text:
    Frank H. Carson et al., Appellees, v. Elizabeth Rebhan, Appellant.
    Opinion filed March 9, 1938.
    W. E. Knowles, of East St. Louis, for appellant.
    P. 0. Otwell, Georg F. Kelling, Charles P. Hamill and P. K. Johnson, all of Belleville, for appellees.
   Mr. Justice Edwards

delivered the opinion of the court.

This action was brought to foreclose a mortgage executed by Elizabeth Bebhan, defendant, to Frank H. Carson as trustee to secure the payment of certain notes in the aggregate sum of $27,800, the unpaid portion of which amounted to $24,500, and which were held by divers persons who were made parties thereto. The mortgage was a first lien upon certain property, and second as to other realty involved in the case of Schmisseur v. Rebhan in which opinion is filed this day.

Mrs. Bebhan in her answer set up that the liability under the mortgage in question was determined in the case of Belleville Bank & Trust Co. v. Rebhan, a suit in which Carson and the several noteholders were joined as parties to the action, and that one of the notes in the sum of $15,000, held by the supreme council of the Western Catholic Union, was not a valid obligation nor the rightful property of such holder.

Mary J. Carr and certain other of the noteholders filed their cross-bill, alleging that the mortgage contained a provision for solicitor’s fees upon filing a bill for foreclosure; that they were willing to join as complainants in the proceeding; that they were entitled to the same relief as complainants; that it was necessary for them to employ counsel to properly protect their interests; that they incurred liability for solicitor’s fees and costs, and that they were entitled to have such fees and costs awarded to them.

The cause, after issues were joined upon the bill and cross-bill, was referred to the master in chancery who after hearing rendered his report, which same the court in its decree substantially followed and adopted by adjudging that complainants were entitled to foreclosure; that the rights of the noteholders had not been adjudicated in the Belleville Bank case; that the note of the supreme council of the Western Catholic Union was a valid and owing obligation; that one solicitor’s fee should be allowed, same to be apportioned between the solicitors for complainants and cross-complainants, and providing for sale in the nsnal way.

Mrs. Rebhan assigned as reasons why the decree should be reversed that her allegation as to res adjudicaba should have been sustained; that the supreme council of the Western Catholic Union had no right of recovery on its note; that cross-complainants were not entitled to solicitor’s fees, and that the interest was erroneously computed.

Upon the first two propositions the record in this cause is substantially the same as in Schmisseur v. Rebhan, and for the reasons stated in the opinion filed therein, the contention of the defendant cannot be upheld.

As to the allowance of solicitor’s fees, it appears that proof was made as to what was a reasonable fee in the cause. The court made its allowance, the amount of which is not questioned, and apportioned it between the counsel for complainants and cross-complainants. It was a single fee, and under the authority of Howard v. Burns, 279 Ill. 256, 262, we think the action was warranted. However, even if it were improper, Mrs. Rebhan is in no position to question the action of the court in so doing. But one allowance was made and it can make no difference to her whether it was all paid to the solicitors for complainants or divided between them and those representing the cross-complainants. In either event she would have been obliged to pay the same amount.

A party cannot assign for error that which does not affect him, though it might be harmful to others who are not complaining; Schwartz v. Ritter, 186 Ill. 209; Press v. Woodley, 160 Ill. 433, 437; 4 Corpus Juris, p. 690, sec. 2589.

The decree provided that interest should be computed upon $32,262.50, the amount found due by the master’s report filed on March 14, 1936, at the legal rate of 5 per cent. This was error. Interest should have been computed upon the principal of $24,500, at 6 per cent, the rate which the obligation bore, to the date of decree January 28, 1937; Guignon v. Union Trust Co., 156 Ill. 135; 42 Corpus Juris, p. 144, sec. 1740; and after such date at the legal rate on the full amount found due, it then becoming in effect a judgment; Hoover Steel Ball Co. v. Schaefer Ball Bearing Co., 90 N. J. Eq. 515, 107 Atl. 425.

Interest as actually computed from date of master’s report to entry of decree, at 5 per cent, was $1,613.12; if reckoned on the principal or face of the notes for the same period, at 6 per cent, it would have been $1,470. This made a difference in the amount which Mrs. Rebhan would be required to produce in order to redeem from the sale of foreclosure, or, if the premises did not sell for the amount found due by the decree, plus interest from its date, a deficiency judgment against her would be greater than it should be.

The decree is affirmed in all respects except as to the matter of computation of interest, in which regard it is reversed with directions to reckon interest on $24,500, the principal due on such notes, at 6 per cent, to the date of the entry of the decree.

Affirmed in part, reversed in part, and remanded with directions.


source: Caselaw Access Project

author: Mr. Justice Edwards

license: Public Domain

text:
    Country Club Real Estate Improvement Company, Appellee, v. Estate of Fred C. Gillham, Deceased, Appellant.
    Opinion filed March 9, 1938.
    J. F. Beck, of Edwardsville, and June C. Smith, of Centralia, for appellant.
    McMillen, McMillen & G-arman, of Decatur, Warnock, Williamson & Burroughs of Edwardsville, for appellee.
   Mr. Justice Edwards

delivered the opinion of the court.

In the latter part of 1927, Fred C. Gillham, now deceased, and 50 others, entered into a subscription agreement for stock in a corporation to be organized to further the purposes of the subscription, which was not to be binding until the aggregate of the subscriptions should amount to $150,000. The corporation was organized under the name of Country Club Real Estate Improvement Company, with a total authorized capital of $50,000. Each of the 51 subscribers agreed to take 30 shares of stock of the corporation, of the par value of $100 each, upon its incorporation, to be paid for as follows: $500 in cash, and the balance, or $2,500, by note payable January 1, 1929. Gillham paid $500, and on February 23, 1928, executed the promissory note which forms the basis of this litigation.

The charter discloses that the purpose of the organization was to own real estate, improve same for dwelling houses, and selling or leasing of such real estate.

The subscription agreement provided that the corporation should purchase and lay out, as a residential park, certain property known as the Country Club of Decatur, Illinois, the tract to be subdivided into approximately 85 lots, to be fairly appraised on an average valuation of $3,500 per lot more or less. A further agreement was that each subscriber should select one of said lots, and the corporation would accept in payment therefor the stock of such subscriber therein, he to pay the difference between the appraised value, and $3,500, and the corporation to give credit on the note if the lot selected was of less value than $3,000. Furthermore, by the agreement, the corporation and its officers and directors were to work out, in a practical manner, the accomplishment of the purposes of the organization.

Gillham died testate on March 3, 1930, without having paid such note, which was filed as a claim against his estate, and upon hearing the probate court disallowed same, as did the circuit court upon appeal. The claimant thereupon sought a review by this court, which reversed the order of the circuit court and remanded the cause; In re Gillham, 286 Ill. App. 370. The matter was further heard in the circuit court, where the claim was allowed in the sum of $3,755.41, from which order the estate of Gillham has prosecuted this further appeal.

After the matter was decided by this court, the defendant soug'ht to have the cause reviewed by the Supreme Court, which denied the rig'ht of appeal; making the decision of this court final and conclusive as to all matters considered and determined by it upon the first appeal.

Numerous grounds are assigned as error; the first of which, that the note is void because of illegality and want of consideration, and the second, that the note was accepted in payment of stock contrary to the terms of the statute, were passed upon adversely to defendant in the former appeal, and the decision of this court thereon is now binding upon us; People v. Militzer, 301 Ill. 284.

The third assignment of error is that if deceased or his estate can be held liable on the agreement under which 51 subscribers each agreed to take 30 shares of stock, amounting to $153,000, he cannot be held for more than a pro rata share of the $50,000 stock authorized by the charter to be issued, and as a condition precedent thereto, there must first be an allotment of the shares among the stockholders.

In re Gillham, supra, this court said: ‘ ‘In the instant case the agreement contemplated the use of a corporation as a vehicle for the execution of a plan to purchase and subdivide a particular tract of land. There has been no variation from that plan except as to the amount of stock which may legally be issued and outstanding at any given time. There is no variance in the cost of the project, except in so far as the promoters effected a saving to the subscribers in fees and taxes by the use of a corporation with a smaller authorized capital stock.”

The corporation being merely an instrument to effectuate the purpose of the subscription agreement and to facilitate its execution, the practical effect of the payment of his subscription by each of the subscribers was to vest him with the ownership of an undivided l/51st part in the assets and property of the organization, to be satisfied and set off to him in the form of one of the lots which he should select, and when he had done so his stock, as it was called, or the evidence of his ownership of said undivided interest, would be satisfied and he no longer be interested therein.

We do not think it material that the agreement provided, upon payment of the note, that he was to receive shares of stock which he might trade for one of the lots. Whether the evidence of his ownership and right to acquire a lot should be designated as stock, or termed something else, it meant, in fact, that when he paid his note he thereby acquired an undivided l/51st part ownership in the organization, and we deem it unimportant that the agency or instrument for carrying into effect the purposes of the agreement, that is, the corporation, should be authorized to issue a lesser amount of stock than referred to in the subscription agreement. By his subscription and the execution and delivery of the note he became bound to pay the full amount of the latter in order to acquire his ownership in the organization and right to trade same for one of the lots.

The remaining contentions are directed to the proposition that the consideration for the note was a lot to be selected. We think the consideration was the acquiring of an undivided interest in the organization, with the incidental right to select a lot and transfer such interest in discharge of, or upon, the price of same, which should be appraised value thereof.

It is also urged that the board of directors of the corporation placed certain building restrictions upon the use of the lots, after signing the contract and note, and that they are thereby vitiated.

The contract provided that the officers and directors of the corporation should work out the practical manner, following the general plan, of accomplishing the purposes of the organization. Gillham signed the agreement, hence gave his assent to the adoption of any reasonable terms or requirements to be so imposed looking to the general end of effectuating the aims of the corporation. No claim is made that such restrictions were unreasonable or unfair, hence we do not think there is any force in the contention.

It further appears that the corporation allowed the taxes on the lots to become delinquent, and it is asserted that such fact releases defendant from the agreement.

The corporation, under the contract, was bound to convey the lots selected, after payment of the subscription price, free from incumbrances; consequently, if - defendant paid the note and made choice of a lot, he or his estate could demand such a title before surrendering his stock or interest in the organization. This, however, is not a condition precedent to payment of the note, but a right which defendant could insist upon when the lot was selected and conveyance desired, and the corporation could be required to transfer such a title. It is not a defense to this demand.

We think the trial court properly allowed the claim.

Judgment affirmed.


text:
    In re Estate of John L. Bulliner, Deceased. Effie Bulliner Russell, Guardian of June Bulliner Leach and Fred Bulliner, Appellant, v. J. F. Bulliner, Administrator of Estate of John L. Bulliner, Deceased, Appellee.
    Opinion filed March 9, 1938.
    Warford & Franklin, of Marion, for appellant.
    H. L. Zimmerman and August L. Fowler, both of Marion, for appellee.
   Mr. Justice Edwards

delivered the opinion of the court.

On July 1, 1918, Frederick Logan Bulliner and Effie, his wife, executed and delivered to John L. Bulliner, his father, a note for $790 due one day after, date. Afterward, on June 15, 1932, John L. Bulliner died intestate, while Frederick Logan Bulliner passed away on June 12, 1923, or nine years before the death of his father. Frederick Logan Bulliner died insolvent, owing the note in question or the major part thereof, and there was no administration of his estate.

In the final settlement of the John L. Bulliner estate, the administrator took credit to the amount of $1,051.98, balance due on such note, against the share of said estate which would have come to Fred Bulliner and June Bulliner, the minor children and descendents of said Frederick Logan Bulliner. Exceptions to such item of the report were filed by the guardian of said minors and overruled by the county court. Upon appeal the circuit court ruled that the charge was proper against the distributive shares of such minors, and they by their guardian now seek to reverse such holding.

The question under consideration is whether or not the share of these grandchildren in the estate of their intestate grandfather is chargeable with an obligation which their father owed the grandfather, whom he predeceased. So far as we are advised or have been able to discover, there are no decisions in this State which pass upon the precise question.

The rule governing in such situations is stated in 18 Corpus Juris, p. 884, sec. 153: “The right to deduct from the share of a child the debts due the estate from his deceased parent, whose death preceded that of the owner of the estate, depends upon whether the child is to be considered as tailing in his own right or through the deceased parent. In the former case no deduction can be made, but in the latter the child takes subject to the same deductions as the parent would have done.”

The application of the rule necessarily turns upon the interpretation of our statute, which in subd. 1, see. 1, ch. 39 [Ill. Rev. Stat. 1937; Jones Ill. Stats. Ann. 110.193], provides, in regard to the descent of property of intestate estates, that same shall descend “to his or her children and their descendants, in equal parts; the descendants of the deceased child or grand-child taking the share of their deceased parents in equal parts among them.”

Does the subsection quoted cast the inheritance directly upon the heir, or does the heir, taking- in the stead of his ancestor, merely inherit as his representative and hence take what and no more the ancestor would have been entitled to if he had survived the decedent?

The only decision in this State which has construed such subsection 1, so far as we know, is Simpson v. Simpson, 114 Ill. 603, where the proposition in issue was whether certain grandchildren would be barred of participation in the estate of their intestate grandfather by reason of the premise that their father, who had predeceased the grandfather, had during his lifetime accepted from the latter a conveyance of real estate in full satisfaction of his share, as heir, in his father’s estate.

.The court held this was a valid advancement which barred the rights of the grandchildren, and while the question was not identical with the matter under consideration, the reasoning is analogous. The court, upon page 605, said: “By our Statute of Descents the estate of a person dying intestate descends ‘to his or her children and their descendants in équal parts, the descendants of a deceased child or grandchild taking the share of their deceased parents in equal parts among them. ’ The latter clause is but the enactment of Blackstone’s fourth canon of descents: ‘That the lineal descendants, in infinitum, of any person deceased, shall represent their ancestor, that is, shall stand in the same place as the person himself would liave done had he been living. . . . And these representatives shall take neither more nor less, but just so much as their principals would have done. ’ ”

Here is the direct holding that in such case the grandchildren take as representatives of the deceased parent, “neither more nor less, but just so much as their principals would have done”; not in their own right, but by way of representation.

The estate consisting of personalty, Frederick Logan Bulliner, had he lived, would have been chargeable out of his distributive share with his debt to the decedent; In re Estate of Esmond, 154 Ill. App. 357; Pollock v. Cantlin, 253 Ill. App. 229; and if the law obligates us to hold that his children took in his stead “neither more nor less” than he would have done if living, it would follow that the distributive share coming to them was subject to his obligation.

The phraseology of the statute is, “the descendants of the deceased child or grandchild taking the share of their deceased parents.” The sense and meaning of the word share is controlling in determining just what the descendants take in consequence of their parents’ death. The word share, as applied to an intestate estate of personalty, undoubtedly refers to the distributive portion which the heir would receive upon settlement of the estate, or the extent to which he would participate therein, and as it is the settled law of this State that had Frederick Logan Bulliner survived his father he would have been entitled to participate in the distribution of the estate only after his obligation to his father had been discharged, the estate consisting of personalty, and his children “taking the share of their deceased parent,” which means participating in the distribution as he would have been entitled to do had he lived, they would, as stated in Simpson v. Simpson, supra, “take neither more nor less, but just so much as their principals would have done, ’ ’ in the same manner as their father if living. Hence, standing in the place and stead of their father, and taking as his representatives, their distributive share is subject to his • debt to the estate.

Appellant has cited certain decisions of this State wherein it is claimed that a contrary ruling was made. Jordan v. Jordan, 274 Ill. 251, and Hay v. Boling, 162 Ill. App. 55, were both concerning testate estates, and the court in each expressly based its decision upon the fact that the parties took their interests by virtue of a last will, and not by descent. We do not think these authorities are in point.

In Ellis v. Dumond, 259 Ill. 483, an administratrix in a partition suit sought, among other things, a lien against real estate on account of an indebtedness of certain children’s immediate ancestor to the remote ancestor, and the court refused to award such lien. The court was there considering real estate where obviously a lien could not be decreed, as under the statute realty descends to the heirs directly, with only a reserved power in the administrator to subject it to sale for the payment of intestate’s debts. If the ancestor had been living the situation would have been the same; his interest in the realty could not have been subjected to lien unless, in an appropriate action, a judgment had been first procured against him upon the debt. We do not think the court was there passing upon the question here involved, or construing subd. 1 of sec. 1 of the statute of descent.

In our opinion the trial court ruled correctly.

Judgment affirmed.


text:
    The Munsingwear Corporation, Appellee, v. Edd Harris, Trading as Harris Supply Company, Appellant.
    Opinion filed March 9, 1938.
    Frank E. Trobaugh, Myron E. Clem and Stephen E. Broncos, all of West Frankfort, for appellant.
    ■Paul A. Jones and Nealy I. G-lenn, both of Benton, for appellee.
   Mr. Justice Edwards

delivered the opinion of the court.

On October 19, 1935, defendant, doing business as Harris Supply Co., being insolvent, made a voluntary assignment for the benefit of creditors, and Walter Syfert was named as trustee in the deed of trust. The property of defendant, consisting of merchandise, was sold, and the proceeds, after deducting expenses, were paid to the creditors in the form of dividends. A check mailed to plaintiff for its pro rata share of the proceeds was returned without being cashed.

Plaintiff brought suit on its demand, which was a merchandise account amounting to $462.28, before a justice of the peace, where a jury found for the defendant. The circuit court, on appeal, the cause being heard without a jury, rendered judgment- for plaintiff for the full amount of its claim and defendant brings the cause here to review such finding.

Upon the execution of the deed of trust the attorney for the trustee wrote each of defendant’s creditors, acquainting them with the situation and enclosing an affidavit of claim; also, a consent to the proceeding to be signed by the creditor, which provided that the dividend to be declared and paid by the trustee should be in full of the creditors’ demands. As we understand the situation, all creditors signed the same except the plaintiff.

On October 28 the attorney for the trustee wrote the creditors that he had been informed by an East St. Louis attorney that certain creditors were contemplating forcing defendant into bankruptcy, and the attorney urged the creditors to sign the consent to the assignment proceeding and file affidavits of their claims, asserting that they would thereby realize a greater dividend than if the matter proceeded through bankruptcy.

On November 4 plaintiff’s attorney acknowledged such letter and stating a willingness to co-operate in the matter, expressed the hope that bankruptcy might be avoided. He also therein asked for certain information as to the financial status of defendant, averring that defendant, during the preceding February, had rendered plaintiff a written statement of his financial worth which showed him to be much better, off than indicated by the letter of trustee’s attorney, and asking information in relation thereto. On November 9 the latter wrote to plaintiff’s attorney, giving information regarding such matter, and on November 12 plaintiff’s counsel replied asserting a willingness to co-operate in the matter, stating, however, that his client felt there was fraud on the part of defendant in obtaining the goods, and asking for further information concerning the time when defendant had previously gone into bankruptcy; also suggesting that it would be to the creditors ’ interests that further investigation be made of defendant’s operation of the business.

On November 26 the trustee’s attorney again wrote all creditors that he was fixing December 2 as the final date to receive affidavits and consents from creditors, and if not in receipt of same by which date such creditors as failed to file would receive a dividend based upon the amount as shown by defendant’s books.

Plaintiff’s answer to same was the starting of suit in the justice court on December 9, which cause was from time to time continued until January 31, 1936, when it was finally decided. The trustee, on January 4,1936, mailed to plaintiff a check for $92.46, being the dividend on plaintiff’s claim, which check the latter did not cash but returned on February 7, 1936.

Defendant claims that the letters of plaintiff’s attorney of November 4 and November 12 amounted to a consent to the trusteeship and led defendant to so believe; that otherwise the latter would have gone into bankruptcy, and that relying upon such letters he changed his position to his damage.

There is nothing in the evidence to indicate that defendant would have altered his course in anywise if plaintiff had promptly refused to enter into the trust arrangement. He made the deed of trust without consulting any of his creditors, and there is nothing to show that his position was in any way changed by the conduct of plaintiff. Nor do the letters evince any consent of the plaintiff to either enter the trust arrangement or accept a dividend in full payment of its claim. The most that can be said is that it would have been willing to enter into the arrangement if it was to its interest to do so. This is shown by its inquiries for information and the suggestion that further investigation be made into the conduct of defendant’s business. It nowhere agreed to accept a dividend in full of its claim, and unless it expressly did so it would not be bound by the trusteeship even though it assented thereto; Howlett v. Mills, 22 Ill. 341; 5 Corpus Juris, p. 1302.

Defendant further urges that debtors’ assignments such as this are favored in law because they tend to expedite payment to all creditors without unnecessary litigation and expense. Such is the law. Cardiff Gypsum Plaster Co. v. Hales C. & M. Co., 239 Ill. App. 16. However, to be operative in the particular case it must appear that the creditor not only assented to the trust arrangement, but that he expressly agreed to accept the dividend in full satisfaction of his demand; Emerson v. Gerber, 178 Mass. 130, 59 N. E. 666; 5 Corpus Juris, p. 1302. Such is not shown by this record.

We think the judgment is right.

Judgment affirmed.


text:
    John Darwin Ellison et al., Appellants, v. Terzie K. Ward et al., Appellees.

      Opinion filed March 9, 1938.
    D. F. Moore, of Benton, and Henry T. Martin, of Chicago, .for appellants.
    Boy C. Martin, Layman & Johnson, Williams & Harrison, W. H. Hart and Hickman & Hickman, all of Benton, for appellees; Moses Pulverman, of Benton, of counsel.
   Mr. Justice Edwards

delivered the opinion of the court.

This action was brought by plaintiff, a minor, by next friend, against the stockholders of an insolvent bank to enforce the statutory stockholders ’ liability. The bill of complaint was filed in 1933, before the Civil Practice Act became operative, and the pleadings were drafted under the Chancery Act as then in force.

Plaintiff being ruled to file a bond for costs, did so, and upon motion it was stricken as being insufficient, as was also a second similar obligation. The chancellor then ruled plaintiff to file a sufficient bond within 10 days, which plaintiff attempted to do by filing within the time limited the following document:

“I hereby enter myself security for costs in this cause, and acknowledge myself bound to pay, or cause to be paid, all costs which have accrued, or may accrue, in this action, either to the opposite party or to any of the officers of this court, in pursuance of the laws of this state.

“(Signed) Nora Newton

Joseph I. Galloway.”

Certain defendants moved to dismiss the suit, alleging failure of plaintiff to file a sufficient bond for costs as previously ruled by the court. After hearing, the court held that plaintiff had not complied with such rule, but had filed another instrument identical in form with the one which had been previously adjudged insufficient in form, though with different sureties, and that same was not a lawful cost bond. The chancellor thereupon dismissed the suit, with prejudice and at plaintiff’s costs. Such ruling is assigned as error.

Defendants urge that the bond for costs in this suit is governed by sec. 18 of the Guardian and Ward Act [Ill. Rev. Stat. 1937, ch. 64, § 18; Jones Ill. Stats. Ann. 57.18] which provides among other things that any suit may be prosecuted by a minor, by his next friend, on such next friend entering into bond for costs and filing-same in the court in which the suit is instituted.

We think the contention is correct and that the quoted section is controlling- in the instant case.

The. statute does not prescribe the form of such bond, and in such situation the rule appears to be that the instrument is sufficient in form if the object is distinctly and clearly stated; 15 Corpus Juris, p. 211, sec. 513.

Here, said section 18 requires a bond for costs, and the obligors engage to pay all costs incident to the prosecution of the suit. This is the object and requirements of the statute, and it seems that the instrument clearly and distinctly avers such purpose and is therefore, as to form, sufficient within the rule.

Defendants further assert that it is not in law a bond for the reason that it was not executed under seal of the sureties, and cite some early decisions in support of the contention. The rule in this regard appears to have been much relaxed by the later adjudications.

In United States v. Linn, 15 Peters (U. S.) 290 (10 L. Ed. 742), it is stated: “The only material difference between an instrument under seal, and one not, is that the one imports a consideration, and in the other it must be proved. ’ ’

First National Bank v. Briggs, 69 Vt. 12, 37 Atl. 231, declares the rule: “Though an instrument in form a bond is without seals, it is a valid obligation, where executed on a sufficient consideration, and delivered as security.”

The Supreme Court has passed upon the proposition, in the People v. Ford, 294 Ill. 319, 324, wherein the court ruled: ‘ ‘ The requirement of a seal in the execution of documents by individuals has become a mere formality. It means nothing. ’ ’

Woodbury v. Ocean Acc. & Guar. Corp. Ltd., 205 Ill. App. 387, 401, contains the following statement: “A seal, generally speaking, merely adds ‘factitious dignity’ to a document; ‘more conclusiveness, as mere evidence of the agreement of the parties. ’ ”

We do not think that the omission of the seals of the obligors upon the instrument rendered it invalid. It is our conclusion that the document was valid, if the sureties were sufficient, and was a compliance with the court’s order of May 18,1936, and that the court erred in holding otherwise. Moreover, even if it was insufficient, we are of opinion that the chancellor should not have dismissed the action “with prejudice.”

Where the plaintiff is a minor he becomes a ward of the court, and the protection of his interests should be the object of its solicitude. In Lloyd v. Kirkwood, 112 Ill. 329, 338, the court, in considering this matter, stated: “Whenever the property rights of an infant are drawn into litigation, and the infant himself, whether as plaintiff or defendant, has been brought into court, he at once becomes the ward of the court, and as such it is the duty of the court to see that his rights, as such, are properly protected. ... If the guardian ad litem fails to properly protect the interests of the ward, it is the duty of the court, sua sponte, to compel him to do so whenever the fact in any manner is brought to the notice of the court. ’ ’

This doctrine was quoted approvingly in Tymony v. Tymony, 331 Ill. 420; and to the same effect are Mason v. Truitt, 257 Ill. 18; and Stark v. Brown, 101 Ill. 395. In Gibbs v. Andrews, 299 Ill. 510, the court in discussing this subject, at page 514, declared: “The court will not only appoint a guardian ad litem for the protection of such rights, but will exercise a constant supervision over such guardian ad litem, and will see that no interest of a minor or other person under legal disability is prejudiced.”

While the cited decisions refer to guardians ad litem, the rule applies with equal force to next friends, as stated in 31 Corpus Juris, p. 1118, sec. 262: “While, technically speaking, a next friend represents an infant plaintiff, and a guardian ad litem represents an infant defendant, there is little, if any, difference between their functions or powers. ’ ’

If the next friend, in the instant case, was remiss in her duty in filing a cost bond, it was incumbent upon the court to indicate to her the sort of bond he deemed proper, and then require her to file same. The infant’s rights should not be prejudiced by the conduct of the next friend, and the cause should not be dismissed therefor, when the court has ample power to require the protection of his interests. So that whether the cost bond, as filed, was or was not sufficient, as a matter of law, we think the court erred in dismissing the suit with prejudice to the infant’s right to further proceed.

Defendants’ brief, at page 4, sets forth: “After full hearing and after Judge Pearce, by his order of June 19,1936, had dismissed the suit for the failure of plaintiff to comply with the rule as to cost bond, the plaintiff presented such motion for leave to file an amended and supplemental bill, which motion the Court denied.”

Plaintiff complains of such ruling. We do not find in the record anything to dispute the quoted assertion of defendants, so shall regard it as correct.

After the court had dismissed the suit, the litigation was at an end, and unless or until the order of dismissal was set aside or otherwise vacated, the court was without power to make any other orders in the cause. As stated in 18 Corpus Juris, p. 1207, sec. 143: “The general rule is that where a suit is dismissed or a nonsuit ordered, it carries the parties and the entire cause of action out of court, and all further proceedings in the action are unauthorized until the judgment of dismissal or nonsuit' is vacated and the cause reinstated, except to render a judgment or decree for costs or to make such order or decree in the cause as may be necessary to effectuate the judgment terminating the cause, and except on appeal.” After the court dismissed the action it had no authority to consider or rule upon the motion for leave, to file the amended and intervening petition, and its order of denial thereon was erroneous.

The order is reversed and the cause is remanded, with directions to approve the cost bond last filed, if the sureties thereon are found to be sufficient; if not, to require the next friend to file another with adequate sureties, and after same has been done, to consider and rule upon the motion for leave to file an amended and supplemental bill, as shall appertain to right and justice.

Reversed and remanded with directions.


author: Mb. Justice Mubphy

text:
    George Daab et al., Appellants, v. Louis G. Ritter, Appellee.
    Opinion filed March 9, 1938.

      James O. Milleb and Rogees D. Jones, both of Belle-ville, for appellants.
    "William H. Schuwebck, of Chester, for appellee.
   Mb. Justice Mubphy

delivered the opinion of the court.

Plaintiffs instituted this suit in the circuit court of Monroe county to recover damages in an action for fraud and deceit. That court sustained defendant’s motion in the nature of a demurrer to the amended complaint and the following record entry was made, ‘ ‘ Said motion in nature of demurrer to dismiss amended complaint so on file and extended, to amended complaint is thereupon argued by respective counsel and heard by the court. Motion to dismiss sustained. Plaintiff, on oral motion therefor, is granted leave to file second amended complaint within ten days thereafter.”

Later plaintiffs filed in writing their election to abide by the amended complaint and refused to plead further. No judgment order was entered after plaintiffs filed their election. Plaintiffs filed a notice of appeal to this court from the order above quoted. Defendant has filed a motion to dismiss the appeal on the ground that said order is not a final appealable order.

Plaintiffs contend that appeals may be taken from orders and judgments which are not final and relies upon section 74 of the Civil Practice Act [Ill. Rev. Stat. 1937, eh. 110, § 198; Jones Ill. Stats. Ann. 104.074].

The statutory authority for an appeal and the kind of judgments from which appeals may be taken is to be found in section 77 of said act. The first sentence of that section provides that appeals will lie to the Appellate or Supreme Court in cases where any form of review may be allowed by law, to review the final judgments, orders or decrees of the courts therein specified. This sentence is substantially the same words as sec-' tion 91 of the Practice Act of 1907 and under that section it has been repeatedly held that appeals could not be taken from any judgments other than those that are final and section 77 of the present act has been given the same effect. Duncan v. National Bank of Decatur, 285 Ill. App. 305.

The entry above quoted is not a judgment at all. It is but a mere memorandum from which a formal judgment might be written. It does not contain the essential elements of a judgment. City of Alton v. Heidrick, 248 Ill. 76. There being no final judgment this court has no jurisdiction. Chicago Portrait Co. v. Chicago Crayon Co., 217 Ill. 200; Duncan v. National Bank of Decatur, supra.

Although defendant filed a motion raising the question of jurisdiction he has also stated in his brief that he was willing that this court should also consider the questions raised on the pleadings by defendant’s motion. The failure to have a final judgment from which the appeal was taken leaves this court without jurisdiction and it cannot be conferred by a stipulation of the parties. Westcott v. Kinney, 120 Ill. 564; Chicago Portrait Co. v. Chicago Crayon Co., supra.

Appeal dismissed.


author: Mr. Justice Murphy

text:
    Norman Farmer, Administrator of the Estate of Lloyd Farmer, Deceased, Appellant, v. The Alton Building and Loan Association, Appellee.

      Opinion filed March 9, 1938.
    Manuel M. Wiseman, of Alton, and Philip Gf. Listeman, of East St. Louis, for appellant.
    O’Neill & O’Neill, of Alton, for appellee.
   Mr. Justice Murphy

delivered the opinion of the court.

The defendant, The Alton Building and Loan Association, owned a lot located in the village of East Alton and by verbal arrangement leased it to one Fentress from month to month. He took possession and occupied it as a family residence. Fifteen days after he began to occupy the premises, Lloyd Warner Farmer, plaintiff’s intestate, a boy five and a half years old, while playing on the lot with Fentress’ children, fell into a cesspool located on the back of the lot and was drowned. Plaintiff started this suit to recover damages for said alleged wrongful death.

The jury returned a verdict for the plaintiff and assessed his damages at $4,750. The defendant then filed a motion for a judgment notwithstanding the verdict, which was overruled and a motion for a new trial which was granted. Plaintiff was granted leave to appeal from that order.

The record does not disclose which ruling's the court deemed erroneous and upon which the new trial was ordered. Defendant in its answer to plaintiff’s petition for leave to appeal states that it has no objection to granting leave to appeal but contends that the court erred in overruling its motion for judgment notwithstanding the verdict and in denying its original motion to dismiss the complaint and contends that it can attack the insufficiency of the pleading on its motion for a judgment notwithstanding the verdict.

Prior to the adoption of the Civil Practice Act a motion for a judgment notwithstanding the verdict was not available to a defendant. It was a privilege given solely to the plaintiff and was a judgment rendered in favor of the plaintiff without regard to the verdict obtained by the defendant. Teehan v. Union Bridge Co., 84 Ill. App. 532; Aldrich v. Mathias, 141 Ill. App. 590.

Section 68 of the Civil Practice Act [Ill. Rev. Stat. 1937, ch. 110, § 192; Jones Ill. Stats. Ann. 104.068] provides that in all civil actions at law where either party shall at the close of testimony move for a directed verdict that the court may reserve its decision and submit the case to the jury and after recording the verdict may if it concludes that the motion for a directed verdict should have been granted allow the same and enter a judgment notwithstanding the verdict.

Supreme Court Rule 22 is as follows: “The power of the court to enter judgment notwithstanding the verdict may be exercised in all cases where, under the evidence in the case, it would have been the duty of the court to direct a verdict without submitting the case to the jury.”

This section changes the rule under the former practice and permits either party to file a motion for judgment notwithstanding the verdict but its only function is to raise the question as to whether the motion for a directed verdict should have been allowed. It has been held that the trial court in passing upon a motion for judgment notwithstanding the verdict has ho more authority to weigh and determine controverted questions of fact, under the Civil Practice Act than under the Practice Act of 1907. Gardiner v. Richardson, 293 Ill. App. 40; Capelle v. Chicago & N. W. Ry. Co., 280 Ill. App. 471; Illinois Tuberculosis Ass’n v. Springfield Marine Bank, 282 Ill. App. 14.

Under the former practice it was held that a motion to exclude the evidence and for a directed verdict was not a proper method of questioning the legal sufficiency of the declaration as a pleading. Swift & Co. v. Rutkowski, 182 Ill. 18; Klofski v. Railroad Supply Co., 235 Ill. 146; Carson-Payson Co. v. Peoria Terrazzo Co., 288 Ill. App. 583, and there is nothing in said section 68 or Rule 22 which extends or broadens the scope of inquiry on such a motion so as to reach a defect in the complaint. The other points alleged in defendant’s motion for a judgment notwithstanding the verdict were in reference to the court’s rulings on the admission and rejection of evidence. These questions are - likewise outside the functions of such a motion.

Defendant’s motion to dismiss the complaint, which was filed before its answer, alleged in general terms that the complaint did not state a cause of action. It was properly overruled for failure to point out wherein it was defective as required by section 45 of the Civil Practice Act [Ill. Rev. Stat. 1937, ch. 110, § 169; Jones Ill. Stats. Ann. 104.045]. Hitchcock v. Reynolds, 278 Ill. App. 559.

Sub-paragraph 3, section 42 of the Civil Practice Act [Ill. Rev. Stat. 1937, ch. 110, § 166; Jones Ill. Stats. Ann. 104.042] provides, that all defects in pleading, either in form or substance, not objected to in the trial court,, shall be deemed to be waived and since defendant did not file a motion in arrest of judgment and did not have a sufficient motion to dismiss, all defects in the complaint either in form or substance are. on this appeal deemed to have been waived.

Defendant’s motion for a new trial specified 21 different grounds, which ones the court sustained is not shown by the record, but counsel have discussed those pertaining to defendant’s motion for a directed verdict, refusal of defendant’s instructions, excessiveness of the verdict, and in not granting a new trial for newly discovered evidence.

Defendant’s answer admits the ownership of the lot, the presence of the cesspool, and its use by its tenants, that it leased the premises to Fentress and agreed to keep the same in repair but avers that at the time of the leasing there was no necessity for any repairs. It denies that the covering over the cesspool was in a dangerous condition when Fentress moved in or at any other time and that it had no knowledge of its condition.

The evidence discloses that the cesspool was located on the rear of the lot, was 7 or 8 feet deep about 4 feet in diameter and was covered with two-inch boards with approximately a foot of earth on the boards and this covered with dead weeds, cinders and other debris forming a mound about 12 feet in diameter.

Deceased was residing with his parents on a lot on the opposite side of the same block, the lots contacting at the corners. There was no fence or other obstruction to mark the boundary line between the lots. About 3 p. m. April 6th deceased left his home with the consent of his mother, to play with the Fentress children and other children of the neighborhood ranging in ages from two to six years. Deceased was seen playing with these children on this lot near the Fentress garage and 8 to 10 feet from the cesspool. In about 30 minutes he disappeared and search revealed that he had gone onto the earth covering the cesspool and the boards underneath had given away dropping him into the pool where he was drowned.

Defendant had a maintenance foreman for this and other properties and another agent to collect rents from Fentress and other tenants. There is evidence that the neighbors to the Fentress property had as early as June preceding the accident observed an opening in the top of the pool 12 to 18 inches in diameter and had on at least two occasions, prior to the occupancy by Fentress told the maintenance foreman and rent collector of the condition and that once the foreman went to the pool and looked at it and remarked that it would have to be repaired. Both agents denied any such statements or examination of the pool but the maintenance foreman testified he checked the property for defects a few days before Fentress moved, that he went near the mound of earth over the pool, that it looked all right and he reported to the defendant that the property had been examined and found to be in order.

The tenant, Fentress, testified he had no knowledge of the location of the cesspool or its condition until the day preceding the accident when a neighbor called his attention to it and that he had prior to the day of the accident invited deceased to come to his yard and play with his children.

In plaintiff’s brief it is stated that his case is predicated upon the theories that the defendant is liable because, 1. The defendant at the time of the letting agreed to keep the premises in a proper state of repair and failed after notice to fulfill that agreement. 2. That the defendant rented the premises knowing that a nuisance and dangerous condition existed thereon and the renting thereof did not absolve him from liability in this case.

The rule is that the relation of landlord and tenant creates no obligation or duty on the landlord to make repairs unless he has assumed such duty by express agreement with the tenant. In the absence of special agreement the tenant takes the premises as he finds them, subject to his own risk and there is no implied covenant that they are fit for habitation or that they are in any particular condition of repair. Sunasack v. Morey, 196 Ill. 569; West Chicago Masonic Ass’n v. Cohn, 192 Ill. 210; Borggard v. Gale, 107 Ill. App. 128.

In Cromwell v. Allen, 151 Ill. App. 404, this court quoting from Jones on Landlord and Tenant said, “The landlord’s responsibility for damages caused by his failure to perform his contract to repair rests altogether upon his breach of contract. It may be stated as a general rule that a landlord who has covenanted to repair, is not liable in tort for personal injuries resulting from the want of repair. Such injuries are too remote to be recovered as damages for breach of contract and the duties arising from the relation of landlord and tenant are not increased by such a contract in respect to the duty of the landlord to provide for the personal safety of the tenant.”

In a further discussion of the difference between an action for damages arising out of a breach of contract to repair and an action ex delicto the court said, “"Where injuries under such circumstances were admittedly too remote to be recovered in an action of contract, it was claimed they could be recovered in an action of tort. But to permit a recovery for such damages, based on contract simply because it is in the form of an action of tort, would be mailing a distinction that could not be justified by reason or authority. There must be something more than a mere failure on the part of the landlord to make the repairs he has agreed to make. It makes no difference whether the form of the action is ex delicto or ex contractu, the real and substantial gravamen of the complaint is the alleged breach of contract, and in such a case the same law is applicable to both classes of action.”

A landlord under contract to repair may under certain conditions be liable for damages for personal injuries by reason of a negligent failure to make repairs but there can be no such liability unless the covenant to repair amounts to a covenant to keep the premises reasonably safe; or unless the covenant was made under such circumstances as plainly indicated that the damages claimed were within the contemplation of the parties at the time of making the contract. The ordinary covenant to keep the premises in repair is generally held to mean that the repairs will be made on notice and is not in default until so notified. Cromwell v. Allen, supra.

In this case the allegation in the complaint that defendant agreed with the tenant to repair, the answer which admits it and the evidence can be construed only as an agreement to repair generally. No mention was made of the cesspool and the tenant did not give the defendant any notice to repair it. Plaintiff cannot sustain his verdict on this theory.

As stated the g’eneral rule is that a landlord is not bound to make repairs unless he has assumed such duty by express agreement with the tenant and is not liable for damages caused by a defective condition of the premises, but there are certain well recognized ex-, ceptions to the general rule, (a) as where a landlord leases premises with latent defects that are attendant with danger to an occupant, which a careful examination would not disclose, but which are known to exist by the landlord and are not known to the tenant, and the tenant is damaged by reason of such defect, Borggard v. Gale, supra; Sunasack v. Morey, supra, and in this exception the liability has been extended to include injuries to members of the tenant’s family and servants, Reichenbacher v. Pahmeyer, 8 Ill. App. 217; Coyne v. Laubenheimer, 225 Ill. App. 50, and to a third person who is upon the premises at the express or implied invitation of the tenant. Baird v. Shipman, 132 Ill. 16, (b) where the landlord demises premises with a known nuisance upon them, it being thereby presumed that he authorized its continuance, and a third party who is on his own property which adjoins or on a sidewalk that abutts on the property and is injured by reason of the nuisance, Stephani v. Brown, 40 Ill. 428; Gridley v. City of Bloomington, 68 Ill. 47; Boyce v. Tallerman, 183 Ill. 115, (c) and where premises are leased with a known nuisance upon them and the landlord knows or should know that children of tender age habitually frequent the premises and are likely to trespass upon that part of the premises where the nuisance is located, and the nuisance is of such a character that he knows or should have known that it involves an unreasonable risk or hazard that is likely to result in death or serious bodily injury to such children. Ramsay v. Tuthill Bldg. Material C Co., 295 Ill. 395.

In this latter class the liability is not extended to children of all ages but only to those of such tender years that they are not capable of discerning and avoiding danger. A young child upon the premises of another may in a sense be a technical trespasser but in law he is incapable on his own volition to acquire the status of being either a trespasser, a visitor, a licensee or invitee, Donk Bros. Coal & Coke Co. v. Leavitt, 109 Ill. App. 385.

In Ramsay v. Tuthill Bldg. Material Co., supra, the court in discussing the implied invitation that is adopted in the attractive nuisance cases said “There is no implied invitation from the mere existence of a dangerous attraction which is not discoverable off the premises; but, if to the knowledge of the owner, children habitually come upon his premises, where a dangerous condition exists to which they are exposed, the duty to exercise care for their safety arises, not because of an implied invitation but because of his knowledge of unconscious exposure to danger which the children do not realize.” Gritton v. Illinois Traction, Inc., 247 Ill. App. 395.

There was sufficient evidence in the record to justify submitting the case to the jury upon the question as to the defective condition of the covering over the cesspool, defendant’s knowledge of the same at the time of the leasing, but there is no evidence to warrant its submission on the question of defendant’s knowledge that children habitually played on these premises. There is evidence that the tenant had children who lived with him on the premises and the neighbors testified that they had seen children playing on the premises but there is no evidence which tends to show that defendant knew it or should have known it.

Plaintiff tendered no instructions and defendant tendered three. All of defendant’s instructions were refused and properly so for the reason that they were drawn on the theory of an attractive nuisance which is not involved in the case.

For the reason stated the order of the trial court in granting a new trial was correct and is affirmed.

Affirmed and remanded.


text:
    David Skamenca, Appellee, v. H. C. Reeser, Appellant.

      Opinion filed March 9, 1938.
    Terry, Gueltig & Powell, of Edwardsville, for appellant.
    Burroughs, Simpson & Reed, of Edwardsville, for appellee.
   Mr. Justice Murphy

delivered the opinion of the court.

The plaintiff, David Skamenca, brought this suit against the defendant, H. C. Reeser, to recover damages for personal injuries received in an automobile collision. The case was tried with a jury resulting in a verdict for the defendant. On plaintiff’s motion, the court set the verdict aside and granted a new trial. By leave of this court defendant has perfected an appeal from that order. The record shows that the court stated the only reason for granting a new trial was error in the instructions given at the request of the defendant.

Plaintiff also contends that the court erred in directing a verdict for the defendant on the charge of wilful and wanton negligence.

The evidence shows that plaintiff was driving his automobile in a northerly direction on U. S. highway No. 66 about 2 a. m., January 20,1935, he testified that he was driving on his right-hand side of the center of the pavement, that he was traveling 28 to 30 miles per hour, that it was foggy and damp, that he was driving with his dim lights on, that with the dim lights he could see in the fog 50 to 60 feet ahead, that under normal atmospheric conditions he could have seen 150 to 200 feet in the direction he was driving.

The evidence also shows that the defendant was driving in a southerly direction and he testified that it was very foggy, that he was driving about 25 miles per hour on his right-hand side of the road with his bright lights deflected and that he could see ahead 50 to 75 feet and in normal atmospheric conditions he could have seen 200 feet.

Instruction number 5 given at the request of the defendant, told the jury that the law of this State at the time of the collision required every motor vehicle when driven upon any public highway in this State during the period of one hour after sunset to sunrise, to carry-two lighted lamps showing white lights, enabling the driver to see objects at least 200 feet in the direction toward which such motor vehicle is proceeding and if they believed from the evidence that plaintiff was driving without such lights and that his failure in that regard proximately caused or contributed to the collision then they should find the defendant not guilty.

Section 16 of the Motor Vehicle Act [Cahill’s Ill. St. 1933, ch. 95a, If 17; Smith-Hurd 1933, ch. 121, §217] provides that every motor vehicle when upon any public highway during the period one hour after sunset to sunrise shall have two lighted lamps visible at least 200 feet in the direction toward which it was proceeding-.

It has been held that this statutory provision requiring headlights visible at least 200 feet in the direction toward which the vehicle is proceeding is intended to provide lights for the guidance and benefit of the person driving as well as for the protection of others who use the highway. Miller v. Burch, 254 Ill. App. 387; Johnson v. Gustafson, 233 Ill. App. 216.

The instruction in effect directed a verdict for the defendant if they found that plaintiff’s failure to have lights as described was the proximate cause of the injury for the evidence was conclusive that plaintiff’s lights would not penetrate the fog and enable him to see 200 feet ahead.

Failure to have lights of sufficient power to enable a driver to see objects ahead, may under certain conditions be negligence as a matter of law, but the courts of this State have held that under certain conditions it is a question of fact for the jury.

In Moyer v. Vaughan’s Seed Store, 242 Ill. App. 308, the accident occurred in the nighttime when it was raining and plaintiff was unable to see more than 20 feet ahead. He crashed into a truck which was having trouble with its lights and had stopped partly on the pavement. The court said, “In the instant case we think it cannot reasonably be said that the driver of plaintiff’s automobile was guilty of negligence as a matter of law. The night was dark and misty. The plaintiff was driving along a country road where standing vehicles were not to be expected. There is evidence to the effect that there was no rear light on the truck, that the color of the truck and its load blended with the coloring of the surface of the road. These, and many other circumstances which might be alluded to, show that all reasonable minds would not reach the conclusion that the driver of plaintiff’s automobile was acting as no rational person would act under like circumstances, and, therefore, the question to be determined was one of fact and not law. ’ ’

In Miller v. Burch, 254 Ill. App. 387, the accident occurred in the nighttime. Plaintiff’s lights were on dim and did not illuminate the road more than 3 feet in front of the car and were of no assistance to him in distinguishing objects more than that distance. His automobile crashed into defendant’s automobile standing on the wrong side of the road in the traffic lane where plaintiff was driving and had a right to be. The court said, “Applying the above to the instant case, plaintiff was driving along a street at an hour and at a place where standing vehicles were not to be expected, on the path he was supposed to be, and in which he was driving. There is evidence that there were no lights on defendant’s car. There was a light at the intersection, but the street was dark near defendant’s car. These, and other circumstances heretofore mentioned, and that might be mentioned, persuade us that all reasonable minds would not agree that the conduct of plaintiff constituted negligence. So the question of negligence should be treated as. one of fact for the jury. ’ ’

Plaintiff testified that defendant was driving without lights and that when he first saw defendant’s car it was 60 feet ahead of him coming towards him in plaintiff’s traffic lane, that he did not have time to stop his car and that he swerved his car to his left endeavoring to avoid a collision. He says defendant turned his lights on, the instant he first saw defendant’s automobile. There is a conflict in the evidence as to where defendant was driving and as to whether his car had lights.

Owing to the density of the fog, the circumstances mentioned and the conflict in the evidence we are satisfied that all reasonable minds would not agree that the failure of the plaintiff to have lights of sufficient brilliancy to penetrate the fog and enable him to see 200 feet ahead constituted negligence.

At any rate the instruction was broader in its requirements as to light than that prescribed by the statute and as pointed out it was not in accord with the rules announced in the cases cited.

Defendant’s instruction number 6 told the jury that the driver of any motor vehicle on the public highway is required to keep a proper lookout for other cars on the highway in order to see the same in time to stop or slacken speed and thus avoid a collision and failure to do so constitutes negligence and if they found from the evidence that plaintiff failed to keep a proper look out for other cars and by reason thereof was negligent and such negligence contributed to cause the collision, their verdict should be in favor of the defendant.

By this instruction the jury were told that the plaintiff must keep a lookout for other cars on the highway and then directed that his lookout must be such that if another car was on the highway he must see it when it was such distance from him that he would still have time to stop or slacken his speed and avoid a collision and that failure to do so constituted negligence.

The rule embodied in this instruction is akin to the principles announced in Lauson v. Town of Fond du Lac, 141 Wis. 57, and cases in other jurisdictions where it is held that it is negligence as a matter of law to drive an automobile along a public highway in the dark at such a speed that it cannot be stopped within the distance that objects can be seen ahead of it. In the Moyer case, supra, the Appellate Court of the first district declined to follow those cases and held under the facts of that ease the question of contributory negligence of the plaintiff was one of fact and not of law. To the same effect is Miller v. Burch, supra.

It is well settled that one driving an automobile upon the public highway must be on the lookout for other cars and must use every reasonable precaution he can to avoid collision but under the circumstances surrounding the collision in this case it was for the jury to say what kind of a lookout would be required of the plaintiff to avoid being guilty of contributory negligence.

The seventh instruction told the jury that to determine the credibility of the witnesses and the preponderance of the evidence they should take into consideration the interest of the witnesses in the result of the suit and the number of witnesses testifying to a particular fact. The number of witnesses testifying to a particular fact is a proper element for a jury to take into consideration but there are other elements worthy of equal consideration and which are generally included in this character of instruction. In this case where plaintiff was the only eyewitness who testified for him to the facts surrounding the collision while defendant and his guest testified on the defense we are of the opinion that the instruction is subject to the criticism that it stresses the element of the number of witnesses and does not mention other elements which should be considered by the jury in determining the weight and preponderance of the evidence. It was prejudicial error to give the fifth, sixth and seventh instruction.

In plaintiff’s motion for a new trial he urged that the court erred in directing a verdict for the defendant on the charge of wilful and wanton negligence and while the court granted a new trial, it was not on that ground, however plaintiff urges it here and since the case will stand for another trial we will consider it.

Plaintiff predicates his contention on the fact that his evidence is that defendant was driving on the wrong side of the road without lights.

The rule is that in passing upon a motion to direct a verdict, if, when all the evidence is considered, with all reasonable inferences drawn from it in its aspects most favorable to the party against whom the motion is directed, there is a total failure to prove one or more necessary elements of the case, the motion should be allowed. Streeter v. Humrichouse, 357 Ill. 234.

In Chicago City Ry. Co. v. Jordan, 215 Ill. 390, it was said, “Where there is a particular intention to injure or a degree of wilful or wanton recklessness which authorizes a presumption of an intention to injure generally, the act ceases to be merely negligent and becomes wilful or wanton. In such a case there may be an actual intent to injure, or such a conscious or intentional disregard of the rights of others as to warrant a conclusion that an injury was intended.”

In Bernier v Illinois Cent. R. Co., 296 Ill. 464, the court said, “Whether an act is wilful or wanton is greatly dependent upon the particular circumstances of each case. Where the omission to exercise care is so gross that it shows a lack of regard for the safety of others it will justify the presumption of wilfulness or wantonness.”

In Murphy v. King, 284 Ill. App. 74, it was said, “A conscious indifference to consequences which is shown by an intentional disregard of a known duty necessary to the safety of the person or property of another would come within the definition of wilful and wanton negligence. ’ ’

Throughout this record the density of the fog has been stressed and defendant driving under such conditions was charged with knowing that the duty rested upon him to drive on his right side of the road and to have his headlights burning. Taking plaintiff’s evidence on this point as true, as we must on this motion, it tended to show a conscious indifference to the consequences that might follow from his disregard of the duty that rested upon him to drive on the right side of the road and have his lights burning.

Plaintiff’s evidence on this point contained the essential elements of wilful and wanton negligence and the same should have been submitted to the jury.

The order granting a new trial is affirmed and the cause is remanded for a new trial.

Affirmed and remanded.


text:
    H. Kovar, Appellant, v. Julius W. Bremer et al., Appellees.

      Opinion filed March 9, 1938.
    W. A. Middleton, of Paducah, and George E. Martin, of Mound City, for appellant.
    Walter Roberts and H. A. Evans, both of Metropolis, for appellees.
   Mr. Justice Murphy

delivered the opinion of the court.

Plaintiff H. Kovar on June 21, 1931 was engaged as pastor of St. John’s Evangelical Lutheran Church which is a country church located north of Metropolis in Massac county. This church is a member of the Illinois district of the American Lutheran Church.

Twenty-four of the defendants are members of the church, defendant A. R. Seemon was an ordained minister of the same denomination and the remaining defendant, August Borman was a layman and not affiliated with the church.

Plaintiff instituted this suit against the 26 defendants charging them with a conspiracy to slander and libel him thereby damaging him in his calling and causing him to loose his position as pastor.

On a trial the jury returned a verdict for the defendants and after overruling a motion for a new trial the court entered judgment on the verdict. The chief errors assigned on this appeal are in reference to ruling’s on evidence and instructions.

Inasmuch as plaintiff’s charges of conspiracy to slander and libel have their inception in a dispute between the pastor and his congregation and the damage claimed in plaintiff’s removal from his pastorate, it becomes necessary to briefly review the evidence that caused the dispute and the steps that were taken to effectuate his removal.

Plaintiff was engaged as pastor with an annual salary of $1,200 and parsonage furnished. His selection was by action of the congregation. According to the rules of the church its business affairs were transacted by a council of five selected by the congregation from among its members. This council is called the vestry. Defendant Benjamin W. Korte was elected a member of the vestry and later became its secretary. At a meeting of the vestry in January, 1933, where the finances of the church were under discussion, Korte suggested a reduction of plaintiff’s salary. Plaintiff became incensed at Korte over the suggestion and afterwards called at Korte’s house and asked him to sign a resignation from the vestry. Korte refused to sign and plaintiff signed Korte’s name to it. There is a conflict in the evidence as to whether or not Korte authorized plaintiff to sign, plaintiff claiming that Korte authorized it and Korte denying it. At the subsequent meetings and hearings hereinafter referred to it appears that the issue of the veracity of plaintiff and Korte on this matter always held a prominent place. Many contending that plaintiff was the liar and a few that Korte was in the wrong.

The Sunday following at the regular hours for worship, plaintiff advised the congregation that Korte had willingly , resigned and read the purported resignation. After plaintiff had closed the church service, Korte asked the congregation to remain and he announced that plaintiff’s statement about his resignation from the vestry was absolutely false and untrue. Plaintiff then announced that Korte was removed as a member of the vestry.

Thereafter Korte in accordance with the rules of the church denomination addressed a communication to the president of the synod asking for an investigation. The president of the synod attended a meeting of the vestry and endeavored to calm the contending forces. At the close of the meeting it appeared that he had been successful but in a few hours, plaintiff addressed a note to Korte and the whole affair was where it was when the meeting was called. It continued to gain in bitterness and in July a meeting of the congregation was called by the president of. the synod. Plaintiff claimed this meeting was surreptitiously called and refused to attend, and contended that none of his followers were notified and were not present. A vote was taken on asking plaintiff for his resignation and resulted in thirty-three for the affirmative and three against. The president of the synod conveyed the result of the vote to plaintiff but he refused to resign. To avoid question of plaintiff’s claim that the meeting was not properly called, the president of the synod called another meeting for August 20, 1933, which plaintiff also refused to attend. The congregation again voted in a majority for his resignation. • Plaintiff still persisting that he had a right to act as pastor entered the church and preached to the few that gathered. A large majority of the members did not attend.

Plaintiff, according to the church rules, took an appeal from the meeting held August 20 to the board of appeals. The board of appeals was composed of three ordained pastors and two laymen. The board held its hearing September 12, 1933, ratified the action of the congregation held August 20 and notified plaintiff he should resign immediately. Plaintiff refused to abide the action of the board of appeals, remained in possession of the parsonage and continued to enter the church and preach. There is evidence of other meetings at the church and at a blacksmith shop and school house and perhaps at other places, but all of them, like the ones referred to had as a basis of contention the question whether plaintiff or Korte was the liar, and the removal of plaintiff as their pastor. Notices were posted on the church door by the officers of the church which notice unquestionably was intended to refer to plaintiff and directed that he should not enter the church.

After the rules of the church and the advice and counsel of the president of the synod had failed to settle the troubles the officers of the church caused a demand notice for possession of the parsonage to be served on plaintiff and a forcible entry and detainer suit was instituted before a justice of the peace. Plaintiff was defeated in justice court and he appealed to the circuit court. On a trial with a jury in the circuit court and after the evidence was all introduced, the court entered the role as peacemaker and suggested a settlement of the matters between them. By stipulation, a juror was withdrawn, a judgment of ouster was entered against the plaintiff the trustees paid to the clerk of the court, for plaintiff $409.35, which he accepted. All charges which had been filed against the plaintiff with the president of the synod were to be withdrawn and charges filed by plaintiff were to be withdrawn by him. It was agreed that a compliance with the stipulation should “operate as mutual releases in all matters now or heretofore outstanding between the plaintiff, or any member of said congregation and the defendant. ’ ’ This agreement was reached February 1, 1934. Plaintiff vacated the parsonage in accordance with the stipulation and in March following instituted this suit.

The words of defamation as alleged in the five counts of the complaint were that Reverend Kovar is untruthful, is a perjurer and an extortionist, is a hard boiled liar and there is no truth in him, that he was not fit to be a preacher and many other statements of the same character and import. Bach count alleged a conspiracy by all defendants.

Courts have no power to pass upon questions of differences between contending factions of a church society, unless civil or property rights are involved. They will not interfere to control the exercise of ecclesiastical authority not violative of a civil or property right. German Evangelical, etc. v. Deutsche Evangelisch, etc., 246 Ill. 328; Stallings v. Finney, 287 Ill. 145.

As grounds for reversal, plaintiff’s first contention is that the court erred in admitting in evidence the record in the forcible detainer suit. The only part of the record of that suit introduced was the stipulation of settlement. Defendants pleaded it as a defense, contending that it was a settlement of all matters between the plaintiff and the defendants in the case. It was properly admitted.

Plaintiff’s second contention is that the trial court refused to allow the witness Maud Bremingmeyer to testify that she had heard defendant Martin Wittke say that Kovar was a hard boiled liar, an extortionist, a perjurer, a crook and an outlaw.

Prom an examination of the evidence we infer that the witness was willing to testify for plaintiff but for some reason she could not or would not fix the time and place of the conversation she was undertaking to relate. The court permitted counsel to ask leading questions and made suggestions in reference to the examination of the witness. The efforts of plaintiff’s counsel to get this witness to testify covers nine pages of the record.

The court did not reject the evidence as incompetent but on the grounds that a proper foundation had not been proven and properly so.

Plaintiff’s further contention is that there was error in the court’s refusal of four of his instructions.

The first refused instruction told the jury that even though they found that the defendants came together for a lawful purpose yet if they further found that they combined in attempting to accomplish an unlawful purpose then this might be evidence of a conspiracy to accomplish such purpose.

An actionable conspiracy is a combination to accomplish an unlawful purpose or to accomplish a lawful purpose by unlawful means. To make it actionable the combination must be followed by an overt act. A combination to attempt to do a thing in an unlawful way is not actionable. A mere agreement to do wrong is not actionable and does not become so until the parties to the agreement do an overt act in furtherance of the illegal combination resulting in injury to a third person. The instruction was properly refused.

The other three refused instructions told the jury that if they found there was no conspiracy but that the defendants or some of them had slandered the plaintiff they could return a verdict against the defendants guilty of slander. These instructions authorized a verdict against the defendants as joint tort-feasors.

Two or more individuals uttering the same slanderous words at the same time cannot be sued in an action for slander as joint tort-feasors, the reason being that the oral utterance of defamatory words by one is a complete offense and the wrongful act is committed by the individual uttering the words, so that each speaks for himself and must respond in damages for his own language. Baker v. Young, 44 Ill. 42; Economy L. & P, Co. v. Hiller, 203 Ill. 518; Randall Dairy Co. v. Pevely Dairy Co., 274 Ill. App. 474. The instructions were properly refused.

Complaint is made of the giving of five of defendants instructions. We have examined them and find that they correctly stated the law as to the issues raised by the pleadings.

Plaintiff alleged as .a grounds for a new trial that one of the jurors stated he was related by blood or marriage to a large number of the defendants. This was supported by affidavits. Counter affidavits were filed. It is proven to our satisfaction that the point urged.was without foundation i-n truth or fact.

The judgment of the circuit court is affirmed.

Judgment affirmed.