text:
    L. L. LeFevre, Appellant, v. County of Lee et al., Appellees.
    Gen. No. 8,544.

      Opinion filed February 23, 1933.
    Henry C. Warner, for appellant; Morey C. Pires, of counsel. „
    Clyde Smith, for appellees.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.

The appellant, L. L. LeFevre, filed a bill in the circuit court of Lee county, asking that the county treasurer of said county be restrained from paying out certain monies. The facts as set forth in the bill in substance are as follows: In the year 1929, certain taxes for county purposes exceeding the amount prescribed by law were levied upon real and personal property in Lee county, Illinois, by the board of supervisors, and the taxes were extended upon the basis of these levies. Many of the taxpayers of Lee county paid in full the amount of the taxes as levied and assessed without objection. Upon objections filed in the county court of Lee county by several hundred taxpayers of Lee county, the county judge of Lee county held said taxes illegal and invalid. Subsequently the board of supervisors of Lee county passed the following resolution: “The Special Tax Committee, heretofore appointed by the chairman of this Board present the following resolution which was read to the Board by the Clerk, and which resolution is in words and figures as follows:”

“Whereas the Board of Supervisors of Lee County, Illinois, for the year A. D. 1929 in the appropriation and levy did levy a tax and the County Clerk did extend the same in excess of a rate of 25 cents on each One Hundred Dollars Valuation, to the extent of a rate of 6 cents for general county purposes, 2 cents for Mother’s Pension, and 3 cents for Tuberculosis Sanitarium Fund, or a total rate of 11 cents in excess of the maximum aggregate statutory rate for all county purposes for the year, A. D. 1929 in said Lee County, and

“Whereas, at its June Term, A. D. 1930, upon application by the County Collector for judgment for delinquent taxes and upon objections thereto on behalf of more than 800 (hundred) taxpayers, it was held by the County Court of Lee County that said tax to the extent of 11 cents on each one hundred dollars valuation was illegal, and

“Whereas, other taxpayers — not objecting — voluntarily paid the full amount of their said county taxes, including in such payment said 11 cents on the one hundred dollars valuation, now, therefore, be it

“Besolved, that said County of Lee refuse to accept from such taxpayers the payment of said illegal portion of their taxes, constituting 11 cents on the one hundred dollars valuation, as aforesaid, and

“Besolved, that said County of Lee, here acting by its Board of Supervisors, does promise and agree with such taxpayers as have paid such illegal portion of their said taxes, to rebate and refund said illegal taxes so voluntarily paid, and

“Besolved, that upon claim duly made, an order shall be issued in due form, to such taxpayers as shall .have so paid such illegal tax, for the amount of the same.

“H. Knetsch Leon J. Hart John T. Emmitt

C. P. Finch

D. H. Spencer.”

L. L. LeFevre was a taxpayer residing in Lee county and had voluntarily paid his 1929 tax. The bill prayed for an order of the court to restrain the county clerk of Lee county, Illinois, from issuing any warrants for refund of any illegal tax voluntarily paid for the year 1929, and also restraining and prohibiting the county treasurer from paying or refunding any sum or sums of money voluntarily paid by the taxpayers of Lee county for the year 1929.

The defendants filed a general demurrer to the bill which was sustained by the court. The court entered a decree dismissing the bill for want of equity and assessed the costs of suit against the complainant. From the order of dismissal the case is brought to this court on appeal.

That the complainant has the right as a taxpayer to maintain a bill of equity to prevent the misapplication of public funds does not seem to be questioned. Dudick v. Baumann, 349 Ill. 46; McAlpine v. Dimick, 326 Ill. 240. There is also no question but that the tax in question was an illegal and void tax. Both sides in their brief and argument have treated it as such. The question for this court to decide is: “When such tax is voluntarily paid has the person paying such tax the right to recover it from the county1?”

It seems to us from the facts stated in the bill and admitted by the demurrer that all of this tax was paid voluntarily by the taxpayers. Our courts in many cases have said that where taxes were paid to the county treasurer voluntarily and not under duress, he cannot recover back the money paid, although the tax may be illegal. Davis v. Board of Education, 323 Ill. 281; Yates v. Royal Ins. Co., 200 Ill. 202.

In the Yates case (supra) it is said: “The mere fact that the act under which the money was paid was unconstitutional, and the tax. for that reason illegally laid, is not sufficient to authorize an action to recover back the amount paid. This principle has received the assent of the courts and law writers generally. Mr. Cooley, in his work on Taxation (2d ed. p. 809) says: ‘ That a tax voluntarily paid cannot be recovered back, the authorities are generally agreed. And it is immaterial, in such a case, that the tax has been illegally laid, or even that the law under which it was laid was unconstitutional. The' principle is an ancient one in the common law, and is of general application. Every man is supposed to know the law, and, if he voluntarily makes a payment which the law would not compel him to make, he cannot afterwards assign his ignorance of the law as the reason why the State should furnish him, with legal remedies to recover it back.’ ‘Money voluntarily paid to another under a mistake of the law, but with knowledge of all the facts, cannot be recovered back. ’ ”

It is our opinion that as a general rule of law, all tax voluntarily paid to the county treasurer cannot be recovered back by the person making such payment. In this case, however, the appellees do not rely upon their right to recover an illegal tax voluntarily paid, but rely upon the resolution of the board of supervisors in which they authorize the county treasurer to refund the illegal tax voluntarily paid by, no doubt, hundreds of taxpayers. The question then arises: “Did the board of supervisors have power and authority to pass such a resolution?” The board of supervisors on discovering their error have attempted to right a wrong. In the case of Conkling v. City of Springfield, 132 Ill. 420, a suit was prosecuted by a taxpayer to recover certain illegal taxes which he had voluntarily paid on his property. The court followed the general rule of law that an illegal tax voluntarily paid could not be recovered by the taxpayer. In this case, however, the City of Springfield had acknowledged the illegality of the tax and attempted to make restitution to the taxpayers to some extent. However, the suit was not based upon the resolution which was passed by the city council, but the suit was based upon the theory to recover an illegal tax. In passing upon the question, the court has this to say: “One other question remains to be considered. It is claimed that the City of Springfield admitted the illegality of the tax, and agreed to refund it, and it is urged, as we understand the argument, that under such circumstances the city is liable, although the taxes were not paid by compulsion. If the City of Springfield had received from the plaintiff a sum of money in payment of illegal or void taxes, and after having received the money agreed to refund the amount so received, we see no reason why an action might not be maintained upon such an agreement.” People ex rel. Chase v. County Court of Macoupin county, 54 Ill. 217; People ex rel. Stine v. Board of Sup’rs of Vermilion county, 47 Ill. 256.

The board of supervisors of Lee county represented the interests of the public, and they should act with due deliberation and caution. The law clothes them with authority to reconsider, review or modify orders made through haste or ill-advised action on their part. (Quernheim v. Asselmeier, 296 Ill. 494.) The taxes which the board of supervisors of Lee county had promised to refund were county taxes. Neither the State nor any subordinate bodies have any interest or claim to those taxes. The portion of which tax the board levied and promised to refund is 11 cents on each $100' valuation, or the excess of the legal authority of the board to have levied. Several hundred taxpayers objected to the payment of these taxes and were relieved of the burden of paying the same. The board of supervisors by their action sought to give effect to the maxim that “taxes should be borne equally by the inhabitants.” No doubt many hundreds of the taxpayers considered the amounts that they paid too small and insignificant for them to go before the county court and object to the payment of this tax, as it would cost them more to do this than to pay the tax. So it was voluntarily paid, although illegal. It is our opinion the board of supervisors of Lee county had the power and authority by proper resolution to refund this illegal tax which is given them as an incident to the powers which the statutes have conferred upon them. It is further our opinion that the court properly sustained the demurrer to the bill and the judgment of the circuit court of Lee county is hereby affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Wolfe

license: Public Domain

text:
    The People of the State of Illinois for the use of National Cast Iron Pipe Company, Appellant, v. E. J. Merkle, Trading as Merkle Contracting Company, and National Surety Company, Appellees.
    Gen. No. 8,561.
    Opinion filed February 23, 1933.
    Hunter & Minor and Bertrand Walker, for appellant.

      Dent, Wbichelt & Hampton, for appellees; George M. Wbichelt, of counsel.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.

This is an action of assumpsit begun to the May Term, 1932, of the circuit court of Kankakee county by the People of the State of Illinois, for the use of the National Cast Iron Pipe Company (herein called appellant), and against E. J. Merkle, doing business as Merkle Contracting Company, and the National Surety Company (herein called appellees) to recover $14,620.68 for material sold and delivered to said E. J. Merkle and used in the construction of a water distribution and fire piping system at the State Hospital at Manteno, Illinois.

The declaration alleges in substance that “E. J. Merkle, doing business as Merkle Contracting Company, entered into a written contract with the State of Illinois for the providing of all materials and the performance of all work necessary for the construction of water distribution and fire piping system for the Manteno State Hospital, and for the doing of everything’ required by the general conditions of the contract, the specifications and drawings, for the consideration of $44,000.00; that on March 18, 1930, E. J. Merkle, and the said National Surety Company, as surety, executed a bond binding themselves to the People of the State of Illinois in the penal sum of $44,000.00 for the faithful performance of the contract and the full payment for all labor and materials furnished and used pursuant to said contract.” The contract and bond are set out verbatim in the declaration. The contract is quite lengthy, but it provides, in substance, that the contractor shall provide all the materials and perform all the work shown on the drawings and described in the specifications for the construction of water distribution and fire piping system, Manteno State Hospital near Manteno, Illinois, and do everything required by the general conditions of the contract, the specifications and drawings; that the owner shall pay the contractor $44,000.00 ; the contractor and owner agree “that the general conditions, the specifications and drawings, together with this agreement, form the contract and are as fully a part of the contract as if hereto or herein repeated.” The general conditions require that the successful bidder shall furnish a surety bond for the full amount of the contract. The general conditions further provide, among other things, as follows:

“Article 1. (c) — The term ‘subcontractor,’ as employed herein, includes only those having a direct contract with the contractor, and it includes one who furnishes material, even though he does no work.

“(e) — , The term ‘work’ of the contractor or subcontractor, includes labor or materials, or both.

■“Article 11.- — “Unless otherwise stipulated, the con-tractor shall provide and pay for all materials, labor, water, tools, equipment, light and power necessary for the execution of the work.

“Article 20 — The owner will require the contractor to furnish bond covering the faithful performance of the contract and the payment of all obligations arising thereunder, in such form as the owner may prescribe and with such sureties as he may approve. The premium shall be paid by the contractor.

“Article 24. — The contractor shall submit to the engineer an application in a form prescribed for each payment and a sworn statement of all amounts due or to become due for services, labor, material or contracts, and receipt or other vouchers showing the payments for materials and labor including payments to subcontractors. Such application shall be submitted at least ten days before each payment falls due, and the contractor shall, before the first application, submit to the engineer a schedule of values of the various parts of the work, including quantities aggregating the total sum of the contract, divided so as to facilitate payments to subcontractors, made out in such form, and if required, supported by such evidence as to its correctness as the engineer may direct. This schedule when approved by the engineer shall be used as a basis for certificates of payment, unless it be found to be in error.

“Article 28. — The supervising architect or the engineer may withhold, or on account of subsequently discovered evidence, nullify the whole or any part of any certificate for payment to such an extent as may be necessary to protect the owner from loss on account of . . . (c) failure of the contractor to make payments properly to subcontractors or for material or labor. . . . When all of the above grounds are removed certificates shall at once be issued for amounts withheld because of them.

“Article 36. — If the contractor . . . should fail to make prompt payment to subcontractors or for material or labor . . . the owner then, upon the certificate of the engineer that sufficient cause exists to justify such action, may without prejudice to any other right or remedy and after giving the contractor seven days ’ written notice, terminate the employment of the contractor and take possession of the premises and of all materials, tools and appliances thereon and finish the work by whatever method he may deem expedient.

“Article 39. — -The contractor shall, on a prescribed form, notify the engineer of the names of subcontractors proposed for the principal parts of the work and for such others as the engineer may direct and shall not employ any that the engineer may, within a reasonable time, object to as incompetent or unfit.

“The engineer shall on request furnish to any subcontractor, wherever practicable, evidence of the amounts certified to on his account.

“The condition of this obligation is such that, Whereas, the above bounden, E. J. Merkle, as party of the first part, on the 19th day of February, 1930, entered into a certain contract in writing with the State of Illinois, acting by and through the Department of Purchases and Construction, as party of the second part, for furnishing labor and material for the Manteno State Hospital required in the erection, construction and completion of water distribution, piping and fire piping systems in conformity with the drawings, general conditions and specifications prepared by the Department of Architecture and Engineering, C. Herrick Hammond, Supervising Architect, which drawings, general conditions and specifications are made a part of the aforesaid contract.

“Now, therefore, if the above bounden E. J. Merkle, heirs, executors, administrators, successors and assigns, shall in all things stand to and abide by and well and truly keep and perform each and every of the covenants, conditions and agreements on the part of the said principal to be kept and performed, within the time and in the manner and form as in said contract entered into, as aforesaid, contained, then the above obligation to be void; otherwise, to remain in full force and effect.”

The declaration further alleges that after the execution and delivery of said contract and bond, said E. J. Merkle entered upon the performance of said contract and has subsequently completed the same; that the work and material so performed and furnished was duly accepted by the State; that the National Cast Iron Pipe Company, at the request of said E. J. Merkle, furnished and delivered certain materials to said E. J. Merkle, doing business as Merkle Contracting Company, to be used in and about the construction and completion of said water distributing and fire piping-systems ; that materials of the value of $24,550.29 were received by said Merkle and used in the construction of said work; that payments on said account to the amount of $9,929.61 were made by said Merkle, leaving a balance still due and owing to the said National Cast Iron Pipe Company by the said Merkle of $14,620.68, which he has refused to pay; that although the National Cast Iron Pipe Company has often demanded payment of said indebtedness from said National Surety Company, yet the said National Surety Company has not paid and refuses to pay to said National Cast Iron Pipe Company the said sum of $14,620.68, or any part thereof, due and owing under said bond.

The National Surety Company filed a general demurrer to the declaration, which, upon hearing, was sustained. Judgment was entered against appellant for costs and that it take nothing by its suit. Appeal was prayed and allowed to this court.

The question involved in this court is: Did the court err in sustaining the demurrer to the declaration1? A determination of this question rests entirely upon the wording of the bond of the National Surety Company. By the pleadings it is admitted that E. J. Merkle" is indebted to the appellant in the sum of $14,620.68 for material furnished to Merkle in the construction of the Manteno State Hospital. It is the contention of the appellant that- the language of the bond is broad enough to make the surety company lia'ble to appellant for the payment of this material.

In the case of Gunsul v. American Surety Co., 308 Ill. 312, the court, in discussing the liability of the surety say: “The weight of modern authority makes a distinction between the rights and liabilities of a voluntary surety or one who becomes a surety for mere accommodation, and the rights and liabilities of corporate sureties who become such for hire. In the case of voluntary sureties for accommodation, if the creditor, by valid and binding agreement, without the consent of the surety gives further time for payment to the principal, the surety is discharged whether actually damnified or not. Corporations doing a surety business for profit are of comparatively recent origin and their contracts are treated as contracts of • indemnity or insurance. As to such sureties it is, we believe, generally held they cannot be relieved from their obligations except where it is shown there was a material departure from the contract which resulted in some injury to the surety.”

While it is true that the bonds given by the surety company to secure the performance of a contract by the principal are to be strictly construed against the company in case of an ambiguity, if there is no ambiguity, there is no room for construction of the contract of surety. Lesher v. United States Fidelity & Guaranty Co., 239 Ill. 502.

In the case of Searles v. City of Flora, 225 Ill. 167, a contract of insurance was offered similar to the one before us. On page 170 of the opinion the court has this to say: “The contract, by its terms, provided that Searles was to pay for all materials, engines, dynamos, connections, machinery, instruments, equipments, and labor for said improvement. The bond, after reciting the terms of the contract, provided that the ‘ above bounden’ shall well and truly keep, do and perform each and every, all and singular, the matters and things in said contract set forth and specified to be and by said principal kept, done and performed at the time and in the manner in said contract specified, and should pay to the obligee all losses and damage sustained by reason of the failure or default on the part of said principal. It will be observed that the bond, as well as the contract, runs directly to the City of Flora. There is nothing in any of the terms used in either to indicate that it was intended to apply to or protect third persons. If the bond or contract by its terms had provided that it was given for the benefit of subcontractors or materialmen as well as the City of Flora there would be force in the contention of appellee. It is evident, however, that the purpose of its execution was to insure the completion of the work within the contracted period, free from liens of every kind. If the city had been required to pay any claims arising for materials furnished, by reason of a lien on the funds in its hands or for any other cause, then the surety company would be required to reimburse and save it harmless.”

In the case of the Kenfield Publishing Co. v. Baumgartner, 189 Ill. App. 413, the court says: “The doctrine that a third party may maintain an action on a promise made by one person to another for his benefit is limited to contracts which have for their primary object and purpose the benefit of a third person and which are made for his direct benefit.” In Masters v. Dunlap, 231 Ill. App. 395, the court says: “It must be pointed out, however, that the averments in the declaration taken in connection with the terms of the contract as set out in the declaration do not bring the case within the rule. Neither the contract by its terms nor the averments in the declaration shows that the lease contract was made for the benefit of the appellant, or that she was to derive any benefit therefrom. ’ ’ Nicholson v. Nicholson Coal Co., 190 Ill. App. 607.

In the case of Seefeldt v. Wilgen, 193 Ill. App. 315, the court said: “It is not every contract made by one person with another from the performance of which a third person will derive a benefit on which such third person may maintain an action, ‘there must not only be an intent to secure some benefit to such third person, but the contract must have been made and entered into directly and primarily for his benefit.’ ”

In the case of the Aurora, Elgin & Chicago R. Co. v. National Surety Co., 198 Ill. App. 502, where the condition of the bond is practically the same as the bond in question, the court, after reviewing the facts and quoting from the case of Searles v. City of Flora (supra), says: “Nothing whatever is said in the bond about paying third parties for material or anything else. It was made to indemnify the defendant railroad company and none other. We cannot extend the liability of defendant by construction. On the contrary, the obligation of a surety, which is the obligation of defendant, must be strictly construed, and it cannot be held under the terms of its undertaking by implication or construction. ’ ’

The same question was before the Supreme Court in the case of Spaulding Lumber Co. v. Brown, 171 Ill. 487. The court in discussing the case says: “This bond was given to the board of education for its protection and benefit. The board never claimed a breach of the bond, and there was no breach so far as the board was concerned. There were no liens against the premises and the building was completed, and there remained a balance in the hands of the board to be" paid out under the contract, as was conceded by filing the bill of interpleader. The bond contained no provision under which the sureties became bound to protect subcontractors, and no principle occurs to us under which they could be held liable on the bond.” We have examined the cases cited by the appellant and we find that the bonds in those cases were different from the one under discussion. In the case of the Danville Hotel Co. v. Benson, 262 Ill. App. 288, the bond contained this clause: “shall pay all persons who have contracts directly with the principal for labor or materials. ” In the case of Cherry v. Benson, 264 Ill. App. 199, the bond contains the following: “shall pay all persons who have contracts directly with the principal for labor and materials, then this obligation shall be null and void, etc.”

In the case of Carson Pirie Scott S Co. v. Parrett, 346 Ill. 252, the court, in passing on the bond, discusses the Searles case (supra), and distinguishes the "bond in the Searles case from the case of Carson Pirie Scott & Co., and holds that in the Carson Pirie Scott & Co. case the bond was given for the benefit of a third party. Counsel for appellant have not cited nor has this court been able to find any case where the language of the bond is similar to the one in question, in which the courts have held that a materialman not mentioned in the bond would be able to maintain a suit on a bond for the amount of material he furnished to the contractor who was under bond faithfully to perform his contract.

We are of the opinion that the language of this bond is such that the appellant could not maintain a suit against the surety company on this bond and the court properly sustained the demurrer to the declaration and the judgment of the circuit court of Kankakee county is affirmed.

Judgment affirmed.


text:
    In re Estate of Warren Beckwith, Deceased. Sarah E. Beckwith, Individually and as Trustee of the Estate of Warren Beckwith, Deceased, et al., Plaintiffs in Error, v. Harry J. Cooper, Defendant in Error.
    Gen. No. 8,589.

      Opinion filed February 23, 1933.
    Maurice F. Lord, for plaintiffs in error.
    David J. Peffers, for defendant in error.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.

This is a writ of error directed to the circuit court of Kane county to review its orders and provisions relative to the trust estate of Warren Beckwith, deceased.

Plaintiffs in error appeared heretofore on appeal requesting this court to reverse an order of the circuit court overruling their motion to dismiss the proceeding, and so on. This court rendered its opinion on July 7, 1930, holding that-the circuit court of Kane county had no jurisdiction over the specific subject matter of the trust created by the will of Warren Beckwith, deceased, and directed the circuit court to dismiss the proceeding in accordance with the motion. In the matter of In re Estate of Beckwith v. Cooper, 258 Ill. App. 411-418, will be found the opinion of the court. At the same time the court considered the appeal of Sarah E. Beckwith, sole surviving testamentary trustee, from an order of the circuit court appointing Harry J. Cooper as cotrustee. This action of the court was also reversed and directions issued to vacate its order of appointment. The opinion in this case is an abstract one found in said vol. 258 Ill. App. 621. The opinion last referred to is General No. 8,189.

It appears that both of these appeals to which reference as above is made were perfected on December 30, 1929; both appeals challenge the jurisdiction of the circuit court over the subject matter and the question of the jurisdiction and power of the circuit court to enter any orders or perform any acts in connection with the administration of the trust and the property thereof. In both appeals the contentions of the appellants in said causes, being the plaintiffs in error here, were sustained. Cooper, who was the appellee in each of said cases, petitioned the Supreme Court to review the two decisions of the circuit court by certiorari and on October 25, 1930, his petitions were denied. Thereupon, on November 6, 1930, the mandates of the Appellate Court were filed with the clerk of the circuit court and on November 17, 1930, and upon notice duly served upon opposing counsel orders of reinstatement were made upon the docket of the circuit court. The record discloses that after the entry of said orders of reinstatement, counsel for the Beckwith trust estate presented a written motion to the circuit court of Kane county to comply with the mandate of the Appellate Court, and to enter an order vacating its order appointing Cooper as cotrustee. It appears that no action, however, was taken on that motion at that time. The record further discloses that on the same day counsel for the Beckwith estate presented a written motion that the court tax the costs against Cooper in connection with the proceeding pertaining to the motion to vacate the order appointing a trustee entered May 24, 1929. This motion it appears was not acted upon at that time. The record further discloses that on December 15, 1930, counsel for the Beckwith trust estate served notice upon Cooper and his solicitors that on December 17, 1930, he would appear before Judge Wm. J. Fulton, judge of the circuit court, and ask an immediate hearing on the motion to comply with the mandate of the Appellate Court and the motion to tax costs. It appears that Judge Newhall heard the matter, refused to grant the motion and entered an order continuing the motion to tax costs and other motions until January 17, 1931.

The record further shows that on January 30, 1931, counsel for the Beckwith estate again served counsel for Cooper with notice that he would appear before the circuit court on February 2, 1931, and ask for an entry of an order complying with the mandate. The court entered an order vacating its order appointing Cooper as cotrustee. The mandate in case No. 8,189 containing the unqualified order to the chancellor to set aside and vacate the order appointing Cooper as cotrustee had been filed; yet, it appears that the circuit court refused to follow strictly the directions and instructions in said mandate and entered an order requiring Cooper to file a report and reserving jurisdiction to act upon said report and to enter orders in relation thereto.

The record shows that on February 24,1931, Cooper filed a report whereby he sought to take credit from the property and funds of the trust estate for certain expenditures which he had made while he was unlawfully and without warrant or authority acting as trustee. The expenditures aggregated the sum of $1,937.94, the greater portion of which were expended in Cooper’s efforts to perpetuate himself in office as a cotrustee; that on February 26, 1931, the circuit court at the instance of Sarah E. Beckwith, a trustee, entered an order requiring Cooper to deliver to the duly constituted trustees of the estate of Warren Beck-with, deceased, certain of the securities listed in the report; certain securities, however, were retained by Cooper with a view of undertaking to protect himself in his expenditures, and the court attempted to retain jurisdiction of the subject matter.

On March 6, 1931, objections were filed to the entry of any order approving or confirming any expenditures by Cooper wherein it was pointed out that the circuit court had no jurisdiction of the subject matter or persons interested in the trust; that Cooper was under no legal obligation to contest the validity of his appointment; and that the circuit court had no power to deplete the trust estate by authorizing any expenditures; that the litigation was not in the interest of the trust fund, but was hostile thereto.

No action was taken by the court at that time on these objections and on August 25, 1931, Sarah E. Beckwith, W. A. Sternberg and D. H. Grady, as trustees, instituted proceedings in the city court of Aurora against Cooper to recover damages for and on behalf of the trust estate and for property illegally withheld from them on the part of Cooper. A rule was entered by the city court to plead on or before December 14, 1931. Thereupon counsel for Cooper appeared before the Hon. John K. Newhall, judge of the circuit court, with a petition for injunction restraining the duly constituted trustees from prosecuting this suit in the city court, and an injunction was issued on December 14, 1931, and service had, etc. It appears that on August 1, 1932, an order was entered dismissing the proceeding but overruling the objections to the expendítures, confirming the same, continuing in force the injunction, declining to tax costs against Cooper and taxing the expenditures and costs against Sarah E. Beckwith.

The chief question involved in this case concerns the responsibility for paying the costs and expenditures incurred by the defendant in error in connection with making his defense in the two cases which were brought to the Appellate Court, being Nos. 8,188 and 8,189. It is the contention of Cooper, the defendant in error herein, that he is permitted under the law to carry on litigation of this character calculated to maintain himself in office without personal responsibility in the case of failure. It is the contention of the plaintiffs in error that the necessary litigation to oust the defendant in error was of no benefit to the trust estate, that the plaintiff in error could have prevented it by not qualifying as cotrustee, or at least, by resigning, and that in attempting to maintain in office he acted at his peril. It is also the contention of the plaintiffs in error that the defendant in error had no authority of any kind or character to act with reference to the trust and that all of his transactions affecting it were void.

There is also involved in this proceeding the validity of the injunction orders which prevented the legally qualified trustee from attempting to recover from Cooper, defendant in error, not only the value of the securities and income unlawfully withheld but other items not mentioned in Cooper’s report, etc.

The two cases involving this estate which came to the Appellate Court were decided on July 7„ 1930, that being the day on which the opinions were filed. Petitions for certiorari were denied on October 25, 1930. It appears that notwithstanding the fact of the holding of this court to the effect that 4he circuit court of Kane county had no jurisdiction and no authority to appoint a trustee as had been done by the appointment of Cooper, still the circuit court undertook to exercise jurisdiction over the parties as well as of the subject matter of said estate. The .following language was used at the conclusion of the opinion reported in 258 Ill. App. 411: “According to our view, the trustees wrongfully procured the circuit court of Kane county, Illinois, to assume jurisdiction over the trust estate. The motion for the court to relinquish such jurisdiction and dismiss the proceedings. should have been allowed, and this cause is reversed and remanded with directions to grant such motion and for such other orders as may be necessary in the premises. ’’ It therefore appears that the defendant in error continued to act as trustee not only during the pendency of the cause in the Appellate Court, but after the filing of the opinions therein and subsequent to the time of the refusal of the Supreme Court to hear the case on a petition for a writ of certiorari. This court held that the circuit court did not have jurisdiction to appoint a trustee. Whatever suggestions may be made or questions raised relative to the expenditures of Cooper in trying* to maintain his appointment as trustee, there can be no question remaining in view of the decision of this court that the circuit court of Kane county had no jurisdiction either over the parties or the subject matter, for the reason that when the circuit court denied the motion to dismiss the proceedings for the want of jurisdiction and the appeal was prosecuted to the Appellate Court, the circuit court of Kane county then lost jurisdiction over the case, and in view of the holding of the Appellate Court which was to the effect that the circuit court of Kane county had no authority to appoint a trustee and had no jurisdiction over either the persons or the subject matter, the court ordered and directed the said Cooper as trustee to make a report. He filed a report showing* among other things his disbursements of the funds of the trust estate. The circuit court had no jurisdiction or authority to take any steps after the case was decided in the Appellate Court and every step that has been taken by the circuit court that had to do with the trust estate involved in this proceeding is absolutely null and void. The court had no authority to either call upon Cooper to make a report or to approve the same. The items that Cooper was directed to pay out of the trust funds by way of solicitor’s fees and expenses should not be charged against the trust estate. In a proper proceeding Cooper should be required to reimburse to the legal trustees of said estate for the expenditures made by him in trying to sustain himself as a cotrustee together with the amount and sum of money which came into his hands while he was acting in the capacity of cotrustee. In other words he should not be permitted to profit by his own wrong and since the circuit court of Kane county had no jurisdiction over said trust estate then the order approving the report and directing the paying out of money by the said cotrustee Cooper was illegal and void. The circuit court of Kane county had no jurisdiction to take any step to thwart the action of the legally constituted trustees to regain possession of the assets of said estate. The order taxing the costs of the suit against Sarah E. Beckwith is erroneous and should be reversed.

The order of the circuit court of Kane county is hereby reversed and the orders issued by the circuit court are set aside and vacated and held for naught, and the costs of this litigation should be taxed against Harry J. Cooper, individually.

Judgment reversed.


author: Mr. Justice Baldwin

text:
    David C. Poorman, Appellee, v. Fort Armstrong Automobile Underwriters, Appellant.
    Gen. No. 8,583.
    Opinion filed February 23, 1933.
    Hinchcliff, Miller & Thomas, for appellant ; Charles A. Thomas, of counsel.
    Hall & Dusher, for appellee.
   Mr. Justice Baldwin

delivered the opinion of the court.

On or about December 20, 1930, David C. Poorman (appellee) recovered a judgment against one William Gonsolez in the circuit court of Winnebago county for the sum of $600 and costs for damages growing out of an automobile accident which had occurred on April 21, 1930, at or near the City of Rockford and in which the appellee was injured.

Thereafter a writ of execution was issued upon such judgment, which was ultimately returned by the sheriff indorsed “No property found.”

At the time of the accident the defendant, William Gonsolez, had in force an insurance policy issued to him by the Fort Armstrong Automobile Underwriters (appellant) in which the said appellant, under the terms included in the said policy, agreed to insure the said William Gonsolez against loss by reason of the liability imposed by law upon him for damages on account of bodily injuries to . . . any person or persons not in the employ, household or relationship of the assured, by reason of the ownership, operation and maintenance or use of the automobile, to the extent of $5,000 for injury or death to one person, and $10,000 for injury or death to more than one person.

After the return of the execution, as above set forth, and to the January Term 1931, the appellee filed his creditor’s bill against the appellant in the circuit court of Winnebago county, in which were alleged the injury, the judgment, the sheriff’s return, the existence of the insurance policy and its terms and prayed that the defendant therein, appellant herein, be required to pay to the appellee herein the amount of said judgment, together with interest and costs.

The appellant filed its answer admitting, among other things, the existence of the policy and the various allegations in the bill of complaint, except that it denied its liability to the appellee herein; denied the receipt of the written notice; denied that it had investigated the accident and had refused to pay any sum and denied that it had been requested to defend the said William G-onsolez and pleaded certain provisions of the policy of insurance, which included a clause that the underwriter should not be liable if the motor vehicle at the time the loss occurred was being operated unlawfully and then set forth the violations of the law claimed by it to be a defense to the said policy.

The court heard the evidence and entered a decree ordering the appellant to pay the complainant, appellee herein, the sum of $676.32 and costs of suit oand ordering that immediate execution issue therefore. This appeal is prosecuted to reverse such decree.

It is provided in and by the insurance contract herein “that the underwriter shall not be liable if the loss or damage ... is the direct result of flood, etc., or if the insured motor vehicle is at the time the loss occurred, being operated unlawfully, etc.”

It is contended by appellant that the complainant failed to prove that the insurance company had received notice of the accident as required by the terms of the insurance contract. The evidence in this case, however, discloses that the attorney for appellee had corresponded with the representatives of appellant relative to its liability under this policy. It further discloses that appellant refused to pay any sum upon the ground that the Gonsolez car, at the time of the accident, was being driven in a reckless manner and that therefore the appellant was not liable under the policy. This, it seems to us, is sufficient proof of actual notice of the accident to the appellant and the appellant, having repudiated its liability under the policy of insurance, was not in a position to demand service of further notice.

It is said by the appellant that the court should have allowed the defendant to introduce evidence in the trial of this case, that the automobile, which figured in the accident, was at the time of the accident operated in violation of the law and that thereby the appellant herein should be relieved from the liability of the same.

We do not see upon what theory this evidence was pertinent to the issues. A trial had been had in a forum provided by law for that purpose and a judg*ment rendered according* to law. The appellant could have introduced all such testimony in that case had it desired. Even after this judgment, had appellant desired, an appeal could have been had and the evidence reviewed. Appellant having had every opportunity to present the evidence in an appropriate proceeding and having failed to do so, cannot now be heard to complain of its own conduct. Appellant is bound by the judgment of the law court and courts of equity will not permit litigants to go back of the judgments entered in the law courts in such cases. (Kinnan v. Hurst Co., 317 Ill. 251.)

In Ferry v. National Motor Underwriters, 244 Ill. App. 241, where a judgment was recovered and thereafter suit was brought against the insurance company to collect so much of the judgment as was covered by the insurance policy, the policy in that case contained the following provision: ‘ ‘ This policy does not cover indemnity, nor loss nor damages under the following conditions . . - . while being* used, operated or engaged in violation of the law.” The defendant defended it upon the ground that the automobile at the time of the accident was being driven at a greater rate of speed than was reasonable and proper. Such defense was held to be unavailable, because as said by the court on page 246: “It is quite apparent that the plea (that car was operated in violation of law) is based on the theory that defendant in error was not entitled to recover because, at the time of the accident, she was operating her car at an unlawful rate of speed. If the policy exempts plaintiff in error from liability in such a case it would also be exempt if the car was being driven without a registration certificate; without displaying the license number on the car; with the number covered, altered, defaced or mutilated; with a fictitious number or a number belonging to another vehicle; if the driver failed to give the right of way to another vehicle approaching from the right; if he failed to turn to the right of the center of the beaten track when meeting another vehicle; if he failed to have proper lights or failed to dim them at the proper time, etc. All of these various acts and omissions, and many others, are violations of the law. ... We all know that nearly all automobile accidents aire due to the fact that some law has been violated. If the language in question is to be construed so as to relieve plaintiff in error from liability in all cases where the insured was operating the car in violation of law at the time of the accident, the insured would have no protection in most cases. . . . The policy of insurance should not be so framed as to be susceptible of one construction in the hands of the soliciting agent, and of quite a different one in the hands of the adjuster. (Travelers’ Ins. Co. v. Dunlap, 160 Ill. 642-647.) Contracts of insurance are construed strictly against the insurer and liberally in favor of the insured, and where two interpretations, equally reasonable, are possible, that construction should be adopted which will enable the beneficiary to recover. (Zeman v. North American Union, 263 Ill. 304.) ”

We think the decision in that case is decisive of the question presented here.

Finding no error in the record therefore the decree of the circuit court of Winnebago county is affirmed.

Affirmed.


text:
    Truman Johnson, Appellee, v. Mutual Trust Life Insurance Company, Appellant.
    Gen. No. 8,587.
    Opinion filed February 23, 1933.
    Raymond Olson, for appellant.
    Hinchcliff, Miller & Thomas, for appellee; Charles A. Thomas, of counsel.
   Mr. Justice Baldwin

delivered the opinion of the court.

This is an appeal from the circuit court of Winnebago county seeking to reverse a judgment against the Mutual Trust Life Insurance Company, a corporation, hereinafter designated as appellant, in favor of Truman Johnson, hereinafter designated as appellee.

The suit was brought upon an ordinary life insurance policy in the sum of $10,000 issued by the appellant to which is attached as a part thereof a supplementary contract. The pertinent conditions of this supplementary contract, those having a direct bearing upon the issues in this case, among other things, are:

“Benefits in the Event of Total and Permanent Disability Before Age 60

“When Suoh Benefits Take Effect. If the Insured, before attaining the age of sixty years and provided all past due premiums have been duly paid and this policy is then in full force and effect, becomes totally and permanently disabled by bodily injury or disease, so that he is, and will be, permanently, continuously and wholly prevented thereby from performing any work for compensation, gain or profit, and from following any gainful occupation, and shall furnish due proof thereof to the Company at its home office, the Company, upon receipt and approval of such proof, will grant the following benefits:

“1. Waiver of Premium. The Company will, during the continuance of such disability, waive payment of each premium as it becomes due, commencing’ with the first premium due after approval of said due proof. Any premium due prior to such approval by the Company must be paid in accordance with the terms of the policy, but if due after receipt of said due proof, will, if paid, be refunded upon approval of such proof.

“2. Income to Insured. The Company will, during the lifetime of the Insured and the continuance of such disability, pay the Insured a monthly income at the rate of $10.00 for each $1,000 of the face amount of this policy (but not including dividend additions), the first such monthly payment being due on receipt of said due proof and subsequent payments on the first day of each calendar month thereafter. No income payments, however, will be made prior to approval of such proof by the Company as satisfactory, but upon such approval, whatever income payments shall have become due after due proof will then be paid and subsequent payments will be made when due..

“. . . Recovery from Disability. Although the proof of total and permanent disability may have been accepted by the Company as satisfactory, the Insured shall at any time thereafter, and from time to time, but not oftener than once a year, on demand, furnish to the Company, due proof of the continuance of such disability, and if the Insured shall fail to furnish such proof, or if it shall appear to the Company, except in the case of the specified disabilities mentioned below, that the Insured is able to perform any work or follow any occupation whatever for compensation, gain or profit, no further premium shall be waived and no further income shall be paid.”

Suit was commenced on March 30, 1932, for the disability benefits in the sum of $100 a month accruing to the date of suit and on the trial appellee testified that he was born December 2, 1883; that he was the person named in the policy; that all premiums had been paid; that since the policy became effective he became afflicted with tuberculosis and that on December 28, 1931, notified the appellant of the fact that he had contracted or developed pulmonary tuberculosis and that by reason thereof he was and would continue to be totally, permanently, continuously and wholly prevented from performing any work for compensation and from following any gainful occupation and claimed benefits under the provisions of the policy above referred to.

To the contention of the appellant, that, by reason of the condition of appellee, he was not totally and permanently disabled by bodily injuries or disease and was permanently, continuously and wholly prevented thereby from performing any work for compensation, gain or profit and from following any gainful occupation evidence ivas offered as to the condition of appellee. This evidence is in the record, and it will not be necessary to set it out here, but it was testimony bearing' upon the case of appellee, to the effect that he was totally and permanently disabled by disease, etc. The jury evidently so found by reason of the finding they made.

The cause was tried by jury in such court and verdict for $400 was awarded plaintiff. Judgment was entered upon such verdict.

The evidence in this case is not volufninous and consists largely of expert medical testimony. Although there are several assignments of error in this' case, the real controversy is whether the plaintiff is totally and permanently disabled within the meaning of the policy above referred to.

It is urged by the appellant that the appellee cannot recover unless he has established that he will be disabled the remainder of his life.

If that was the intention of the insurance company in entering into the contract of insurance, then it would be very difficult to determine whether or not appellee was permanently disabled, in view of the terms and conditions of the policy, until after his death.

This contention cannot be sustained because the provisions of the policy — which is the contract between the parties — makes no such requirement. Under the paragraph “Waiver of premium” it is provided that “the company will, during the continuance of the disability, waive payment,” etc.

Under the paragraph “Income to Insured” it is provided that “the company will, during . . . the continuance of such disability, pay” etc.

Under the paragraph “Recovery from Disability” it is provided that “although the proof of total and permanent disability may have been accepted by the company as satisfactory . . . and if it shall appear . . . that the insured is able to perform work, etc., . . . no further premium will be waived or income paid.”

These provisions clearly demonstrate that the contention now made by the complainant is not in harmony with nor contemplated by the provisions of the contract. It clearly indicates that the parties intended by this contract that whenever it should appear that the plaintiff was totally disabled and that such disability would, so far as it was possible to ascertain at the time, be permanent, the insured should receive the income and have the premiums waived as provided in his policy, from the time such fact is determined until the insured recovered or died. No other reasonable construction can be given the provisions of the policy in this case, and we are unable to see how any other contention could be raised, and how the appellant company could have had any intention other than to pay the income other than the fact that if at any other period the insured became totally and permanently disabled as defined in the terms of the contract that he should receive pay for the time that he was so totally and permanently disabled. If that was not the intention, why was it put in the policy as a part of the contract of insurance that the company could at any time have the insured examined to ascertain whether or not he was disabled totally and permanently from engaging in any gainful occupation?

It appears to us that this case was tried upon the theory as above indicated. That being true, when the testimony discloses that appellee was permanently and totally disabled for a time and during the time that the witnesses referred to and if he was, then he should receive the benefits of the insurance for which he had paid. The weight of the evidence sustains the contention of appellee that he was at the particular time mentioned, and the period covered by the witnesses, in such a condition as to bring him within the terms of the policy. The jury evidently believed and we think they had a right to believe, that, for at least the period of time covered by the evidence, he had brought himself within the terms and conditions of the policy.

Whether the plaintiff was totally and permanently disabled within the meaning of the contract, as we have construed it, is a question of fact to be answered by the jury from a consideration of the testimony produced in this case.

The courts of this State have frequently held that where there is even a conflict in the testimony, appeal courts will not ordinarily disturb the verdict of the jury, unless the verdict should appear to be manifestly against the weight of the evidence. (Tolman v. Race, 36 Ill. 472, 477; Halty v. Markel, 44 Ill. 225; Chicago City Ry. Co. v. Bohnow, 108 Ill. App. 346; Shevalier v. Seager, 121 Ill. 564; Bradley v. Palmer, 193 Ill. 15, 88.) As we view it the verdict herein is not against the weight of the evidence. We regard the law as announced herein applicable to and decisive of this case.

The judgment of the circuit court of Winnebago county is affirmed.

Judgment affirmed.


author: Mr. Justice Jett

text:
    Madeline Sheehan, Appellee, v. Chicago North Shore & Milwaukee Railroad Company, Appellant.
    Gen. No. 8,405.
    Opinion filed February 23, 1933.

      Addison L. Gardner and Hall & Hulse, for appellant; John H. MoQuaid, of counsel.
    Runyard & Behanna, for appellee; George S. Mc-Gaughey, of counsel.
   Mr. Justice Jett

delivered the opinion, of the court.

This is an appeal from a judgment of the circuit court of Lake county in favor of Madeline Sheehan, appellee, hereinafter called the plaintiff, and against Chicago North Shore & Milwaukee Railroad Company, appellant, hereinafter called the defendant. The suit was brought to recover damages to the automobile of the plaintiff as a result of a collision between the automobile driven by the agent of the plaintiff in an east7 erly direction on 16th street, North Chicago, and a train of the defendant operated in a southerly direction on its own right of way.

The declaration consists of three counts. In the first it is averred that on the 9th day of January, 1930, plaintiff was the owner of an automobile of the value of $1,000; that on said day the automobile was driven by the plaintiff’s agent Arthur Johannesen, Jr., in an easterly direction on 16th street in the City of North Chicago, Lake county, Illinois; that at said time and place defendant so carelessly, negligently and improperly drove, operated, managed and controlled its train as to cause the automobile to collide therewith; that plaintiff and her agent were then and there in the exercise of due care and caution, and that by reason of the negligence of the defendant the automobile was totally destroyed to the damage of the plaintiff in the sum of $1,000. In the second count it is averred that the defendant negligently failed to maintain its automatic signal in proper order and failed to sound a warning of the approach of the train by whistle or otherwise, by reason of which negligence and without fault of the plaintiff or her agent the collision occurred. The third count having been eliminated, it was averred in the fourth that the defendant operated its train at an unlawful rate of speed, to wit, 60 miles an hour, and as a result of which, and without fault on the part of the plaintiff or her agent, the collision occurred.

To the declaration the defendant pleaded the general issue. A jury trial was had resulting in a finding in favor of the plaintiff and against the defendant, assessing the damages of the plaintiff at $585. Motions for a new trial and in arrest of judgment were made, argued and denied and judgment was rendered upon the verdict. It is from this judgment that the appellant prosecutes this appeal.

A number of reasons are assigned by the appellant for a reversal of the judgment. The record discloses that the plaintiff was the owner of the automobile in question; that on January 9, 1930, she directed Arthur Johannesen, Jr., to take the automobile to North Chicago for the purpose of having some adjustments made; that Johannesen drove the automobile in an easterly direction on 16th. street towards the tracks of the defendant; that he was 16 years of age the November preceding the date of the accident; that he had driven often to North Chicago and was familiar with the location of the crossing in question; that he was approaching it and while he did not know the defendant’s schedule he knew that it operated frequent train service; that he knew before reaching the crossing that the road was slippery and treacherous under wheels; that his car was equipped with four-wheel brakes in good operating condition, and that there were chains on the tires; that the automobile struck the rear trucks of the third car of the train and that the collision occurred about the hour of 1:07 p. m.

It is insisted by the defendant that the driver of plaintiff’s car was guilty of contributory negligence and therefore the court erred in permitting the case to go to the jury, and in refusing to direct a verdict. By the plaintiff it is contended that all of the questions raised were ones of fact and that it was a question for the jury to determine whether or not the plaintiff was in the exercise of due care and caution, and whether or not the defendant was guilty of the negligence alleged in the declaration.

Even though the defendant may have been guilty of negligence, if the driver of the car was likewise guilty of negligence and by reason thereof he contributed to the injury and damages complained of, there could be no recovery. The collision occurred around the hour of one o’clock in the afternoon. The driver of the car was familiar -with and knew the location of the crossing. He testified that he went to North Chicago quite often and knew at the time that he was approaching a railroad crossing; that the North Shore railroad had fairly frequent service over this crossing but that he did not know what time the trains were due; that he did not know the North Shore schedule; that it was snowing and blowing but that he could see a little way; that the windshield was clotted with snow except where the windshield wiper kept it open; that he could see a little out through the other part; that he had a single wiper; that the side windows were not clotted with snow; that the left window was down a little over halfway, and the right window was down about three or four inches; that the ground was slippery and' that there were snow drifts along; that on using the brakes before he got to the crossing he found as to stopping-conditions that it was kind of slippery; that he knew it was rather treacherous under wheels and slippery, and knew he was approaching a railroad crossing; that on account of the snow he could see a little bit ahead; that he could not say the exact distance, just about 100 feet; that when he was down near the church west of the railroad tracks he looked for the wigwag; ‘that he could see the wigwag but could not see it going; that he was then traveling at a rate of speed of about 20 to 25 miles an hour; that he slowed down a little but how much he could not recall; that he was just about halfway between the church and the crossing when he slowed down. The' testimony shows that the church is on the corner of the street next west of the railroad tracks. The testimony is not clear as to just the exact rate of speed he was traveling when he approached the crossing. He was traveling at a speed of about 20 to 25 miles an hour when he was halfway between the church and the crossing. From his testimony he was traveling at a rate of speed of about 20 to 25 miles per hour when he was half a block from the crossing. The evidence is quite clear, however, that at the time in question it was snowing and that the wind was blowing quite strongly; that the driver of the car was familiar with the crossing and was possessed of the information to the effect that trains ran regularly over it. From what is disclosed by the record and in view of the rule can it be said that the driver of the car was in the exercise of due care and caution for the safety of himself and the automobile driven by him? The rule has frequently been announced that a railroad crossing is a place of known danger and ordinary care requires one approaching it to make diligent use of his senses of sight and hearing, retain proper control of his vehicle and exercise care and caution commensurate with the danger to be anticipated.

It will be remembered that this is a case in which the car driven by the agent of the plaintiff struck the car of the defendant at the crossing. Burns v. Chicago & Alton R. Co., 223 Ill. App. 439, and 229 Ill. App. 170, was a crossing case, and having been before the court on two different occasions, was reversed in each instance because the driver of the car at the crossing-in question at the time of the collision was not in the exercise of due care and caution for her own safety. Each time that this case was before the court numerous authorities were cited bearing upon the question of the duty of one approaching a crossing under such circumstances as was done by the agent of the plaintiff.

In Chicago & N. W. Ry. Co. v. Hatch, 79 Ill. 137, 139, the court approved an instruction as follows: “Every person is bound to know that a railroad crossing is a dangerous place and he is guilty of negligence unless he approaches it as if it were dangerous. . . .”

In Chicago & Alton R. Co. v. Gretzner, 46 Ill. 74, 82, it was stated: “What is the testimony on the part of plaintiff’s negligence? . . . He knew, as all men are hound to know, such a crossing is a dangerous place- and he should have approached it as such. This court has said it is the duty of persons about to cross a railroad, to look about them and see if there is danger, not to go recklessly upon the road, hut to take proper precautions themselves to avoid accident at such places.”

In Burns v. Chicago & Alton R. Co., 223 Ill. App. 439, at page 442, the court used the following language: “It is a generally recognized fact that railroad crossings are dangerous places, and it is the settled law in this State that one who approaches a railroad crossing must approach it using an amount of care commensurate with the known danger.”

In Sunnes v. Illinois Cent. R. Co., 201 Ill. App. 378, the court held that the fact that the plaintiff knew_ that the view of the track was partly obstructed by a hedge along the highway required care on his part in proportion to the known danger.

In Toledo, W. & W. Ry. Co. v. Jones, 76 Ill. 311, it was said: “There is nothing which can release a person from the duty of exercising due care and caution at a railroad crossing. It is not always the case that trains are on time as is well known, hence the pressing necessity of using vigilance, care and caution at all times. ’ ’

In conclusion, we have a case in which the agent of the plaintiff was familiar with the crossing and knew that he was approaching it. He knew that the defendant operated its trains frequently. Obviously he was familiar with the weather conditions and he knew from previous recent experience on the occasion in question that it was unusually slippery under wheel and difficult to stop his automobile. It would seem that to avoid the known and obvious danger ever present at railroad crossings, the minimum requirement imposed upon the traveler is to make diligent use of his senses and to maintain a degree of control over his vehicle commensurate with the existing weather and travel conditions, and the authorities universally impose such a duty upon persons about to cross a railroad track. These conditions the plaintiff’s agent did not meet. On his own admission, he looked once ‘•while half a block away from the crossing. He looked again at the time the train was practically upon the crossing and it was too late for him to do anything to avoid the collision. Ordinary care requires that one in approaching a railroad crossing must not only look and listen but he must avail himself of every opportunity to do so, to see and hear, and he must see and hear that which the circumstances show was visible and audible to a person in the exercise of ordinary care.

We conclude, therefore, that in view of the state of the record in this case, the evidence shows that the driver of the car in question was not in the exercise of ordinary care and caution as averred in the declaration. In view of the conclusion we have reached, it is unnecessary to discuss or consider any other questions raised on the record in this cause.

The judgment of the circuit court of Lake county is reversed and the cause remanded.

Reversed and remanded.