defendant in error collided with a street car of the plaintiff in error. It appears that the injuries for which the defendant in error recovered her judgment grew out of a collision between a street car of plaintiff in error, and the Ford automobile in which the defendant in error was a passenger. At page 595 the court among other things said: “Plaintiff was a passenger in this automobile, and at the time of the accident was in the rear seat on the left-hand side. The curtains were on the automobile, but plaintiff could see the street car through the transparent windows in the curtain and could see the street car track and the paved roadway through the windshield. Before plaintiff could recover it was necessary for her to prove that she was in the exercise of ordinary care for her own safety, and she was not relieved from that duty because she was riding in an automobile.” (Citing Opp v. Pryor, 294 Ill. 538.)

In Bank of Commerce & Savings v. Elkins, 214 Ill. App. 417-422, in discussing certain instructions that directed a verdict, if certain facts existed, the court used the following language: “This was a mandatory instruction: ‘ Such an instruction must be complete in its statement of facts which will justify a verdict, and if any material fact or requirement is omitted the instruction will be erroneous. An instruction of that kind is not cured by others, because if the jury obey the instruction they would render a verdict upon the finding of fact stated in it, regardless of the omitted fact or requirement,” citing Chicago & Alton R. Co. v. Kuckkuck, 197 Ill. 304.

In Fredericks v. Chicago Rys. Co., 208 Ill. App. 172, a passenger sued for damages caused by an injury in a collision of the car in which he was riding with a street car; it was held that he could not recover unless he exercised due care for his own safety, at the time and immediately preceding the accident; that the law imposed on him, the plaintiff, the duty to use such care as he was able and that the burden was on him to establish his freedom from negligence.

In Carden v. Chicago Rys. Co., 210 Ill. App. 155, the plaintiff was a sister of the driver of the car; it was held that she was obliged to exercise ordinary care for her own safety.

In Sugru v. Highland Park Yellow Cab Co., 251 Ill. App. 99, appellee was riding in an automobile driven by her husband. As she was proceeding south along a certain highway, her car collided with the car of appellant, and she was thrown against the windshield and received the injuries for which she instituted suit. A verdict was returned in her favor for $2,500 and judgment rendered thereon. It was urged that appellee was guilty of contributory negligence in driving her car at a dangerous rate of speed, considering the condition of the pavement, and the place through which the road ran; that had she been observing the highway as she should have been, she would have seen appellant’s car and called her husband’s attention to it in time to have avoided the collision.

The headlights on the car in which appellee was riding were in good condition, but were not turned on; the only lights on the car were the parking or cowl lights, and a spot light, which appellee testified would light the road and focused about 16 feet ahead. She estimated she could see 60 feet ahead of the car, by the spot light. In our decision of the case, at page 103, we said, “No reason is apparent why appellee did not know that the car in which she was riding was being driven without the headlights burning, or why she did not request her husband to turn on and use them. While it is true the negligence of her husband could not properly be imputed to her, still she was responsible for her own negligence if it contributed to her injury. Where the negligence of the person who receives the injury contributes to the injury, he cannot escape the consequences of his own carelessness. If the person riding in the vehicle knows that the driver is negligent and takes no precaution to guard against injury, he cannot recover, for, in such case the negligence is his own and not simply that of the driver. The plaintiff cannot lawfully omit to use care in blind dependence upon another, but must use care proportionate to the danger of which the facts convey knowledge.” Flynn v. Chicago City R. Co., 250 Ill. 460.

Morgan v. Rockford, B. & J. Ry. Co., 251 Ill. App. 127-134, was a collision case, in which the appellant’s intestate, at the time of the injury received, was riding in the front seat with one Frank Potter, the driver of the car. In our decision of the case at page 133, we said, “There is no evidence in the record tending to show that appellant’s intestate said or did anything evidencing the exercise of any care as said automobile approached said crossing. Frank Potter, the driver, testified, ‘The weather was clear, I do not recollect that Mr. Morgan said or did anything.’

“Before a man can recover from an injury alleged to have been caused by the negligence of another, he must prove affirmatively the exercise of due care for his own safety. (Citing Calumet Iron & Steel Co. v. Martin, 115 Ill. 358-368; Werk v. Illinois Steel Co., 154 Ill. 427-432; North Chicago St. R. Co. v. Cossar, 203 Ill. 608-615; Walters v. City of Ottawa, 240 Ill. 259-266.)”

In view of the rule as above indicated, the giving of instruction number one was error. An instruction of this character cannot be cured by other instructions in the case. The instruction did not embrace all of the facts and conditions essential to authorize a recovery.

Instruction number two complained of by the appellant did not, in our opinion, constitute reversible error.

For the reasons assigned, the judgment of the circuit court of La Salle county will be reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

license: Public Domain

text:
    Anna F. Thompson, Appellee, v. The Atchison, Topeka & Santa Fé Railway Company, Appellant.
    Gen. No. 8,106.

      Heard in this court at the October term, 1929.
    Opinion filed April 5, 1930.
    Rehearing denied June 24, 1930.
    Emmet Trainor, Albert T. Belshé and Thomas F. King, for appellant; Lawrence, Nelson & Stuart, of counsel.
    Marsh, Lewis & Thompson, for appellee.
   Mr. Justice Jett

delivered the opinion of the court.

Anna F. Thompson, appellee, brought suit in trespass on the case against the Atchison, Topeka and Santa Fe Railway Company, to recover damages for injuries alleged to have been sustained on November 23, 1927, at Galesburg, Illinois, by reason of the negligence of appellant.

The declaration consists of three counts. The first count avers that the appellant was operating a railroad in an easterly and westerly direction, through the City of Galesburg, across North Kellogg Street, and was operating certain gates on the north and south sides of said railroad at said Kellogg Street, to prevent persons passing along Kellogg Street, in either a northerly or southerly direction when the train was about to pass over said street; that while appellee, being a passenger in an automobile driven by her husband, was proceeding south on said Kellogg Street towards said crossing, and while the train of the appellant was approaching said crossing from the west, appellant, through its agents and servants, failed to give any signal of the approach of said train, or that said appellant, through its said servants and agents was about to lower the gates across said Kellogg Street, and that appellee, while a passenger in her husband’s car, and while approaching said crossing at the place aforesaid, and while in the exercise of due and proper care for her own safety, passed upon said tracks, and after appellee had passed upon said tracks, said gates, without any warning were lowered, and the car in which appellee was riding as a passenger came in contact with one of said gates; and while then and there a train was approaching from the west, and about to collide with the automobile in which appellee was a passenger, appellee alighted from said automobile and started away from the tracks of appellant towards the gate, which was in contact with said automobile, and that said gate when released in some way from said automobile, struck violently against appellee and struck her to the ground, and greatly injured appellee, and her hip was broken and the bones of her body broken and the muscles and ligaments of her legs and body greatly and permanently injured.

The second and third counts aver, in substance that the appellant was operating a railroad through the City of Galesburg, and that at the street crossing on North Kellogg Street, the railroad company maintained and operated crossing gates; that appellee was riding in an automobile with her husband, approaching said crossing from the north; that the north gates were open and the automobile was driven across the tracks, and after having crossed under them, the gates on the south side of the track were lowered and rested on the radiator cap of the automobile; that the automobile was stopped in close proximity to the railroad tracks; that no warning signal of the lowering of the gates was given; that a train was approaching; that appellee was in fear of being struck by the approaching train and jumped out of the automobile, and while in an endeavor to crawl under the gates, one of the arms which was resting on the radiator cap fell and struck her; that as the result of such striking, she was thrown to the ground or pavement, and received the injuries of which she complains.

To the declaration appellant pleaded the general issue. A jury trial was had resulting in a finding in favor of appellee in the sum of $2,999 on which judgment was entered, and this appeal followed. The evidence on the part of appellee tends to show that on the evening of November 23, 1927, she left her home at about 8:30 o’clock; the weather was damp and the pavement wet; she was riding in an automobile with her husband; she was riding in the rear seat; after they passed down Kellogg Street towards the south, and after riding six or seven blocks on said street she came to the crossing in question, which was located about halfway between her home and the business part of the city; she passed on to the crossing on the right-hand side of the street; there was a gong or bell located at the crossing and ordinarily operated by the gate-man for the purpose of warning passersby in case the crossing gates were about to be lowered. As appellee approached the crossing, no gong or bell was sounded or other signal or warning of any kind given that the gates were about to be lowered or that a train was approaching. Prairie Street runs north and south a block west of Kellogg Street, and as appellee approached Kellogg Street crossing, on said Kellogg Street, in her husband’s car, she observed an engine and train of cars standing still between Kellogg and Prairie Streets, which was to her right. As the automobile approached the crossing the gates were not down but were up and in their natural position. As she drove across the tracks and approached the south gate the train started towards her, and the south gate was suddenly dropped onto the front end of the automobile in which appellee was riding and caught the radiator cap, and the gate was thrown some six feet. Appellee stepped out of the automobile and as she did so she saw the train coining towards her from the west, with the headlights burning; she was then near the tracks upon which the train was approaching, and the automobile from which she alighted was near enough to the track to be struck by the train. In order to free herself from danger she took the most direct course and proceeded to the south alongside of the automobile in which she had been riding intending to go under the gates, and as she approached the gate, the gate slipped over the radiator cap and back over the hood of the engine and struck her and threw her to the ground, causing the injuries complained of.

It is urged by appellant that the declaration is insufficient to support the judgment. The principal argument in support of this contention is that the declaration does not aver any causal relation between the alleged negligence of the appellant and the injuries sustained by appellee.

In the court below no demurrer was interposed to the declaration. Upon demurrer a declaration is construed against the pleader, but after verdict, all intendments and presumptions are in its favor. Sargent Co. v. Baublis, 215 Ill. 428. In the Sargent case the plaintiff recovered a judgment against the defendant growing out of the fact that while he was engaged in a foundry-grinding a “knuckle” upon a grindstone, the grindstone flew to pieces and injured him. The declaration avers that the defendant negligently and carelessly permitted the grindstone to be and remain in a defective and dangerous condition, with no statement of what defect existed or in what way it was dangerous. It was argued by the defendant that there was no casual connection between the negligence alleged and the breaking of the grindstone. In its decision the court at page 434 held that “The averment was that the plaintiff, in pursuance of the order of the defendant, was engaged in grinding knuckles upon the grindstone, and while so engaged, and exercising due care and caution for his own safety, the grindstone broke in pieces and fell against him with great force and violence, causing the injury. It was not alleged that the grindstone broke in pieces in consequence or on account of the defect, or what caused it to break, but under the rule already stated the declaration must be regarded as sufficient in that respect after verdict.”

In Plew v. Board, 274 Ill. 232, 234, the court announced the following rule, “After judgment, the rule by which pleadings before judgment are construed most strongly against the pleader is reversed and the pleading upon which the judgment is based is liberally construed for the purpose of sustaining the judgment.” Citing Chicago & Alton R. R. Co. v. Clausen, 173 Ill. 100; Klawiter v. Jones, 219 Ill. 626; Sargent Co. v. Baublis; 215 Ill. 428; Diamond Glue Co. v. Wietzychowski, 227 Ill. 338.

Furthermore, we have examined the declaration, and it appears to us that the contention of appellant in this respect is not well taken; each count of the declaration states a canse of action; it certainly cannot be said that where one is put in a condition of fright and peril by the negligent acts of another, the one so placed in such a condition would not be entitled to recover simply because she did not seek the safest refuge open to her.

It is next urged that the verdict is against the manifest weight of the evidence. First, that appellee instead of passing on to the tracks and the south gate being lowered as the automobile in which she was riding came to it, that appellee ran into the north gate and broke it and fell from the automobile before she reached the south gate. Second, that instead of the train standing still and beginning to move towards appellee, as she was crossing the tracks, that the train was moving towards plaintiff when her automobile started across. With reference to these suggestions, appellee and her husband both testified that the north gates were up when they passed on to the tracks, and that as they approached the south gate it was suddenly lowered on to the automobile and that the momentum of the automobile sprung the gate about six feet; that the train was then approaching and as a matter of self-preservation, appellee alighted from the automobile and started to get away from the tracks and the gate sprung back when it was released from the cap of the automobile and struck her and she fell to the pavement. We have examined the evidence that appellant insists tends to contradict the contention of appellee in this respect, and are of the opinion that the verdict corresponds to the weight of the testimony and that it is justified by the evidence.

It is next urged that the court erred in sustaining appellee’s objections to the admissibility of the testimony of the witness J. W. Brunner. We have examined the testimony of this witness as it appears in the abstract, and we are not prepared to say that reversible error was committed by the court in its rulings. The general rule is that the ruling of the court on leading questions is within the discretion of the trial court, and that judgment will not be reversed for a ruling in regard thereto, unless it is manifest that there has been palpable abuse of discretion, and a substantial injury done. It cannot be said from what is disclosed by this record that the ruling of the court in the respects complained of was a palpable abuse of discretion, nor can it be said that substantial injury was done to the rights of appellant.

It is next urged that the court gave improper instructions on the part of appellee, and refused to give proper instructions submitted by appellant. Complaint is made of instructions 13 and 15, which read as follows:—

“13. The court" instructs the jury that even if you believe from the evidence in this case that the driver of the automobile in which plaintiff had been riding was guilty of negligence which contributed to the injury in question, if any, still if you further believe from the evidence that the plaintiff was not. by her own conduct in any way the cause of such negligence on the part of the driver of the automobile in which plaintiff had been riding and omitted no reasonable or ordinary care on her part for her own safety under all the circumstances in evidence before you, then such negligence, if any, on the part of the said driver of said automobile in which plaintiff had been riding cannot be charged against or imputed to the plaintiff in this suit.”

“15. The court instructs the jury that if you believe from a preponderance or greater weight of the evidence in this case, under the instructions of the court, that the automobile in which plaintiff was riding had passed south along North Kellogg Street towards the point where the tracks of the defendant crossed said Kellogg Street and had passed upon said tracks, and if you further believe from the evidence, under the instructions of the court, that the gates at said crossing were then lowered by defendant’s employee without warning to plaintiff or the driver of the car in which plaintiff was riding, and if you further believe from the evidence, under the instructions of the court, that the location, situation, circumstances, and surround- • ings were such that it was the duty of the defendant, through its servants and agents, to cause warning to be given that said gates were about to be lowered, then and in that case such failure, if any, on the part of defendant to give such warning constituted negligence on the part of the defendant.”

It will be seen that instruction 13 told the jury that the negligence of the driver of the automobile in which appellee was riding could not be imputed to her, if she was not in any way the cause of such negligence, and omitted no ordinary care for her own safety. This is true even though the driver happened to be the husband of appellee. Bohlen v. Chicago City Ry. Co., 141 Ill. App. 261-263; Cleveland, C., C. & St. L. Ry. Co. v. Dukeman, 130 Ill. App. 105-108.

We are of the opinion that instruction 13 contains an exceedingly accurate expression of the duty of a passenger in an automobile under the circumstances disclosed in this record.

Instruction 15 informed the jury that if appellant, without warning, lowered the crossing gates while the auto in which appellee was riding was on appellant’s tracks, and that the location, situation and surrounding circumstances were such that it was appellant’s duty to give warning, then and in that case such failure, if any, to give such warning constituted negligence on the part of appellant. The instruction did not direct a verdict. It left the question of negligence entirely to the jury and is not subject to the criticism made against it.

A number of instructions offered by appellant were refused and it complains of the actions of the court in refusing them. We have examined the refused instructions and we are of the opinion that the court did not commit any substantial error in denying them. The instructions, taken as a series, fully advised the jury as to the law applicable to the case.

We are of the opinion that substantial justice has been done and that the judgment of the circuit court of Knox county should be affirmed, which is accordingly done.

Judgment affirmed.


text:
    Jessie A. Pickell, Appellee, v. James Ralph Pickell, Appellant.
    Gen. No. 8,126.

      Heard in this court at the October term, 1929.
    Opinion filed April 12, 1930.
    Rehearing denied June 24, 1930.
    James C. O’Brien, for appellant.
    Weightstill Woods, for appellee.
   Mr. Justice Jett

delivered the opinion of the court.

This is an appeal from an order of the circuit court of DuPage county directing James Ralph Pickell, appellant, to pay to Jessie A. Pickell, appellee, the sum of $500 for temporary costs and solicitor’s fees.

It appears appellant and appellee were married on January 1,1913, and for approximately 13 years thereafter lived together as husband and wife. Seven children were born as a result of the marriage, and until the fall of 1924, appellant and appellee and the seven children lived together at Western Springs, Illinois. In 1924 appellant, with his family, moved to the State of Florida, where he purchased a home, took up his residence and lived and carried on his business.

On April 18, 1927, appellant, in the circuit court of Hillsborough county, Florida, filed his bill of complaint for divorce against appellee, charging her with desertion. Appellee entered her appearance in said cause and filed an answer to the bill of complaint. The Florida court, upon a hearing of the merits of the case, entered a decree for divorce, whereby appellant and appellee were divorced, and certain provisions made for the support and maintenance of appellee and the children.

The decree in the Florida court was entered of record on July 12, 1927. The appellant, pursuant to the decree, conveyed to appellee certain real estate mentioned in said decree and paid to her certain sums of money for support, besides paying the incumbrances on the property as the same matured.

On December 28, 1928, appellee filed in the circuit court of DuPage county, Illinois, her bill of complaint for a divorce from appellant, charging desertion. Summons was issued but appellant was not served, and alias summons was ordered issued. The appellant was served with an alias summons, which was returnable to the June Term, 1929, of the circuit court of DuPage county.

In the interval between the issuing of the original summons and the alias summons, appellee filed a supplemental bill of complaint, making certain parties with whom appellant was known to have business relations, and also the present wife of the appellant, defendants. Pursuant to the prayer of the supplemental bill, writs of injunction were issued which restrained and enjoined the various defendants from giving or paying to the appellant any funds or personal property.

On April 29,1929, the appellant appeared and moved that the injunction be dissolved. The record does not show that the motion was passed upon. Appellant insists the motion was modified upon condition that he pay to appellee $750, which he paid.

On May 6, 1929, appellee filed her petition for suit money, temporary alimony and solicitor’s fees, and a rule was entered on the appellant to answer the same within 15 days. On May 15, 1929, appellant filed his appearance and a plea in bar of the bill of complaint.

Appellant, by his plea, set up the Florida proceeding and also the fact that the appellee had acted upon same and had conveyed certain property subsequent to the entry of the Florida decree. The plea of the appellant was sworn to by him.

On May 21,1929, the appellant filed his answer to the petition for suit money, temporary alimony and temporary solicitor’s fees, in which answer appellant set up the final decree of the Florida court, and stated that he had filed a verified plea to the bill of complaint of the appellee, and denied that appellee was entitled to any relief, which she prayed for in her petition, and also denied that appellant was responsible for hiring a solicitor for appellee.

On June 10, 1929, the matter came up for hearing before the court. No sworn testimony was offered • and none was heard. After some informal talk between the solicitors and the court, the court entered an order directing the appellant to pay to the appellee the sum of $500 for her temporary costs and solicitor’s fees. From that order the appellant appealed the case to this court for review.

The errors relied upon for a reversal of the order are: 1, that at the time of the filing of the bill of complaint and the entry of the order for temporary costs and solicitor’s fees, the parties had been legally divorced by a valid decree of a court of competent jurisdiction. 2, that at the time of the entry of the order appellee was not the wife of appellant. 3, that there was no testimony offered showing that appellee was entitled to temporary costs and solicitor’s fees, or that the appellant was able to pay same.

One of the questions therefor, arising upon this record is as to whether or not the chancellor was warranted in entering an order requiring payment of temporary solicitor’s fees, when a plea had been filed setting forth the record of the divorce proceedings, which was apparently regular on its face, and if regular, dissolved said marriage relation between appellee and appellant. Hazard v. Hazard, 197 Ill. App. 612, was a proceeding in which William Hazard filed in the circuit court of Cook county a bill for divorce against Florence M. Hazard, his wife, charging her with desertion. Service was had by publication. The cause was heard and a decree was entered dissolving the bonds of matrimony between complainant and the defendant in that suit. On December 8, 1914, the said Florence M. Hazard filed a bill of review in the circuit court, alleging that William Hazard died February 3, 1914, and making the administrator of his estate, defendant. The court entered an order directing that the defendant, as administrator of the estate of William Hazard, pay complainant $50 per month as alimony pendente lite and $75 on account of her solicitor’s fees. The. administrator appealed the case to the Appellate Court, and relied upon two grounds for reversal of the judgment of the circuit court. First, that the marriage relation had been dissolved by a decree of divorce, granted to the husband, and therefore the former wife could not be awarded alimony pendente lite; and second, that the marital relation, if not dissolved by the decree of divorce, was dissolved by the death of the husband, and at his death the wife’s right to alimony ceased. In the decision of the case at page 614, the court said “The right to alimony depends on the existence of a valid marital relation between complainant and defendant.” (Citing McKenna v. McKenna, 70 Ill. App. 340, 344, and Lennahan v. O’Keefe, 107 Ill. 620.)

In McKenna v. McKenna, supra, at pages 343 and 344, the court used the following language: “An order to pay temporary alimony or solicitor’s fees must be based upon a finding that the party so commanded to pay is the husband of the complainant. If such condition be admitted or not denied, it may, for the purpose of the order, be assumed.

“In the view of the writer of this opinion, when the existence of the alleged marriage is denied, no such order can properly be made until a hearing has been had and the court upon it finds and adjudges that the relation of wife and husband exists.

“If, before hearing and without regard to the denials of the defendant, an order to pay temporary alimony and solicitor’s fees can be made upon the mere filing of a bill alleging marriage of the complainant to the defendant, cause for divorce or separate maintenance, and ability of the defendant to pay, then an easy method for procuring the temporary support of unmarried women and good fees for the bar has been found.

“Upon disputed questions of fact to compel one to pay without a hearing, is to deprive him of property without due process of law, for due process of law involves a hearing upon the allegations and denials of the parties, . . . while if there be no marriage there cannot be obligation to support or to furnish funds to enable the complainant to prosecute lawsuits.”

If the marital relation has been dissolved by a decree of divorce, the former wife cannot maintain a suit for alimony. Chapman v. Parsons, 66 W. Va. 307.

In Lake v. Lake, 194 N. Y. 179 it was said, page 185: “An order for solicitor’s fees must primarily rest upon the existence of the relation of husband and wife. Unless that relation is sustained by the parties, there is no basis for the order. Even in an action brought by the wife to annul a marriage upon a cause which goes to the legality of the marriage originally, the allegations of the wife will be taken against her as true, and an allowance to her to maintain the action will be denied.”

In Wilson v. Wilson, 49 Iowa 544, which was a proceeding to set aside and vacate a decree of divorce, it was held that there was no authority to order the payment of money to carry on the suit in the face of a decree of divorce which seems to be valid.

It therefore follows that in view of the state of the record, the court was not warranted in entering the order for temporary alimony.

The only other question that is necessary to be considered, arising upon this record, is whether there is sufficient showing as disclosed by the certificate of evidence, on which to base the decretal order sought to be reviewed. The court in the order recites a hearing on the evidence but does not make any finding of fact on which to base the order, and the certificate of evidence does not contain any statement of facts with reference to the financial responsibility of the appellant, or as to the basis for the allowance of solicitor’s fees.

We conclude therefore that the court erred in entering the order in question, and for the reasons as above indicated, the decree of the circuit court of DuPage county is reversed and the cause remanded.

Reversed and remanded.


author: Mr. Presiding Justice Boggs

text:
    The People of the State of Illinois, Defendant in Error, v. Samuel Wade et al., Plaintiffs in Error.
    Gen. No. 8,060.

      Heard in this court at the May term, 1929.
    Opinion filed May 3, 1930.
    Rehearing denied June 24, 1930.
    George W. Sprenger and C. B. Chapman, for certain plaintiff in error.
    Russel O. Hanson, State’s Attorney, for defendants in error; C. E. Jacobson and A. E. Claus, of counsel.
   Mr. Presiding Justice Boggs

delivered the opinion of the court.

On May 7, 1925, one Samuel Wade was tried in the circuit court of LaSalle county on an indictment charging robbery with a dangerous weapon, was convicted and sentenced to the penitentiary at Joliet. A writ of error was sued out by Wade and it was ordered that such writ of error be made a supersedeas, upon Wade entering into bond in the sum of $20,000 with Fred Farischon, Louis Friedrich and plaintiff in error as sureties, conditioned that Wade “shall personally be and appear at the next term of the circuit court of LaSalle county, and at each subsequent term of said court on the first day thereof until the determination of said writ," etc. Said bond given to the warden of the penitentiary of Joliet, was by him filed with the circuit clerk of LaSalle county, and was entered of record as provided by statute. The judgment of the circuit court was affirmed, a rehearing was denied, and the remanding order was filed with the clerk of said circuit court. Thereafter Wade having failed to surrender himself to said warden, the State’s Attorney of LaSalle county moved the court for a forfeiture of said bond, supporting said motion by an affidavit setting forth in substance the proceedings theretofore had in said cause and the failure of Wade to surrender himself in compliance with the terms of said recognizance.

On December 8, 1928, said circuit court entered an order defaulting Wade, plaintiff in error and the other sureties and declaring said recognizance forfeited. A scire facias, to show cause, etc., was issued, returnable as provided by statute.

On January 9, 1929, said writ was returned not found as to plaintiff in error and the other of said parties. On January 12, the following purported motion was filed with the clerk of said court:

“Now comes Samuel Wade, Henry Fritzinger, Fred Farischon and Louis M. Friedrich, by their attorney, George W. Sprenger, and enter a special and limited appearance solely for the purpose of the following motion:

“Now come Samuel Wade, Henry Fritzinger, Fred Farischon and Louis M. Friedrich and move the court to dismiss the scire facias and quash the return thereon for the following reasons: This court has not jurisdiction of the said subject matter, for the reason that the bail bond complained of was taken by and made to the warden of the penitentiary at Joliet, Will county, Illinois, and, therefore, the circuit court in LaSalle county has not jurisdiction of the subject matter.”

On January 22, an order was entered, defaulting Wade, plaintiff in error and the other of said sureties, and judgment was rendered against them for the sum of $20,000 and costs. To reverse said judgment, this writ of error is prosecuted.

It is first insisted by plaintiff in error that, while said order of January 22 recites the coming on limited appearance of Wade, plaintiff in error and the other of said sureties, on the motion to quash the writ of scire facias, etc., that said parties did not in fact appear and that no notice had been given them of the application for said forfeiture, in violation of the following rule, of said court:

“No motion will be heard or order made in any cause, except motions of course, without written notice thereof having been served upon the opposite party before four o’clock p. m. of the day preceding the day mentioned in the notice for calling such motion. ’ ’

In answer thereto, defendants in error concede that no notice was given, but contend that this was a “motion of course,” and that such motions are excluded from said rule. This point is well taken. See Stanton v. Kinsey, 151 Ill. 301-306.

It may be further observed that said motion was not brought to the attention of the court by plaintiff in error. The filing of a purported motion with the clerk does not amount to a motion, unless the same is brought to the attention of the court, so that it becomes a part of its proceedings. City of Marengo v. Eichler, 245 Ill. 47-49; City of Decatur v. Barteau, 260 Ill. 612-615; Prall v. Hunt, 41 Ill. App. 140, 141; Washington Park Club v. Baldwin, 59 Ill. App. 61-63; People v. Taxman, 186 Ill. App. 348-350.

Plaintiff in error does not contend that said motion was made in court, but calls attention to the order entered on January 22, which recites the coming of Wade, plaintiff in error and the other of said sureties on limited appearance, etc. The record discloses that on the day the order was made, the State’s Attorney called the attention of the court to said written motion. That, however, would not amount to a motion by plaintiff in error in court, as contemplated by the above authorities, and does not aid plaintiff in error in Ms contention.

Even though it be conceded that plaintiff in error was entitled to notice and an opportunity to be heard, he was afforded that opportunity on the hearing of the following motion made by him on February 9:

“And now comes C. B. Chapman, an attorney of this court, and enters his special appearance herein for the defendant, Henry Fritzinger, for the purpose of moving the court to recall and quash the execution issued in said cause, to set aside and vacate the default entered against said Henry Fritzinger, and to set aside and vacate the order and judgment entered herein on January 22, 1929, as to said Henry Fritzinger."

A hearing was had on this motion, and the motion was denied. Such motion was broad enough to bring before the court the propriety of the order of January 22. Plaintiff in error is therefore not in a position to insist that he has not had a hearing on his motion. Farmer v. Fowler, 288 Ill. 494-501.

The law further is that, to warrant the setting aside of a default or the vacation of a judgment, the party seeking the same must show a meritorious defense. Culver v. Brinkerhoff, 180 Ill. 548-553; Eggleston v. Royal Trust Co., 205 Ill. 170-178; Farmer v. Fowler, supra, 500. The only ground set forth in the motion to dismiss the scire facias and to quash the return thereon was “that the bail bond complained of was taken by and made to the warden of the penitentiary at Joliet, Will county, and therefore the circuit court of LaSalle county has not jurisdiction of the subject matter.”

Cahill’s St. ch. 38, ¶ 834, provides:

“If the prisoner is in custody of the sheriff, he shall take the recognizance; if in custody of the warden of the penitentiary, he shall take the recognizance; in either case the recognizance shall be returned to the next term of the court in which the prisoner was sentenced, and there entered of record, and such proceedings may be had thereon, in case of breach of the conditions thereof, as in other cases of recognizance.”

' So far as the provisions of the statute are concerned, and so far as has been pointed out, the State’s Attorney of LaSalle county brought the matter of said forfeiture to the attention of the proper court, the only court that had jurisdiction to act in the premises.

That there is no merit in said motion is practically conceded. Counsel for plaintiff in error in his brief and argument, states: “He may not have been able to sustain his motion, but he was entitled to be heard. If the motion was overruled, he could then plead that Wade had in fact surrendered, that he was deceased, or some other valid reason why he had not surrendered, and why the conditional judgment should not be made a permanent judgment and an execution awarded.”

On the hearing in question George W. Sprenger, one of the attorneys for plaintiff in error, testified: “I don’t know where the defendants are now. I have not seen them, or been in correspondence with them in any way, by letter, message nor by phone. I have no intimation or knowledge where these defendants are at the present time, and I will say this, I have detectives checking them up now to find out where they are, and I will say further to the court as soon as they are caught they will be produced right here, too.”

When said remanding order was filed in the circuit court, it was the duty of Wade to at once surrender himself to the warden of the penitentiary at Joliet; if he did not do so, it was the duty of plaintiff in error and the other of his sureties to so surrender him. Failing therein, the court was warranted in forfeiting the recognizance, and it was not necessary that notice be given to Wade or his sureties.

We have carefully examined the record in connection with the grounds urged by plaintiff in error for a reversal of said judgment and are clearly of the opinion that there is no merit in any of the grounds urged. For the reasons above set forth, the judgment of the trial court will be affirmed.

Judgment affirmed.


text:
    John Dillon, Plaintiff in Error, v. Joseph F. Dyer et al., Defendants in Error.
    Gen. No. 8,160.

      Heard in this court at the February term, 1930.
    Opinion filed May 3, 1930.
    Rehearing denied June 24, 1930.
    Garnsey, Wood & Lennon, for plaintiff in error; Edward C. Hall, of counsel.
    Arley Munts, for defendants in error.
   Mr. Presiding Justice Boggs

delivered the opinion of the court.

On July 28, 1928, plaintiff in error filed a bill in the circuit court of Grundy county to foreclose a trust deed given by defendant in error, Joseph F. Dyer, to the Joliet National Bank, for $16,500. On the same day, said bank was appointed receiver to take charge, “manage and operate said 163-acre farm; take charge of the crops grown and growing on said land, and whenever expedient so to do, harvest the same, with or without the assistance of said Dyer,” etc.; . . . “that said receiver be and he is hereby authorized to market, sell and dispose of any and all hay and grain crops, whether matured and grown or growing on said farm, and before or after harvesting .the same, and after payment of all reasonable expenses in the premises, including costs of harvesting, make due report thereof,” etc.

On February 4, 1927, one Mary Luth obtained a judgment against Dyer for $1,156.66. On January 7, 1928, an execution was issued thereon. Mary Luth died April 13, 1927, leaving her surviving defendants in error Oscar Luth and Esther Kehnast, her children and only heirs at law. Thereafter the said Oscar Luth was appointed administrator of her estate. On July 18, 1928, a second execution was issued and served on Dyer. On July 28, 1928, the sheriff of said county levied on the wheat, oats, barley, etc., raised on said premises, and which were then in the shock. Thereafter on July 30, 1928, the bond of said receiver was filed and approved. It was thereupon stipulated between plaintiff in error and defendants in error, Oscar Luth, administrator, and Esther Kehnast that said receiver “shall have full charge and control of said crops, see to the threshing, sale and disposal of the grain thereof, and after payment of all necessary expenses in that behalf, hold the proceeds derived therefrom, subject to the disposition of said court, who shall determine the priority of said liens.”

An answer was filed by Oscar Luth in his individual capacity and as administrator, etc., and by Esther Kehnast to said bill of complaint, neither admitting nor denying the indebtedness to the Joliet National Bank, setting forth the judgment above-mentioned, the death of Mary Luth, the appointment of said administrator, the levy of said execution and averring that ‘ ‘ said levy and proceedings were prior to the qualification of said receiver, who did not file bond herein until the 30th day of July, 1928,” and praying that the rights of said administrator under the aforementioned letters be decreed to be a prior and superior lien to that of said receiver. Beplications were filed to said answers, and the cause was referred to the master in chancery, to take the evidence and to report the same, together with his conclusions of law and fact.

The evidence was taken and reported by the master, together with his conclusions thereon. In said report the master found that the receipts from the sale of said grain amounted to $840.67, and that the receiver was entitled to a credit of $152.75 for expenses incurred in threshing and marketing said grain, leaving a net amount of $687.92 which he reported should he applied on the Luth execution and judgment.

Objections by plaintiff in error to said report were overruled, and it was ordered that said objections stand as exceptions. On the hearing in the circuit court, the exceptions were overruled, said report was confirmed and a decree was entered, directing that said amount of $687.92 be paid to the sheriff to apply on said execution. To reverse said decree, this writ of error is prosecuted.

Counsel for plaintiff in error call attention to the following provision of said trust deed:

“The grantor waives all right to possession of and income from said premises pending such foreclosure proceedings and until the period of redemption from any sale thereunder expires and that upon the filing of any bill to foreclose this trust deed, a receiver shall upon motion of solicitor for complainant, without notice, be immediately appointed by the court before which such motion shall come for hearing, to take possession or charge of said premises and collect such income,” etc., and insist that, under said provision, the court erred in decreeing that the sheriff, under said execution and levy, was entitled to said proceeds as against plaintiff in error.

“The rule at common law, and followed by this court, is that the mortgagor is not required to account to the mortgagee for rents and profits while he remains in possession.” Moore v. Titman, 44 Ill. 367, 370; Mississippi V. & W. Ry. Co. v. U. S. Express Co., 81 Ill. 534-537; Cross v. Will County Nat. Bank, 177 Ill. 33-38. To the same effect is Jones on Mortgages, 5th Ed., sec. 670.

“Even if the rents and profits are pledged to secure the mortgage debt, with the right in the mortgagee to take possession upon default, the mortgagee is not entitled to the rents until he takes actual possession or until possession is taken in his behalf by the receiver.” Taylor v. Osman, 239 Ill. App. 569-574; Anderson v. Frederickson, 252 Ill. App. 281-285. To the same effect is John Hancock Mut. Life Ins. Co. v. Watson, 200 Ill. App. 315-318.

In Anderson v. Frederickson, supra, the court at page 285, quoting from Jones on Mortgages, 5th Ed., sec. 670, says:

“So long as the mortgagor is allowed to remain in possession, he is entitled to receive the profits of the mortgaged estate. His contract is to pay interest, not rent. Although the mortgagee may have the right to take possession upon a breach of the condition, if he does not exercise that right he cannot claim the profits. Upon a bill in equity to obtain foreclosure and sale, he may in proper cases apply for the appointment of a receiver to take for his benefit the earnings of the property. He is then confined to the rents and profits accruing during the pendency of the suit.”

The execution in question was issued on July 18, 1928, and was served upon Dyer on that day, with notice that he had ten days in which to file his schedule. On July 28, the sheriff levied on said grain, then severed and in the shock, and placed a custodian in charge thereof.

Under the foregoing authorities, defendant in error Luth, as such administrator, was entitled to said grain as against plaintiff in error, and the receiver, who had not qualified as such at the time said levy was made. This question was so fully considered by this court in Taylor v. Osman, supra, that it is not necessary for us to further discuss the same.

The court did not err in decreeing the rights of Luth as such administrator superior to those of plaintiff in error.

Counsel for appellant also insist that, when the bond of the receiver was approved, the receiver’s possession related back to the date of his appointment, which was July 28. While authorities from other States were cited, none were cited from this State supporting this contention. We are not deciding whether or not this contention is well taken, as we do not believe it vital in this case. The record discloses that, even though the receiver had the right to take possession, he did not in fact do so until after said levy was made by the sheriff.

It is also insisted by plaintiff in error that the court erred in refusing to allow said receiver credit for funds which he had expended in and about the harvesting of said crop. At the time the grain was levied on, it was in the shock. The expenses thereafter, to be covered by said stipulation, would have to do with the threshing, marketing, etc., of said grain. These expenses were allowed. The court did not err in its ruling in this connection.

Plaintiff in error again seeks to bring before us the matter of his attempted appeal at a former term. That appeal was dismissed, and is not before us for consideration.

For the reasons above set forth, the decree of the trial court will be affirmed.

Decree affirmed.


text:
    LaClede Cunningham, Appellee, v. Fred W. Metzger, Appellant.
    Gen. No. 8,170.

      Heard in this court at the February term, 1930.
    Opinion filed May 13, 1930.
    Rehearing denied June 24, 1930.
    J. A. Miller, for appellant; Sidney H. Block, of counsel.
    Hall & Hulse, for appellee; Albert L. Hall, of counsel.
   Mr. Presiding Justice Boggs

delivered the opinion of the court.

An action on the case was instituted by appellee against appellant in the circuit court of Lake county, to recover for personal injuries alleged to have been received by appellee through the negligence of appellant.

Appellee and appellant were employees of the Griess-Pfleger Tanning Company.

The buildings and grounds, of said company were within an inclosure maintained by said company. On said premises, the company maintains a private driveway, leading from said buildings to a public street. This driveway runs east and west, is paved, is about 18 feet wide, and runs to the main gate of said inclosure. On either side of said driveway a space is reserved for the parking of automobiles used by employees of said company. Said driveway is used by employees riding in automobiles, and by those who walk to and from said main gate.

March 19, 1927, being a Saturday, the work of many of the employees, including appellee and appellant, ceased at noon. Both of said parties changed their clothing and proceeded to leave the building, using said driveway. Appellee was walking a little to the north of the paved portion of said driveway. Appellant was driving an automobile westerly on said pavement, when a car approached from the south. Appellant swerved slightly to the north, and struck appellee, causing the injuries for which this suit was brought.

The declaration consists of two counts, and in varying language charges that appellee, while in the exercise of due care for his own safety, was, by and through the negligence of appellant, struck and injured. To said declaration appellant filed a plea of the general issue and a special plea, setting forth that, at the time in question, appellant and appellee were employees of said Griess-Pfleger Tanning Company; that said company, appellee and appellant, had elected “to come under the provisions of the Workmen’s Compensation Act, and, at the time and place of the alleged grievances, were then and there under and subject to said Act, and that the alleged injuries of the plaintiff were received by the plaintiff during and in the course of his employment, and arose out of it, and that the plaintiff, since receiving said alleged injuries, has been paid and has accepted compensation for said injuries, etc., from said company.”

A trial was had, resulting in a verdict and judgment in favor of appellee for $5,000. To reverse said judgment, this appeal is prosecuted. There is practically no dispute as to the material facts, and they are in substance as above set forth.

On the trial, it was stipulated “that the employer (said tanning company), the plaintiff and defendant on the date of the injury were operating under the Workmen’s Compensation Act of Illinois, and both the plaintiff and defendant were bound thereby,” and that said employer was also bound by said act.

It is the contention of counsel for appellant that, although the duties of appellee and appellant as employees of said company on the day in question ceased at 12 o’clock, the leaving of said place of employment was so closely connected with the duties of said parties that it may be said that said accident arose out of and in the course of said employment. On the other hand, counsel for appellee insist that, inasmuch as said parties had finished their employment for the day and were leaving, it cannot be said that said accident arose out of and in the course of such employment.

Whether an employee, in going to or from the place of his employment, is in the line of his employment, will depend largely on the particular facts and circumstances of each case. Elliott on Workmen’s Compensation Act, 7th ed., 41; Wabash Ry. Co. v. Industrial Commission, 294 Ill. 119-123.

One of the controlling factors in determining this question is whether the employee was at the time within the orbit, area, scope or sphere of his employment.

Ordinarily if an employee is injured on the premises of the employer in going to or from work, he is entitled to compensation for such injuries. Bradbury on Workmen’s Compensation, 3rd ed., 473; Wabash R. Co. v. Industrial Commission, supra, 122.

The employment is not limited to the exact moment when the workman reaches the place where he begins his work, or to the moment when he ceases that work. It necessarily includes a reasonable amount of time and space before and after ceasing actual employment, having in mind all the circumstances connected with the accident. Boyd on Workmen’s Compensation, sec. 486; Wabash Ry. Co. v. Industrial Commission, supra, 123; Schweiss v. Industrial Commission, 292 Ill. 90-92.

It has been repeatedly held that, where one is injured while merely going to or returning from his employment, the injury is considered to have occurred within the line of his employment. Friebel v. Chicago City R. Co., 280 Ill. 76-83; Crane Co. v. Industrial Commission, 306 Ill. 56-60; Indian Hill Club v. Industrial Commission, 309 Ill. 271-275. In Western Coal & Mining Co. v. Industrial Commission, 296 Ill. 408, an employee of the coal company, after arriving at the mine and before beginning work, started to what was known as the “wash-house,” to change his clothing. In doing so, he passed down a railroad track in the switch yards on said premises, where he was struck and killed by a train. The court, in discussing the question as to whether he was at that time in the line of his employment, at page 411 says: “He was not compelled to use this track to get to the wash-house, but he with all the other men was permitted to use it, and the railroad tracks had apparently long been used habitually for walking to and from the mine, — in fact from the commencement of its operation. In an action at common law such use of the tracks might have constituted contributory negligence, but contributory negligence is not a bar to an award under the Workmen’s Compensation Act.

“The cases of Schweiss v. Industrial Commission, 292 Ill. 90, and Wabash Railway Co. v. Industrial Commission, 294 Ill. 119, sustain the finding that the accident occurred in the course of and arose out of the employment of the deceased. In the latter case it is said that if an employee is accidentally injured on the premises of his employer in going from his work, leaving within a reasonable time and following the customary or permitted route off the premises, the accident would be held to arise out of the employment. The same rule applies, of course, to an employee going to his work, for going to work is an incident as necessary to employment as quitting.”

The record in this case discloses that neither appellee nor appellant had left the sphere of their employment ; they were still on the premises of the employer and within its inclosure. The injury occurred from 5 to 10 minutes after 12 o’clock. Upon changing their clothing, appellee and appellant started, one riding, the other walking, toward the main gate,' on the only way afforded by the employer for going to and from the buildings on said premises.

It is not essential to the right to receive compensation that the employee should have been working at the particular time when the injury was received. The employee is not limited to the exact moment when he begins to work or when he quits. Wabash Ry. Co. v. Industrial Commission, supra, 122; Indian Hill Club v. Industrial Commission, supra. In the latter case, Francis Wilbern, a boy 12 years old, was a caddy at said club. He had gone to.the club for the purpose of caddying, and later he started for his home. He was struck by an automobile and was seriously injured. The court, in discussing his right to compensation, at page 275 says:

“It is also contended that the injury did not occur in the course of the employment, and did not arise out of it. The defendant in error, having waited until he saw there was no immediate prospect of his services being needed, was leaving the grounds of the club, and while doing so, but still on the grounds and about 30 feet from the clubhouse, was injured. It is not essential to the right to receive compensation that the employee should have been working at the particular time when the injury was received. The employment is not limited to the exact moment when he begins work or when he quits work. (Wabash Ry. Co. v. Industrial Commission, 294 Ill. 119.) An injury accidentally received on the premises of the employer by an employee while going to or from his place of employment by a customary or permitted route, within a reasonable time before or after work, is received in the course of and arises out of the employment.” Citing Porter Co. v. Industrial Commission, 301 Ill. 76; Western Coal & Mining Co. v. Industrial Commission, supra; Wabash Ry. Co. v. Industrial Commission, supra; Schweiss v. Industrial Commission, supra, 90.

We therefore hold as a matter of law that, on the undisputed facts, the accident in question arose out of and in the course of appellee’s employment. This being true, under sections 6 and. 29 of the Workmen’s Compensation Act, Cahill’s St. ch. 48, ¶¶ 206 and 229, appellee is not entitled to recover. Keeran v. Peoria, B. & C. T. Co., 277 Ill. 413-419; Friebel v. Chicago City R. Co., supra, 83; Rogers v. Illinois Cent. R. Co., 210 Ill. App. 577-583; Bishop v. Chicago Rys. Co., 215 Ill. App. 153-157; Purcell v. Chicago City R. Co., 221 Ill. App. 343-346.

It was also urged by counsel for appellant that the evidence fails to sustain the charge of negligence set forth in the declaration. In view of what we have already said, it is not necessary for us to pass on this assignment of error.

For the reasons above set forth, the judgment of the trial court will be reversed.

Judgment reversed with finding of facts.

We find as the ultimate facts in this case that appellee, appellant and the Griess-Pfleger Tanning Company were all bound by the provisions of the Workmen’s Compensation Act; that the accident for which this suit was brought arose out of and in the course of appellee’s employment, and that, by reason thereof, this suit cannot be maintained.


author: Mr. Justice Jones

text:
    American Trust & Savings Bank, Appellant, v. Alice Gladu, Appellee.
    Gen. No. 8,125.

      Heard in this court at the October term, 1929.
    Opinion filed May 22, 1930.
    Rehearing denied June 24, 1930.
    Hunter & Minor, for appellant.
    Chas. D. Henry, Jr., for appellee.
   Mr. Justice Jones

delivered the opinion of the court.

This was a trial of the rights of property under the act providing for such proceedings (¶ 68 et seq., chap. 77, Cahill’s Rev. Stat.). On the trial it was stipulated that on April 9, 1929, Alice Grladu recovered a judgment for $1,107 against Homer Raymond and Desneige Raymond; that execution issued on the same day; that a levy was made by the sheriff in June, 1929, on 100 old chickens and 1,500 young chickens in the possession of Raymond; that the bank holds a note of Homer Raymond for $3,000, dated February 17, 1928, due in one year, secured by a chattel mortgage of even date, on certain chattels including 1,700 chickens, Leghorns and Buff Orpingtons, and also all increase in the chickens by purchase or hatching during the life of the mortgage; that the mortgage was properly acknowledged, recorded, and extended; that at the time of the trial there were 1,775 old chickens and 1,339 young chickens on the Raymond farm; and that the only question before the court is the question as to who is entitled to the 1,339 young chickens. It appears that on May 7, 1929, the maturity of the chattel mortgage was extended to January 1,1930. The court found the issues for appellee and entered judgment accordingly and the bank perfected this appeal.

The uncontradicted testimony of Homer Raymond, the mortgagor, is to the effect that he had 1,339 young chickens on the farm at the time of the levy; that they were all raised that year from eggs laid on the farm by the same hens covered by the chattel mortgage, and were hatched in incubators; that he knew the chickens that laid the eggs were the same ones covered by the mortgage because they were the same hens that they had on the farm, and had been separated from the old hens in October 1928. It also appears that the chickens were hatched during the spring of 1929.

The point involved is whether or not the 1,339 young chickens are covered by the chattel mortgage. The question is not free from difficulty and is apparently without precedent on the precise question at issue. It seems to be the general rule that the offspring of all animals, as well as the growth and increase of property follows the ownership of the property itself. Hence, unless there is some agreement to the contrary, the increase of all domestic animals belongs to the owner of the dam. (Hazelbaker v. Goodfellow, 64 Ill. 238.) In Gandy v. Biteler, 6 Ill. App. 510, it is held that when livestock is mortgaged, its natural increase becomes subject to the mortgage, and in Van Zele v. Cleaveland, 208 Ill. App. 387, it is held that a mortgage covering certain livestock, without referring to the increase thereof, was sufficient to cover such increase.

At common law, a mortgage could operate only on property actually in existence at the time of giving the mortgage, and then actually belonging to the mortgagor, or potentially belonging to him as an incident of other property then in exisence and belonging to him. (Borden v. Croak, 131 Ill. 68.) Things not having an actual existence, but having a potential existence, or as it is sometimes said, things which are the natural product or increase of something already existing, and the property of the mortgagor, may be the subject of a valid mortgage. The principle underlying the cases which hold that a potential existence is sufficient is that the right to the property when it comes into actual existence is a present vested right. While the thing itself need not have identity or separate entity, yet it must at least be the product, growth, or increase of property which has at the time a corporal existence, and in which the mortgagor has a present interest and not a mere belief, hope, or expectation of a future acquired interest. (5 R. C. L. Chattel Mortgages, 405.)

Applying the rule that things which have neither an actual nor a potential existence are not the subject of mortgage, it has been held that a mortgage cannot cover the offspring of animals which were not conceived before the date of the mortgage, so as to affect the rights of third persons, although such a mortgage may be valid between the parties. (5 R. C. L. Chattel Mortgages, 408.) But the authorities quite generally sanction the rule that a mortgage on domestic animals covers the increase, even though it is silent with reference to it. By some courts the propriety of this rule is upheld on the ground that the increase which was in gestation at the execution of the mortgage was inferentially included therein, as a part of the mortgaged property, or by a reference to an analogous doctrine laid down by Judge Story that where a thing is pledged, its natural increase as accessory is also pledged. Other decisions sustaining the general principle seemed to have originated in the doctrine that the mortgagee of chattels is the legal owner; so that in holding the young of mortgaged animals to be subject to the mortgage, the courts are only applying the general rule which assigns the increase to. the owner of the mother. Where the doctrine is entertained that the mortgagee of chattels is vested with the title thereto, it does not seem to be necessary that the increase of animals be in gestation at the time of the execution of the chattel mortgage. In jurisdictions, however, where a chattel mortgage is regarded as only establishing a lien, and not transferring title, a mortgage of domestic animals does not cover the increase in gestation at the time of the execution of the mortgage, where there is no express mention thereof in the instrument itself; but such increase born before foreclosure may be dealt with by the mortgagor in possession as his own, and disposed of as he sees fit. A fortiori, in such jurisdictions a mortgage cannot be held to include increase begotten after the mortgage was executed. (1 R. C. L. Animals, 1071.)

In jurisdictions where a mortgage is only a lien and does not cover increase, the rule is applied only where there is no express mention of increase in the mortgage ; but the lien covers the increase, whether or not in gestation when the mortgage so provides. In the case at bar, the mortgage expressly covers the increase.

Appellee insists that because the chickens were hatched in incubators, they are not the natural increase of the hens mortgaged. We do not regard this contention seriously. The hatching of fertile eggs by keeping them at the proper temperature for a certain length of time is a natural process, however the heat is applied. The chickens are the natural increase of the mortgaged hens. The mortgage by its terms included the increase in chickens by hatching, and its record was notice to ¡judgment creditors and all other persons of appellant’s rights.

Because of the views we have expressed, the ¡judgment must be reversed and the cause remanded.

Reversed and rema/nded.


text:
    Bernard McInness, a Minor, by Augusta McInness, his Mother and Next Friend, Appellee, v. Oscar F. Wilson Printing Company, Appellant.
    Gen. No. 8,150.

      Heard in this court at the October term, 1929.
    Opinion filed May 22, 1930.
    Rehearing denied June 24, 1930.
    North, Linscott, Gibboney, North & Dixon, for appellant; Jerome F. Dixon and C. H. Linscott, of counsel.
    Roy F. Hall, for appellee.
   Mr. Justice Jones

delivered the opinion of the court.

Appellee as plaintiff recovered a judgment for $1,695 against appellant, Oscar F. Wilson Printing Company, on account of injuries received by plaintiff in a fall into an elevator shaft on defendant’s premises. This appeal is prosecuted from that judgment.

Plaintiff was between 14 and 15 years of age at the time he was injured. He was employed by defendant as a messenger. His duties included the delivering of merchandise, and in so doing he used a two-wheeled truck. Defendant’s printing business was located on the second floor of a building and was provided with a stairway and an electric elevator. There was no particular person employed to operate the elevator, and plaintiff frequently operated it in the performance of his duties. There was a door at the elevator shaft on the first floor of the building, for the purpose of closing the shaft when the elevator was not at that floor.

It was the custom to load the-truck on the s.econd floor and run it onto the elevator. In the course of his employment, plaintiff operated the elevator until it came to the first floor, where he would stop it, run the truck off, and deliver the packages. There was no other way of taking the truck up or down between the floors of the building.

On the morning of the injury plaintiff used a bicycle in performing an errand. On his return he left the bicycle in a sort of court at the back of the building and walked over to the elevator shaft, the door of which was open. It appearing to him that the elevator was standing at that floor, he stepped into the shaft, and fell to the basement, receiving the injuries for which this action was instituted.

His mother, as his next friend, filed a claim for compensation with the industrial commission, and an award was made, under which defendant paid a total sum of $256.50. It was stipulated that that amount had been paid to plaintiff as compensation, doctor’s bills and hospital bills, by virtue of an order of the industrial commission, and that if a verdict should be returned in favor of plaintiff, the defendant should be credited with the amount so paid. A verdict was returned in favor of plaintiff for the sum of $1,950.00, and judgment was rendered for the sum of $1,693.50, in accordance with the stipulation.

The principal ground urged for reversal is that prior to the institution of this suit, plaintiff invoked the jurisdiction of the industrial commission by filing his petition for an award against defendant; that the commission in its award found that plaintiff and defendant were operating under the Workmen’s Compensation Act, Cahill’s St. ch. 48, ¶ 201 et seq., and that plaintiff is now estopped to assert that he was not under such act or that he was illegally employed.

Section 10 of the Child Labor Act of 1917, Cahill’s St. ch. 48, ¶ 53, provides, among other things, that no minors under the age of 16 years shall be employed in operating or assisting to operate any passenger or freight elevator. Nor shall they be employed in any capacity whatever in any employment that the Department of Labor finds to be dangerous to their lives or limbs, or where their health may be injured or morals depraved, etc.

The weight of the evidence shows that plaintiff’s duties included the operation of the elevator in delivering merchandise with the truck. The test of the Child Labor Act is whether the actual work is connected with the operation of machinery or is otherwise dangerous. (General Const. Co. v. Industrial Commission, 314 Ill. 58.) In so far as plaintiff’s duties were connected with the operation of the elevator, it is clear that he was illegally employed.

The first phase of the question which presents itself is whether or not the injury was cognizable by the industrial commission under the Workmen’s Compensation Act. While the industrial commission has jurisdiction, generally, of all claims for accidental injuries, where the person injured was lawfully employed, it can hardly be doubted that the legislature, in engrafting provisions on contracts of hiring, had in mind only contracts which were valid in law, or, at least, contracts, the making of which was not prohibited by express legislative enactment. It would be entirely unreasonable to attribute to the legislature the intention of adding terms to a contract of hiring which it had already prohibited the parties thereto from making. The Workmen’s Compensation Act applies only where the contract of hiring is a valid one. (Grand Rapids Trust Co. v. Petersen Beverage Co., 219 Mich. 208.) It cannot be supposed that the legislature intended to make such contracts illegal, and at the same time to give them all the force and effect of legal contracts, so far as civil liability for injuries, to minors are concerned. To so hold would tend to encourage and not discourage the practice which the statute has declared illegal; for, in the event of an injury, the employer would suffer no more in the case of an illegal than of a legal employment. (Lincoln v. National Tube Co., 268 Pa. 504.) The compensation act makes provision for compensation in certain cases therein specially provided. It defines what employment shall be deemed extrahazardous, but the employments so specified have reference only to the right to compensation under the act, and it does not attempt to fix a standard for any other purpose. Plaintiff was engaged in an occupation that required him to operate an elevator in violation of the Child Labor Act and he could not recover under the compensation act, but his remedy was under the Child Labor Act. (Kowalczyk v. Swift & Co., 329 Ill. 308; Roszek v. Bauerle & Stark Co., 282 Ill. 557; Messmer v. Industrial Board, 282 Ill. 562.)

It is therefore clear that the industrial commission was without jurisdiction to make the award and that the award was void. That being true, does the fact that plaintiff procured the award to be made by the commission, which found that he and defendant were operating under the Workmen’s Compensation Act, estop him to deny that he was legally employed under that act, and prevent him from maintaining this cause of action? This question, so far as we know, has not been passed on by the Supreme Court of this State. In other jurisdictions it has been held that where a minor illegally employed was injured and made a settlement with his employer, which settlement was approved by a board or commission with functions similar to the industrial commission in this State, such minor was not precluded from maintaining a suit at law to recover the damages sustained. (Stetz v. F. Mayer Boot & Shoe Co., 163 Wis. 151; King v. Darlington B. & M. Co., 284 Pa. 277.)

It is well settled that a void judgment may be collaterally impeached in another proceeding by anyone with whose rights or interests it conflicts. The statement has been frequently made that where a court has jurisdiction of the parties and the subject-matter, its decree, however erroneous, can only be attacked on appeal or error; but the rule is subject to an exception equally well established, — that a decree may be void because the court exceeded its jurisdiction. Courts are limited in the extent and character of their judgments, and if they transcend their lawful powers their judgments and decrees are void and may be collaterally impeached wherever rights claimed under them are brought in question. The doctrine that where a court has once acquired jurisdiction it has a right to decide every question which arises in the cause, and its judgment or decree cannot be collaterally assailed, is only correct where the court proceeds according to established modes governing the class to which the case belongs, and does not transcend, in the extent and character of its judgment or decree, the law or statute which is applied to it. One of the essentials of a valid judgment is that the court have jurisdiction to render that particular judgment. (Armstrong v. Obucino, 300 Ill. 140.) The proceedings of the industrial commission partake of the nature of judicial proceedings (Nega v. Chicago Rys. Co., 317 Ill. 482), and the same rules of law are applicable to their awards as are applied to judgments and decrees of courts.

As a general rule the doctrine of estoppel is inapplicable to infants (Wieland v. Kobick, 110 Ill. 16), unless the conduct of the infant" on which the estoppel is based has been intentional and fraudulent, and the infant was at the time of years of discretion. (Lewis v. Van Cleve, 302 Ill. 413.) If an estoppel can arise against an infant all the elements must concur. The conduct of the infant must have been fraudulent and believed in and acted upon by the other party. (31 C. J. Infants, 1005.) If the element of fraud is wanting there is no estoppel. (Davidson v. Young, 38 Ill. 145; Holcomb v. Boynton, 151 Ill. 294.)

The demurrer to defendant’s plea of former adjudication was correctly sustained. Defendant criticises two instructions given on behalf of plaintiff. They substantially follow the provisions of the statute and it was not error to give them. We are of the opinion that the award of the industrial commission is not res adjudicata, and that plaintiff is not estopped by reason of such proceedings. The judgment of the trial court is affirmed.

Judgment affirmed.