text:
    The People of the State of Illinois for the use of W. H. Dyer, Administrator De Bonis Non of the Estate of John Rosiwiski, Deceased, Appellant, v. Sally Sanculius, Also Known as Salli Sanculius, Appellee.
    Gen. No. 9,016.

      Opinion filed February 10, 1936.
    Rehearing denied April 6, 1936.
    Heth & Lister, of Chicago, for appellant; John J. Flynn, of Chicago, of counsel.
    Miller & Shapiro, of Kankakee, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.

This case is a civil action upon certain administrators’ bonds brought in the name of the .People of the State of Illinois for the use of W. H. Dyer, administrator de bonis non of the estate of John Rosiwiski; deceased, against Sally Sanculius, also known as Salli Sanculius, and C. B. Sawyer. Service (was not had upon Sawyer and the cause proceeded ‘ against the defendant, Saneulius, alone.

The complaint consisted of three counts which are identical in form except, as to the date, parties, and penalty of the instrument sued upon. The first count is against the defendants Sanculius and Sawyer, jointly. It alleges their appointment as co-administrators of the estate, the execution, filing and approval on January 6, 1930, of administrators’ bond in the penal sum of $10,000 executed by said Sawyer and Sanculius, jointly, as principals, together with Zelma Z. Sawyer and W. M. Durham, as sureties, subject to statutory. condition for the faithful discharge of the joint duties of said Sawyer and Sanculius.

For alleging a breach of said bonds the plaintiff pleads an order, entered February 1, 1934, by the county court of Kankakee county (a copy of which is attached to said complaint) which restates the final account of said Sawyer and Sanculius and finds that said administrators Sawyer and Sanculius are charged with having received and collected the sum of $19,918.45, and are credited with the payment of $9,108.33 which leaves a balance due to the heirs of the said Rosiwiski to the amount of $10,873.12, together with interest on said balance, at 10 per cent per annum from July 6,1932; that an order was entered by said county court requiring said administrators to settle and adjust their accounts as theretofore ordered; to pay over any balance which might be found in their hands and file a new bond; that said co-administrators did not comply with said order but failed and refused to pay over said sums of money and interest and that as a result their letters of administration were revoked by the county court, and Dyer appointed as administrator de bonis non; that on appeal from said order to the circuit court, the same was affirmed; that said co-administrators, nor either of them, have paid over to the heirs of John Rosiwiski, or to the administrator de bonis non, the sum found to be due under the order of February 1, 1934, and interest at 10 per cent per annum as provided by order of March 8, 1934, or any part thereof. Plaintiff demands judgment against said Sawyer and Sanculius in the amount of $10,000, the penalty on the bond, together with interest thereon from February 1, 1934, at five per cent per annum.

Count 2 is the same as Count 1 except that it is based upon an administrator’s bond, dated January 14, 1930, filed and approved January 15, 1930, executed by the defendant Saneulius, as principal, and Royal Indemnity, as surety, in the penal sum of $53,000, subject to statutory condition for the faithful discharge of the joint duties of said Sawyer and Saneulius. Said count demands judgment against the defendant, Saneulius, in the sum of $10,873.12, with interest thereon from July 6, 1932.

Count 3 is against Sawyer alone, upon an instrument signed by him, as principal, and Royal Indemnity Company, as surety, identical in date, penalty and condition with the bond mentioned in Count 2, and demands like judgment against Sawyer.

The answer of the defendant, Saneulius, admits the execution of the bonds sued on, the entry of the orders alleged, the signing of the order of the attempted revocation of defendant’s letters of administration and the appointment of the administrator de bonis non, but contends that the county court has sole jurisdiction by virtue of a provision in the order of February 1, 1934, which reserved jurisdiction for further hearing.,. She admits 'that she has not paid over amount found due by said order, but states that she never had the money; she alleges that the liability under the orders is that of Sawyer, alone; that the bond of January 6, 1930, was superseded and canceled by the later instruments of January 14, 1930; that the Royal Indemnity Company has paid the money due to the heirs, and that the subject suit is for the purpose of reimbursing the indemnity company.

Pursuant to the provisions of section 57 of the Civil Practice Act, Ill. State Bar Stats. 1935, ch. 110, ¶ 185, plaintiff filed a motion for summary judgment, supported by the affidavit of W. H. Dyer, and certified copies of the instruments sued on and various instruments filed and orders entered in the county court and circuit court upon appeal from probate.

Said affidavit and certified copies set forth the appointment of Sawyer and Sanculius as co-administrators of the said estate; the execution, filing and approval on January 6, 1930, of joint administrators’ bond executed by them, as principals, in the penal sum of $10,000; the execution, filing and approval upon the petition of the co-administrators of two copies of an identical form of bond, one copy of which the defendant, Sanculius, as principal, and Royal Indemnity Company as surety, and in the other copy of which Sawyer, as principal, and Royal Indemnity Company, as surety, are bound in the penal sum of $53,000, subject to conditions specified by statute, for the faithful discharge of the joint duties of the said Sanculius and Sawyer; that the county court on February 1, 1934, restated the account of the administrators, charging them with $19,918.45 and crediting them with $9,108.33, and found due to the heirs of John Rosiwiski the sum of $10,873.12, which was in the possession of Sawyer and ordered same paid; that on March 8, 1934, the said court ordered the payment by Sawyer of interest at the rate of 10 per cent per annum from July 6, 1932; that on March 22, 1934, on petition of their surety for release, the county court ordered the co-administrators to settle and adjust their accounts, as theretofore ordered, pay over whatever balance might be found in their hands and file new bond; that said co-administrators did not comply with said order, as a result of which, their letters of administration were revoked and W. H. Dyer was appointed' as administrator de bonis non; that said order was affirmed by the circuit court on appeal, from probate; that all said orders were in full force and effect unreversed and that no appeal from any of them was pending; that no part of the sum found due by the county court, or interest thereon, had been paid by the defendants, or either of them; and that affiant verily believes that there is no defense to this action. Plaintiff attached complete certified copy of the order of February 1, 1934, which contained a paragraph as follows: “It is Therefore Ordered that this order be entered without prejudice to the petitioners to move for an entry of an order determining the liability, if any, of the co-administratrix, Sallie Sanculius, and the Court reserves jurisdiction to determine the matter of the liability, if any, of said co-administratrix, Sallie Sanculius, upon further hearing herein, notwithstanding anything hereinbefore recited to the contrary.”

Certified copies of the order of the county court of April 19, 1934, and of the circuit court on appeal are set forth, from which it appears that the Royal Indemnity Company made ápplication to settle its liability as surety on the bonds of January 14, 1930, of Sanculius and Sawyer, and that the administrator de bonis non was authorized to make such settlement; that as. a part of such settlement, it was found that actions did or might lie against various banks, stock brokerage houses and corporations who had wrongfully cashed checks, transferred stock certificates or otherwise participated in the conversion of the assets of the Rosiwiski estate, and that actions might lie against said Sawyer and Sanculius on their official bonds and that the Boyal Indemnity Company should be subrogated to all such rights and claims; that the administrator de bonis non was authorized to institute action in the name of such administrator de bonis non against Sanculius and Sawyer, or either of them, upon their bonds or liability as co-administrators, and against various banks, companies, brokerage houses or other persons, all such actions to be conducted at the expense of Royal Indemnity Company and any recovery to be paid to Royal Indemnity Company to reimburse it for the amount paid in discharge of its liability upon said bonds; that the settlement by the Royal Indemnity Company should in no way operate to affect, reduce or discharge or act as a defense to the liability of the said Sanculius or Sawyer to the administrator de bonis non under their bonds.

Plaintiff’s affidavit further shows that in accordance with said orders Royal Indemnity Company, on August 29,1934, paid to the administrator de bonis non the sum of $13,034.24 in settlement of its liability, as surety on the bonds of January 14, 1930, of Saneulius and Sawyer, and that the administrator de bonis non executed and delivered a complete release and satisfaction of all claims to Royal Indemnity Company, as such surety; that said administrator de bonis non paid to each of the Rosiwiski heirs the sum of $3,241.68 as his distributive share, and brings this suit in accordance with the orders of the county and circuit courts authorizing same.

Defendant filed a motion to strike the affidavit for summary judgment or in the alternative to deny same, and the motion of the plaintiff for summary judgment and the motion of the defendant to strike or deny were taken under advisement by the court. The court denied the motion of the defendant, granted the motion of the plaintiff and entered judgment in favor of the plaintiff and against the defendant, upon the bond of January 6, 1930, in the amount of the penalty thereof and interest, and upon the bond of January 14, 1930, for damages in the amount of $13,034.24, together with interest, and further provided that the satisfaction of one of said judgments should pro tanto satisfy the other.

The judgment of April 25, 1935, was subsequently reopened and defendant given leave to file an affidavit of merits. By her affidavit of merits defendant sought to show her right to defend the suit by offering in defense: that the settlement by Royal Indemnity Company of its liability as surety and the payment of same to the heirs, prevented the maintenance of this action, since any recovery would go to it instead of the heirs; that the liability of the defendant, Sanculius, was in the sole jurisdiction of the county court; that the defalcations are Sawyer’s alone and that the defendant did not participate therein but had used diligence to attempt to close the estate and secure restitution from Sawyer; that the bond of January 6th was superseded by the later bonds; that the attachment of Sawyer had been ordered by the county court, and that she did not sign or ratify the purported final report.

The trial court at the conclusion of the hearing rendered an oral opinion, in which he states, “that inasmuch as it appeared from the record that the beneficiaries of the estate would have no interest in the recovery, and would receive nothing further than they had already received, that the Administrator de bonis non could not maintain this action and that the County Court had no authority to authorize the Administrator to sue for the sole benefit of one of the bondsmen who paid in full the balance due the heirs of the estate; that the settlement of the liability of the defendant, Sanculius, was pending in the County Court, which had full jurisdiction of the same; that the defendant, Sanculius, was not liable as a matter of law for the defalcations of Sawyer and would not be liable unless she could have prevented the embezzlement of the funds by her co-administrator by the exercise of reasonable care in the discharge of her duties.”

On June 5, 1935, the court entered an order as follows: “Now on this day it is ordered by the Court that the judgment heretofore entered in this cause on April 25,1935, in favor of the plaintiff be, and the same is now vacated, execution heretofore issued out of said Court is annulled and motion by the defendant to strike affidavit for summary judgment allowed, and motion to dismiss this suit is by the Court sustained and suit is dismissed at plaintiff’s costs, unless plaintiff amends record so as to show cause of action against defendant within ten days.” On June 20, 1935, the court entered a judgment as follows: “Now on this day it appearing to the Court that no amendment of record having been made within time set for such amendment said suit is now dismissed at costs of plaintiff. It is therefore considered and adjudged by the Court that the plaintiff, the People of the State of Illinois for the use of W. H. Dyer, Administrator de bonis non of the estate of John Rosiwiski, deceased, take nothing by his said suit, and that the defendant, Sally Saneulius, also known as Salli Saneulius, go hence without day, and do have and recover of and from the plaintiff her said costs about this suit expended. ’ ’

From the judgment of the court as above set forth the appellant has brought the case to this court for review. The appellant has assigned numerous errors upon which they rely for reversal which can be grouped in two divisions. The first, “Did the court err in striking plaintiff’s affidavit for a summary judgment? Second: Assuming that the court was right in striking plaintiff’s affidavit for a summary judgment from the files, was it error for the court to dismiss plaintiff’s suit?”

An examination of the affidavit for summary judgment of the plaintiffs discloses that the canse of action is based upon the bonds signed by the Royal Indemnity Company as surety on the bond of C. B. Sawyer and the defendant Sally Saneulius as administrators of • the estate of John Rosiwiski; that there was a shortage in the account of the administrators and that the Royal Indemnity Company as surety on the bonds paid this amount to W. H. Dyer, the administrator de bonis non of the said estate; that the said W. H. Dyer as said administrator paid such sum to the heirs at law and creditors of the estate of John Rosiwislci and that all of the heirs and devisees of said estate have been fully paid and there is nothing for the administrator to do except to close up the estate.

This case is brought in the name of the People of the State of Illinois for the use of W. H. Dyer as administrator de bonis non of said estate. The affidavit recites all of the various proceedings that were taken in the county and circuit courts in regard to the estate of the decedent and for the removal of Sawyer and Sanculius as such administrators. . The question then arises, “Is this affidavit sufficient to entitle the plaintiff to a summary judgment?” It is seriously insisted by the defendant that not only is the affidavit not sufficient to entitle the plaintiff to a summary judgment, but that the suit cannot be maintained by the plaintiff as .the petition shows that Sally Saneulius is not indebted to the estate of John Rosiwiski in any amount whatsoever and that all of the money that came into the hands either of Sawyer or herself has been accounted for and paid over to the persons who were entitled to the same.

The bonds in question were given to protect the creditors of the estate and the heirs of the decedent against loss and for no other purpose. The creditors and heirs at law have received all that is due them from the estate and had executed releases prior to the time that this suit was instituted. There was existing no liability upon these bonds when this suit was brought. Before the administrator could maintain a suit on any of the bonds he must show that someone for whose benefit the bonds were given had suffered a loss which existed at the time the suit was instituted. It is our opinion that the trial court did not err in striking the affidavit for a summary judgment from the files, as the same did not state a canse of action which would entitle plaintiff to a judgment.

The second ground for reversal requires consideration of sections 57 and 102 of the Practice Act. Section 57 is as follows: “Subject to rules, if the plaintiff, in any action upon a contract, express or implied, or upon a judgment or decree for the payment of money, or in any action to recover possession of land, with or without rent or mesne profits, or in any action to recover possession of specific chattels, shall file an affidavit or affidavits, on the affiant’s personal knowledge, of the truth of the facts upon which his complaint is based and the amount claimed (if any) over and above all just deductions, credits and set-offs (if any), the court shall, upon plaintiff’s motion, enter a judgment in his favor for the relief so demanded, unless the defendant shall, by affidavit of merits filed prior to or at the time of the hearing on said motion, show that he has a sufficiently good defense on the merits to all or some part of the plaintiff’s claim to entitle him to defend the action. If the defense is to a part only of the plaintiff’s demand a judgment may be entered, and an execution or other suitable writ issued, for the balance of the demand, and the case shall thereafter proceed as to the portion of the plaintiff’s demand in dispute as though the action had been originally brought therefor; and in- such case the court may make such order as to the costs of the suit as may be equitable.” Ill. State Bar Stats. 1935, ch. 110, ¶ 185.

Section 102, Rule 8 (Cahill’s St. 1933, ch. 110, ¶ 230). (1) “The affidavits in support of a motion for summary judgment shall be made on the personal knowledge of the affiants; shall set forth with particularity the facts upon which the plaintiff’s cause of action is based; shall have attached thereto sworn or certified copies of all papers upon which plaintiff relies; shall not consist of conclusions but of such facts as would be admissible in evidence; and shall affirmatively show that the affiant if sworn as a witness, can testify competently thereto.- If all the facts to be shown are not within the personal knowledge of one person, two or more affidavits shall be used.

“(2) Affidavits of merits to prevent the entry of a summary judgment shall be drawn in the same manner as the- affidavits mentioned in the foregoing paragraph of this rule.”

It is insisted by the appellant that a motion to strike was not a proper method to test the sufficiency of the motion for a summary judgment. Our present statute has made radical changes in the procedure for summary judgment, which is not a new thing as we had practically the same thing under our old Practice Act, but limited in its effect. O. L. McCaskill, in his work on the “Civil Practice Act” makes this statement: “There is a striking difference between the affidavits required by this rule and the affidavits which were employed under those sections of former practice acts which established a modified form of summary judgment. • The affidavits contemplated in this rule are designed to inform the court of the existence or nonexistence of an issue worthy of trial, whereas the affidavits formerly employed were designed primarily to advise a party of the nature of his adversary’s claim of defense. This difference in purpose of necessity occasioned the changes made in the content of the documents. ’ ’

In our former mode of pleading the proper method to test the sufficiency of an affidavit was by a motion to strike the same from the files. Section 45 of our new Practice Act provides that all objections to pleadings heretofore raised by demurrer shall be raised now by motion, and that such motion shall specifically point out the defects in the pleading. It is our opinion that the appellant’s motion to strike defendant’s affidavit for summary judgment from the files was the proper procedure to test the sufficiency of this affidavit.

As before stated, the trial court not only struck the affidavit of the plaintiff from the files but dismissed the suit. If the defendant did not make a motion to dismiss the suit, then it is our opinion the court erred in dismissing plaintiff’s suit and entering judgment against it for costs. Neither our old, or new, Practice Act gives the court this right.

It will be observed that the order of the court entered on June 5, 1935, states “that the motion by the defendant to strike the affidavit for summary judgment, and allowing a motion to dismiss this suit, is by the court sustained.” The court in its oral decision states: “Motion by defendant to dismiss suit is sustained and suit dismissed at the cost of the plaintiff.” From the language used by the judge in his findings and the wording of the order for judgment, he assumed that there was a proper motion, filed by the defendant to dismiss the suit.

In the case of First Nat. Bank of Kansas v. White, 220 Mo. 717, 120 S. W. 36, the Supreme Court of the State of Missouri was considering the record on appeal from a judgment by confession on a promissory note. The material questions for their consideration were whether the judgment had been taken by confession on a promissory note, or whether there was evidence heard, and whether the findings in the judgment were conclusive of the facts therein stated. The court in its opinion use this language, “The judgment before us does not purport to be a judgment by confession, or even a judgment by consent. Upon the face of it, it is a judgment upon and after a trial in which evidence was heard. So says the judgment; and, there being nothing in the record showing the facts in this regard antedating the entry of judgment, the recitals are con-elusive. . . . Holliday’s Ex’rs v. Myers, 11 W. Va. 298.” The appellant does not state positively that no motion was made to dismiss the suit but in their argument say: “On June 25, 1935, an order was entered vacating the judgment of April 25, 1935, allowing a motion by the defendant to strike the affidavit for summary judgment and sustaining a motion to dismiss the suit (although no such motion appears from the record to have been made).” The appellee does not state positively that any such motion was made, but contents herself with stating, that: “The order of June 5, 1935 imports verity, and the fact that there is no written motion to dismiss the suit in the record does not establish the fact that there was not one made. ’ ’

It is our opinion that until the contrary is shown the recital by the court in his order and judgment, “that the suit was dismissed on motion of the defendant,” is conclusive that a proper motion to dismiss the suit had been entered previously to the entry of the judgment. If no such motion had been made it could have been easily established by the parties to this litigation.

It is our opinion that the court did not err in striking from the files the plaintiff’s affidavit and motion for a summary judgment, and the court did not err in dismissing the suit. The suit cannot be maintained by the plaintiff.

The judgment of the circuit court of Kankakee county is hereby affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Dove

license: Public Domain

text:
    Metropolitan Life Insurance Company, Appellee, v. William A. Ohlhaver et al., Appellants.
    Gen. No. 9,026.
    Opinion filed March 24, 1936.
    Rehearing denied April 7, 1936.
    Frisch & Frisch, of Chicago, for certain appellant; Samuel J. Nordorf, of Chicago, of counsel.
    Henry C. Warner, of Dixon, and Roy J. Solfisburg, of Aurora, for appellee.
   Mr. Justice Dove

delivered the opinion of the court.

On August 1, 1925, William A. Ohlhaver and Alice M. Ohlhaver, his wife, being the owners of 258.78 acres of farm land in Kendall county, executed their mortgage thereon to the Savings Bank of Kewanee. The mortgage was given to secure the payment of $32,250 and was duly recorded on August 27, 1925. By proper written assignment, which was recorded on December 4, 1925, the notes and mortgage were transferred by the Savings Bank to the Metropolitan Life Insurance Company. Default having been made in the payment of the indebtedness so .secured by said mortgage, the Life Insurance Company, on June 27, 1932, filed its bill to foreclose its mortgage, making, among others, the Chicago Tube and Iron Company, a corporation, a party defendant. On October 24, 1932, the Tube and Iron Company filed its answers in the nature of intervening petitions. In one of the intervening petitions it set forth that as a subcontractor it was entitled to a mechanic’s lien upon said premises to the amount of $11,055.74 by reason of it having* furnished certain materials and supplies to Ralph R. Wymer, who had a written contract to improve said premises as a golf course. The other intervening petition filed by the Tube and Iron Company claimed a lien upon said premises as assignee of said Wymer and this petition set forth that Wymer had a mechanic’s lien on said premises as a general contractor to the amount of $42,970.49 upon a written contract for work, labor and material furnished in improving said real estate as a golf course. After the issues had been made up the cause was referred to the master in chancery, who took the evidence and reported the same, together with his conclusions to the court. Upon a hearing before the chancellor, certain exceptions to the master’s report were sustained and others overruled, and the chancellor entered a decree finding, as the master had found, that there had been no increase or enhancement in the market value of the premises by reason of the construction by Wymer of the golf course thereon, that the liens of the Tube and Iron Company .as subcontractor of Wymer and as assignee of Wymer as the general contractor were subject to and inferior to the lien of the Life Insurance Company. The decree found the amount due the Life Insurance Company about which there is no dispute and held that its lien is a first lien upon the premises, and ordered the sale of the premises in default of paying the amount so found due. From this decree the intervening petitioner, Chicago Tube and Iron Company, prosecutes this appeal.

The master and chancellor both found from the evidence that the value of the 258.78 acre farm covered by appellee’s mortgage was not increased by its conversion into a golf course. It is first insisted by appellant that this finding is manifestly and clearly against the weight of the evidence and second that if, from an examination of the evidence, this court concludes that the improvement did enhance the value of the mortgaged premises, that then the decree entered by the chancellor is palpably erroneous.

We have read all the evidence in this record and from this evidence it appears that the property covered by this mortgage is located on Route 22 between Aurora and Joliet, being about four miles south of Aurora and three and one-half miles from Oswego. At the time the mortgage was executed to appellee and up until 1930, the premises were improved by fences, a dwelling and barn, and was used exclusively for agricultural purposes. In 1929 the mortgagee, Ohlhaver, and a number of others caused to be incorporated the Villa Estates Golf Course. Ohlhaver became secretary of this corporation and in 1931 he and his wife conveyed the premises to this corporation, which executed a trust deed thereon to secure a bond issue of $125,000, and as soon as that was done, the premises were conveyed back to Ohlhaver by the corporation. Ralph R. Wymer, a golf course architect and construction engineer, was one of the incorporators and in November, 1929, Wymer and the Villa Estates Golf Course entered into a contract by the terms of which Wymer was to design and construct a 36-hole golf course on this farm, together with a practice hole consisting of a tee, fairway and putting green. In pursuance of the terms of this contract, Wymer prepared drawings and specifications for such a golf course and prepared the soil thereon and seeded the 37 greens, fairways and tees, put in traps, dug three lakes, widened, deepened and cleaned out the .creek, installed a fairway water system, furnished sand for the greens and top soil and laid 50,000 lineal, feet of tile. Wymer purchased material which went into the construction of this course from appellee and the entire acreage of the farm was converted into a golf course. Wymer testified that for this work he received $55,000 in cash, besides $6,200 in stock in the corporation, leaving a balance of $37,849.49 due him under his contract. He further testified that thereafter he assigned his interest in the contract to the Chicago Tube and Iron Company, appellee herein, and on March 7, 1931, a claim for a lien was filed.

The evidence further discloses that the course was first opened during 1931 and that in that year only seven holes were in use; that at the beginning of the following season, 1932, less than 18 holes were in use, but before the season closed 18 holes were being played upon. During that year, it cost approximately $7,500 for maintenance, other than the taxes, and during the year the receipts aggregated $2,200. In 1933 up until July 25th, the time of the hearing, $1,800 was the total amount of the receipts. James P. Callan, a qualified and experienced real estate broker living in Aurora, was a witness called by appellee, and on cross-examination he testified that the land was not well located for a golf club. John McElhatton, who was a golf professional and who had built several golf courses and managed several others and who was at the time of the hearing manager and in charge of the Sky Harbor Golf Club west of Glencoe, testified that in his opinion this land had no value as a golf course in 1930 or in 1933; that he was familiar with the premises, had inspected the course in 1930 and again just before he testified and stated that he based his opinion as to it having no value as a golf course upon the fact that it could not possibly earn its upkeep.

The evidence as to the value of the premises before and after the improvement took a wide range. J. F. Long testified that at the time of the hearing the value of the premises as a golf course was between $36,000 and $37,000; that for agricultural purposes its value was between $100 and $115 per acre. In the opinion of Mr. Wymer, the contractor, the farm in November, 1929, before he did any construction work thereon, was worth $250 per acre; that a year later, after it was converted into a golf course, he was of the opinion that it was worth $1,250 per acre. J. P. McDole testified that in his opinion the premises for farm purposes was worth $175 per acre in 1929; that the value thereof had been depreciated by the location of a golf course thereon and at the time he testified he expressed an opinion that the value of the premises was not to exceed $100 per acre. This witness gave as his reason for saying the value had been depreciated and not enhanced by the improvement was that much of the good soil had been removed from certain places on the farm and placed on the greens and fairways. Loren Hill testified that he was engaged in the real estate business at Aurora and expressed the opinion that in 1925 this land was worth $150 per acre; that it was worth $130 per acre on November 20, 1930, and that at the date of the hearing was worth $90 per acre. John Herron testified that in 1929 the land was worth $140 per acre, in 1930 between $100 and $110 per acre, and at the time of the hearing $90 per acre. Nicholas Fiddler testified that before any work was done, the land was worth $125 per acre and was worth the same amount at the time he testified. O. A. Burkhart testified that in 1929 before any work was done, the premises were worth $115 per acre and at the time of the hearing between $135 and $145 per acre.

Charles Maddox was called as a witness for appellant, and testified that he was formerly an official of the Chicago Golf Course Builders Corporation and had had’15 years’ experience in building golf courses and had been interested in constructing 35" or 40 courses and was at the time of the hearing engaged in the same line of work. ' He testified that he played this course in 1930, was over it again in 1932 and had gone out and seen it just previous to the hearing in 1933. In response to a hypothetical question propounded to this witness, he gave it as his opinion that the 36-hole course described in the hypothetical question had a value of between $150,000 and $200,000 and that the work, labor and materials used upon the premises in constructing 18 holes enhanced the value thereof in 1931 between $40,000 and $75,000, and that the work, labor and materials used on the 36-hole course enhanced the value between $100,000 and $150,000.

Thomas J. Walsh also called as a witness by appellant testified that he was manager of the West Gate Valley Country Club at Worth, Illinois, was a golf professional and had managed the Olympic Fields Country Club and the Dixmoor Country Club. He further testified that he visited the premises covered by appellee’s mortgage the morning he testified and he expressed an opinion that the transformation of the farm into the golf course enhanced the sale value of the property $75,000 for the 18-hole course and enhanced the value of the 36-hole course $150,000. He further testified that the amount of revenue received at a golf course makes very little difference in the value of golf course property, and the fact that the receipts from this course might be $3,000 or $90,000 would only slightly influence his opinion as to the value of the course. Mr. Wymer also testified that in estimating the value of golf courses he generally considered the income derived therefrom but in the instant case he did not as he was unadvised and had no knowledge what the amount of the income was or would be from this property.

The evidence further discloses that while the contract provided for the construction of a 36-hole- course and one additional practice tee, fairway and green, the contractor did not entirely complete his contract and considerable work remained to be done under the contract when the contractor was obliged to quit because of lack of funds. It is established by the evidence that it was not until the 1932 golf season was well advanced that 18 holes were played and no more than 18 holes were ever in use and the remaining 18 holes were entirely abandoned and soon reverted to weeds, grass, pasture and agricultural purposes.

There are three other golf courses in and near Aurora, the Phillips Park Golf Course, the Aurora Country Club and the Fox Valley Golf Course. No one can read this record without coming to the conclusion that this was a promotional venture which did not prove successful. That this was the view of the chancellor who heard this case in the lower court is disclosed by-the record. He compared this improvement to the construction of a summer hotel erected in the country and whether the construction of such a building would appreciably enhance the value of the premises could not be determined until after the lapse of some time. If the premises before the construction of such a hotel was worth $50,000 and if $50,000 was expended in the erection of such hotel and if the venture ran along for a few years and then proved to be a failure and was patronized by no one, it certainly could not be successfully contended that the premises were enhanced in value any appreciable amount, and in such a suppositious case it would be highly inequitable to compel the original mortgagee to pro rate with a lien claimant.

The law cast upon appellant the burden of proving that the mortgaged premises in the instant case were enhanced in value by this improvement. In our opinion appellant has not met this requirement. The evidence fails to disclose that this improvement did en-fiance the value of this farm covered by appellee’s mortgage and upon this question we are in complete accord with the findings of the chancellor, and being of this opinion it is unnecessary for us to determine whether the improvement is a lienable one or not.

The decree of the circuit court of Kendall county is affirmed.

Decree affirmed.


text:
    The People of the State of Illinois ex rel. Peter J. Barrett, Appellant, v. Commercial State Bank of Savanna, Defendant. R. G. Fuller, Appellant.
    Gen. No. 9,042.
    Opinion filed March 24, 1936.
    J. L. Brearton, of Savanna, for appellant.
    Dixon, Devine, Bracken & Dixon, of Dixon, for appellee; Robert L. Bracken and J. C. Ryan, of Dixon, of counsel.
   Mr. Justice Dove

delivered the opinion of the court.

In the proceedings to liquidate the Commercial State Bank of Savanna, pending in the circuit court of Carroll county, R. G. Fuller, administrator with the will annexed of the estate of Lillian Hammerschmidt, deceased, filed, by leave of court, an intervening petition in which he claimed that a certain fund of $2,766.14 was held by the receiver as a trust fund and "sought an order directing the receiver to pay the intervenor said amount. The matter was referred to a special master, who took the evidence and filed a report recommending* that the claim of the intervenor for a preference should be denied but that his claim should be allowed as a common claim. Upon a hearing before the chancellor, the exceptions which were filed to the special master’s report were overruled and an order entered denying the intervenor a preference but allowing his claim in the sum of $2,797.25 as a common claim. From this order, the intervening petitioner has perfected this appeal.

The evidence discloses that Lillian Hammerschmidt had lived in Savanna more than 20 years prior to her death, which occurred on November 15, 1925; that at the time of her death she was 72 years of age and by the provisions of her will, she nominated C. M. Higgins as executor thereof. C. M. Higgins was, at that time, and for a number of years prior thereto, cashier of the Commercial State Bank of Savanna. He was also a director of the bank and so continued until the bank suspended business. Higgins did not qualify as executor and the intervening petitioner, R. G. Fuller, who is a son-in-law of Mrs. Hammerschmidt, was appointed administrator of her estate with the will annexed on February 27, 1926. The evidence further discloses that Mrs. Hammerschmidt had, at the time of her death, two accounts in said bank, one a checking account in the sum of $79.59, the other a savings account. The checking account was carried on the books of the bank in the name of Mrs. E. Hammerschmidt and the savings account in the name of Mrs. E. Hammersmith. The savings account as disclosed by the bank’s records originated on February 15, 1916. And on the first of January and the first day of July each year, the account was regularly credited with four per cent interest. It was an inactive account, as there were comparatively few deposits and only 14 withdrawals from February, 1916 to October 25, 1924,' which was the date of the last withdrawal. Prior to January 1, 1925, the savings account amounted to $2,000 and on that day $40 was credited to the account for interest. On July 1, 1925, $40.80 interest was credited to the account and on January 1, 1926, $41.60 was added to the principal sum as interest, and thereafter on July 1st and January 1st of each year up to January 1st, 1933, the bank continued to add interest to the account, so that when the bank suspended business, the total amount in this account aggregated $2,766.14. Prior to-Mrs. Hammerschmidt’s death and on November 2, 1925, Fuller inquired of the bank as to Mrs. Hammers'chmidt’s balance and was told that it was $79.59. He further testified that he again inquired on December 5, 1925, which was before he was appointed administrator with the will annexed and was told the same thing, and that he again inquired about the time he filed his inventory, which was March 9, 1927, and was again advised that testatrix’s balance was $79.59. It further appears that during the year following Mrs. Plammerschmidt’s death, he collected, as such administrator, $8,396.44 and deposited that sum to his credit as administrator in said bank; that on April 19, 1927, he drew checks aggregating $8,200 on said account, paying each beneficiary under the will the sum of $1,600 and paying himself $200. In April, 1928, appellant’s account as administrator was overdrawn and he was so notified by the bank, and on April 21, 1928, the bank, at appellant’s request, transferred to Ms administrator account the sum of $79.59, the amount which was in Mrs. Hammerschmidt’s checking account. On December 31, 1932, the Commercial State Bank closed and notified all depositors that it would remain closed unless each depositor waived to the bank 25 per cent of each deposit. Bruce Macken was at that time president of the bank, and he requested appellant as administrator of the estate of Lillian Hammerschmidt to execute such a waiver and Fuller did so on January 5, 1933, signing the same “Mrs. EL Hammersmith Est. R. G. Fuller, Adm.” On December 31, 1932, Fuller had to his credit as admimstrator the sum of $199.24, and when Fuller signed the waiver agreement as administrator on January 5, 1933, the bank issued to him as administrator a deferred certificate of deposit for $49.81. This certificate recited that Fuller as administrator had transferred and assigned to the bank 25 per cent of the amount of money which he had on deposit in said bank at the close of business on December 31, 1932, and the waiver agreement which he executed specifically stated that it applied to checking account, savings account, cashier check and time and demand certificates. On January 5, 1933, the bank issued another certificate for $691.54, which recited that Mrs. E. Hammersmith Estate transferred and assigned 25 per cent of the amount of money which the above named certificate holder had on deposit in said bank at the close of business on December 31, 1932. This certificate was never delivered to Mr. Fuller, but was kept in the files of the bank, and the evidence discloses that Mr. Fuller never saw or heard of it until it was produced upon the hearing of this cause before the special master. It further appears from the evidence that following the bank moratorium on March 4, 1933, the Commercial State Bank never reopened and in August, 1933, appellee was appointed receiver thereof, and appellant insists that in November, 1933, he went to the bank to file his claim with the receiver and was advised for the first time that Mrs. Hammerschmidt had a saving account. It was stipulated that a savings passbook was issued in case of all savings accounts, which was to be presented to the bank when money was deposited or withdrawn from the account, that the deposit therein shown was not subject to check unless the passbook was presented and that there was a printed statement thereon advising the customer that the bank on the first of every January and July credited the account with interest whether the customer came to the bank or not. The evidence is that no .such passbook came into the hands of appellant as administrator, although he testified that he and the children of his testatrix looked through all her belongings, but were unable to find any such passbook or any reference in any of her papers to any savings account. The evidence further disclosed that some of the officers of the bank assisted appellant in the collection of some of the assets of the estate and knew of the distribution of these assets by appellant to the surviving children of the testatrix. It was stipulated that no adjustment day was ever fixed by appellant for the adjustment of claims against said estate and it was further stipulated that the lowest amount of cash in the Commercial State Bank at any time from November 15, 1925 to August 8, 1933, when the receiver took charge, was $20,710.25.

It is the contention of appellant that the officers and employees of the bank, knowing that appellant was the legally appointed personal representative of Mrs. Hammerschmidt, deliberately failed to reveal to appellant the existence of the savings account, and deliberately withheld from him the certificate evidencing his waiver of 25 per cent thereof, and by so doing dealt unfairly and their conduct was so wrongful and unlawful that a fraud was perpetrated upon appellant and therefore the bank, at the time it closed, held said savings account impressed with a trust so as to give it a preferred status in the distribution of the assets of the bank.

Counsel for appellee insist that the original relationship which existed between the bank and Mrs. E. Hammerschmidt was that of debtor and creditor; that such relationship continued after her death in favor of appellant as administrator; that the bank was under no duty to seek its creditors or depositors for the purpose of paying them their deposits; that it was appellant’s duty to fix upon a day for the adjustment of claims, which was not done; that appellant, as administrator, was bound by the valid contracts made by the deceased and that he never produced any savings passbook or explained that he could not find one or requested that the bank turn over the account to him under any arrangement to take the place of the passbook; that the bank never denied the existence of the account, and as a matter of fact, did not know that Mrs. E. Hammersmith and Lillian Hammerschmidt were one and the same person and that no duty devolved upon the bank to do other than it did do under the circumstances.

Appellant insists that at the time of the death of Mrs. Hammerschmidt, on November 15, 1925, the title to this deposit and the right to recover it passed to appellant. The law is that until appellant presented to the bank his authority to receive this deposit as representative of the deceased, the bank would not have been warranted in paying this deposit to appellant. The law is further that there is no duty cast upon a bank to seek its depositors or personal representative of a deceased depositor in order to pay obligations that may be due from the bank. In the instant case, no demand for the payment of this deposit was made by appellant because he did not know Mrs. Hammerschmidt had any such deposit in the bank to her credit at the time of her death. The statute prohibited the bank from transferring this deposit to appellant unless a notice of the intended transfer be served upon the State treasurer and attorney general at least 10 days prior to making such transfer. No such notice was given because appellant did not know of the existence of the deposit. The evidence is, however, that appellant inquired of the officers of the bank as to the amount of Mrs. Hammerschmidt’s balance and he was correctly informed as to the amount to her credit in her checking account, but the officers remained silent as to the amount to her credit in her savings account. It is true the savings account was an inactive one and was carried on the books of the bank in the name of Mrs. E. Hammersmith, not Hammerschmidt. The officers of the bank knew the method in which savings accounts were handled and if they knew that the owner of the savings account and the owner of the $79.59 checking account was the same person, still the officials of the bank were warranted in assuming that the representative of Mrs. Hammerschmidt’s estate would, among- her papers, find her passbook or some other evidence disclosing that she had to her credit in the savings department of the bank the amount that the bank’s books disclosed. The evidence does not disclose that appellant ever specifically asked any of the officers of the bank about a savings account, but he did ask about the balance to her credit. Of course if those to whom the inquiry was made Imew that appellant’s testate had a savings account in their institution, good faith required them to give that information to appellant and if the officer who obtained appellant’s waiver of 25 per cent of his deposits in January, 1933, knew of this savings account, fair dealing required that appellant should have been informed thereof.

It will be noted in the instant case that although appellant knew of the amount in the bank to the credit of Mrs. Hammerschmidt in her cheeking account even before her death, which occurred on November 15, 1925, it was not until April 21, 1928, almost two and one-half years later that he had that deposit transferred to Ms administrator’s account. During those two and one-half years he permitted that deposit to remain in the bank and did not use it either for the purpose of paying debts or making a distribution, although he did make a distribution a year previous, that is, on April 19, 1927.

The evidence discloses that the bank, as long as it remained open, treated this account the same as it did all other savings accounts. It credited the account regularly every January and July with four per cent interest. "Whether appellant would have distributed this fund to those entitled to it had he known of its presence is conjectural. Whether he would have had it transferred to his own account as administrator is uncertain in view of his conduct with reference to the deposit to the credit of his testatrix in her checking account. Although almost 10 years elapsed between testatrix’s death and the time the evidence was heard in this cause, it appears that her estate has not yet been settled and appellant, as administrator, did not during that 10-year period comply with the statute and fix upon a term of court for the adjustment of claims against her estate.

No authority has been cited and counsel for appellant say none can be found where the facts are at all similar to those disclosed by this record. In support of appellant’s contention, however, that the bank, when it closed, held this deposit as a trustee ex maleficio the case of People v. State Bank of Maywood, 354 Ill. 519, is called to our attention. In that case it was said that all debts, at the time a bank closes, in the absence of priorities prescribed by statute, are of the same rank or level, and a person who seeks a preference over his fellow claimants in the distribution of the assets of an insolvent bank must show that he occupies some relation to the insolvent’s estate which differs from and raises him above the plane of a mere creditor. It appeared in that case that a village treasurer was required by ordinance, passed pursuant to statutory authority, to deposit the funds of the village-in certain designated banks and forbade the deposit of the moneys of the village in any designated bank until such bank should qualify by giving such depository bonds as the ordinance required. It further appeared that the village treasurer had on deposit in the bank at the time it closed in the general village account $52,026.93, which was protected by .depository bonds, executed in pursuance of the ordinances of the village to the extent of $30,000, and one of the questions presented for determination in that case was whether the excess of $22,026.93 in that account constituted trust funds for which the village was entitled to a preference over general creditors. The court held that the power to require the village treasurer to deposit all the funds of the village in depositories which qualify only by giving bonds of indemnity to protect the municipality against loss, when exercised, left no discretion to the treasurer and that all of his deposits must be secured by the requisite bonds of indemnity; that when the treasurer deposited moneys of the village in excess of $30,000, his act in so doing was wrongful and unlawful as to such excess inasmuch as the bank was not qualified to receive it and the receipt of such funds by the bank did not give rise to the relation of debtor or creditor and such funds, deposited in violation of law, did not become assets of the bank but were impressed with a constructive trust and such unauthorized deposits were held by the bank when it closed as trustee ex maleficio for the use and benefit of the village.

In the instant case the acceptance of this deposit by the bank in 1916 from Mrs. Hammerschmidt was not wrongful as was the acceptance of the deposit of the village treasurer by the officers of the State Bank of Maywood. The facts in the instant case are clearly distinguishable from the facts in the Maywood Bank case, nor are they at all analogous. In its inception the deposit in the instant case was rightful and at no time did any of the officers of the bank ever deny the existence of this deposit. If they knew the savings deposit belonged to appellant’s testate, they remained silent when they should have spoken. While we do not approve of their conduct, we do not believe, under the authorities, that it was such as to make the bank a trustee ecc maleficio. The order of the chancellor, denying appellant a preference but allowing the claim as a general one, is in accordance with the law and the evidence and will therefore be affirmed.

Order affirmed.


author: Mr. Presiding Justice Scanlan

text:
    John F. Mahan, Appellant, v. Guy A. Richardson et al., Appellees.
    Gen. No. 38,344.

      Opinion filed April 7, 1936.
    Charles C. Spencer and Krinsky, Levitan & Glassner, all of Chicago, for appellant.
    Frank L. Kriete, Erwin W. Roemer and Arthur J. Donovan, all of Chicago, for appellees; John R. Guilliams, of Chicago, of counsel.
   Mr. Presiding Justice Scanlan

delivered the opinion of the court.

An action in case, in which plaintiff sued to recover damages for injuries sustained by him as the result of an accident which he alleges was caused by the negligence of defendants and one Addie Cooper, the owner and driver of a motorcycle that also figured in the accident. Cooper was made a defendant, but was not served with summons and was dismissed from the case. The remaining defendants filed a plea of not guilty. At the close of plaintiff’s evidence the trial court directed the jury to return a verdict in favor of defendants. Plaintiff appeals from a judgment entered upon the verdict.

“A motion to instruct the jury to find for the defendant is in the nature of a demurrer to the evidence, and the rule is that the evidence so demurred to, in its aspect most favorable to the plaintiff, together with all reasonable inferences arising therefrom, must be taken most strongly in favor of the plaintiff. The evidence is not weighed, and all contradictory evidence or explanatory circumstances must be rejected. The question presented on such motion is whether there is any evidence fairly tending to prove the plaintiff’s declaration. In reviewing the action of the court of which complaint is made we do not weigh the evidence, — we can look only at that which is favorable to appellant. Yess v. Yess, 255 Ill. 414; McCune v. Reynolds, 288 id. 188; Lloyd v. Rush, 273 id. 489.” (Hunter v. Troup, 315 Ill. 293, 296-7.)

Plaintiff was the only witness who testified as to the accident, which happened at approximately 10 a. m., September 12, 1931, at the intersection of Clark and Adams streets, one of the busiest intersections in Chicago. Plaintiff, at the time of the accident, was a practicing attorney. Prior to 1914 he had been “employed in athletic work, college and university athletic work, for about twenty-one years.” For a considerable period of time he had also acted as physical director at the Illinois Athletic Club. Tested by the rule stated in Hunter v. Troup, supra, plaintiff’s testimony tends to prove the following facts: On the morning of September 12 plaintiff was on his way to the general post office, located at the southeast corner of Clark and Adams streets, to send a legal document by special delivery. It was “a dry ordinary September day.” Clark street runs north and south, and Adams street east and west, and there are street car tracks in both streets. Adams street, from curb to curb, is 37 feet, 10 inches wide. Clark street, from curb to curb, is 47 feet, 8% inches wide. The car tracks in Adams street “occupy fourteen feet, eleven inches.” Plaintiff had proceeded southward on the east side of Clark street and as he approached Adams street to make the crossing he looked and saw that the north and south traffic light was green. He testified that when the north and south light is green the light which controls traffic going east and west on Adams street is red, which requires the east and west traffic to halt; that he paused at the curb half a second and as the north and south light still showed green he then proceeded to cross Adams street on the crosswalk; that the west bound traffic on Adams street was then lined up on his left on the north side of Adams street; that when he went on the crosswalk the green light was still in his favor and the traffic was still “running” north on Clark street; that when he got about between the westbound and eastbound tracks op Adams street the last northbound vehicle on Clark street, a truck, had just passed a point about parallel with him; that at that moment an eastbound street car, running at a speed of about 15 miles an hour, suddenly came from behind the truck at such a rate of speed that it was almost instantly on top of him; that by that time the westbound traffic on Adams street had started to move behind him and that the only chance for safety that he had was to run toward the southeast; that he started running southeast at a very small angle and when he reached a point midway between the tracks and the sidewalk line he came in contact with the front of an eastbound motorcycle and was knocked down; that the motorcycle was traveling alongside the south side of the street car and “was running along the middle of that roadway about the center of it”; that the street car had not entirely passed him before he was struck by the motorcycle; that he never saw the motorcycle until he came in contact with it; that “those things all happened together”; that as he was proceeding south over the crosswalk he could not see the eastbound traffic because of the northbound traffic; that the street car “popped out from behind the traffic and I saw it and had to run for my safety”; that as he approached the corner of Adams and Clark streets there was no policeman at the intersection, but five minutes after the accident one came to where he was; that there were four lights, or light posts, that controlled the traffic at that intersection; that the lights show green and red, with an amber light between the two; that he subsequently tested the time it takes to change from one color to another at that corner and that during the period from the green light back to the red is 34 seconds; that two seconds are taken up by the amber light; that all of the lights operate at the same time, and when the north and south lights are green the east and west lights are red, and when the north and south lights are amber the east and west lights are also amber; that he heard no sound made by the street car as he proceeded southward across the street; that he was walking about three miles an hour until he reached the center of the street. He sustained serious injuries.

At the conclusion of the examination of plaintiff by counsel for both sides the trial court cross-examined plaintiff at considerable length, in the hearing of the jury, and it is quite apparent from the questions asked that the court was of the opinion that he was not entitled to recover. When plaintiff rested the court made the following statement: “I don’t think there is any negligence on the part of the defendant, and I think that this accident happened through your own conduct. ’ ’

We shall first pass upon the following contention of defendants: “After all danger of injury by the street car had passed, an independent force intervened and together with plaintiff’s voluntary action, caused the injury. The operation of the street car was not the proximate cause even though the injury would not have occurred were it not for such operation. ’ ’ While the record fails to show that this point was made in the trial court, nevertheless, defendants argue, as they have a right to do, that if upon a consideration of the whole record we find that the judgment is correct, it is immaterial upon what grounds the trial court based its action. The law that governs the instant contention is stated at length in the well known case of Seith v. Commonwealth Electric Co., 241 Ill. 252, 259-261:

“The rules for determining whether a negligent act or omission is the proximate cause of an injury are well established and have been applied by different courts in numerous cases to different conditions of fact. There has been practically no difference of opinion as to what the rules are, and they may be briefly stated as follows: The negligent act or omission must be the cause which produces the injury, but it need not be the sole cause nor the last or nearest cause. It is sufficient if it concurs with some other cause acting at the same time, which, in combination with it, causes the injury, or if it sets in motion a chain of circumstances and operates on them in a continuous sequence, unbroken by any new or independent cause. The' question is not determined by the existence or non-existence of intervening events, but by their character and the natural connection between the original act or omission and the injurious consequencos. To constitute proximate cause the injury-must be the natural and probable consequence of the negligence, and be of such a character as an ordinarily prudent person ought to have foreseen might probably occur as a result of the negligence. It is not necessary that the person guilty of a negligent act or omission might have foreseen the precise form of the injury, but when it occurs it must appear that it was a natural and probable consequence of his negligence. If' the negligence does nothing more than furnish a condition by which the injury is made possible, and that condition causes an injury by the subsequent independent act of a third person, the two are not concurrent and the existence of the condition is not the proximate cause of the injury. Where the intervening cause is set in operation by the original negligence, such negligence is still the proximate cause, and where the circumstances are such that the injurious consequences might have been foreseen as likely to result from the first negligent act or omission, the act of the third person will not excuse the first wrongdoer. When the act of a third person intervenes which is not a consequence of the first wrongful act or omission and which could not have been foreseen by the exercise of reasonable diligence and without which the injurious consequence could not have happened, the first act or omission is not the proximate cause of the injury. The test is whether the party guilty of the first act or omission might reasonably have anticipated the intervening cause as a natural and probable consequence of his own negligence, and if so, the connection is not broken; but if the act of the third person which is the immediate cause of the injury is such as in the exercise of reasonable diligence would not be anticipated and the third person is not under the control of the one guilty of the first act or omission, the connection is broken and the first act or omission is not the proximate cause of the injury. One phase of the rule was stated in Chicago Hair and Bristle Co. v. Mueller, 203 Ill. 558, as follows: ‘If the negligent act and the injury are known, by common experience, to be usual in consequence, and the injury such as is liable, in the ordinary course of events, to follow the act of negligence, it is a question of fact for the jury whether the negligence was the proximate cause of the injury’; . . . The Supreme Court of the United States, in the case of Milwaukee and St. Paul Railroad Co. v. Kellogg, 94 U. S. 469, said: ‘The question always is, was there an unbroken connection between the wrongful act and the injury, — a continuous operation? Did the facts constitute a continuous succession of events so linked together as to make a natural whole, or was there some new and independent cause intervening between the wrong and the injury?’ ”

Tested by the above rules it is plain that the instant contention cannot be sustained. The facts in the cases cited by defendants differ materially from the fact? in the instant proceeding.

Plaintiff contends that the court was not justified in holding, under the facts and circumstances in evidence, that plaintiff had failed to make out a prima facie case, and that it erred in instructing the jury to find defendants not guilty. After a careful consideration of the testimony of plaintiff we have reached the conclusion that the instant contention is clearly a meritorious one. We are at a loss to understand upon what theory of fact or law the court based its ruling. There are certain established rules of law that apply to a situation like the one present in the instant case:

In Griffith v. Slaybaugh, 29 F. (2d) 437, the Court of Appeals of the District of Columbia said (p. 439):

“The condition of traffic in our crowded streets is such that travel by pedestrians is at best difficult and dangerous. If their absolute right to enter upon a crossing when the signal permits it is not sustained, they would be almost without protection. Entering under this invitation, they cannot be charged with contributory negligence, if the signal switches when they are in the street. Caught in this position, the obligation rests upon the drivers of automobiles, not only to observe the situation, but to wait until the crossing is clear. Many automobile drivers seem to imagine that with the shift of the signal they are given a clear right of way against intersecting traffic. In this belief they recklessly start their machines, regardless of persons who are already rightfully on the intersection. It is the duty of drivers of machines to exercise the greatest vigilance and care under such circumstances, not only to have their machines under control, but to stop and wait until pedestrians have had an opportunity to clear the crossing. Failure to observe these precautions constitutes negligence on the part of the driver, which in case of accident is chargeable against him. ’ ’

The court further said (p. 438) :

“Plaintiffs entered the crossing while the green signal light was displayed, and having committed themselves to the crossing, they had the right of way until they could reach the opposite curb. As said in Riddel v. Lyon, 124 Wash. 146, 213 P. 487, 37 A. L. R. 486:
“ ‘We must hold that one entering the street intersection under the direction of the traffic officer has the right of way and this right of way continues until he reaches the other side of the street, and the fact that the semaphore was changed, giving the traffic in the other direction notice to proceed, does not give them the right of way over the one first entering the street crossing, and the one first entering has the right to presume that he can pass over in safety and is not required to exercise continuous and extra observation to avoid vehicles using such street. ’
‘ ‘ This is a clear expression of the law as announced in many cases touching the right of way of pedestrians at crossings controlled either by a traffic officer or signals. Quaker Cab Co. v. Fixter (C. C. A.), 4 F. (2d) 327; Gilles v. Leas, 282 Pa. 318, 127 A. 774.”

In Schatz v. Kehoe, 15 La. App. 9, 131 So. 66, the Court of Appeals of Louisiana said (p. 68):

“Of course, even though the green light gave to defendant the right to enter the intersection, it did not give him the right to cross without permitting pedestrians already on the roadway ahead of him time to complete their crossing. Crews v. Googan, 7 La. App. 692; Harrison v. Loyocano, 12 La. App. 228, 125 So. 140.”

In Raabe v. Brzoskowski, 204 Wis. 319, 236 N. W. 133, the Supreme Court of Wisconsin said (p. 134):

“There is ample evidence in the record to sustain a finding that the plaintiff started south on the west crossing of North avenue at a time when the light was clearly in her favor; that she reached a point somewhere between the south track and the south curb of North avenué before the light changed to amber'; and that she was struck by the truck while completing the crossing. There is evidence from which the jury could have found that the defendant started east on the south side of North avenue before the green light turned in his favor, probably at or about the time the light changed to amber, without permitting the traffic then properly on North avenue to clear. Plaintiff rightfully entered the street. In doing so, she had a right to assume that vehicles proceeding east on the south side of North avenue would give traffic properly upon Third avenue an opportunity to clear.”

In Ferguson v. Charis, 314 Pa. 164, 170 Atl. 131, the Supreme Court of Pennsylvania said (p. 134):

“If plaintiff left the curb contrary to the traffic signal, she was negligent. If defendant crossed the intersection contrary to the traffic signal or if he crossed in obedience to the qualified permission of the signal but when this plaintiff was in his pathway, having already committed herself to the crossing, he was guilty of negligence. In Wack v. Philadelphia R. T. Co., 93 Pa. Super. Ct. 206, the Superior Court held, in an opinion by Judge Keller, that ‘An operator must maintain such control of his trolley car as not to run down a pedestrian crossing the street in full view even though a change of traffic is directed by an officer or semaphore.’ The same rule applies, of course, to an operator of a motor vehicle. As Judge Keller aptly said in that case, referring to a change of signals after a woman had started across a street: ‘Had she then stood still or attempted to go back her condition might have been worse; for she would have been right in the path of the trolley, or of moving automobiles traveling eastward on the north side of the track. ’ The Superior Court there held that the questions of defendant’s negligence and the plaintiff’s contributory negligence were for the jury and the verdict in plaintiff’s favor should not have been disturbed. We hold likewise here. In view of the fact that under a rule for judgment n. o. v. ‘the testimony should not only be read in the light most advantageous to plaintiff, all conflicts therein being resolved in his favor, but he must be given the benefit of every fact and inference of fact pertaining to the issues involved which may reasonably be deduced from the evidence’ (Guilinger v. Pennsylvania R. Co., 304 Pa. 140, 144, 155 A. 293, 294), the entry of judgment n. o. v. in this case was error.” (See also Clarkson v. Clark, 25 Ohio App. 377, 157 N. E. 910.)

We are, of course, in full accord with the just and necessary rules of law stated in' the foregoing cases. Without such rules, highly dangerous and intolerable conditions would often prevail at busy street intersections in our great cities, and the careful pedestrian would be frequently deprived of a reasonable opportunity to make a crossing.

The mere fact that defendants’ car did not come in contact with plaintiff does not absolve them from responsibility for the accident. Under the facts the jury would have been fully warranted in finding that the negligence of defendants and the negligence of the driver of the motorcycle were, in combination, the proximate cause of the injury to plaintiff.

Defendants ignore the fact that plaintiff was rightfully upon the street and had, therefore, the right of way until he reached the opposite side, and that defendants’ negligence, alone, placed him in a position of danger, and they have seen fit to argue that plaintiff’s conduct, after he “reached the zone of safety from the street car, ’ ’ amounted to contributory negligence; that after plaintiff escaped contact with the street car he should have seen the motorcycle in time to avoid it. As has often been stated by our Supreme Court, there is no rule of law which prescribes any particular act to be done or omitted by a person who finds himself in a place of danger, and that the only requirement of the law is that the conduct of the person involved shall be consistent with what a man of ordinary prudence would do under like circumstances; that if a person is momentarily paralyzed or confused by imminent danger and he does nothing, or takes a step or two in the wrong direction, and a collision results, it cannot be said, as a matter of law, that he acted in a manner different from that which might have been expected of a man of ordinary prudence. In the instant case the jury would have been fully warranted in finding that plaintiff took the best course open to him to reach a place of safety. In any event, it was for the jury to determine whether plaintiff, under all the circumstances, exercised ordinary care for his own safety.

In our judgment it would be a gross injustice to plaintiff to permit the instant judgment to stand.

The judgment of the superior court of Cook county is reversed and the cause is remanded for a new trial.

Judgment reversed and cause remanded for a new trial.

Sullivan and Friend, JJ., concur.


text:
    Steve Ziolkowski, Appellee, v. Continental Casualty Company, Appellant.
    Gen. No. 38,397.
    Opinion filed April 7, 1936.
    Rehearing denied April 23, 1936.

      George C. Bliss, of Chicago, for appellant.
    Peden, Melaniphy, Ryan & Andreas, of Chicago, for appellee; John C. Melaniphy, of counsel.
   Mr. Presiding Justice Scanlan

delivered the opinion of the court.

Plaintiff sued defendant in assumpsit as beneficiary under an accident insurance policy issued by defendant to one Joseph Sarnouski. The case was tried by the court, the issues were found for plaintiff, and damages were assessed in the sum of $2,979. Defendant appeals from a judgment entered upon the finding.

This was the third trial of the cause. In the first there was a finding and judgment in favor of plaintiff, and upon appeal we reversed the judgment and remanded the cause because of the refusal of the trial court to admit certain documentary evidence offered by defendant. (Ziolkowski v. Continental Casualty Co., 263 Ill. App. 31.) Upon the second trial the issues were found for plaintiff and damages were assessed in the sum of $2,645, and upon appeal we reversed the judgment and remanded the cause (270 Ill. App. 286). The parties then stipulated that all the evidence which was presented at the second trial would be admitted in evidence upon the third trial. No additional evidence was heard.

To quote from our opinion upon the first appeal (263 Ill. App. 31, 32-33):

“The declaration, consisting of one count, contained a copy of the contract of insurance. The defendant filed a plea of the general issue and two special pleas, the first special plea alleging ‘that the injury causing the loss of life of insured resulted from an intentional act of insured or some other person’; and the second special plea alleging ‘that the injury causing the loss of life of insured resulted from an intentional act of another person, to-wit, a stab wound, which assault was not committed upon the assured by such other person for the sole purpose of burglary or robbery and which assault was not incurred by insured while engaged in the proper performance of the duties of his occupation and provoked solely thereby, ’ etc. The plaintiff filed replications to the two special pleas.”

Upon the instant hearing, after both sides rested, at the suggestion of the trial court, plaintiff withdrew the replications to the second and third pleas and filed a general demurrer, attached to which was the following ‘ causes of demurrer ’ ’:

“And the plaintiff shows to the Court here the following causes of demurrer to said second and third pleas, that is to say:
“1. That the term ‘injury’ as used in said second plea and in part 5 of said Insurance Policy, Sub-paragraph 3, does not include fatal injury, but is confined to non-fatal injuries.
“2. In that the third plea is insufficient in that the word ‘injury’ as used in said plea and in part 5 of said Insurance contract, sub-paragraph 3, does not include fatal injuries, but is confined to non-fatal injuries.
“3. In that Part 5 of said Insurance Policy does not exempt the defendant from liability where the Insured was killed by means of accident, even though the act or acts causing the death of the Insured were intentional.
“Wherefore, for want of sufficient pleas in this behalf the plaintiff prays judgment and that the defendant may answer further to said declaration, etc.”

The court sustained the demurrer and entered the instant judgment.

Defendant contends that “the mandate of this court reversing and remanding this cause was not filed (in the trial court) within the one-year limitation period provided by the (new) Civil Practice Act,” effective January 1, 1934 (Cahill’s Ill. Rev. Stat. 1933). Under the old Practice Act (Cahill’s 1931, ch. 110, sec. 114) a two-year period was provided. Our opinion and judgment was filed on April 11, 1933, the mandate was filed in the superior court on J anuary 5, 1935, and the cause was reinstated for trial on January 25,1935, and was tried on February 20, 1935. Rule 1 of the Rules of Pleading, Practice and Procedure adopted by the Supreme Court of Illinois at the December term, 1933 (Ill. State Bar Stats. 1935, ch. 110, ¶ 223), provides:

“Applicability of Civil Practice Act. All provisions of the Civil Practice Act with respect to review in civil proceedings by the Supreme or Appellate Courts shall apply to orders, determinations, decisions, judgments or decrees. entered by trial courts, on or after January 1, 1934. All suits in which a summons has been issued prior to January 1, 1934, but in which no pleadings have been filed by either party prior thereto, shall be governed by the Civil Practice Act. The provisions of the Civil Practice Act with respect to service of process issued on or after January 1, 1934 (sections 6, 10, 13-19), appearance (section 20), and trial practice (sections 48-73), shall apply to proceedings instituted prior to January 1,1934, and not on trial prior to that day. Except as provided by this rule, or by written stipulation of parties, or by order of the court, upon notice and motion, proceedings instituted prior to January 1, 1934, shall not be governed by the Civil Practice Act.” (Italics ours.)

We hold that the time limit fixed by the new Practice Act did not apply to the instant proceeding, and that plaintiff filed the mandate within the time fixed by the old Practice Act.

There is no merit in defendant’s contention that “in view of the opinion of this court reversing and remanding the cause, the trial court erred in entering judgment on the same record containing the same evidence as was before this court hi the former appeal.” Our decision upon the second appeal turned solely upon the question as to whether or not, under the undisputed evidence, the act of the Mexican was intentional within the meaning and intent of Part V of the policy, and we held that it was intentional. The present contention of plaintiff that clause (3) did not exclude liability for the intentional killing of the insured by another, was not raised upon that appeal. In our opinion, reversing that judgment and remanding the cause for a new trial, we stated, “We have reached the conclusion that justice requires a retrial of this cause.” In the instant appeal the major issue is whether the word “injury,” as used in Part V (3) of the policy includes “fatal injury.” Upon the third trial the trial court had control of the pleadings and had the right to permit plaintiff to file the demurrer to the special pleas in order to directly raise an issue essential to his right of recovery.

Defendant contends that “Part V of the contract of insurance is not ambiguous. Its terms are definite and certain. It precludes recovery in this case on the undisputed facts.” The material part of Part V reads as follows:

“Part V. Not Covered.
“This policy does not cover any loss ... (3) if the injury causing it results from the intentional act of the Insured or of any other person excepting, however, assaults committed upon the Insured for the sole purpose of burglary or robbery and also excepting assaults incurred by the Insured while engaged in the proper performance of the duties of his occupation and provoked solely thereby. . . .”

Plaintiff contends that Part V (3) does not preclude a recovery where the injuries to the insured are fatal. Defendant contends that it does. The trial court sustained plaintiff’s position. We have recently had occasion to pass upon the same language in another policy of this defendant (Porter v. Continental Casualty Co., 277 Ill. App. 492). There the provision was Part IX (3). To quote from our opinion (500-2):

“Plaintiff further contends that even if clause (3) were not a violation of clause (6), nevertheless, it must be held, under the phraseology of the clause and the rules of law that govern its interpretation, that it excludes indemnifiable losses payable to the insured which might result from the intentional acts of himself or any other person but does not exclude liability for the intentional killing* of the insured by another; that if the defendant intended to protect itself against the liability for the intentional killing of the insured by another, it could have readily so provided, in clause (3), by apt words that would have apprised the insured that the policy did not cover any loss resulting from a fatal injury intentionally inflicted upon him by another person, and plaintiff further argues that the word ‘injury, ’ as used in the clause, must be held to mean a bodily harm that does not result in death. Webster’s New International Dictionary defines ‘injure’ as follows: ‘To do harm to; to hurt; damage; impair; to hurt or wound, as the person; to impair the soundness of, as health’; and defines the word ‘injury’ as ‘Damage or hurt done to or suffered by a person or thing; detriment to, or violation of, person, character, feelings, rights, property, or interests, or the value of a thing. ’ Funk and Wagnalls ’ New Standard Dictionary of the English Language defines ‘injury’ as follows: ‘Whatever reduces the utility or mars the integrity of the body. ’ In Interstate Business Men’s Accident Ass’n v. Dunn, 178 Ky. 193, the policy insured against certain accidental injuries and provided that if the insured sustained any of the said injuries and death resulted the company would pay the beneficiary $5,000. It further provided that the insurance ‘ shall not extend to or cover any loss due to . . . the act of any person done to injure the insured.’ The insured was intentionally shot and killed and the company denied liability under the exemption provision. The Kentucky court held that ‘injure’ meant ‘to do harm to; to hurt; to damage, as to hurt or wound, ’ and that such word is never used to describe fatal injuries but is customarily confined to non-fatal injuries; that the exemption clause did not give the word ‘injuries’ a broader meaning than it has in common usage and that if the company had desired to give it a broader meaning it might very readily have provided that ‘loss of life’ should be included in the word ‘injuries. ’ In American Accident Co. of Louisville v. Carson, 99 Ky. 441, the company issued a policy against injuries or death resulting from violent, accidental means containing an exemption clause which provided: ‘ This insurance does not cover . . . nor extend to or cover intentional injuries inflicted by the insured or any other person. . . . ’ The insured was intentionally shot and killed by another. It was held that it was well settled that such a clause refers to only ‘non-fatal injuries not inflicted by the insured or any other person.’ The Kentucky court calls attention to the fact that many accident policies, in their exemption clauses, use a form that plainly apprises the insured that when intentional injuries or death are inflicted upon the insured by himself or any other person the company is protected against loss. (See also Davis v. Massachusetts Protective Ass’n, 223 Ky. 626; Woods v. Provident Life & Accident Ins. Co. of Chattanooga, 240 Ky. 398; Hessler v. Federal Casualty Co., 190 Ind. 68, 129 N. E. 325; Business Men’s Indemnity Ass’n v. Washburn, 94 Ind. App. 395, 157 N. E. 104; Lincoln Health & Accident Ins. Co. v. Buckner, 117 Okla. 35, 245 Pac. 582; International Travelers’ Ass’n v. Barnes (Tex. Civ. App.), 43 S. W. (2d) 135; Gavula v. United States Health & Accident Ins. Co., 15 Penn. Dist. Rep. 432.) If we deemed it necessary other cases to the same effect might be cited.

“Plaintiff also argues, and with some force, that certain other provisions of the policy sustain her interpretation of clause (3), but we do not deem it necessary to specially refer to the same.

“Defendant has cited Ziolkowski v. Continental Casalty Co., supra, (270 Ill. App. 286) in support of its interpretation of section (3). The Ziolkowski case was before this branch of the court and our decision turned upon the question as to whether, or not, under the undisputed evidence the act of the Mexican was intentional within the meaning and intent of Part V of the policy, and we held that it was intentional. The contention of plaintiff in this case that clause (3) did not exclude liability for the intentional killing of the insured by another, was not raised in the Ziolkowski case.

“The instant contract of insurance was drawn by defendant, and even if the language of clause (3) were reasonably susceptible of two interpretations, nevertheless, under the settled rule of law, that interpretation must be adopted which will not defeat plaintiff’s claim.

“After a very careful consideration of the questions involved we have reached the conclusion that both of the contentions of plaintiff in respect to clause (3) are sound, and if we are right in our conclusion it follows that the trial court erred in refusing to find for plaintiff and in finding for defendant.”

In addition to the cases that we there cited in support of our ruling we now add National Life & Accident Ins. Co. v. May, 170 Okla. 198, 39 P. (2d) 107, decided December 4, 1934; and Housh v. Pacific States Life Ins. Co., 2 Cal. App. (2d) 14, 37 P. (2d) 741, decided by the District Court of Appeal, Third District, California, November 5, 1934. On December 17, 1934, the Supreme Court of California denied defendant a hearing in that case.

In support of its position defendant cites the following cases: Continental Casualty Co. v. Morris, 46 Tex. Civ. App. 394,102 S. W. 773; Ryan v. Continental Casualty Co., 94 Neb. 35, 142 N. W. 288; Fernando v. Continental Casualty Co., 169 Minn. 53, 210 N. W. 634; Continental Casualty Co. v. Klinge, 82 Ind. App. 277, 144 N. E. 246; Potestio v. Continental Casualty Co., 181 Wash. 480, 43 P. (2d) 956. It will be noted that these cases all involve appeals by the instant defendant. In Continental Casualty Co. v. Morris it appears that the language of the exemption clause is different from the exemption clause in the case at bar. Furthermore, the decision in that case was not followed in a later decision by the same court (Provident Life & Accident Ins. Co. v. Johnson (Tex. Civ. App.), 235 S. W. 650), and the court was of the opinion that the Morris case could be distinguished upon the facts. The court, in Provident Life & Accident Ins. Co. v. Johnson, cites with approval Interstate Business Men’s Accident Ass’n v. Dunn, 178 Ky. 193; American Accident Co. of Louisville v. Carson, 99 Ky. 441, and also Gavula v. United States Health & Accident Ins. Co., 15 Penn. Dist. Rep. 432, which we cited, inter alia, in support of our opinion in the Porter case. The Morris case is expressly disapproved in Interstate Business Men’s Accident Ass’n v. Dunn, supra. In Ryan v. Continental Casualty Co., supra, the assured was killed in a fight, and a different question was presented to the court. In Fernando v. Continental Casualty Co., supra, it appears that the assured, on the morning he was shot, was at the home of a woman with whom he had been friendly; that he had left his revolver in a trunk in the front room of the premises; that he demanded money of the woman, who told him that she had none; that a quarrel and fight followed, in which he hit her and then started for the trunk; that she also started for the trunk, got the gun and shot him. She was indicted for murder and sentenced to the penitentiary on a plea of guilty of manslaughter in the second degree. The court held that under the facts of the case the insured’s death was the result of an “intentional act” within the policy. The question before us was not raised nor discussed in that case. In Continental Casualty Co. v. Klinge, supra, the insured was killed by a police officer while he was fleeing from the scene of an intended crime. There, like in other cases cited by defendant, the killing ivas provoked by the insured, and the court merely held that the injury which caused the death of the assured resulted from the intentional act of the officer who did the shooting. Furthermore, the provision in that policy provided that it does not cover any loss . . . which results from the intentional act of the insured,” etc., while in the present case the policy provides that it does not cover any loss “ (3) if the injury causing it results from the intentional act of the Insured,” etc. However, in a later decision, Business Men’s Indemnity Ass’n v. Washburn, 94 Ind. App. 395, 157 N. E. 104, the Indiana Appellate Court distinguished Continental Casualty Co. v. Klinge and followed the ruling in Interstate Business Men’s Accident Ass’n v. Dunn, supra, cited in our opinion in the Porter case. The Supreme Court of Iowa, in Olson v. Southern Surety Co., 201 Iowa 1334, 208 N. W. 213, 217, expressly refused to accept the decision in Ryan v. Continental Casualty Co. as authority, and also questioned the reasoning of the courts in Continental Casualty Co. v. Morris and Continental Casualty Co. v. Klinge. In Potestio v. Continental Casualty Co., supra, it appears that as the result of an enmity between Peter Malito, the assured, and one Potestio, the latter shot and killed the assured. That case seems to support defendant ’s position, but the Washington court cites in support of its ruling Continental Casualty Co. v. Klinge, Fernando v. Continental Casualty Co. and Continental Casualty Co. v. Morris, supra, wliich cases do not support the ruling, and none, as we have heretofore shown, passed upon the question now before us. It is apparent from the absence in the opinion of the many authorities that might have been cited in favor of plaintiff Potestio’s position, that the case for the latter was not well presented to the Washington Supreme Court. After a careful re-examination of the question involved in the instant contention we are of the opinion that our conclusion in Porter v. Continental Casualty Co. is sound. Defendant did not prosecute an appeal in that case and if our holding was correct it follows that the trial court in the instant proceeding did not err in sustaining the demurrer to the special pleas.

Plaintiff still contends that our former decision in this case, that the act of the Mexican was intentional within the meaning and intent of Part V óf the policy, runs counter to a number of well considered cases, but we adhere to our former ruling* upon that question. Should this case go to the Supreme Court plaintiff will there have the right to have that question passed upon.

The instant contract of insurance was drawn by defendant, and, as we stated in the Porter case, “even if the language of clause (3) were reasonably susceptible of two interpretations, nevertheless, under the settled rule of law, that interpretation must be adopted which will not defeat plaintiff’s claim. ’ ’ Despite the fact that in a number of cases the meaning of the language in question has been the subject of serious dispute, defendant persists in retaining it in its policies. If it intended to protect itself against liability for the intentional killing of the assured by another, it could have readily so provided, in clause (3), by apt words that would have clearly apprised the assured that the policy did not cover any loss resulting from a fatal injury intentionally inflicted upon him by another person. An insurance company has no right to so phrase provisions in its policies that the assured will likely be misled thereby. In the Porter case we were obliged to hold that the excepted loss clause in the policy of this company did not comply with Cahill’s Ill. Rev. St. 1933, ch. 73, ¶ 468, clause (6), which requires exceptions of such policy to be pointed with the same prominence as the benefits to which they apply. Plaintiff contends that certain other provisions of the policy sustain his interpretation of Part V (3), and while we believe there is merit in this contention, we do not deem it necessary to specifically refer to the provisions upon which plaintiff relies.

The judgment of the superior court of Cook county is affirmed.

Affirmed.

Sullivan and Friend, JJ., concur.