author: Mr. Presiding Justice Stone

text:
    Christine Boyd, Appellant, v. Aetna Life Insurance Company, Appellee.

      Opinion filed May 31, 1941.
    Pyle & McCallister, of Carmi, for appellant.
    Roy C. Martin, of Benton, for appellee.
   Mr. Presiding Justice Stone

delivered the opinion of the court.

This suit grows out of the cancellation and surrender of a life insurance policy issued by the Aetna Life Insurance Company, appellee (hereinafter designated as defendant) on the life of one Jimmie Boyd, who, at the time the policy was issued, was the husband of Christine Boyd, appellant (hereinafter designated as plaintiff). The policy insured against permanent total disability at the rate of $50 per month during the life of the insured, beginning six months after the beginning of such permanent total disability, together with abatement of premiums and $5,000 to be paid in the event of death, with no deduction from the face of the policy on account of payments made under the total disability clause. Plaintiff was designated as beneficiary, both for the total disability benefits and the death benefit.

After the policy had been in force for a number of years, plaintiff and her husband separated. Plaintiff continued to live in Carmi, Illinois, but her husband left there and traveled as advance agent for shows that were traveling about the country, so that it was impossible for plaintiff to keep informed as to his whereabouts or his state of health.

Following their separation plaintiff paid the premiums on the insurance policy, up until about the month of August 1938, when, owing to her financial circumstances, she felt that she could no longer afford to pay the premiums and notified the insurance company that she desired to surrender the policy and receive its cash surrender value. A loan had previously been made on this policy, which, with accrued interest., amounted to the sum of $1,039, so that when plaintiff surrendered the policy she received but $4.19 in money, that being the balance of the cash surrender value above the loan and interest.

Shortly after the policy had been surrendered and canceled, plaintiff learned the insured had been permanently and totally disabled more than six months before the surrender of said policy. Neither plaintiff nor defendant knew of the physical condition of the insured at the time the policy was surrendered. Upon learning of the permanent total disability of the insured, plaintiff requested the reinstatement of the insurance policy she had surrendered, and the payment of the disability benefits provided therein. After-wards, on April 8,1939, the insured, Jimmie Boyd died and plaintiff then requested of defendant the payment of the death benefit, in addition to the disability benefits, claimed to have previously accrued. This was not paid, whereupon suit was instituted.

The amended complaint filed by plaintiff, set forth in substance the above facts, and prayed that defendant be required to produce the surrendered policy in court; that an accounting be had, and that defendant be required to pay plaintiff whatever sum might be found to be due her upon such accounting. Defendant filed a motion to dismiss the amended complaint which was allowed by the court. Plaintiff elected to stand upon her amended complaint, whereupon the court dismissed said cause for want of equity and rendered judgment against plaintiff for costs, from'which action of the court, plaintiff prosecutes her appeal to this court.

Plaintiff alleges as error the action of the court in dismissing the case for want of equity, upon motion of defendant, and'it is argued in her behalf that equity has jurisdiction to relieve against the consequences of a mutual mistake of fact and the cancellation or rescission of the insurance policy in question was made under such mutual mistake of fact.

It is defendant’s earnest contention that at the time plaintiff decided to surrender the policy and asked for the cash surrender value, she knew that she did not know the condition of health of her husband, the insured. It is stressed that there was no unconscious ignorance on the part of plaintiff as to the health of insured, so it is claimed that the allegations of the amended complaint failed to show any mistake of fact in the legal sense upon her part; that notwithstanding her conscious want of ignorance of the condition of health of her husband she had elected to surrender the policy in question and take the cash surrender value thereof, in lieu of paying any further premiums on the policy and by such action waived any rights she had under the policy of insurance.

There has been cited, and we have found no case in Illinois, directly in point. The case's of Hoops v. Fitzgerald, 204 Ill. 325, and Moore v. Shook, 276 Ill. 47, cited by counsel for plaintiff, come nearest perhaps, but in the final analysis they merely enunciate the fundamental principle, that a case of a mutual mistake of fact as to a material matter affecting the substance of a transaction affords grounds for an application by either party for a rescission. Other Illinois cases support the jurisdiction of equity to relieve against the consequences of a mistake of fact. Nelson v. Pederson, 305 Ill. 606, 610; Bivins v. Kerr, 268 Ill. 164; Munnis v. Northern Hotel Co., 237 Ill. App. 50; Morgan v. Owens, 228 Ill. 598; Winkelman v. Erwin, 333 Ill. 636; Purvines v. Harrison, 151 Ill. 219.

Counsel for defendant seem to particularly stress the case of Kowalhe v. Milwaukee Electric Railway & Light Co., 103 Wis. 472, 79 N. W. 762, 763. But the distinction between that case and the instant case, we believe is quite apparent. In that case, plaintiff having been injured in a street car accident, there was a question as to her being pregnant, and release was executed by her upon the theory that she was not pregnant. Thereafter she had a miscarriage, which was claimed to be the result of the accident complained of. She then brought suit against the company, which, of course, sounded in tort. It was her theory that there was a mutual mistake in the effecting of the compromise. The trial court gave her judgment, disregarding the agreement of settlement.

In reversing the judgment of the trial court and holding that the compromise entered into was binding upon the plaintiff, the Supreme Court of Wisconsin held that the question of her pregnancy was a collateral one, one merely calculated to enhance the damages. There the court said, “In a case of doubt like this, if the doubtful fact is material, parties may compromise and include the uncertainty among those covered by the settlement; they may refuse to settle until the uncertainty is removed, or they may settle everything else and expressly omit therefrom the specified contingency.”

In the instant case, the question of the state of health of insured was not a collateral matter, nor a- matter calculated to merely enhance the damages. It was not a compromise, comparable to the case of parties entering into a contract based upon uncertain or contingent events, purposely as a compromise of some doubtful claim arising from them, in which case, in the absence of bad faith, no rescission can be had, though the facts turn out differently from the expectation of both parties. In such agreements the parties are presumed to calculate the chances and to assume the risks. Such was the underlying principle of the Kowalke case, and so may be differentiated from the instant case.

The Wisconsin case is further distinguished from the instant case by reason of the fact that in the former case, the plaintiff had merely an action based upon tort, the amount of damages that she might recover being uncertain, at the time when she entered into the compromise settlement. In the case at bar, upon the happening of certain contingencies, the plaintiff was entitled to a definite amount of money, under the terms of the contract of insurance. We find no true basis for comparison between the two cases.

We believe that the case of Duncan v. New York Mut. Ins. Co., 138 N. Y. 88, 33 N. E. 730, 20 L. R. A. 386 is very much in point. In that case defendant issued a policy of insurance for $5,000 upon a vessel for one year from August 8, 1888. The policy contained a provision that defendant would “return pro rata premium for every thirty days of unexpired term if the policy be cancelled upon arrival. ” On N*ovember 22, the vessel sailed on a voyage, the ordinary length of which was seven days. At the request of plaintiff, then agent of the owner of the vessel, the policy was canceled at and from December third, and the unearned premium, $233.33, returned. At that time neither party had heard from the vessel since it sailed. Plaintiff supposed it had arrived. The vessel never reached her port of destination, but was lost prior to December third. There, the court held that the cancellation looked to the future, not the past, and if binding, it did not absolve defendant from liability already incurred; that as at the time of the cancellation an absolute obligation existed to pay the amount of the policy, it was not discharged by the cancellation and payment made; also that as the cancellation was made under a mistake of fact, it could be rescinded if necessary. The court said, “The cancellation of the policy looked to the future and not to the past. It was the pro rata unearned premium which was returned. The parties did not bargain for the entire destruction of the policy, as the defendant kept the premium for the first four months. That was its indemnity for the risk it took during that time, and the policy was canceled only for the remaining eight months. The cancellation was not intended to reach back and absolve the defendant from any liability which it had already incurred. If, therefore, we assume, as claimed by the defendant, that the cancellation was valid and binding upon both parties, we do not think that it exempted the defendant from liability for the loss which occurred during the four months when the policy was in force: . . . The fact that the discharge was given by mistake cannot give it greater effect, or place the defendant in a better position than it would occupy if the discharge had been properly given with knowledge of all the facts. The plaintiff could have recovered the balance of $5,000 upon either of these two grounds in an action at law, without setting aside the cancellation written upon the policy. . . . So it is entirely clear that the cancellation was made under a mistake of fact. It was at least made under a mistake of fact by the plaintiff, and, therefore, upon the return of the money paid to him he was entitled, under familiar principles of law, to have the cancellation rescinded. ’ ’

The case of Riegel v. American Life Ins. Co., 153 Pa. 134, 19 L. R. A. 166 is another case that seems to be very much in point. In that case a creditor who held a policy for $6,000, on the life of her debtor, whose whereabouts was unknown, finding it difficult to pay the premium, made an arrangement with the insurance company, under which the policy was surrendered. At the time of the transaction both parties acted on the supposition, that the assured was alive, but as a matter of fact, he had been dead for ten days. The court held that the contract was not in the nature of a compromise of a doubtful claim, but an agreement made under the influence of a mutual mistake of fact and that plaintiff was entitled to have the original policy reinstated as of the date of its surrender. The court there said: “The case presented on these facts was that of a contract entered into under the influence of a mutual mistake. . . . The mistake was in relation to the fact of Leisenring’s, (the insured) death. Both parties evidently supposed and acted on the supposition that he was alive, and that the annual premiums upon his policy which had become burdensome to Mrs. Riegel must be continued indefinitely, until his death should take place. . '. . This was a contract made while in ignorance of Leisenring’s death. . . . At the time she made it she was already relieved from the burdensome premiums, and the entire amount was honestly due her from the Company. These facts seem to us to present a clear and strong case of equitable relief. So strong, indeed, that a mere statement of them is the only argument necessary for its support. The duty of a chancellor to relieve in cases of mutual mistake is so well settled that no citation of authorities can be needed. ’ ’

The decisive and practically sole question for the consideration of this court, is whether the facts alleged in the amended complaint, set forth a sufficient mistake of fact, in the legal acceptation of the term, as to justify the intervention of a court of equity, and relieve against the consequences of that alleged mistake of fact, in the entering into the contract of rescission.

Mistake of fact has been defined to be a mistake, not caused by the neglect of a legal duty on the part of the person making the mistake, and consisting in an unconscious ignorance or forgetfulness of a fact past or present material to the contract, or belief in the present existence of a thing material to the contract which does not exist, or in the past existence of a thing which has not existed. Purvines v. Harrison, 151 Ill. 219, 224. 2 Pomeroy’s Equity Jur., Sec. 839. It has also been defined as that which gives rise to a right of recovery, existing either when some fact which really exists is unknown or when some fact is supposed to exist, which really does not exist. In re Welton’s Estate, 141 Misc. 674, 253 N. Y. S. 128, 144.

It is fundamental, that for the purposes of this case, the material averments of fact contained in the amended complaint must be taken as true, the motion filed against it, being in the nature of a demurrer. The allegation of the amended complaint is that, “plaintiff . . . presumed said Jimmie Boyd to still be. in good health,” and subsequently, it is alleged that “both plaintiff and defendant were ignorant of the true physical condition of the said Jimmie Boyd.” It would be wholly unreasonable and unwarranted to hold that the parties treated upon the basis that the fact which was the subject of their agreement was doubtful or that the contract of rescission was made in view of doubtful facts. It is not contended that plaintiff had any claim at the time of cancellation or supposed that she had one. There was in no sense a compromise. As a matter of fact, at the time of cancellation plaintiff had a perfectly valid claim, but she and the company were both at that time, according to the allegations of the amended complaint, ignorant of the fact that there was a claim in .existence, due to the total permanent disability of insured. The supposed element of doubt as to the health of Boyd never entered into the contemplation of either party, nor did it form any part of the consideration for the cancellation and surrender of the policy. It would be quite natural that they would assume as they evidently did, that the insured was in good health. As matter of fact such is the express allegation of the amended complaint.

In the Kowalke case, supra, the court at page 477 of the opinion said," “Passing the requirement that the fact as to which mistake is made must be either past or present, — for it is obvious that the coming into existence of any future fact must at the time of contracting have been understood to rest in conjecture, and the contingency thereof to have been assumed by both parties, — another essential element of the definition is that the fact involved in the mistake must have been as to a material part of the contract, or, as better expressed by Mr. Beach (Mod. Eq. Jur. §§ 52, 53), an intrinsic fact; that is, not, merely material in the sense that it might have had weight if known, but that its existence or nonexistence was intrinsic to the transaction, — one of the things actually contracted about. ’ ’

In the instant case, the insured’s state of health was not merely incidental, nor was it a matter that would merely enhance the amount of damages. The subject matter of the mistake was intrinsic to the transaction. As set forth in plaintiff’s amended complaint, “if she had known the true facts as to said Jimmie Boyd’s total permanent disability . . . she would not have surrendered same (the policy) to the defendant.” This policy was in full force and effect at the time of total permanent disability. Upon that contingency coming to pass the liability of defendant was fixed. The cancellation was not intended to reach back and absolve defendant from any liability which it had already incurred. Even as in the Duncan case the parties believed the vessel insured was still in existence; and as in the Riegel case, the parties believed the insured alive, in the instant case both parties believed Jimmie Boyd in good health, and contracted with reference to that supposed state of facts. We are of the opinion, therefore, that the facts alleged show ground for equitable relief, and that the court erred in dismissing the amended complaint for want of equity.

The order and judgment of the circuit court will be reversed and the cause remanded with directions to overrule the motion to dismiss, and for further proceedings in accordance with the views herein expressed.

Reversed and remanded with directions.


source: Caselaw Access Project

license: Public Domain

text:
    S. K. Flanagan et al., Appellants, v. W. W. Wilson et al., Trustees, Appellees.

      Opinion filed May 31, 1941.
    Smith & Murray and William C. Stephens, both of Centralia, for appellants.
    Curtis Williams and Alvin Lacy Williams, both of Mount Vernon, for appellees.
   Mr. Presiding Justice Stone

delivered the opinion of the court.

This is a suit in chancery filed by S. K. Flanagan, and the heirs of Anna Klampt Flanagan, deceased, who are the appellants in this court, against the Trustees of Schools of Township Two South, Range one, East of the Third P. M. Jefferson County, who are the appellees here, to cancel a deed made by Conrad Schul, special master in chancery, to the defendant trustees as a cloud on plaintiffs’ title. Motion to dismiss the original complaint, on the grounds that it failed to allege that plaintiffs were prepared to do equity themselves was allowed, with leave to plaintiffs to amend.

An amended complaint subsequently filed alleges .that S. K. Flanagan and Anna Klampt Flanagan, his wife, were the owners as cotenants of the property involved which was 80 acres of farm land; that the said Anna Klampt Flanagan died prior to the year 1920; and on April 23, 1920, the husband and all the heirs of the said Anna Klampt Flanagan executed a mortgage covering said premises to the said trustees. The amended complaint further alleges that on December 24, 1930, the said trustees filed their complaint to foreclose the mortgage, and on July 16, 1931, a decree of foreclosure was entered whereby it was ordered that defendants pay the sum of $1,483.25 within 10 days from the date of the entry of the decree, and that in default of such payment, the mortgaged premises be sold at public sale by Conrad Schul, special master in chancery; that, pursuant to the decree the mortgaged premises were sold on August 24, 1931 to the said trustees for a sum sufficient to pay the amount due under the mortgage and costs of the foreclosure proceeding; that on November 26, 1932, the special master in chancery executed a master’s deed of the mortgaged premises to the said trustees; that said sale and deed were void, of no effect and conveyed no title because the proceedings were not in conformity with the statute. The amended complaint further alleges a willingness to pay to the defendants such amounts as the court might determine to be due and owing under the terms of the mortgage and to do equity in whatever manner the court should order. The prayer of the said amended complaint was that the proceedings at the master’s sale held August 24, 1931 be set aside in so far as they attempted to convey the legal or equitable title and that the master’s deed be canceled as a cloud on plaintiffs’ title.

At the trial, oral testimony was introduced by plaintiffs to establish their relationship to the original mortgagors and their ownership of the property. The facts concerning the execution and foreclosure of the mortgage together with the contents of the decree, were stipulated. No evidence was introduced by defendants except the stipulation.

The circuit court found that the plaintiffs were entitled to redeem the premises by paying the amount due under the terms of the mortgage, with interest thereon at five per cent from July 16, 1931, the date of the decree. The court further found that the foreclosure decree was void in so far as it purported to order a sale prior to 15 months from the date of the decree; that the sale was void, and that the master’s deed made pursuant to said sale was void in so far as said sale and deed attempted to bar the plaintiffs of their equity of redemption, but that unless plaintiffs should pay to defendants the redemption price (fixed at $1,368.25, with five per cent interest from July 16, 1931) within 90 days from the date of the entry of the decree all their right, title and interest in the premises should be forever barred.

The principal error relied upon for reversal by plaintiffs is that the lower court erred in finding that the plaintiffs must pay $1,368.25, as still due and owing-under the terms of the mortgage to redeem the premises, for the reason that the question of redemption was not before the court, and said mortgage and mortgage lien were discharged by the sale for an amount sufficient to pay the mortgage with interest and the costs of foreclosure and sale.

There seems to be no dispute about the proposition that the sale and deed were void. The law relating to the foreclosure of mortgages at the time of the execution of the Flanagan mortgage had been enacted June 11, 1917 and provided an entirely different procedure from that prescribed by the law before 1917, or since 1921; in the foreclosure of any mortgage which was governed by the Act of 1917, the act provided for the delivery to the foreclosing- creditor, after a decree of sale of a certificate to be issued by the party ordered to make the sale, and that no sale of the mortgaged premises should be made until 15 months after the date of the issuance of the certificate. When the Act of 1917 was repealed, a saving clause was inserted in the repealing act which provided that the Act of 1917 should apply to all mortgages executed between July 1, 1917 and July 1, 1921.

The theory upon which plaintiffs tried the case in the trial court is best exemplified by the allegation in their amended complaint, that “they are ready now and at any time to pay to the defendants, Trustees of Schools, such amounts as this Court may find to be due and owing to said defendants under the terms of the mortgage and stand ready to do equity to the said defendants in whatever manner this Court shall order and decree.”

It is a well-settled rule of law that a person cannot try a case on one theory in the trial court and on another theory in a court of review. Lewy v. Standard Plunger Elevator Co., 296 Ill. 295; Butler v. Miller, 208 Id. 231; Davis v. Illinois Collieries Co., 232 Id. 284; Winnard v. Clinton, 233 Id. 320; Chicago Title & Trust Co. v. DeLasaux, 336 Id. 522. Plaintiffs cannot make such an offer and try the case upon the theory that they stand ready to pay such amounts as the court might find due, and then argue in this court that there is nothing due and owing under the terms of the mortgage and that the premises are entirely free from the lien of the mortgage.

We believe it would have been clearly inequitable for the trial court to have granted the relief sought, and permitted the heirs to retain the land in question, without payment of a just debt against it. The general rule applicable herein is most clearly stated in 19 Ruling Case Law, page 632, section 450, “If a sale of the mortgaged premises under a power contained in a mortgage or deed of trust turns out to be defective, irregular, or invalid for any reason, and hence voidable at the election of the mortgagor, who has a right to redeem, a deed from the mortgagee or trustee to the purchaser clothes him merely with0the mortgagee’s lien on the land. He assumes the position of assignee of the mortgage. While a trustee under a deed of trust or mortgage containing a power of sale may divest himself of the legal title without compliance with the conditions of the trust, a sale and deed, except in strict compliance with the conditions, are of no effect whatever, so far as the trustor’s equitable estate is concerned, and if the trustee, in disobedience of the trust conditions, by deed transfers the legal title, his grantee takes only the trustee’s interest. The irregular sale, though voidable, does not operate as a discharge of the debt and mortgage, but confers on the purchaser an equitable right to the security of the mortgage for the amount of the mortgage debt. . . .”

There is adequate authority in this State supporting the above stated rule of law. In Bruschke v. Wright, 166 Ill. 183, a master had made a sale of certain mortgaged property. The sale was illegal, as the land was sold for terms other than cash. The master had no right to make a sale except for cash. At the sale the property was purchased by one Gehr for Cameron. $4,918.43 was paid in cash. Cameron had agreed to pay $10,000 for the property. Gehr assigned the certificate of purchase to Wright who purchased it as an investment. The balance of the $10,000 was to be paid at the end of the redemption period in the event that the property was not redeemed. When the redemption period came to an end neither Gehr nor Cameron was able to pay the balance. It was held that there should be a resale of the property, but no provision was made whereby any part of the amount paid by Gehr or Wright could be realized. The court held that Wright should be paid upon the resale of the property the amount he had given for the certificate, plus interest. In their opinion the court at page 194 said, “The plaintiffs in error come into a court of equity and invoke the aid of that court to set aside a master’s sale? which, as they claim, has realized to them less than they are entitled to receive; and, before they can secure such aid, they must offer to do what is equitable in the premises. To refuse to refund the amount paid at the sale, which was used for the purpose of discharging a mortgage upon their property and relieving it from the lien of such mortgage, or to make any provision in the decree of sale for the payment of the amount so advanced by the purchaser out of the proceeds of said sale, would be inequitable. ’ ’

Other questions are argued by counsel for plaintiffs but they are more or less the same phase of and collaterally related to the question of the error number two, as set forth in plaintiffs’ brief. We find no reversible error. The judgment of the circuit court will be affirmed'.

Affirmed.


text:
    Jesse W. Mitchell, Appellee, v. Louisville and Nashville Railroad Company, Appellant.

      Opinion filed May 31, 1941.
    Farmer, EZlingel & Baltz, of Belleville, for appellant.
    Jos. B. McG-lynn, of East St. Louis, for appellee; John J. Hoban, of counsel.
   Mr. Presiding Justice Stone

delivered the opinion of the court.

Appellee (hereinafter designated as plaintiff), a resident of Covington, Kentucky, while employed as a switchman by appellant (hereinafter designated as defendant), in the Decoursey Yards, near Covington, Kentucky, was injured on the third day of July 1938 by the alleged negligence of defendant, in being knocked from the top of a ladder on the side of a freight car that he was then engaged in switching, thrown to the ground and injured. He brought suit in the city court of East St. Louis in St. Clair county, under the provision of the Federal Employers’ Liability Act, conferring concurrent jurisdiction upon State and Federal courts and allowing the plaintiff to lay the venue of such action in the district where the defendant shall be doing business at the time of the commencement of the action.

There was a verdict for $32,400; judgment for that amount in the trial court from which judgment defendant prosecuted an appeal to this court. In Mitchell v. Louisville & N. R. Co., 305 Ill. App. 635, the judgment of the lower court was reversed. Appeal was taken by plaintiff to the Supreme Court, and by the Supreme Court reversed and remanded to this court, with directions to consider the weight of the evidence and to consider any other errors relied upon for a reversal and comes- now before this court for reconsideration. The suit was tried in the trial court upon an amended complaint, which charged that plaintiff was injured by the alleged negligence of the defendant company, while it was engaged in interstate commerce and the answer of the defendant thereto, denying that the plaintiff and defendant were engaged in interstate commerce at the time of plaintiff’s injury.

The accident occurred around 2:50 on the morning of July 3, 1938 in the Decoursey Yards of the defendant, near Covington, Kentucky. These yards were known as classification yards, where freight trains were broken up and classified preparatory to being made up into other trains. The general direction of the yards is from north to south. The yards are made up of a number of yards designated as yard “A” “B” “D” or 26 and others. Between yards “A” and “B” are what are called the main hump track and lower hump track, which are in the main parallel, but of inequal distances apart. In yard “B,” starting from the west side, the switch tracks are numbered from one to twelve; number twelve being an extension of the main hump track and being also known as the lead track. These hump tracks are gravity tracks to which cars are hauled from yard “A” by an engine; the cars are run into various tracks in yard “B” by force of gravity, south of the crest of the hump.

The crews working in this yard are called hump crews, and consist of an engineer, fireman, switch tenders, car riders and an employee who follows the engine and directs the movements of cars being placed on the various tracks. The movement of the cut of cars involved here was directed by the plaintiff, who was the 6 ‘ follower of the engine ’ ’ of this crew. It was his duty to signal the engineer and the duty of the engineer to obey such signals. Early on the morning in question one car had been picked up by the engine on track number one, and seven or eight cars on tracks six or seven. There seems to be no controversy that as they came to the lower southbound hump, plaintiff gave a stop signal and the engineer stopped. This signal was given by lantern. The plaintiff then gave a come-ahead signal, which seems to have been for the purpose of taking up the slack that had run out in the train; a stop signal was then given by the plaintiff in order to effect the cut of the seven or eight cars, taken from tracks six or seven. The plaintiff then testified that he gave the engineer a back-up signal, and that the engineer instead, moved the engine forward, causing the cars to run away. Plaintiff then ran after the cut of cars alleged to be runaways, boarded one of them and started climbing the ladder on the side of the car and had about reached the top of the car, when the cut of cars on which he was riding, collided with another cut of cars standing stationary on the south end i of the tracks. Plaintiff was thrown over against the crossover rail, and sustained a compression fracture of the first lumbar vertebra.

It is alleged as error that the trial court erred in overruling defendant’s challenge to the array of jurors. A careful examination of the record fails to disclose any reversible error in that regard. Mere irregularities in failing to comply strictly with statutory provisions if not prejudicial will not invalidate the list of jurors. A verdict will not be set aside because a challenge to the array is overruled unless the record shows that the substantial rights of the defendant were thereby impaired. People v. Colegrove, 342 Ill. 430, l. c. 436; People v. Coffman, 338 Ill. 367. l. c. 371; Hartshorn v. Illinois Valley Ry. Co., 216 Ill. 392, 1. c. 405; Healy v. People, 177 Ill. 306; Torpedo Top Co. v. Royal Ins. Co., 162 Ill. App. 338.

Defendant contends that there is no liability on its part, because of the doctrine of assumed risk, and contributory negligence on the part of the plaintiff, arguing that he was in a place of safety and voluntarily and unnecessarily went to a place of peril. Plaintiff earnestly contends that the doctrine of imminent peril applies; that he was trying to protect fellow employees alleged to have been down on 26 and the company’s property from injury, and counsel say that if that theory does not apply, then plaintiff has no cause of action. The question of contributory negligence on the part of the plaintiff is a question of fact for the jury. Devine v. Pfaelzer, 277 Ill. 255, aff’g 195 Ill. App. 221; Leiter v. Kinnare, 68 Ill. App. 558; Pienta v. Chicago City R. Co., 284 Ill. 246; Illinois Cent. R. Co. v. Anderson, 184 Ill. 294.

The question of assumption of risk by the employee is also a question of fact for the jury. Chicago Screw Co. v. Weiss, 203 Ill. 536; Shoukair v. Sargent Co., 235 Ill. 509; Chicago L. S. & E. R. Co. v. Cukravony, 132 Ill. App. 367; Davenport v. Ziegler District Collieries Co., 179 Ill. App. 552. So, also, is the question of whether plaintiff’s conduct, in time of alleged imminent peril constituted contributory negligence. Galena & C. U. R. Co. V. Yarwood, 17 Ill. 509; Chicago & A. R. Co. v. O’Leary, 126 Ill. App. 311; Chicago Terminal Transfer R. Co. v. Kotoski, 101 Ill. App. 300, aff’d 199 Ill. 383.

It is argued by the defendant, that the evidence was insufficient to sustain plaintiff’s contention that he was engaged in interstate commerce at the time he was injured, and that the court erred in denying defendant’s motion for directed verdict at the close of the testimony in behalf of plaintiff and again at the close of all of the testimony in the case.

An employee of a railroad company, at the time of an injury sustained by him, is engaged in interstate commerce, within the meaning of the Federal Employers’ Liability Act, under which the instant suit was brought, if he is engaged in interstate transportation or in some work so closely related to it, as to be practically a part of it. Shanks v. Delaware, L. & W. R. Co., 239 U. S. 556. If cars used in switching have been assigned to interstate commerce, or if the purpose of the switching is to facilitate the movement of interstate cars, the switchman is engaged in interstate commerce. Kiefer v. Elgin, J. & E. Ry. Co., 351 Ill. 634; Louisville & N. R. Co. v. Parker, 242 U. S. 13; Southern Ry. Co. v. Puckett, supra.

It is sufficient to bring the activity within the Federal Act, if one or more of the cars being moved has been designated for interstate shipment, irrespective of whether a specific train is being prepared at the time. Chicago, R. I. & P. Ry. Co. v. Benson, 352 Ill. 195; Levine v. Chicago, R. I. & P. Ry. Co., 266 Id. 248; Louisville & N. Ry. Co. v. Parker, supra; Grand Trunk & Western R. Co. v. Boylen, 81 F. (2d) 91.

The admission of certain evidence, which would be determinative of whether plaintiff was engaged in interstate commerce at the time of the accident, is alleged as error. Before the cause came on for hearing, plaintiff demanded the production of certain records and documents which would show the cars involved in the movement in the yard, and with which plaintiff was at work, at the time of the injury. Defendant answered that time would be required to investigate its records which were kept at Louisville and Covington, Kentucky, in order to obtain the information needed. An order was entered by the court requiring the production of these records. Upon the trial, it appearing that said records were not produced, and counsel for the defendant stating that there were no records showing movements of the cars in question, plaintiff testified that shortly before the accident, the crew foreman had directed him to obtain a car of “perishables” from track 1, in yard “A” or “B” and seven cars from yard “B”; that plaintiff distinguished the first car, which was sealed, from others on track 1 by a yellow card on its side, bearing the word “perishables” in red letters, and written in pencil, “Memphis Line, from Cincinnati, ’ ’ and was destined to or beyond Memphis, Tennessee. Objection was made to the competency of this testimony and to its admissibility, as being secondary evidence, in the absence of prior notice to produce a card attached to the side of the car. The record does not disclose the destination of the seven cars described as “west-enders,” which were cars regularly destined for connecting lines and points north of the yards, the majority going to Cincinnati. The foreman of plaintiff’s crew did not testify, and no evidence of the existence, meaning or authenticity of cards on, or of the contents, origin or destination of any cars in the yards, including those moved by plaintiff’s crew, was offered by defendant.

Defendant contends that it was error to permit plaintiff to testify with reference to the foreman’s order to him to obtain a car of perishables from track 1, and describe the card on the side of the car moved from track 1, on the ground that this testimony was hearsay and incompetent. The foreman’s description of the car, as containing perishables, unlike statements found objectionable in cases cited by defendant, was necessary to plaintiff’s selection of the intended car, and consequently to the performance of his work. Similarly, since the cars are classified and switched in the yards according to directions found on their attached cards and other markings, plaintiff’s testimony is admissible concerning the presence and meaning of the card on the car in question. Kiefer v. Elgin, J. & E. Ry. Co., supra; Mitchell v. Louisville & N. R. Co., 375 Ill. 545. Markings on cars are of the same nature as way-bills, and a witness, without producing the original records, may describe their contents, as tending to prove that the cars were engaged in interstate commerce. Wagner v. Chicago, R. I. & P. Ry. Co., 277 Ill. 114; McNatt v. Wabash R. Co., 341 Mo. 516; Mitchell v. Louisville & N. R. Co., supra.

Defendant having failed and refused to produce any records or other evidence to show what cars were present in the yards on the night of the accident, is not in a position to complain against the admission of the best evidence available to plaintiff, and every presumption and intendment will be indulged against defendant. International Sales Co. v. Industrial Commission, 365 Ill. 436; Kaplan v. Stein, 329 Id. 253; Baltimore & O. R. Co. v. Flechtner, 300 Fed. 318.

The testimony of plaintiff, standing alone, tends to establish the fact that one of the cars in the group being moved at the time of the accident had been designated for and assigned to a movement from Cincinnati to Memphis, or beyond. This testimony is uncontradicted and constituted proof from which the jury could have found that plaintiff was engaged in interstate commerce. We find no reversible error in the admission of this testimony and hold that the trial court did not err in overruling defendant’s motion for directed verdict at close of plaintiff’s testimony and at close of all the evidence.

It is assigned as error that the court improperly admitted certain testimony of Dr. O. J. Culbertson, Dr. Rolla E. Little and Dr. James F. McFadden, all of whom examined plaintiff and testified upon the trial as to the result of their examination. It is complained that the testimony of these physicians was not competent for the reason that it was based upon self-serving-statements by plaintiff, not in the course of treatment, but with a view of enabling the physician to testify with reference to the physical condition of the patient.

In the main all of these witnesses testified to objective symptoms, and their opinions seem to have been based upon that and not upon any narrative statements of plaintiff. If there was any error committed by the trial court in the admission of this testimony, it was harmless, and not calculated to affect injuriously the rights of the defendant. This should not be allowed to work a reversal. West Chicago St. Ry. Co. v. Maday, 188 Ill. 308.

Objection is made to plaintiff’s instruction number two, which advised the jury as to the measure of damages, in the event that they found in favor of the plaintiff. We believe that this instruction correctly stated the law. Additional assignments of error are based upon alleged improper argument of counsel, alleged improper remarks by the court, claimed to be prejudicial, in none of which assignments of error do we find any merit.

Defendant contends that the damages allowed by the jury are excessive. If the jury believed the testimony of plaintiff and the three physicians, who all testified as to the permanency of plaintiff’s injuries, and they evidently did believe them, then the damages awarded were not excessive.

Counsel for defendant contend that the plaintiff failed to prove the charge of negligence alleged in his complaint by even a scintilla of evidence or by the greater weight of the evidence, but that on the contrary the great weight of the evidence is against the plaintiff’s contention. However, as counsel say later on, in their brief the decisions of the Federal court govern in actions brought under the Federal Employers’ Liability Act. Chesapeake & O. R. Co. v. Kuhn, 284 U. S. 44, 76 L. Ed. 157; 52 Sup. Ct. 45; Pryor v. Williams, 254 U. S. 43, 65 L. Ed. 120, 41 Sup. Ct. 36; Kusturin v. Chicago & A. R. Co., 287 Ill. 306, 122 N. E. 512.

The Federal courts have held that the fact that the verdict and the judgment are against the weight of the evidence, are not for the determination of an Appellate Court. Warbende v. Prudential Ins. Co. of America, 97 F. (2d) 749; Swinger v. Firman Equipment Co., 94 F. (2d) 269; Grand Trunk Western R. Co. v. Heatlie, 48 F. (2d) 759; Goodwin v. United States, 2 F. (2d) 200.

In passing upon the proposition as to whether or not the lower court erred in denying defendant’s motion for a directed verdict at the close of all the evidence, plaintiff is entitled to the benefit of all the evidence favorable to him and all favorable inferences reasonably and naturally to be drawn from the evidence, in order to determine only if such evidence and inferences, if true, were sufficient to establish plaintiff’s case. Gunning v. Cooley, 281 U. S. 90, 74 L. Ed. 720, 50 Sup. Ct. 231; Tobin v. Pennsylvania R. Co., 100 F. (2d) 435; Huff v. Illinois Cent. R. Co., 362 Ill. 95, 199 N. E. 116; Walldren Express & Van Co. v. Krug, 291 Ill. 472, 126 N. E. 97.

We are limited under the authorities to a determination of the one question of whether or not the plaintiff’s evidence, taken as true, with all the intendments therefrom most favorable to him, is sufficient to establish the specific negligence charged by him. We are of the opinion that the record discloses that, and that it further fails to disclose any reversible error.

The judgment of the lower court, therefore, will be affirmed.

Affirmed.


author: Mr. Justice Culbertsoh

text:
    Harvey Williams, Appellant, v. M. J. Griffith et al., and Mary Leah Griffith, Administrator of Estate of M. J. Griffith, Deceased, Appellees.

      Opinion filed May 31, 1941.
    Mathejsty & Walker and Murray & Miller, both of Vandalia, for appellant.
    Robert G. Burhside and Will M. Albert, both of Vandalia, for appellees.
   Mr. Justice Culbertsoh

delivered the opinion of the court.

This is an appeal from the circuit court of Fayette county dismissing for want of equity the complaint of appellant, Harvey Williams (hereinafter called plaintiff), against the appellees, M. J. Griffith, Byron Glaseo, the Texas Company, a corporation, Mary Leah Griffith, Isabelle G. Brooks, Arthur A. Brooks, and Mary Leah Griffith, administrator of the estate of M. J. Griffith, deceased (hereinafter called defendants.)

The defendant M. J. Griffith, died after the filing of the action and prior to the trial of the case and his heirs and the administrator of his estate were substituted as parties defendant. The interests of the defendant, the Texas Company, is not being contested in this proceeding and no appeal is taken from the portion of the decree relating to the oil and gas lease of the Texas Company, which is recognized as being in full force and effect. The issues in this case are confined entirely to the rights of the plaintiff Williams, and the defendant Griffith, and his heirs.

Plaintiff Harvey Williams, filed a complaint to redeem from what he contends is a mortgage covering 100 acres of land located in Fayette county, Illinois. The instrument appears to be an absolute warranty deed on its face. It is contended by plaintiff that such deed was intended as additional security for the payment of the indebtedness of plaintiff to the deceased defendant, M. J. Griffith. The defendants, after denying the allegations of the complaint, contended that the deed was given for the purpose of satisfying a previous indebtedness and not as additional security, and also contended that the plaintiff was guilty of laches in permitting the deceased M. J. Griffith to remain in uninterrupted possession of the premises for a period of five years. Defendants, likewise, filed a counterclaim reciting that the oil and gas lease from plaintiff to one Byron Glaseo be deemed to be null and void and canceled as a cloud upon the title of the other defendants in the case.

The evidence discloses that on August 10, 1922, the plaintiff and his wife (since deceased) executed amortgage to the said M. J. Griffith upon the premises involved in this action, to secure a promissory note in the principal sum of $2100. The mortgage was in the usual statutory form and had the customary provisions for interest, appointment of receiver, payment of costs and attorneys’ fees, and insurance. During the eleven years intervening between the time of the execution of the mortgage, and January 9, 1933, no payments were made upon the principal of the note although it was, by its terms, payable in 1927, and during the last three years of such period no interests payments were made. On January 9, 1933, plaintiff and his wife, joined in executing to M. J. Griffith, as grantee, a warranty deed, purporting to convey the absolute title to the premises. The deed was in the usual statutory form and for a stated consideration of $1. It bore internal revenue stamps in the sum of $2.50 indicating a presumed consideration of $2,500 (the indebtedness at the time was approximately in that sum). The deed further provided that it was subject to a mortgage in favor of the grantee, that possession was to be given to the grantee on or before March 1, 1934, and that the grantor was to pay taxes for the year 1933, and was in addition to have all the crops raised on the land in the year 1933. The deed was filed for record on January 16, 1933, and two days later, the mortgage referred to was released on the margin of the record by M. J. Griffith, such release reciting that it was made in consideration of the full payment of the amount secured by the mortgage.

Pursuant to the terms of the deed, plaintiffs surrendered possession to Griffith in March 1934, and Griffith went into.' possession through his tenant. During the four and one-half year period that followed he remained in undisputed possession of such premises, farming them and paying taxes thereon. There is no evidence that the title of defendant was disputed in any way until September 1938, which was the same month during which oil was discovered in a certain pool of which the premises constitute a part, and which was only four months before the first producing oil well was completed on the premises in question.

An oil and gas lease was executed by the plaintiff and defendant Byron Glaseo, and Bussell Williams, son of the plaintiff, also entered into a contract with such defendant Glaseo, by the terms of which Glaseo apparently agreed to recover the premises and to pay all expenses of litigation, and in consideration therefor was to receive such oil and gas lease. While such contract was admitted in evidence, we have only a resume of some of the provisions of the contract before us.

As we have previously stated, M. J. Griffith died prior to the trial of the case. Only two witnesses testified to conversations had at the time of the execution of the deed. They were one Jesse Pryor and Bussell Williams, son of the plaintiff, who testified over objection that he was disqualified by reason of his interest. Plaintiff’s son testified that M. J. Griffith, at the time he took the deed, agreed to deed the land back to the plaintiff at any time in the future that he, the plaintiff, could raise the money, but that if he couldn’t raise the money, he was under no obligation to pay the indebtedness. Pryor also testified that Griffith stated that the plaintiff could have the place back if he could raise the money in the future. Two other witnesses testified to conversations had between the plaintiff and M. J. Griffith in November of the preceding year as to the “right to redeem” or to buy the land back, and, in substance, that the deed which was given was for the purpose of “squaring off the mortgage.”

■ Two witnesses who testified on behalf of defendants stated that in conversations between plaintiff and said M. J. Griffith during the previofis summer, it was stated that plaintiff was unable to make his payments and wanted to deed the premises to Griffith in satisfaction of the mortgage. The 'tenant, who took possession when the plaintiff left the premises after giving the deed, testified to statements by plaintiff that the “place” was being given up to Griffith and that the plaintiff would move on the appointed date, as specified in the deed. A note and mortgage ledger of the deceased M. J. Griffith which was introduced in evidence (over the general objection of plaintiff), recited that the said M. J. Griffith had delivered the papers to plaintiff and had taken the deed to the farm in full settlement of the loan. A daughter of the said M. J. Griffith testified that the handwriting of the deceased had become nervous in the past few years and that she could tell from the entries that the same had not been made during the past two years. The evidence presented by plaintiff tended to show that neither the note nor any other documents were delivered to' plaintiff at the time the deed was signed, and was also to the effect that the purpose of the taking of the deed was to avoid foreclosure because of the age and illness of the parties. There was also evidence to the effect that plaintiff’s sons had conversations with the deceased Griffith about “redeeming” the land, or settling the dispute, all of which conversations were after the discovery of oil in the vicinity. The daughter of the deceased Griffith testified that she searched among his papers and found no notes or mortgages signed by plaintiff and his wife. Plaintiff, in rebuttal, testified that the note and mortgage were never returned to him. It is contended by plaintiff that the court below should have entered a decree finding such deed to have been a mortgage and permitting plaintiff to redeem the same.

It is correctly contended that a deed, absolute on its face, may be shown to have been intended as a mortgage, by oral declarations or by acts of the parties (Cassem v. Heustis, 201 Ill. 208), and courts of equity scrutinize transactions between a mortgagor and mortgagee very closely to determine whether or not a conveyance could have been intended as a mortgage (Cassem v. Heustis, supra; Alexander v. Rodriguez, 12 Wall. 323, 20 L. Ed. 406), and that if a note evidencing an indebtedness is retained by the grantee, such indebtedness is not satisfied by the conveyance unless the contrary is shown (Wallace v. Greenman, 321 Ill. 423).

The test or criterion, as was stated in the cause of Illinois Trust Co. v. Bibo, 328 Ill. 252, at page 259, “is the continued existence of a debt or liability between the parties, so that the conveyance is in reality intended as a security for the debt or indemnity against the liability. If that liability is left as subsisting and not discharged or satisfied by the conveyance, and if the grantor is still regarded as owing and bound to pay it at some future time, then the whole transaction amounts to a mortgage, whatever language the parties may have used and whatever stipulations are made or inserted in the instrument.” The conveyance, in such instance, takes effect when delivered, and its character is fixed at that time, and the intention of the parties at that time is controlling (Kelly v. Lehmann, 297 Ill. 33; Kulik v. Kapusta, 303 Ill. 208; Bearss v. Ford, 108 Ill. 16).

Under the facts in this case (even as developed by plaintiff’s evidence) it appears that the parties intended, at the very least, that there was to be no further obligation on part of the mortgagor after the deed had been given. In the words of the plaintiff’s son, who testified in his behalf, “No definite date was set when my father should pay this money, just any time we could raise the money — he was to deed it back any time we could pay him. If he couldn’t make it he wasn’t to be liable for the loan.” The cases in this State have clearly established, that the fact that there is an agreement to reconvey does not render a conveyance a mortgage, but the essential things are the existence of a debt and the intention to secure its payment (Crane v. Chandler, 190 Ill. 584).

The courts have, likewise, repeatedly declared that before a deed can be held to be in the nature of a mortgage there must be an existing debt or obligation which the grantee in the conveyance can enforce by foreclosure proceedings, and that the right to redeem and the right to foreclose are reciprocal rights, and one cannot exist without the other (Caraway v. Sly, 222 Ill. 203; Friend v. Beach, 276 Ill. 397; Fitch v. Miller, 200 Ill. 170).

Under the facts, as presented in the record, as bearing on the principles outlined there was no liability on the part of plaintiff for the payment of any indebtedness, and deceased Griffith could have been in no position to file an action of foreclosure against the plaintiff. The physical evidence, as to which there is no dispute, shows the acceptance of a deed, absolute on its face, the release of the mortgage of record, the taking of possession by the grantee, and the payment of taxes without objection until many years after the deed was given, when oil was discovered on the premises, the discovery of which has caused a substantial and speculative rise in the value of the property. Under the circumstances the chancellor was justified in concluding that the defendant had clearly sustained the burden of showing the degree of fairness which the law requires. Under the rule of Alexander v. Rodriguez, supra it is clear that the mortgagee has been shown to have been fair and frank and to have treated with the property on the basis of its actual worth at the time the deed was taken.

The courts of this State have many times repeated that where a chancellor receives the evidence in open court and sees the witnesses and hears them testify, his findings will not be disturbed unless palpably wrong or manifestly erroneous (Hall v. Pittenger, 365 Ill. 135; Page v. Keeves, 362 Ill. 64; Greer v. Carter Oil Co., 373 Ill. 168.) Considering all the facts in the record, the disputed testimony as to the purpose and intention of the parties as to the nature of the transaction at the time the deed was taken, we are nnable to say that the court below committed any manifest error in finding that the deed which was taken was, in fact, absolute. We must, therefore, conclude that the court below did not err in dismissing the complaint for want of equity, and that the decree was not erroneous in voiding and cancelling as a cloud upon the title, the oil and gas lease of plaintiff and defendant Glaseo.

The decree of the circuit court of Fayette county, appealed from will, therefore, be affirmed.

Affirmed.


author: Mr-. Justice Culbertson

text:
    Roberta Palmer and Robert L. Palmer, Appellees, v. George Miller, Appellant.

      Opinion filed May 31, 1941.

      Stone & Fowler., of Marion, and Boy B. Helm, of Metropolis, for appellant.
    Grover E. Holmes and Carl H. Smith, both of Metropolis, and Alfred Boy Hulbert, of Chicago, for appellees; Alfred Boy Hulbert, of counsel.
   Mr-. Justice Culbertson

delivered.the opinion of the court.

This is an appeal from two judgments entered in the circuit court of Massac county, against the appellant George Miller (hereinafter called defendant), and in favor of Boberta Palmer and her husband, Bobert L. Palmer, appellees (hereinafter called plaintiffs), in the respective sums of $20,091.67 and $5,022.91. The judgments were entered on verdicts in the sums of $20,000 and $5,000 respectively, which were returned in an action for personal injuries sustained by the plaintiff Boberta Palmer.

The complaint consisted of two counts, which were identical with the exception of the paragraph relating to the damages claimed to have been sustained by each of the plaintiffs. In the first count of the complaint, the plaintiff Boberta Palmer claimed damages by reason of her personal injuries, in the sum of $50,000, and in the second count of the complaint, plaintiff Bobert L. Palmer claimed damages in the sum of $15,000 by reason of expenditures he had made or become liable for in connection with the hospitalization of his wife and treatment of her injuries.

The allegations of the complaint recited the facts as hereinafter referred to, and the only portion of the complaint which is material for consideration and as to which objection is raised by the defendant, is that containing the allegation of negligence upon which the plaintiffs base their cause of action. Such allegation is specifically as follows:

“Whereupon the defendant, George Miller, by Dan Park who was then and there acting as his servant and agent, was using, and driving and operating said automobile along arid upon the aforesaid highway for the purpose of transporting the defendant, George Miller, from the place of his accident to a physician or surgeon for his treatment. At the said time and place, and in said automobile the plaintiff, Roberta Palmer, was riding and acting as a nurse in an emergency for the purpose of rendering emergency treatment and care to the said George Miller while he was being taken to a doctor. She was riding beside the two men aforesaid, upon and in furtherance of the business of and for the sole benefit of the defendant, George Miller. Thereupon, the defendant, George Miller, by his servant and agent, Dan Park, did one or all of the following things, which caused or proximately contributed to cause the resulting accident in which damages and losses were sustained by the plaintiffs.” (Thereafter the complaint sets out in subparagraphs the specific acts which it is claimed amount to negligence). The second count of the complaint varies in concluding with an allegation of damages which the plaintiff Robert L. Palmer claimed to have sustained.

The answer of defendant contains specific denials of the allegations in the complaint, and specifically denies that Dan Park was acting as the agent and servant of the defendant in operating the automobile. Three additional defenses denying ownership, operation, and management or control of the automobile, and the agency or employment of Dan Park by the defendant, were likewise filed, and in one of such additional defenses, defendant further alleged that at the time of the accident he was an infant under the age of 21 years and, because of his minority, he was legally incapable at the time of acting by or through an agent, servant, or employee, and that Dan Park, at such time, could not, by reason of defendant’s minority, have been operating the automobile as agent or servant of the defendant. Plaintiffs replied reaffirming the allegations of the complaint and adding the further allegation that the automobile was being driven for and on behalf of, and upon the business of the defendant and for his benefit and that he was present riding therein. Defendant filed motions to strike portions of plaintiffs’ reply and plaintiffs thereupon filed a motion to carry back such motions to strike to the answer of defendant. Both motions were denied by the court.

The evidence disclosed that on May 29,1939, a dance was being held at the Metropolis Country Club and that defendant, George Miller, was driving and in possession of his family automobile with the permission of his parents, and had taken a party of six people, including Dan Park, to the dance. While the defendant, George Miller, was at the club, he cut his wrist severely and was seen to be bleeding profusely. Dan Park, who was a member of defendant’s party, noted defendant’s condition. It was decided that defendant should be driven to town to a doctor who was competent to treat his wound. The defendant gave his car keys to Dan Park and as a result of insistence or persuasion or mild coercion, defendant walked up from the basement to the place where his family car was parked. Three members of the party were already in the car. Dan Park got into the driver’s seat. The defendant entered at the right front door and sat in the front seat beside the driver. Just before they started to drive away, Dan Park remembered that the plaintiff, Roberta Palmer, was a trained nurse, and he immediately ran back to the club house to get Mrs. Palmer, leaving the defendant Miller in the car. He described the defendant’s injury to the plaintiff and asked her to ride into town to take care of defendant Miller and his injury. She left the dance floor immediately and went out to the ear. She noted, at the time, that defendant’s wound was still bleeding and she tightened up the tourniquet on his wound. She was then invited by Dan Park, the driver, and she testified (although there is some dispute in the evidence on this point) that she was also requested to go along by the defendant, George Miller, and by one of the other occupants of the automobile. All of the persons in the automobile knew that Mrs. Palmer was a trained nurse.,

As the car was being driven along, one of the occupants cautioned the driver not to go so fast. The defendant testified that he lost consciousness as the car left the country club grounds, but evidence on behalf of the plaintiff was contradictory as to this point. The plaintiff, Mrs. Palmer, testified that she protested about the speed and the manner in which the car was being driven, but she stated that she was so busy taking care of defendant and attending to his needs that she did not notice what the driver was doing. As the car raced along the pavement at a speed of 60 to 80 miles an hour, it ran off the pavement, slid along the gravel and crashed into a tree, ripping off the rear portion of the car, went up on its front end, fell over on its top and spun on the pavement. Dan Park testified that a car with bright headlights coming in the opposite direction caused him to swerve to the right and lose control of the car he was driving. The plaintiff, Mrs. Palmer, was thrown out and caught by the front bumper and sustained some very extensive and painful injuries which required, and will in the future require, painful surgical operations. She never lost consciousness. No contention is made by the defendant that damages are excessive in this case. The evidence of pain, disfigurement and. surgery make it apparent that the damages were not, in fact, excessive in view of the injuries sustained by the plaintiff.

The evidence also disclosed that the defendant was 20 years and 10 months old at the time of the accident, and there was evidence in the record that he was in business with his father and was being paid a salary and commissions, and was to be married the day following the accident and, in fact, was married a few days thereafter. It is contended by plaintiffs that the minor was emancipated and matters relating to such minor’s liability, based on such emancipation, are urged, in addition to basic grounds for liability discussed in this opinion, as well as the contention that even if the relationship of master and servant were required to be established, liability could be sustained because the contracts involved in this case were for urgent necessities and that the employment of Dan Park and Mrs. Palmer could not thereafter be repudiated. In view of what we have to say in the course of this opinion on the question of liability of a minor, under the facts and circumstances in this case, it is unnecessary to discuss such contentions relating to the emancipation of the minor defendant, and the other point referred to.

Motions for directed verdicts at the close of plaintiffs’ evidence and at the close of all the evidence, and motions for judgment notwithstanding the verdict, for new trial, and in arrest of judgment, were all denied by the trial court, and judgments were entered upon the verdicts in favor of plaintiff, Roberta Palmer, and her husband, Robert L. Palmer, in the sum of $20,000 and $5,000, respectively.

The basic principle upon which this action; is to b.e determined is whether or not the negligence of the driver may be imputed to the minor, and whether or not it is essential that a technical agency be established and proven on the part of such driver. The pleading phase of such question was urged by the defendant, independently of the contention that defendant could not be liable under the facts, as a matter of law. The contention of the defendant was that the allegations of the complaint amounted to a selection of a theory of liability which was untenable as a matter of law. It is contended by the defendant, by reason of the fact that the complaint contains the words, “servant and agent,” that there was a failure of essential evidence in the plaintiffs ’ case; that while an infant is liable for torts committed by him personally, he is incapable of appointing an agent and is not liable for torts committed by an agent or servant. We shall have more to say about such contention in the course of this opinion, but it will suffice, for the purposes of consideration of such objection,- to state that it is not essential that all the allegations of the complaint such as the agency of the driver of an automobile be proven where the complaint charges that the owner (or as in this case, the defendant who had permissive control of the automobile), was present in the car and the trip was for his exclusive business. In such case the allegations “servant and agent” may be treated as surplus-age (Rich v. Albrecht, 300 Ill. App. 493). Defendant’s liability in such case is not based upon the strict doctrine of master and servant, or principal and agent, but upon the doctrine of imputed negligence which arises from a presence of the owner (or permissive user) in the automobile at the time of the accident, which, although it is not being driven by his servant, is being driven with his permission and in his business, or in a joint enterprize of such owner and the driver (Brooks v. Snyder, 302 Ill. App. 432; Gillis v. Jurzyna, 284 Ill. App. 174). In the words of the court in Brooks v. Snyder, supra (page 435).

“ . . . where an owner occupies the car at the time of the accident he is hable for the negligence of the driver if (1) he has not abandoned his right to control the car, or (2) if he exercises or has a right to exercise any control over the driver or the operation of the car, or (3) if the ride is for his benefit or for the mutual benefit of himself and the driver. This rule is set forth in Blashfield’s Cyclopedia of Automobile Law and Practice (1935), vol. 5, pp. 66 to 70, as follows:
“ ‘By the weight of authority, the owner of a motor vehicle, present therein at the time of an accident caused by its negligent operation, is liable for injuries resulting though he is not personally at the wheel; the car being driven by one not his servant, but with his permission and in the business of the owner, or in a joint enterprise of the owner and the driver.
“ ‘Where an owner is riding in an automobile which is being driven by another in an improper manner, and the evidence does not show a contractual surrender nor an abandonment of the owner’s right to control, the inference is warranted that the owner knew of and permitted the improper operation, and he is deemed to have consented to the negligent operation of the machine and the driver’s negligence is imputed to him ; and if an owner permits some other person to operate his car in which he is riding, whether his wife, child, or a friend, retaining such control of the car as gives him unrestricted right of direction and control, he will be liable for the driver’s negligence.’ ”

Obviously, there was sufficient evidence in the record, even though the testimony was disputed on this point, to justify liability on the part of the defendant strictly in accordance with the doctrines outlined in the case of Brooks v. Snyder, supra. The evidence disclosed that the defendant had given the keys to Dan Park, the trip was for his exclusive benefit and for the apparent purpose of preventing him from bleeding to death or suffering severely from the loss of blood. The evidence justified the conclusion that defendant accepted the presence and services of the driver, Dan Park, and the plaintiff, Mrs. Palmer. He had the right to control Dan Park and there was no contractual surrender or abandonment of such right to control, and under the doctrine of the cases referred to, the carelessness of Dan Park could properly have been imputed to him.

The question then arises as to whether or not there is anything in the fact of the minority of the defendant, George Miller, which under the facts and circumstances in this case, tends to relieve him of liability. A review of such precedents as have been directed to our attention on behalf of both plaintiffs and defendant, and an independent survey of cases relating to such principles, leads this court to the conclusion that the defendant, George Miller, may be held to be equally liable, under the principles of the case of Brooks v. Snyder, supra, despite the fact of his minority. In this connection the only case which we have been able to discover which is directly in point under the precise set of facts, and which is certainly a case in which the facts do not as clearly tend to establish liability as do the facts in the instant case, is the case of Feagles v. Sullivan, 32 Pa. D. & C., 47, in which case the principles determinative of the case before us, were likewise before the Pennsylvania court. In that case the court, in considering the principle involved, made reference to the Restatement of the Law prepared by the American Law Institute. In such Restatement of the Law on the subject of Agency (section 20c) is found the following statement, “Thus, infants and persons lacking full capacity because of mental defects are affected by acts done on their account by a person whom they direct so to act, to the extent to which they have capacity to give consent and become parties to the transaction.” In the Feagles case such comment was cited in support of the conclusion of the court, as well as certain comments appearing in the Tort section of the American Law Institute Restatement of the Law, which was quoted in support of the imputed negligence theory and followed by analogy in such case. In the Feagles case a minor who had borrowed his father’s automobile for a pleasure ride and who had permitted a friend to drive, was held liable to a third person when the friend negligently struck the other automobile, and the minor, at the time of the accident, was sitting beside the friend. The court stated specifically that a minor has capacity to appoint another to drive the minor’s automobile, and the minor is liable when the driver negligently causes an accident.

Some point is made by the defendant that the cases of Hodge v. Feiner, 338 Mo. 268, 90 S. W. (2d) 90, 103 A. L. R. 483, and Burns v. Smith, 29 Ind. App. 181, 64 N. E. 94, and similar cases, militate against such conclusion and support the principle contended for by the defendant that the negligence of the driver could not, under the facts in the instant case, be imputed to the minor defendant. We do not find that such cases sustain that position. In the case of Hodge v. Feiner, supra, the court in discussing principles involved in other cases, emphasized the fact that the minor defendant was not present at the time of the collision, and discussed in detail the principles involved in other cases in which the distinction arises out of the presence of the minor, and his absence at the time of the accident is clearly delineated. Such court states, in discussing one of such cases (103 A. L. R. 486), “It is contended that since deceased was a minor, she could not lawfully appoint an agent so as to be held responsible for the negligence of such agent. Deceased was 17 years of age and therefore old enough to be responsible for her own tort. . . . Miss Eobertson was driving by the permission of deceased, and therefore the car at the time, in contemplation of law, was under the direction of the deceased. It is our opinion that the negligence, if any, of Miss Eobertson was imputable to deceased.” In our opinion there is a vast distinction between the two cases. In the Hodge case, now before ns, a minor was sought to be held responsible in tort solely on the doctrine of respondeat superior, when the tort was not committed in the minor’s presence. In the McKerall v. St. Louis-San Francisco Ry. Co. (Mo. App.), 257 S. W. 166, the court of appeals held that, “the car in which the minor was riding when she met her death was, in contemplation of law, under the direction of the minor at the time of the accident. The negligence of the driver was, in contemplation of law, her own. The McKerall Case finds support in the case of Atchison, etc., R. Co. v. McNulty (C. C. A.) 285 F. 97, certiorari denied 262 U. S. 746, 43 S. Ct. 521, 67 L. Ed. 1212. ... In many of these imputed negligence cases it may be said that the ultimate conclusion reached by the decisions is that the party to whom the negligence is imputed actually participated in the act of negligence or was in charge of the car or vehicle, and therefore had the right and authority to direct the driver of the vehicle in the manner of its operation.”

In Burns v. Smith, supra, the court likewise emphasized the fact that tortious acts for which the infant could be made responsible were those committed by himself or under his immediate inspection or direction. It is thus clear that the doctrine of imputed negligence has been applied consistently to an infant who is present in an automobile at the time of the accident involved in the particular case. While most of such cases have considered the question of the imputation of contributory negligence to the minor, they are equally applicable to the question of the imputation of negligence generally to the minor for the purpose of fixing liability. As stated in the McKerall case referred to in Hodge v. Feiner, supra, the defendant in the instant case would have been responsible for a tort committed by himself personally, under the law. He is equally responsible for a tort committed by the driver, Dan Park, who, in contemplation of law, was under his direction while he was present in the automobile which was being driven for his exclusive benefit.

Numerous objections are made by defendant to instructions given on behalf of plaintiffs, and refused when tendered on behalf of defendant, and to modification of instructions. To discuss all of such objections in detail would extend this opinion beyond all reasonable bounds and would serve no useful purpose. We have considered all of such objections and find no reversible error in the giving or refusal, or modification, of any of such instructions, under the facts and circumstances in this case.

Instructions to which objection is taken which relate to imputed negligence and the doctrine of principal and agent did not have the tendency to mislead the jury, in view of instructions actually given, and the evidence in the case. What we have said in this opinion as to the doctrine of imputed negligence as applied to the facts in this case, makes it unnecessary to discuss such instructions in detail. Certain objections relating to instructions made by defendant make it necessary for us to observe, in passing, that the guest statute in this State did not apply to the plaintiff, Mrs. Palmer (Foale v. Linsky, 279 Ill. App. 58), and that the instructions referring to the duty of defendant to plaintiff, Roberta Palmer, to exercise ordinary care toward her, were not erroneous (Radatz v. Tribune Co., 293 Ill. App. 315; Kijowski v. Times Publishing Corp., 298 Ill. App. 236, affirmed 372 Ill. 311), nor do we find error in the plaintiffs given instructions relating to damages (Holmes v. Holmes, 64 Ill. 294); a number of objections to instructions refused on behalf of defendant were without foundation for the reason that the instructions refused constituted simply repetition of instructions actually given by the court. We do not deem it necessary to elaborate upon this point. Similarly, defendant’s instructions which were predicated on the theory that there was a duty on part of the plaintiff, Mrs. Palmer, to warn the driver, were properly refused in view of the long line of cases in this State establishing that there is no such duty on part of a passenger (Smith v. Carter, 302 Ill. App. 235; O’Neal v. Caffarello, 303 Ill. App. 574). In this connection, the contention that the plaintiff, Roberta Palmer, was guilty of contributory negligence, as a matter of law, is not sound under the facts in the record in this case. The most that could be said is that the question of contributory negligence was one for the jury.

One of defendant’s instructions actually given, specifically instructed the jury that unless the jury believed from the greater weight of the evidence that Dan Park was guilty of negligence as charged in the complaint and was acting at such time as the servant of George Miller, and that the plaintiff, Roberta Palmer, was at such time in the exercise of due care and caution for her own safety, that the defendant, George Miller, would not be liable under such circumstances. In view of such instructions, the defendant’s complaint that the jury was not sufficiently instructed on such points cannot be maintained.

In connection with the instructions as a whole, it should be kept in mind that the test, as stated in the case of Reivitz v. Chicago Rapid Transit Co., 327 Ill. 207, at 213, is “Not what meaning the ingenuity of counsel can, at their leisure, attribute to the instructions, but how and in what sense, under the evidence before them and the circumstances of the trial, ordinary men, acting as jurors, will understand the instructions. ’ ’

In considering -instructions, courts of review likewise determine, first, whether the instructions announce correct propositions of law as applicable to the facts in the case, and, secondly, assuming that they do not, the courts then look at the evidence to determine whether the jury may have been misled by the party against whom the instruction was given may have been otherwise prejudiced by it (Beard v. Maxwell, 113 Ill. 440). If, after having thus considered the instructions, the court is of the opinion that the jury would not have been misled and that substantial justice has been done, then the fact that the instructions may have been erroneous would not be a basis for reversal. In the instant case, some of the instructions, taken separately and without reference to instructions actually given may, on their face, have been characterized as erroneous. Applying the test in the cases referred to, however, we do not find that there is any reversible error in any of the instructions given, refused, or modified, to which defendant makes objection.

Objection is also made that a statement of counsel for plaintiffs, in his argument to the jury, to the effect that, “You are not concerned with who pays the judgment, whether George Miller, or someone else,” was prejudicial and constitutes reversible error for the reason that it suggests to the jury that the defendant was insured. Plaintiffs’ counsel denies that any such statement was made. No record of the argument was made in the court below but the report of proceedings incorporated such statement as having been made by counsel for plaintiffs. Plaintiffs’ counsel contends that such statement was incorporated in the record as the result of misunderstanding on part of defendant’s counsel. The record shows that objection was made to the statement, if made, as being prejudicial, and that such objection was sustained.

There was nothing in the statement which necessarily implied that there was insurance in the case, and while in a proper case such statement might have been deemed to be so prejudicial as to require reversal, the question to be considered by a court of review in any such case is, whether the argument which is objected to as being improper, was of such character as to prejudice the defendant. No contention was made that the verdict in this case is excessive. It is difficult to see how such statement, if made, would have been prejudicial to the defendant, under the facts in the case, and that a failure to make such statement would have produced a different result. In view of such circumstances and after consideration of the entire record in this case, we cannot conclude that there is any basis for reversal because of such statement purportedly made by the counsel for plaintiffs.

There being no reversible error in the record, the judgment of the circuit court of Massac county, will be affirmed.

Affirmed.


author: Mr. Justice Dady

text:
    David J. Morgan, Trustee, Appellant, v. International Shoe Company, Appellee.
    Opinion filed May 31, 1941.
    Forth, S chuman & Forth, of Granite City, for appellant.
    Chapman & Thomas, of Alton, for appellee.
   Mr. Justice Dady

delivered the opinion of the court.

This is an appeal by plaintiff from a judgment of the circuit court of Madison county, dismissing a garnishment proceeding brought by the plaintiff against the defendant as garnishee.

On April 8, 1938, the plaintiff obtained a judgment by confession in said court against Joseph J. Bitter for $1,016 and costs. Thereafter an execution was duly issued on such judgment, which execution was duly returned by the sheriff with an endorsement thereon showing the same not satisfied and no property found. Thereafter, pursuant to the Grarnishment Act, chapter 62, revised statutes, the plaintiff instituted this garnishment proceeding, basing his cause of action on such judgment. Summons was duly issued in such garnishment proceedings, which summons was duly served on the present defendant on May 31, 1938. On January 9, 1939, an order was entered in said court defaulting the garnishee for want of an appearance or answer.

. No further proceedings were had in said cause until April 23, 1940, when the garnishee filed its special appearance and a written motion that such garnishment proceedings be dismissed on the ground that such court was without jurisdiction to render judgment in such garnishment proceeding for the reason that within four months after the date of the judgment entered on April 8, 1938, Bitter was adjudged a bankrupt by the United States District Court and on the date said judgment was entered Bitter was insolvent and said judgment was therefore null and void in so far as the same constituted a lien upon any of the property, assets or choses in. action of Bitter; that prior to the adjudication in bankruptcy Bitter filed schedules as required by the Bankruptcy Act, showing that at the time of the adjudication he was insolvent, and stating in his petition that he was an employee of the garnishee ; that subsequent to said adjudication the garnishee, as employer of Bitter, was notified by the referee in bankruptcy of the date of the adjudication of Bitter as a bankrupt, with instructions to the effect that any money due from the garnishee to Bitter be held subject to such order as might be made in the bankruptcy proceeding; that thereafter and on June 29, 1938, the garnishee filed with the referee a statement that there was due to Bitter from the garnishee $24; that the garnishee is still holding said sum subject to the order of the bankruptcy court; that by virtue of the provisions of section 1 of the Garnishment Act a valid judgment against Bitter was a prerequisite to the maintenance of the garnishment procéeding; and that under and by virtue of the provisions of section 67-f of the Bankruptcy Act, any judgment ' or lien obtained as a result of the garnishment proceeding should be deemed null and void.

On June 10, 1940, the circuit court entered an order granting said motion, discharging the garnishee and dismissing the suit, from which judgment plaintiff brings this appeal.

The foregoing is a fair statement of all the facts material to a decision of this case.

It will be noted that the only parties to the present proceeding are the judgment creditor and the garnishee, and that neither the bankrupt, nor the receiver, nor trustee in bankruptcy is a party. In fact it does not appear that any trustee has been appointed.

The principal question to be decided is whether the facts well pleaded in the garnishee’s motion, — assuming such facts to be true, — constitute any defense to this proceeding. A decision of this question depends upon whether section 67-f of the Bankruptcy Act [11 U. S. O. A.,, section 107 (f)] automatically discharged the lien and effect of the judgment on which the garnishment proceeding is based. Said section 67-f reads as follows: “All . . . judgments ... or other liens obtained through legal proceedings against a person who is insolvent, at any time within four months prior to the filing of a petition in bankruptcy against him, . . . shall be deemed null and void in case he is adjudged a bankrupt, and the property affected by the . . . judgment, ... or other lien, . . . shall be deemed wholly discharged and released from the same, and shall pass to the trustee as a part of the estate of the bankrupt, unless the court shall, on due notice, order that the right under such levy, judgment, attachment, or other lien, shall be preserved for the benefit of the estate; and thereupon the same may pass to and shall be preserved by the trustee for the benefit of the estate as aforesaid. ’ ’

In Miller v. Barto, 247 Ill. 104, 110, the court said: “The provision of the Bankruptcy act by which levies, judgments, attachments or other liens obtained within four months prior to the filing of a petition in bankruptcy are deemed null and void in case the petitioner is adjudged a bankrupt and the property passes to the trustee released from the same is for the benefit of creditors, and liens on the bankrupt’s property are not vacated for his benefit. In this case the property never passed to a trustee and nothing ever happened which divested the lien.” In Fischer v. Pauline Oil & Gas Co., 309 U. S. 294, the court said that expressions might be found in cases decided by Federal courts supporting the view that.section 67-f automatically discharged the lien of the levy, irrespective of any action on the part of the trustee in bankruptcy, and that statements squinting in the same direction had been made by the United States Supreme Court, and that some State courts had definitely held that the adjudication operates automatically to nullify the lien either in a direct or collateral proceeding. The United States Supreme Court then went on to say that “A number of state courts have held, and we think rightly, that the section is intended for the benefit of creditors of the bankrupt and, therefore, does not avoid liens as-against all the world, but only as against the trustee and those claiming under him. . . . But the lien is not avoided for the benefit of the bankrupt save as to his exempt property or nullified as respects other lienors or third parties.” The United States Supreme Court then reversed the decision of the Supreme Court of Oklahoma on the sole ground that the latter court had erroneously held that section 67-f automatically discharged the lien. It is our opinion that such holding of the United States Supreme Court is decisive of the question and that the effect of section 67-f is not to avoid the levies and liens therein referred to as against all the world, but only as against the trustee in bankruptcy and those claiming under him, so that the property may pass to and be distributed by him among the creditors of the bankrupt. (See Frazee v. Nelson, 179 Mass. 456, 61 N. E. 40; Swaney v. Hasara, 164 Minn. 416, 205 N. W. 274.)

The motion to dismiss presented no defense, and the trial court erred in granting such motion and in dismissing the case.

The cause is reversed and remanded to the trial court with directions to that court to strike the motion of the defendant and for further proceedings consistent with this opinion.

Reversed and remanded ivith directions.


text:
    People ex rel. Ida Powles, et al., Appellees, v. County of Alexander, Illinois, Appellant.
    Opinion filed May 31, 1941.
    M. J. O’Shea and Chas. L. Eice, both of Cairo, foi appellant.
    Leslie A. Cranston and M. C. Cook, both of Du Quoin, for appellees.
   Mr. Justice Dady

delivered the opinion of the court.

This is an accounting suit instituted by twenty blind persons, and by the administrators of the estates of six deceased blind persons against the county of Alexander, to collect amounts claimed to be due the plaintiffs respectively, under the provisions of the statute entitled “An Act for the relief of the blind,” ch. 23, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 18.071 et seq.].

By agreement the cause was referred to a master who found and reported to the court the amount of blind relief benefits that had become due and remained unpaid to the respective beneficiaries for periods of five and ten years respectively next preceding the filing of suit. The master’s computations are not questioned. The trial court entered a decree for the plaintiffs, including the administrators, for all unpaid amounts that had accrued during the ten year period. Defendant appeals.

The pertinent statutory provisions for blind relief (ch. 23, Rev. Stat.) during the times in question were, in substance, as follows: It was thereby made obligatory upon the county to contribute and pay as a benefit a certain amount per annum for the support of any blind person who might come within the provisions of the act; such blind person could go to the county clerk and make affidavit to the facts which brought such applicant within the provisions of the statute, which affidavit was deemed an application for such benefit; the county clerk ws required to refer such application to the physician appointed as an “examiner of the blind” by the county board; it was the duty of such examiner to examine all of such applicants and to certify on the application whether such applicant was blind or not and to enter the facts so certified in a register; the county clerk was required to register the name and date of examination of each applicant so determined by the examiner to be entitled to such benefits, and it was made the duty of the county board to provide in its annual appropriation for the payment of such benefits to the persons so entitled and to cause warrants to be drawn on the county treasurer, payable to such persons, each quarter each year thereafter during the life of such persons. .

The plaintiff blind persons and the deceased blind persons for whose estates recovery is sought duly complied with the various sections of the Statute entitling them to the benefits thereof.

Defendant first contends that the right of action for benefits in favor of a blind person against the county is created by statute and that such an action is subject to the provisions of section 15 of the Limitations Act (ch. 83, Ill. Rev. Stat. [Jones Ill. Stats. Ann. 107.275]) which section, so far as is material, provides: “Actions on unwritten contracts, expressed or implied, . . . and all civil actions not otherwise provided for, shall be commenced within five years next after the cause of action accrued.” Plaintiff contends that the right of action given by such blind relief statute is an action on a “written evidence of indebtedness” within the meaning of section 16 of said Limitations Act, which section, so far as is pertinent, provides that “actions on . . . written contracts, or other evidences of indebtedness in writing, shall be coifimenced within ten years next after the cause of action accrued.”

The obligation of the county to pay and the right of the plaintiffs to receive the benefits sought to be recovered in the present action arise by virtue of the statute. It has been held that where liability results from a statute, an action to enforce such liability is a “civil action not otherwise provided for” within the meaning of section 15 of the Limitations Act, and is therefore governed by the five year statute of limitations. (Parmelee v. Price, 208 Ill. 544; Blalteslee’s Warehouses, Inc. v. City of Chicago, 369 Ill. 480.) These decisions are decisive of the question and the trial court should have applied the five year statute of limitations and limited the plaintiffs’ recovery to unpaid benefits which had become due within five years next preceding the filing of suit.

Defendant next contends that inasmuch as the present action is based on a statute which makes no provision for its survival, and is not specifically named in the actions which survive as provided by section 123 of the Administration Act (ch. 3, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 110.125]), the right of action does not survive.

Although the statute providing for relief to the blind does not provide for the survival of the right to benefits, and although such action is not specifically listed in section 123 of the Administration Act as one of the causes of action which survive in addition to actions which survive by the common law, we believe the nature of the action is such that it falls within the class of actions which survive by the common law.

Generally, at common law all actions based on contracts survive. (1 C. J. S. p. 184, par. 137) It has been held that a cause of action survives when founded upon an implied or quasi contract, as well as when founded upon an express agreement. (Treasurer and Receiver General v. Sheehan, 288 Mass. 468, 193 N. E. 46; Patton v. Brady, 184 U. S. 608; see also 1 Corpus Juris, Secs. 326 and 327, pages 181,182.) In Highway Commissioners v. City of Bloomington, 253 Ill. 164, the court said: “By the common law the word ‘contract’ included all rights which could be enforced by any of the actions ex contractu. By the common law classification every contract was either express or implied. ’ ’ The court also said that included in the class of “implied contracts” were “contracts implied in law” or “quasi contracts,” which were recognized and enforced by common law courts by means of a general assumpsit.

In determining whether a cause of action survives to the personal representative, the real nature or substance of the right or claim for which the suit, is brought must control. (Patton v. Brady, supra.) When the benefit instalments became due in the instant case, the character of the claim of each deceased person against the defendant changed from a mere expectancy to a present vested property right to receive the amount fixed by statute. (Proffitt v. County of Christian, 370 Ill. 530.) The obligation of the county to pay such accrued amounts took the form of a debt founded on a contract implied in law or quasi contract. In legal contemplation it may be assumed that the defendant performed its duty and provided in the manner prescribed by statute for the payment of such due and unpaid benefits, and that the moneys so provided were in the hands of the defendant for use and benefit of the beneficiaries. The then liability of defendant was simply for money had and received. (See Highway Commissioners v. City of Bloomington, supra; City of Chicago v. Singer, 116 Ill. App. 559; St. Hedwig’s School v. Cook County, 289 Ill. 432.)

It is our opinion that, under the authorities cited and the principles stated, the right of the deceased blind persons to accrued benefits due them survived their respective deaths and can be recovered in this action by their personal representatives.

The judgment of the circuit court is reversed and the cause is remanded to that court with directions to proceed in conformity with the views herein expressed.

Reversed and remanded with directions.


author: Presiding Justice Stone.

text:
    Martha Taake Smith, Appellee, v. I. B. Curran, Appellant.
    opinion filed May 31, 1941.
    Lawrence W. Hunt, for appellant; C. C. Ellison, of counsel; Jacoby & Patton, J. B. Coppinger, Jr., and F. L. Manns, for appellee.
   Opinion by

Presiding Justice Stone.

“Hot to be published in full.”


author: Justice Dady.

text:
    Owen Cummings, Appellant, v. Arlie Floro, Administrator of Estate of William Carl Choisser, Deceased, Appellee.

      opinion filed May 31, 1941.
    R. E. Smith and Eovaldi & Eovaldi, for appellant; Marion M. Hart, for appellee.
   Opinion by

Justice Dady.

‘‘Not to be published in full.”


text:
    Grover Haines, Appellee, v. Joe Welty and Joe Bianchini, Appellants.
    opinion filed May 31, 1941.
    R. W. Harris and L. A. Colp, for appellants; D. L. Duty and Snyder E. Herrin, for appellee.
   Opinion by

Justice Dady.

‘‘Not to be published in full.”