text:
    Beulah R. H. Rhoden, Defendant in Error, v. Peoria Creamery Company, Plaintiff in Error.
    Gen. No. 8,750.

      Opinion filed December 22, 1934.
    Rehearing denied and opinion slightly modified February 5, 1935. Motion to vacate order denying and overruling rehearing denied and opinion modified March 18, 1935.
    Eagleton & Eagleton, of Peoria, for plaintiff in error; George W. Hunt, of Peoria, of counsel.

      Jesse Black, Jr., of Pekin, and Clarence W. Hbyl, of Peoria, for defendant in error.
   Mr. Justice Dove

delivered the opinion of the court.

The defendant in error, Beulah B. H. Bhoden, recovered a judgment in the circuit court of Peoria county for $20,000 against the Peoria Creamery Company and the Peoria Cartage Company. From that judgment the Peoria Cartage Company has perfected an appeal to this court, and the Peoria Creamery Company has prosecuted this writ of error.

The declaration, as amended, consisted of three counts. In each count it was alleged, among other things, that the defendant in error was riding as the guest of Bichard Vogel in his automobile on June 9, 1930, while he was driving it along State Highway No. 8; that the Peoria Creamery Company and the Peoria Cartage Company were each possessed of and operating a large truck upon said highway, both trucks proceeding in an easterly direction and immediately preceding the automobile in which the plaintiff was riding was the cartage company truck and ahead of it was the truck of the creamery company; that the driver of each of said trucks so negligently, carelessly and recklessly managed and controlled the same that by reason thereof the automobile in which plaintiff was riding struck the truck of the Peoria Cartage Company and as a result thereof defendant in error was seriously injured. The third count also alleged that no warning was given to the driver of the automobile in which plaintiff was' riding and as a result thereof the collision occurred. To this declaration both defendants filed the general issue and the cartage company filed a special plea, denying that it was the owner of the truck and denying that the truck alleged to have been driven by its servants was in the care, custody or control of any agent or servant of the cartage company. Upon these pleas issues were joined and a trial had, resulting* in a verdict and judgment as hereinbefore stated.

The evidence discloses that defendant in error is a physician and surgeon, 40 years of age, a graduate of the University of Nebraska and of the University of Pennsylvania, and was, at the time of the accident, Assistant General Medical Superintendent of Bellevue Hospital in Brooklyn, New York. Richard Vogel is 40 years of age, lives at Berwyn, Illinois, and is a cousin of Dr. Rhoden. By previous arrangement, Mr. Vogel and his mother met Dr. Rhoden at Ames, Iowa, on June 8, 1930, drove to Des Moines, Iowa, and from there to Bowen, near Quincy, and the following day, June 9th, left Bowen in Mr. Vogel’s five-passenger Oakland sedan, expecting to spend the night at Ohenoa. They visited relatives and had supper at Eureka, leaving there between 7:30 and 8:00 o’clock. During the entire trip, Richard Vogel drove the car, and Mrs. Vogel and Dr. Rhoden occupied the rear seat, Dr. Rhoden sitting on the left-hand side, immediately behind the driver. After leaving Eureka, the car proceeded east toward El Paso on State Highway No. 8, which is a concrete pavement,18 feet wide divided by a black line in the center and had traveled approximately 10 miles to the point of the collision. Approaching the place where the accident occurred the pavement is straight and level for approximately one mile in each direction. About 7:30 that same evening, a truck of the Peoria Creamery Company being-driven by Eustace Hinderliter was proceeding easterly upon said highway, but due to a broken pin in its timer, stopped upon the east traffic lane of the slab, its north wheels being about two feet south of the black line which marked the center of the pavement. This truck and its contents had a gross weight of 23,350 lbs. As soon as the truck stopped, Hinderliter, who was alone in the truck, went to the residence of Ivan Snow, some 500 feet away, and from there telephoned a mechanic at El Paso, John Sadler, to come out. About 15 minutes thereafter Sadler arrived and suggested that the truck be pulled to El Paso because, in the event the gear on the bottom of the distributor was found to be broken, they would have to get a new one. Upon examination of the distributor, however, Hinderliter, the driver of the truck, and Sadler, the mechanic, decided it could be repaired and went to a repair shop on the north side of the Snow home, leaving the truck unattended standing on the pavement. It was while they were there, engaged in repairing the timer, that the truck driven by Everett Bell, accompanied by John Butkovitz, referred to herein as the Peoria Cartage Company truck, which was also proceeding in an easterly direction, approached the creamery company truck and stopped, or was coming to a stop, between 30 and 50' feet west of the rear end of the Peoria Creamery Company truck. George Troye had passed through El Paso this evening at a little before 8 o’clock, driving alone in his Chevrolet coupe, going toward Eureka. As he approached the point of the collision, Bell and Butkovitz, ill the cartage company truck, observed his approach, and in order to permit him to pass the creamery company truck, the driver of the cartage company truck was obliged to stop, or almost stop his truck, in order that Troye might proceed in his traffic lane on the north side of the black line. About this same time and while Sadler and Hinderliter were at the Snow residence making the repairs on the distributor, Mr. Vogel, driving the car in which Dr. Rhoden was a passenger, approached from the west, going in an easterly direction on the south traffic lane. According to the testimony of Mr. Vogel, he was proceeding on the right-hand side of the pavement up to a point within a few feet of the rear end of the cartage company truck, when, in order to go around that truck, he pulled out to the left and entered the north traffic lane, left of the hlack line. About that time Mr. Vogel observed the Troye car approaching from the east, going in a westerly direction. Mr. Vogel further testified that when he first saw the Troye car, it was close enough to him that he knew if he went ahead his car and the Troye car would collide. Mr. Troye testified that he observed the Vogel car as it turned out into the westbound traffic lane, and he then turned his car over onto the shoulder and into the ditch north of the slab and Vogel swerved his car to the right in an effort to get back into his own traffic lane and thereupon his car struck the left rear corner of the cartage company truck, resulting in Dr. Rhoden being injured, to recover for which this suit was instituted.

Plaintiff in error contends that the evidence fails to disclose that it was guilty of any negligence which was the proximate cause of the injury; that the defendant in error was guilty of contributory negligence; that the doctrine of intervening cause applies and that the trial court erred in its refusal, at the close of all of the evidence, to direct a verdict for plaintiff in error; that the trial court erred in the admission of evidence; that erroneous instructions were given to the jury by the trial court; that prejudicial remarks were made by opposing counsel in their argument to the jury, and finally that the judgment is excessive.

Our statute makes it unlawful for the driver of a vehicle to stop the same on any durable hard-surfaced State highway, or allow it to stand in such position that there is hot ample room for two vehicles to pass upon the road, except in case of emergency. Cahill’s Illinois Revised Statutes, 1933, ch. 121, ¶ 161(2). Plaintiff in error insists that as the undisputed evidence is to the effect that there was a break in the operating machinery of the truck, therefore, an emergency existed as contemplated by the exception. This is true, but the negligence, of which defendant in error complains, is not that the timer or any part of the machinery of the truck broke or that the truck stopped on the pavement, but she insists that the negligence, of which she complains, consisted of plaintiff in error permitting this truck to remain as an obstruction after the emergency had passed.

The evidence discloses that about 15 minutes elapsed after the truck stopped before Sadler, the mechanician who came out from El Paso, arrived. Upon his arrival he parked his service truck on the shoulder of the road and inquired of Hinderliter if he knew what the trouble was. Hinderliter told him that it was in the distributor, and Sadler then said that they had better pull the truck into town, because in case the gear on the bottom of the distributor was broken, they would have to get a new one from some other place. Thereupon, Hinderliter suggested that they had better make a further examination and ascertain just what -the trouble was. This they did, and discovered that the gear was not broken, but simply a small pin which held the gear to the shaft had been sheared off. The. distributor was thereupon removed and Hinderliter and Sadler had taken it to the workshop at Snow’s home and were working upon it there, when the accident occurred. Counsel for defendant in error in support of their contention that plaintiff in error permitted its truck to remain on the pavement after the emergency had passed, insist that Hinderliter refused to follow Sadler’s suggestion to pull the truck into town and, therefqre, must assume the liability occasioned by the truck being permitted to remain on the pavement. It is apparent, however, that the suggestion of Sadler was based upon the thought that the gear in the distributor was broken and a new part would have to be procured, and when this was found not to be the case, both Sadler and Hinderliter left the car on the pavement where it had stopped and had been gone 10 or 15 minutes before the collision occurred.

In Barnstable v. Calandro, 270 Ill. App. 57, it appeared that the plaintiff was injured as a result of the car which he was driving colliding with the rear end of the truck of the defendant. The evidence disclosed that the truck developed some engine trouble and the driver elected to stop it after he had passed the crest of a hill, and a short way down the slope, driving it off the road at an angle of approximately 45 degrees with the front end pointed toward the embankment on the side of the road, but with its left rear wheel upon the pavement and the body of the truck extending several feet in the line of traffic. In overruling the contention that the driver of the truck was not guilty of negligence, the court said: “There was no occasion for the truck standing in that position. The truck had been traveling on a decline and could as easily have been coasted off from the cement, or it could have been removed from the highway entirely by the men who offered to haul it to Taylorville before the accident happened, but the appellant’s servant declined the offered aid,” In James v. Motor Transit Management Co., 260 Ill. App. 246, it appeared that a Greyhound bus, while traveling on a paved highway, ran out of gasoline. The driver coasted as far as possible onto the shoulder of the road, the bus coming to a stop with its left rear wheel, at least, on the pavement. The head lights and tail lights were •burning. After procuring gasoline, the driver again left the bus, as he was unable to start it, as the shoulders of the highway were soft and muddy. The driver left the bus the second time in order to procure a wrecker to pull the bus back- on the pavement. While the driver was gone the second time, the plaintiff came along in his car, traveling in the same direction, and collided with the rear end of the bus. In its opinion, the court cited Frochter v. Arenholz, 242 Ill. App. 93, where it is said: “An accidental break in machinery or a defect in mechanism or parts peculiar to the car, often gives the person operating it no choice about leaving a car standing in the road until a remedy for the mishap is found,” and quoted from Collins v. McMullin, 225 Ill. App. 430, where it is said: “The mere fact of leaving an automobile standing on the proper side of a public road, however, cannot be regarded as negligence; it is a matter of common knowledge that it is not an infrequent occurrence to see an automobile standing in the public road; sometimes this occurs on account of an accidental break in machinery or a defect in the mechanism peculiar to the car, or because of a puncture in a tire or because the car has run out of gasoline. Persons operating cars often have no choice about leaving a car standing in the road, until a remedy for the mishap is found.” In Crawford v. Cahalan, 259 Ill. App. 14, in discussing the effect of this statute, this court said: “The exigencies which will excuse a person from leaving a car on the public highway in violation of the statute are those which give no choice to the driver about leaving his car in that position.”

What the Barnstable, James, Frochter, Collins and Crawford cases, supra, hold is that where one has no other choice except to leave his vehicle upon a portion of the paved road, there may be no liability by reason thereof, but in the instant case, the undisputed evidence is that it was suggested to Hinderliter by Sadler that the creamery truck be moved from the highway. This suggestion was made at least 20 minutes before the collision occurred. The means to move it was at hand. The service truck of Sadler was there at the time the suggestion was made. The driveway to the Snow residence was approximately 100 feet east of the truck, and it was into this driveway that Sadler, using his service truck, moved the creamery truck immediately after the accident. It is true that the evidence does disclose that the creamery truck was properly lighted, both in front and in the rear, and the lights were burning at the time Hinderliter and Sadler left it in the road and took the distributor to the Snow workshop to repair it, but the very condition which did arise should have been anticipated by Hinderliter, and even though his truck was properly lighted, those lights would not be discernible by anyone approaching it from the west if another truck was obliged to stop in the rear of the creamery truck, as the presence of such other truck would prevent those lights from the creamery truck being seen. The question of negligence on the part of plaintiff in error was one of fact for the jury to pass upon under all the facts and circumstances as shown by the evidence, and in our opinion the evidence was such as required this question to be submitted to the jury. It is true that the breakdown of the truck of plaintiff in error had no connection with the fact that the cartage truck came along while-it was there, nor did it have any connection with the Troye car approaching from the east, and these occurrences were independent of and had no connection with the presence of the creamery truck, but the reason the cartage truck was obliged to stop was because the creamery truck obstructed the pavement and the fact that the presence of the cartage truck or Troye car contributed to cause the injury is no defense to plaintiff in error if its negligence was an efficient cause and without which the injury would not have occurred. City of Joliet v. Shufeldt, 144 Ill. 403.

It is next insisted that defendant in error was guilty • of contributory negligence. This question is also one of fact for the jury to determine, and unless the conduct of defendant in error was clearly and palpably negligent, so that all reasonable minds would so pronounce it, the trial court would not have been justified, in refusing to submit this question to the jury. Defendant in error was a guest of the driver of the car. His negligence, if any was shown, is not imputable to her. According .to her testimony, the car in which she was so riding as a guest, from the time it left Eureka until the collision occurred was being driven between 25 and 30 miles per hour; that she was in the back seat, immediately to the rear of the driver and was looking, almost all the time, at the pavement, over the driver’s shoulder, and could see 20 or 25 feet ahead; that she paid particular attention to the south traffic lane, and did notice the truck as it loomed up in front of the car in which she was riding. At the same time she observed it, however, she felt her car swerve to the left, out into the other traffic lane, and then observed, for the first time, the headlights of the Troye car approaching from the opposite direction. Her car then swerved to the right and at that instant there was a crash and she was thrown to the bottom of the car.

In Christensen v. Johnston, 207 Ill. App. 209, the court quoted with approval the following language from Clarke v. Connecticut Co., 83 Conn. 219: “What conduct on the passenger’s part is necessary to comply with his duty must depend upon all the circumstances, one of which is that he is merely a passenger having no control over the management of the vehicle in which he is being transported. Manifestly, the conduct which reasonable care requires of such a passenger will not ordinarily, if in any case, be the same as that which it would require of the driver. While ■ the standard of duty is the same, the conduct required to fulfil that duty is ordinarily different because their circumstances are different.” A passenger riding as an invited guest in an automobile is only required to exercise such care as the exigencies of the situation require; in other words, such guest is bound to use such care and caution as a person situated in like circumstances would exercise. Fredericks v. Chicago Rys. Co., 208 Ill. App. 172, and the fact that defendant in error did not do or say anything as the car approached the truck did not, in our opinion, show, as a matter of law, that she was not in the exercise of ordinary care for her own safety. The question whether she did or failed to do all that a reasonable person in like circumstances would have done was properly submitted to the jury by the trial court. Waitrovich v. Black, 254 Ill. App. 49; St. Clair Nat. Bank v. Monaghan, 256 Ill. App. 471.

It is next insisted by plaintiff in error that it is not liable as the proximate cause of the collision was not its negligence, but that it was due to the presence of the cartage truck, which was an independent intervening cause. In support of this contention the cases of Illinois Cent. R. Co. v. Oswald, 338 Ill. 270, Hartnett v. Boston Store, 265 Ill. 331, Chicago Hair & Bristle Co. v. Mueller, 203 Ill. 558, Bowman v. Woodway Stores, 345 Ill. 110, and a number of others are cited. In the Oswald case, supra, suit was instituted against the railroad company, the negligence charged being the emission of smoke by one of the engines of the defendant so dense that plaintiff was unable to see. She had been riding in an automobile and left it to see if her car had been damaged by another ear running into it. While she was doing this, a third car came up, striking the car in the rear of the car in which the plaintiff had been riding, and causing it to strike the plaintiff. The court, in reversing the judgment of the trial court, held that the injuries sustained by the plaintiff resulted from her negligence. This case is clearly distinguishable from the instant case and Ave have examined the other cases cited and in our opinion none of them sustains plaintiff in error’s contention in this regard.

In Fisher v. Chicago, R. I. & P. Ry. Co., 290 Ill. 49, the court said: “The rule of common Iuav is that if an injury result from the negligent act of another, it is no defense that the negligence of a third person, or an inevitable accident or some inanimate thing, also contributed to cause the injury, if the negligence charged against the wrongdoer was an efficient cause and without which the injury Avould not have occurred.” In Illinois Cent. R. Co. v. Siler, 229 Ill. 390, it is said: “In order to make a negligent act the proximate cause of an injury it is not necessary that the particular injury and the particular manner of its occurrence, could reasonably have been foreseen. (City of Dixon v. Scott, 181 Ill. 116.) If the consequences folIoav in unbroken sequence from the Avrong to the injury Avithout an intervening efficient cause, it is sufficient if, at the time of the negligence, the wrongdoer might, by the exercise of ordinary care, have foreseen that some injury might result from his negligence. (Citing cases.) ” In O’Connor v. Brower, 262 Ill. App. 621, it is said (624): “The proximate cause of an injury is that act or omission which immediately causes and without AAhich the injury would not have happened, notAvithstanding other conditions or omissions concurred thereAvith (Miller v. Kelly Coal Co., 145 Ill. App. 452); it must be that Avhich in a natural and continued sequence, unbroken by any new and independent cause, produces the event and Avithout which it would not have occurred (Cleveland, C., C. & St. L. Ry. Co. v. Lindsay, 109 Ill. App. 533). . . . It is not necessary that the person guilty of a negligent act or omission might have foreseen the precise form of the injury, but Avhen it occurs it must appear that it was a natural and probable consequence of his negligence (Seith v. Com monwealth Electric Co., 241 Ill. 252, 259), and the wrongdoer will be liable if the injury was such as a reasonably prudent man might, by the exercise of ordinary care, have foreseen would occur, although he might not have foreseen the particular accident that did occur. (Hartnett v. Boston Store, 265 Ill. 331; and O’Rourke v. Louisville & N. R. Co., 197 Ill. App. 45, 52.)”

We have heretofore said that the trial court did not err in submitting the question of the negligence of plaintiff in error to the jury, and whether its negligence was the proximate cause of defendant in error’s injury was also a question of fact to be determined by the jury. When the truck of plaintiff in error stopped, its driver or servants might reasonably have anticipated the approach of another car or truck from the west, as well as the approach of another car from the east, and might also reasonably have anticipated the approach of still another car from the west. This being true, the presence of all three at the time of the collision does not interrupt the connection between the original cause, which was the leaving of the creamery truck on the pavement after the means of removing it were at hand, and the injury which defendant in error sustained. If the creamery truck had not been standing on the pavement, the driver of the cartage company truck would not have been compelled to stop. If the cartage company truck had not stopped, Vogel would not have had to turn out at the time he did so, into the other traffic lane. If the Troye car had not been coming from the east, Vogel would not have been obliged to attempt to turn back into the south traffic lane. Therefore, the collision is directly traceable to the presence of the creamery truck upon the south traffic lane of the highway and had it not been there, the accident would not have occurred. In our opinion the court was warranted in submitting this question to the jury and the jury were, from the facts and cireumstances in evidence, warranted in finding that the causal connection between the conduct of plaintiff in error and the collision was unbroken and that the proximate cause of the injury was the negligence of plaintiff in error.

It is next insisted that the trial court erred in its rulings upon the admission of evidence. Louis Merle was the treasurer and manager of the Peoria Cartage Company and he testified on behalf of the defendants that the cartage company was engaged in long' distance hauling of freight and that the truck spoken of herein as the cartage company truck belonged to John Svob and that the arrangement which the cartage company had with him was to pay him 70 per cent of the gross receipts derived from the freight which he hauled and that the cartage company did not own the truck at the time of the collision. He further testified that the cartage company had had painted on (lie Svob truck the words, “Peoria Cartage Company, No. 18, Long Distance Hauling, Peoria, Chicago, Springfield, Bonded and Insured. ” Without objection. Mr. Merle testified, on cross-examination, that the words “bonded and insured” meant that the truck owner was bonded and were put there “to let the shipper know we were bonded and that their freight would be taken care of and in case of it being lost, it would be paid for.” Over objection of counsel for the cartage company, this witness testified that insurance was carried to protect the freight "from theft, fire or damage and to insure that collections would be turned in to the company. This evidence that the cartage company insured in its own name the freight which it carried was competent as tending to show that the cartage company was operating the truck at the time in question, Hartley v. Red Ball Transit Co., 344 Ill. 534.

• There was no evidence here that there was any insurance protecting the cartage -company from liability for damages resulting from the' acts- of the driver and therefore the cases cited and relied upon by plaintiff in error are not in point. Furthermore, this testimony affected only the cartage company and not plaintiff in error.

It is next insisted that it was error to give instruction No. 21, which is as follows, viz.: “The court instructs the jury that on June 9, 1930, the statutes of the State of Illinois provided as follows: ‘No driver of a vehicle shall stop the same on any durable hard-surface State Highway, or allow it to stand in such position that there is not ample room for two vehicles to pass upon the road, nor shall any person unload his cargo or transfer it from one vehicle to another, except in case of emergency, upon such highway. ’ ” This instruction is in the language of the statute. It is true that the phrase “nor shall any person unload its cargo or transfer it from one vehicle to another” has no application whatever to the facts in this particular case, and those words should have been eliminated. Counsel for plaintiff in error insists that the instruction was misleading because it did not tell the jury what those emergencies might be, which would excuse the stopping of a vehicle on the highway. It was a question of fact for the jury to determine whether the emergency which caused the creamery company" truck to stop existed at and just before the lime of the collision. The statute not only prohibits the driver to stop, but also prohibits him from allowing his vehicle to stand on the pavement and for this reason we do not believe that, in this case, the giving to the jury of an instruction couched in the words of the statute itself was improper; Leideck v. City of Chicago, 248 Ill. App. 545.

. Instruction No. 22 is: “The court instructs the jury that, on June 9, 1930, the statutes of the State of Illinois provided as follows: ‘No driver of a vehicle shall suddenly stop, slow down or attempt to turn around, without first signaling his intentions with outstretched arm or otherwise to those following closely in the rear.’ ” The phrase “or attempt to turn around” has no application whatever to the facts as they appear in the record of this case, and those words should have been eliminated and so far as plaintiff in error was concerned have no application, but the cartage company was a defendant in the trial court and the evidence in this record warranted the giving of this instruction, and the jury must have understood it as applying to the facts as the evidence disclosed the facts to be and plaintiff in error was, in our opinion, in no way prejudiced by the giving of "this instruction.

Instruction No. 41 is as follows: “The court further instructs the jury that if you find from the greater weight of the evidence that the plaintiff has proved her case and has sustained damages, then to enable the jury to estimate the amount of "damages to the plaintiff for injuries to her person, if any has been shown, it is not necessary that any witness should have expressed an opinion as to the amount of such damages, but the jury themselves must make such estimate from the facts and circumstances in proof, and by considering them in connection with their knowledge, observation and experience with the ordinary affairs of life.”' The criticism directed against this instruction is that it specifically directs the jury to take into consideration knowledge acquired from observation and experience in arriving at the amount of damage. What this instruction did was to inform the jury that if the jury find from a consideration of the evidence that the plaintiff was entitled to recover, it was unnecessary to have any witness express an opinion as to the amount of such damages and we are unable to understand how a person, when he becomes a juror, could be expected to not bring to the consideration of a case, upon which he is deliberating, his knowledge, observation and experience with- the ordinary affairs of life. The instruction has been frequently approved, and it was not error to give it. North Chicago St. R. Co. v. Fitzgibbons, 180 Ill. 466; Reynolds v. Alton, Granite and St. Louis Traction Co., 194 Ill. App. 87; Richardson v. Nelson, 221 Ill. 254; McDonell v. Lake Erie and Western Ry. Co., 208 Ill. App. 442.

The court gave 31 instructions offered by the defendants below, and there is no merit in counsel’s contention that it was error to refuse instruction No. 5. Given instruction No. 31, as well as several others, fully covered the subject matter embraced in this refused instruction.

The prejudicial argument which is complained of was the statement made by counsel for defendant in error that the reason the driver of the creamery truck would not let Sadler tow his car off the road was because he wanted to save the towing charge, that the driver of the creamery truck was indifferent to the safety of anyone on the road because he was either in a hurry or else didn’t give a damn, which counsel went on to - explain was what “we say to people who simply don’t care.” We do not think the use of the word damn was necessary in this argument. There is certainly some other word in our language almost, if not quite, as expressive of the thought desired to be conveyed and upon another trial, counsel will refrain from violating the proprieties of his profession. However, • other than the use of this objectionable Avord, Ave are unable to say that the argument was unwarranted.

Inasmuch as this judgment must be reversed and the cause remanded, it will be unnecessary for us to consider the remaining error relied upon, which is that the judgment is excessive.

In the instant case, the negligence which defendant in error insists the cartage company was guilty of was the failure of its driver to signal that he was going to bring his truck to a stop and his failure to have the lights burning on the rear of his truck. We have read this record with care, and the evidence discloses that the collision occurred a very few minutes after 8 o’clock. While the exact time of the collision is not material, it may be noted that those in the Vogel car insist it was dark and the evening murky and the visibility pbor. The weight of the evidence is, however, that the pavement was dry, the atmosphere clear, the visibility good and the moon shining, although earlier in the day and prior to 5 o’clock there had been some rainfall. The sun set at 7:29 o ’clock. Harvey W. Malcolm and his wife Martha resided not to exceed a thousand feet from the place where the collision occurred. Mrs. Malcolm observed the cartage truck as it approached the creamery truck, and she also saw the Vogel car as it proceeded eastward and heard the crash occasioned by the collision. Both of these witnesses are disinterested, and their testimony that rear domé and tail lights on the cartage truck were lighted and burning must not be overlooked. Furthermore Bell and Butkovitz testify that the front and rear dome lights were on the same circuit, operated by the same switch while the headlights and tail lights were on another circuit, that the headlights were burning before, at the time of, and after the accident, that immediately following the collision they both went to the rear of the cartage truck and at that time the tail and rear dome lights were burning. Troye, the driver of the west-bound car, testified that as he approached the cartage truck he saw that its headlights were lit. Immediately after the crash, Hinderliter came out of the shop where he and Sadler were repairing the broken part of the creamery truck and he observed the lights burning on the cartage truck, the front dome lights being green and the rear ones red. Sadler and Snow also eadh. ¡.testified that he saw the headlights on the cartage truck burning when he looked immediately after the crash. If the headlights were burning, the tail lights were also necessarily burning, as they were on the same circuit. E. J. Joosten, driving a Chevrolet car, accompanied by his wife', left Eureka about 8 o’clock, driving east, and both Mr. and Mrs. Joosten testified that they saw the cartage truck when they were within a quarter, of a mile of it and observed its rear lights, which were burning. The. driver of the cartage truck testified that he observed in his mirror the Vogel car approaching in the rear approximately 500 feet away and he and Butkovitz both testified that Butkovitz turned the switch which controlled the dome lights on and off in order to attract the attention of those riding in the Vogel car.

That the cartage company is guilty of the negligence charged depends solely upon the evidence of Bichard Vogel and his mother, who testified that the rear lights on the cartage truck were not burning. Dr. Bhoden, the defendant in error, was continuously watching the pavement, directing her eyes on her own traffic lane, being able to see, according to her testimony, only 20 or 25 feet ahead of the car in which she was riding and consequently she did not observe the truck until an instant before the collision. While ordinarily the jury are the judges of the weight of the evidence, they are not the final judges, and when from a consideration of all the evidence it is apparent that their verdict is manifestly against the weight of all the evidence, it is the duty of the trial court to set aside their verdict. Donelson v. East St. Louis & Suburban Ry. Co., 235 Ill. 625. We are clearly of the opinion that the weight of the testimony is that the cartage company is not guilty of the negligence charged and for this reason the court erred in not granting the motion for a new trial.

Under the practice which obtained prior to January 1, 1934, this judgment being a unit as to both the creamery company and the cartage company could not be affirmed as to one and reversed as to the other. Hays v. Thomas, 1 Ill. (Breese) 136; Livak v. Chicago & Erie R. Co., 299 Ill. 218; Freeman v. Dixon, 233 Ill. App. 196; Christensen v. Johnston, 207 Ill. App. 209; McDermott v. A. B. C. Oil Burner Sales Corp., 266 Ill. App. 115; McDonald v. Wilkie, 13 Ill. 22. Under the Civil Practice Act of 1933 (Cahill’s Illinois Revised Statutes, 1933, ch. 110, ¶ 220, sec. 92), it would not be improper for this court to reverse the judgment against the" cartage company and affirm it as to the creamery company. Fogel v. 1324 North Clark St. Bldg. Corp., 278 Ill. App. 286; Adkins v. Strathmore Co., 278 Ill. App. 183.

Under all of the facts as disclosed by this record, however, we believe that this case should be submitted to another jury.

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

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Dove

license: Public Domain

text:
    Trustees of Schools of Township No. 33 North, Range No. 3 East of the Third Principal Meridian, La Salle County, Appellee, v. Miriam E. Farnsworth et al., Appellants.
    Gen. No. 8,815.

      Opinion filed December 22, 1934.
    Rehearing denied February 5, 1935.
    Butters & Butters, Wilhelm & Wilhelm and O. B. Chapman, all of Ottawa, for appellants.
    Elmer J. Mohan, State’s Attorney, for appellee; Hibbs & Pool, of Ottawa, of counsel.
   Mr. Justice Dove

delivered the opinion of the court. Miriam E. Farnsworth was, on June 26,1930, elected by appellee treasurer of township 33 north, range 3 east of the third principal Meridian, La Salle county, Illinois. She executed a bond with the other appellants herein as sureties, in the sum of $200,000, the obligee on the bond being the board of education of said township. This bond was approved by the trustees and by the county superintendent of schools, as provided by law, and thereupon the treasurer entered upon the performance of her duties. As such treasurer she deposited the funds coming to her possession in the Ottawa Banking and Trust Company, the National City Bank, the First National Bank and the People’s Trust and Savings Bank, all of Ottawa, Illinois. On September 29, 1931, the Ottawa Banking and Trust Company was closed by the State auditor and at that time the treasurer had on deposit in that bank the sum of $31,975.26. On September 30, 1931, the National City Bank was closed by the comptroller of the currency and the treasurer had on deposit in that bank the sum of $20,000. On October 1, 1931, the People’s Trust and Savings Bank was closed by the State auditor and the treasurer had on deposit in that bank the sum of $20,000.

On October 9, 1931, Miss Farnsworth resigned as treasurer, and Earl O. Plaeberle was elected and qualified as her successor. At the time of her resignation there was due the trustees from her, as treasurer, the sum of $77,007.17. Of this amount $5,031.91 was on deposit in the First National Bank of Ottawa and this she turned over to Haeberle. The balance of $71,975.26 was in the closed banks and although a demand was made upon her for that sum by her successor on November 4, 1931, she was unable to comply with that demand. On March 2, 1932, two of the trustees delivered a written communication to the State’s attorney of La Salle county, requesting him to commence suit upon the official, bond of Miriam E. Farnsworth, for the money she had failed to pay over. The third trustee was John V. Kenny, one of the appellants herein, who had signed the bond of Miss Farnsworth and thereafter, as one of the trustees, had approved the same.

On March 2,1932, this action in debt was commenced by appellee upon the official bond of the treasurer, Miss Farnsworth. The declaration was filed on March 4, 1932, and was in the usual form. In each of the three counts of the declaration, the bond was set out either in substance or in haec verba, and each count assigned as a breach thereof the failure of the treasurer to-pay over to her successor the said sum of $71,975.26. On June 14, 1932, three defendants entered their special and limited appearances for the purpose of filing a motion to dismiss the suit under the Act of May 7, 1932, hereinafter referred to. On July 2, 1932, this motion was heard and subsequently denied. Seven of the defendants filed a general demurrer to the declaration, which was overruled and thereafter, on October 29, 1932, a plea of the general issue with notice of special matters of defense was filed by all the defendants. Upon this plea issue was joined and a trial had before the court and jury, which resulted in a verdict finding the issues for the plaintiff and the amount of the debt to be $200,000, and assessing- the damages of the plaintiffs at $67,000. Upon this verdict judgment was rendered and the record is brought to this court for review by appeal.

Appellants first ■ contend that the State’s attorney was without authority to commence this suit. It was not until November 13, 1933, that the defendants entered, in the trial court, their motion to dismiss this action for this reason. Prior to this time defendants had filed a motion to dismiss, basing the same upon the Act of May 7, 1932. They had also filed a demurrer which had been heard and overruled, and on October 29, 1932, had filed their pleas in bar. This motion therefore came too late. The record, however, discloses that one of the defendants, John V. Kenny, was one of the sureties on the school treasurer’s bond and was also one of the trustees. The two remaining trustees, by written communication to the State’s attorney, on March 2, 1932, requested and authorized him to bring this suit upon the official bond of Miss Farnsworth. We see no reason why the State’s attorney should not bring it when directed to do so by these two trustees. Furthermore, the record discloses that on June 2, 1932, after the suit was instituted, a meeting of the trustees was duly called as provided by law, and a resolution was there duly adopted, which recited the defalcation of the treasurer, the written request made to the State’s attorney on March 2, 1932, to in-stitute this suit and the fact that it had been instituted. This resolution then expressly made the former request of March 2, 1932, of the two trustees, the official request of the¡ board, and ratified, approved and confirmed the action of the State’s attorney in starting the suit, and directed him to prosecute it to a conclusion. The suit was properly instituted and there was no error committed in overruling this motion to dismiss.

It is next insisted that the trial court erred in denying appellant’s motion to dismiss the suit under the provisions of the Act of May 7, 1932, in force July 1, 1932. This statute is as follows: “No action shall be brought nor shall any action lie against the treasurer or custodian of any public funds which have been, or hereafter may be, lawfully deposited in any bank which has closed or failed, or hereafter may close or fail, for the failure to pay over such funds, or any part thereof within a period of two years after such bank has failed or closed nor shall such treasurer or custodian be liable to pay over such funds, to the proper authorities during such period unless he has received payment of all, or a part of such funds, from the officials of such closed or failed bank or from the receiver therefor or from the sale or disposition of any securities pledged for the repayment of such funds, nor shall such treasurer or custodian be liable during such period for any greater sum than the amount or amounts he has received as such treasurer or custodian in the liquidation of such bank or the sale or disposition of such securities; provided that the provisions of this Act shall riot apply to any such treasurer or custodian of public funds unless each of the sureties upon the bond of such treasurer or custodian shall consent thereto in writing. Such consent shall be and shall be construed and held to be the agreement of such surety that the provisions of this Act shall not operate as a release from or affect the condition of such bond, but that such bond shall continue in full force and effect.” Cahill’s Illinois Revised Statutes, 1933, ch. 16a, ¶ 40. The constitutionality of this Act was sustained in Town of Cheney’s Grove v. Van Scoyoc, 357 Ill. 52, which was an action brought upon the official bond of Van Scoyoc, who was supervisor, and therefore ex officio treasurer of the road and bridge fund of the Town of Cheney’s Grove. The beneficial plaintiff was a contractor and as such entitled to certain funds under a contract entered into by it and the township.

In the instant case, appellees insist, first, that the question of the application of this Act was not properly raised in the trial court upon appellant’s motion to dismiss, but that a plea in abatement was necessary; second, that if the motion to dismiss did properly present the question, then the provisions of the Act were not applicable inasmuch as this suit was instituted prior to the time the Act was passed and became effective, and therefore this suit was not affected by it; and third, that inasmuch as this suit was tried and the judgment entered more than two years after the banks closed in which the treasurer kept her funds, appellants have therefore had the full benefit and advantage of the Act, and its purpose having been achieved, the result of a reversal of the judgment would only be to delay and defeat appellees in their just demands.

This suit was commenced on March 2, 1932, and the declaration filed two days later. Service was promptly had and on June 14, 1932, the defendants Weese, Godfrey and Kenny, seeking to avail themselves of the provisions of the Act of May 7, 1932, entered their respective special appearances in the trial court, and moved the court to dismiss the suit. The next day the remaining defendants filed a general demurrer to the declaration. This was the condition of the record on July 1, 1932, the date the Act of May 7, 1932, became effective. On July 2, 1932, the motion of Kenny to dismiss the suit was heard. Upon the hearing of this motion, an instrument signed by all of the appellants was offered in evidence, together with some oral evidence from which it clearly appears that appellants had complied with the provisions of the Act, desired to avail themselves of its provisions, and sought to bring themselves within its purview. On September 12, 1932, the demurrer of certain defendants was heard and overruled, and on the same day the defendants, other than Kenny, filed their written motion to dismiss, seeking to take advantage of the provisions of the Act of May 7, 1932. Both motions to dismiss were overruled, the trial court holding the Act of May 7, 1932 unconstitutional. On October 22, 1932, the defendants filed a plea of the general issue, accompanying the same with notice of special defenses in which they all again set up their reliance upon the provisions of the Act of May 7, 1932, and facts were stated which were sufficient to show they were entitled to its benefits. The cause was thereafter set for trial for October 16, 1933, and a motion by appellants to strike it from the trial calendar was denied. Again on November 13, 1933, a further motion was made to dismiss, supported by an affidavit, which recited the Act of May 7, 1932, and called attention to the provisions of the instrument executed by all of the defendants to the effect that they each had complied with and desired to avail themselves of the provisions of that Act. This motion was denied and the cause proceeded to trial on November 14, 1933.

We are of the opinion that appellants by their sev-' eral motions and plea with notice of special defenses properly raised this question in the trial court. It was not contended in the trial court that the question was not properly raised. The position of appellees there was that the Act of May 7, 1932, was invalid. The trial court sustained their contention and denied the motion, not because the question was not properly raised, but because of the invalidity of the Act. Furthermore, in the Van Scoyoc case, supra, the defendants filed a joint plea, which set up this same Act as a defense and averred that the suit was prematurely brought. A demurrer was sustained to this plea and the defendants electing to abide by their plea, judgment was rendered against them.

The principal question presented to this court for determination upon this record is whether the Act of May 7, 1932, should be construed as applying to cases then pending. The general rule is that a statute does not have a retroactive effect and whether the legislature intended this Act to affect pending litigation must depend upon a construction of the words which the legislature used. There was no prohibition against the institution of this suit at the time it was started. It was rightfully begun. , The depository banks had closed on September 29, 30 and October 1, 1931. This suit was instituted five months later. The first five words in the Act “No action shall be brought” clearly prohibit the institution of any such suit as the instant one during the period therein specified. The legislature, however, did not stop there, but added “nor shall any action lie. ’ ’ These words must have been intended to have some meaning and certainly do not mean the same thing as the preceding five words. The word “action” is used in each phrase. In legal practice this word means the formal demand of one’s right from another person or party made and insisted on in a court of justice. In Brand v. Brand, 252 Ill. 134, it is said that the words “action” and “suit” were, as a general rule, synonymous and used interchangeably to mean any legal proceeding in a court for the en-for cement of a right. In 1 C. J. 926, it is said that the term “action” in the absence of any restrictive words, has a broad and comprehensive application. In Mulcahy v. Mulcahy, 84 Conn. 659, it is said that when it is used in statutes regulating judicial procedure, it embraces all proceedings in a court of justice for the purpose of obtaining such redress as the law provides, and in Delta & Pine Land Co. v. Adams, 93 Miss. 340, it is said the word “action” must be so construed as to work out what appears clearly to have been the purpose of the legislature.

The term “action” has been used as synonymous with the terms “case,” “cause,” “controversy” and “proceeding at law.” 1 C. J. 928. Treating the word “action” as used in this statute as though it embraced all the proceedings from the formal institution of a suit, until its conclusion, and reading this phrase in connection with the conditions which then existed and which the legislature was endeavoring to meet, some of which succinctly appear in the opinion in the Van Scoyoc case, we are of the opinion that the phrase “nor shall any action lie” was equivalent to stating that if such an action Was pending, it could not be further prosecuted and prohibited the taking of any steps until the period imposed by the statute had elapsed. Under this construction of the statute, appedants were entitled to have all proceedings in this case suspended or held in abeyance until the treasurer has received funds from the receiver of the bank in satisfaction of the deposit or until two years had elapsed after the banks in which the treasurer’s funds were deposited had closed, as provided by the Act. If the legislature did not mean that this Act should apply to pending suits, it could very easily have limited the provisions of the Act to suits thereafter brought, but it did not do so in any language, either express or implied.

Counsel for appellees insist that there was a breach in the treasurer’s bond when she failed to turn over the money in her possession to her successor in office, and that therefore appellees became vested with a right to maintain this suit, and that to give the Act the construction we have adopted would be to invalidate it because it then affects existing vested rights.

In Otis Elevator Co. v. Industrial Commission, 302 Ill. 90, it appeared that Theodore Rosgard died on December 13, 1920, while in the employ of the elevator company, and his mother applied for compensation under the Workmen’s Compensation Act, Cahill’s St. ch. 48, ¶ 201 et seq. On January 18, 1921, the arbitrator made an award which was confirmed by the commission and on July 14, 1921, the circuit court of Cook county confirmed the decision of the industrial commission. An amendment to the Compensation Act became effective July 1, 1921, which provided that the circuit court on certiorari should have the power to review all questions of law and fact presented by the record. Upon the hearing in the circuit court, that court refused to review the facts in the case. In re-' versing the judgment of the, circuit court, it was held that the employer was entitled to have the circuit court review all questions of law and fact presented by the record, inasmuch as the statute as amended governed the remedy and procedure only. “It is always held,” says the opinion by Mr. Justice Cartwright, “that there is no vested right in a public law which is not in the nature of a grant and no vested right in any particular remedy or any special mode of administering it. If a statute confers a vested right, it cannot afterward be altered or amended so as to destroy the right, but if a change in the law affects only the remedy or procedure, all rights of action are governed thereby, without regard to whether they accrued before or after such change and without regard to-whether suit had been previously instituted or not unless there is a saving clause as to existing litigation. (Citing cases.) In several of these cases, changes in the law pending litigation imposed additional conditions to the exercise of the right of eminent domain, and in Holcomb v. People, supra, a bastardy proceeding was instituted when the law did not permit an appeal from the county court to the circuit court, but an act was afterward passed permitting such appeal, and it was held that the act took effect as to the pending proceeding.” This decision has been cited with■ approval in subsequent cases, and the law as there announced adhered to. Kenfield-Leach Co. v. Industrial Publications, 320 Ill. 449; New Staunton Coal Co. v. Industrial Commission, 304 Ill. 613; Chicago Board of Underwriters v. Industrial Commission, 332 Ill. 611.

Cahill’s Ill. Rev. Statutes 1933, ch. 122, ¶ 374, makes a school treasurer liable to the trustees upon his or her official bond for any failure or refusal upon the treasurer’s part to perform any of the duties required of the treasurer by law, the damages sustained to be recovered in an action of debt by the trustees for the use of the township. The instant suit was brought by virtue of the provisions of that statute, and appellees invoked the remedy there provided. In the Van Scoyoc ease the court said that the right to bring that suit was a remedy given by statute, that the Act of May 7, 1932, granted no new rights or estates to anyone and that there was nothing therein that could be construed to release the obligors on the bond from a substantial fulfilment of the obligation assumed. So here the remedy provided by the school law was not in any way altered or amended by the Act of May 7, 1932, and, as held in the Van Scoyoc case, supra, the provisions of the Act of 1932 affect the procedure only and no vested right is destroyed.

The legislature may enact statutes and change the law, but is without authority to direct what orders shall be entered by a court in pending actions as the application of the law to particular cases is a judicial function and the adjudication as to what orders shall he entered in such cases is the exercise of judicial power which does not belong to the legislature. People v. Madison, 280 Ill. 96, and the Supreme Court held in that case that it must dispose of the case under the law as it was at the time it decided the case and not as it was when the judgment of the circuit court was rendered. In the Act of May 7, 1932, there was no attempt on the part of the legislature to direct how the courts should construe that Act; yet it would have been entirely within the legislative power to save from the operation of that Act pending litigation, but not having done so, then under the construction of similar statutes, it must be held that it was intended by the legislature that the provisions of that Act should be applied to cases then pending. Kenfield-Leach Co. v. Industrial Publications, supra.

The bond which forms the basis of this suit was not drawn in favor of the board of trustees of Township 33, Range 3, La Salle county, Illinois, as provided by the statute, but the board of education of said township, range, county and State was named as the obligee therein. The bond was also irregular in that one of the obligors was Kenny, a trustee. These facts, however, should not preclude a recovery thereon. It. was executed by all of appellants.- It was approved by all the trustees and by the county superintendent of schools, it was intended by everyone to be the official, statutory bond of Miss Farnsworth, and she, after its execution and approval, entered upon the discharge of her duties as treasurer, and thereafter received and paid out school funds. She and her sureties are therefore estopped now to deny the validity of the bond. Estate of Ramsay v. People, 197 Ill. 572.

For the reasons assigned, the judgment of the trial court is reversed and the cause remanded.

Reversed and remanded.


author: Mr. Presiding Justice Wolfe

text:
    Otto Scharlau et al., Appellants, v. Lombard State Bank et al., Defendants. Lew H. Webb and Fred Y. Coffin, Appellees.
    Gen. No. 8,859.

      Opinion filed January 10, 1935.
    Rehearing denied February 5, 1935.
    Herbert A. Gbotefeld, of Downers Grove, and Gordon Moffett, of Lombard, for appellants; Gordon Moffett and Eva it. Pollack, of Downers Grove, of counsel.
    . B-oss, Berchem & Hanson and Harold J. Boss, all ■of Chicago, for appellees.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.

The appellant, plaintiff below, started suit in the circuit court of DuPage county on behalf of themselves and ‘ ‘ of all other creditors of the Lombard State Bank who may choose to join in this cause,” to enforce the liability of the defendants to the bill, as stockholders of said bank. The liability sought to be enforced against the defendants is predicated upon section 6, Article 11 of the Constitution of the State of Illinois.

The Lombard State Bank was organized on June 16, 1909, for the purpose of carrying on a general banking business. From the date of its organization until December 19, 1931, this bank carried on the business for which it was organized in the Village of Lombard. On December 19, 1931, pursuant to the request of the board of directors of the bank, the auditor of public accounts of the State of Illinois made an examination of its affairs. As a result of the examination the auditor on December 21, 1931, closed the bank and took possession of the same. On January 18,1932, the auditor appointed a receiver who took possession of the assets, business, property, and effects thereof.

At the date of closing the bank was indebted to the complainants as follows: To Otto Seharlau in the sum of $97.30; to Otis S. Butler in the sum of $152.30; to O. C. Gillette in the sum of $113.51. After the bank closed certain dividends were paid to the complainants and to other creditors of the bank. The indebtedness due to the complainants was reduced 20 per cent. The bill alleged that all of the stockholders of record at the time of the closing of the bank,- and also the stockholders who had owned stock at any period during the time that the bank was doing business, were liable to the creditors of the bank as provided in section 6, Article 11 of the Constitution of the State of Illinois. The defendants Webb and Coffin, now appellees in this court, filed a plea of the statute of limitations and denied liability under this plea. The appellees also filed an answer in which they denied all the material allegations of the bill or that they are liable to the complainants or to any other creditors of the bank, because they had owned stock in the Lombard State Bank.

The court did not pass on the sufficiency of the plea of the statute of limitations, but heard the evidence of the complainants. The major part of the testimony in the case relates to the stockholders, who did not appear and were defaulted. At the close of the testi-' mony of the complainants the court sustained the plea of the appellees and dismissed the bill as to them.

In sustaining the plea of the appellees the court entered a written order which is as follows: “On motion of Ralph E. Webb, solicitor for Lev H. Webb and Fred Y. Coffin, defendants, and due notice of such hearing having been served, and the court having jurisdiction of the above entitled cause and the subject matter thereof and the parties hereto" and upon hearing in open court of arguments of counsel on the plea of the statute of limitations filed herein on behalf of the aforesaid defendants, the court finds the defendants, Lew H. Webb and Fred Y. Coffin, each owned ten shares of the stock in the Lombard State Bank, a corporation, a defendant herein, and that the period of such ownership was from May 5, 1920 to May 12, 1921, and that the bill of complaint herein was filed January 29, 1932; and the court finds that the statute of limitations is properly pleaded on behalf of the defendants, Lew H. Webb and Fred Y. Coffin; and the court further finds that the said defendants are not liable to the complainants herein or to the creditors of said Lombard State Bank by reason of their ownership of said stock.

“It Is Therefore Ordered by the Court that said plea of the statute of limitations be and the same is hereby sustained and the motion to dismiss the bill of complaint as to the defendants, Lew H. Webb and Fred Y. Coffin, made by the solicitor for the said parties at the close of the hearing of the aforesaid plea, be and the same is hereby granted and this suit is hereby dismissed as to the defendants, Lew H. Webb and Fred Y. Coffin.

“Enter: William J. Fulton, Judge.”

The complainants and the receiver of the bank joined in an appeal to this court.

The appellant’s original brief and argument is devoted exclusively to the question as to whether the court erred in sustaining the plea of the statute of limitations to the bill of complaint. The appellees do not specifically admit that the court erred in sustaining their plea of the statute of limitations, but practically admit the same, by not arguing it in their brief. It is the contention of the appellees that the order of the court in dismissing the bill as to them is correct, even though the court may have given a wrong reason for the decision. It is also the contention of the appellees that there is not proper proof in the record which would justify the court in holding them liable as stockholders.

The only evidence which, in any way, connects the appellees as being stockholders in this bank is the testimony of the witness Harry E. Snyder. In the preliminary proof, Mr. Snyder qualified as an expert accountant. Mr. Snyder testified ■ that he examined the books and accounts of the Lombard State Bank after it had been closed and made an analysis of the different accounts to determine the date of their origin. He testified in detail as to how he made this examination. It is not contended by the appellees that Mr. Snyder was not thoroughly competent to make this examination or that the facts as related by him were not true and correct.

Aside from the testimony of Mr. Snyder about the examination that he made of the various accounts, the only evidence in the record to prove the liability of Fred Y. York and Lew H. Webb, appellees in this suit, is Snyder’s testimony, which is as follows: “Q. Now, calling your attention to the account of Fred Y. Coffin, state what you found from your examination of the records of the bank in regard to that account? A. He held ten shares from May 5, 1920, to May 12, 1921, during which time the accrued unsatisfied liabilities amounted to $1,928.42. Q. Making a total of how much? A. $1,000.00.” The testimony of the same witness in regard to the liability of Mr. Lew H. Webb, is as follows: “Q. Calling your attention to the account of Mr. Lew H. Webb, will you state from your examination of the record of the bank what the total liabilities accrued while this party was a stockholder and the amount of stock held by him when he was a stockholder ? A. He held ten shares from May 5,1920, to May 12, 1921, during which time the accrued unsatisfied liabilities amounted to $1,928.42. Q. Making a total liability of how much? A. $1,000.”

The defendants, through their attorneys, objected to this evidence on the grounds that it is incompetent, immaterial and a mere conclusion of the witness.- As stated, this is the only testimony in the whole record which, in any way, indicates that these men "were stockholders in this bank and should be held for the stockholders’ liability. There is no proof in the abstract or record which shows the face value of this stock. The abstract states the stock certificates and stubs of the stock books were offered in evidence, but nowhere does this appear in the abstract or in the bill of exceptions. There is no proof in the record that there are any other creditors (except by inference) of the Lombard State Bank aside from the complainants. The only evidence in the record that tends to show that there were other creditors was the testimony of the auditor when he testified to the liabilities of the bank. The only evidence as to the face value of the shares of stock is by the same auditor when he testifies as to the number of shares of stock held by the different stockholders, and when he fixed the liability of each stockholder by multiplying $100 by the number of shares of stock held by each stockholder.

It is conceded that the appellees were not stockholders of the bank at the time it closed, but they had disposed of any stock either of them held approximately 12 years before. At the time Mr. Snyder gave his testimony as to the liability of the appellees on the shares of stock they held, the court did not pass upon the objections of the attorneys for the appellees, but said, “Show the objection and heard subject to objection.” It is our opinion that this evidence was objectionable and the objection should have been sustained at the time the evidence was offered. The witness Snyder attempted to state an ultimate fact which was the province of the court to determine. He should have related the facts and circumstances from Avhicli the court could draAV his conclusions as to Avhether the defendants or either of them Avere liable as charged in the bill of complaint. While it is true that the auditor of public accounts, or a certified accountant, under certain circumstances is permitted to give the result of his finding after the examination of the books of the bank, when they are voluminous, it is not permissible that he state merely his conclusions alone when the case is heard before the court without a jury.

On revieAV it avüI be presumed that the chancellor considered only the competent evidence in the case, and we will follow that presumption, and that the court in dismissing the bill of complaint as to the defendants did not consider this evidence as being binding on the appellees. The court in the case of People v. Tallmadge, 328 Ill. 210, in discussing the rule in regard to the liability of an oEcer or stockholder to a depositor in a defunct bank, on page 221 states: “The general rule which governs in keeping the account between a bank and a depositor is, that as money is paid in and drawn out, or other debts and credits are entered, with the consent of both parties, in the general banking account of the customer, a balance may be considered as struck at the date of each payment or entry on either side of the accounts. (3 R. C. L. par. 159, p. 530.) The same authority recites that in cases of running accounts, Avith many debits and credits and no balances other than .for the mere purpose of making rests, payments ought to be applied to extinguish, the debts according to the priority of time, so that the credits are to be deemed payments pro tanto of the debts antecedently due. This is done because it is most just and equitable between, the parties, and also because, when no different intention has been expressed, such is presumed to be the intention of both parties, as being in accordance with the ordinary and usual course of dealing ; and between banker and depositor the general rule of appropriation of payments is ordinarily applicable, and indeed, it has been held that in the case of a banking account there is no room for any other appropriation than that which arises from the order in which the receipts and payments take place and are carried into the account. Presumably it is the sum first paid in that is first drawn out; the first item on the debit side that is discharged by the first item on the credit side.” The trial court evidently had this rule of law in mind, for the cross-examination of the three complainants shows that two of them had never had a deposit in the bank until long after the appellees had sold their stock and the other complainant may or may not have had a deposit in the bank at the time the appellees held their stock. His testimony is very indefinite, but he says he thinks he had had a deposit in the bank for about 20 years. His cross-examination shows that in the three years prior to the time the bank failed he had a deposit, and had drawn out considerably more money than he had on deposit in the bank at the time it closed. Under the rule as laid down in the Tallmadge case, the record is bare of any evidence that there was any indebtedness for which the appellees should be held liable at the time they owned their stock.

The appellants in their reply brief strenuously contend that the appellees raised only one defense in the trial court, that is, the statute of limitation, and, therefore, they should be estopped from raising any other defense in this court. In this the appellants • are in error as the.answer of the appellees specifically denies they are liable to the creditors of the bank' in any sum whatsoever. The burden of proof was on the complainants to prove the allegations of their bill and this they failed to do. The court’s order dismissing the bill says, “And the court further finds that the said defendants are not liable to the complainants herein, or to the creditors of the Lombard State Bank by reason of their ownership of stock” and then follows the order of dismissal.

The court in the case we are now considering made specific findings of fact that the defendants are not liable by reason of their ownership of the stock in question. In the case of Chicago Title & Trust Co. v. Schwartz, 339 Ill. 184, there were no specific findings of facts by the chancellor, but merely an abstract showing what the trial court had stated when he rendered lfis decision. The court in its opinion on pages 196,197, says: “So far as the abstract shows, the chancellor made no special findings of fact. In the certificate of evidence is an oral statement made by him at the time he entered the decree. Appellants insist that it is apparent from this statement that the chancellor decided the case upon the questions of law, only, and did not decide against appellants upon the merits, although there had been a full hearing thereon. From this premise, appellants argue, in effect, that unless the expressed theories of the chancellor be sustained he cannot be held to have duly exercised his discretion in this case. Where the chancellor reaches a correct conclusion in dismissing a bill for want of equity it can make no difference what led him to such conclusion. (Morse v. Seibold, 147 Ill. 318.) It is the decree, and not the statement of the chancellor, which is before us for review. Error cannot be assigned on the statement and its import is of no determining force here. Appellees have the • right to sustain this decree upon any facts in the record, whether the reasons given in the chancellor’s statement are good or not. (Pelouze v. Slaughter, 241 Ill. 215; Froehlich v. Minwegen, 304 id. 462.) Moreover, a decree for the defendant needs no evidence to support it, and it must stand unless it affirmatively appears that there was evidence adduced by the complainant or heard at the trial which entitled him to the relief prayed for in the bill. (Ryan v. Sanford, 133 Ill. 291.) It cannot be said that appellants made an affirmative showing entitling them to the relief prayed for, and there is no sufficient ground for disturbing the decree.” In Froehlich v. Minwegen, 304 Ill. 462, it is said: “It is pointed out by the appellant that appellees did not make the contention before the trial court upon which we are asked to and upon which we decide this case. Whether that is true or not, it was appellees ’ privilege to have the trial court sustained on any theory upon which it could be legally sustained, even though its decision was not based upon such theory. ’ ’ There are numerous other Supreme and Appellate Court cases which are authority for this proposition.

It is our opinion that it is proper for the appellees to raise the question in this court whether the complainants in the trial court failed to establish by competent evidence the liability of the appellees. The appellants failed to make out such a case. The order of the circuit court of DuPage county in dismissing the bill of complaint as to appellees is hereby affirmed.

Affirmed.


text:
    Lord Lumber and Fuel Company, Appellant, v. R. G. Hancock et al., Appellees.
    Gen. No. 8,872.
    Opinion filed January 10, 1935.
    Miller, Gorham, Wales & Adams, of Chicago, and Bunge & Bunge, of Downers Grove, for appellant.
    W. Scott Hodges, of Chicago, for appellees.
   Mr. Justice Dove

delivered the opinion of the court.

On May 7, 1927, appellant filed an action at law in the circuit court of DuPage county, making R. G. Hancock, 1ST. F. Grey as trustee, Theo. Wliaples, as trustee, E. M. Pray and unknown owners, defendants. The declaration was in assumpsit and alleged that the plaintiff as subcontractor furnished materials, a list of which was attached to the declaration, of the value of $1,120.22 for the defendant R. G. Hancock, as contractor, to be used and which were used in the construction and improvement of a building located on Lot Thirty-six (36), Block Eighteen (18), Clarendon Hills in the east half of section Ten (10) and the west half of section Eleven (11), Town Thirty-eight (38), North, Range Eleven (11) in DuPage County, Illinois, for N. F. Grey, as trustée, Theo. Whaples, as trustee, E. M. Pray and unknown owners, as owners of said land; that thereafter and within 60 days after the completion of the furnishing of said materials and on March 10, 1927, plaintiff caused a written notice of its claim for a lien and the amount due it to be served on the said owner and owners, a copy of which notice was attached to the declaration; that the amount due plaintiff, as subcontractor, was not paid within 10 days after service of said notice and is now due and unpaid and that this suit was commenced to enforce said lien within four months after the time the final payment was due. A summons was thereupon issued which was returned on June 13, 1927, by the sheriff of DuPage county, showing that none of the defendants was found in that county.

On May 10, 1927, five other suits at law were instituted by appellant against the same defendants, the declarations being substantially the same except as to the amount of the claim and the description of the property and materials furnished. Summonses were issued in each of these cases and likewise returned on June 13, 1927, not found. In each case an alias summons was issued on June 24, 1930, which was served on defendant Grey by the sheriff of Cook county on July 3, 1930, and on defendant, Pray, on July 8, 1930, by the sheriff of Cook county. Demurrers having been sustained to the several declarations, amended declarations were filed on September 8,1930. In the case filed May 7, 1927, an order was entered on November 14, 1930, dismissing the suit as to Grey, trustee, Whaples, trustee, and unknown owners and in all the cases a motion was made on November 17, 1930, to transfer the cause to the chancery docket and on December 6, 1930, this was done and leave granted the plaintiff to make G. M. Grounds or any other persons who may have an interest in the subject matter, additional parties defendant. On December 10, 1930, an order was entered consolidating the causes and directing that the issues be tried at the sanie time. On that day there was also filed in the consolidated cause a petition for mechanic’s lien, making Hancock, Pray, trustee, Whaples, trustee, Grey, trustee, “Unknown Owners,” G. M. Grounds, W. Scott Hodges, H. M. Bohlander and John S. Phipps, Henry O. Phipps and Howard Phipps, trustees, under a trust agreement dated December 31,1920, and known as the Phipps Industrial Land Trust, all parties defendant. This petition, after reciting the institution of the several common law actions, represented that Hancock had a contract, with the owner of the premises described in the petition, to build dwellings thereon, that petitioner was a dealer in lumber and building materials and that on or about July 10,1926, petitioner entered into an oral contract with Hancock to furnish the necessary lumber and materials with which said dwellings were to be constructed, that the premises upon which the dwellings were constructed were owned in fee by John S., Henry C. and Howard Phipps, as trustees, that the materials were furnished in pursuance to the contract between Hancock and petitioner, the-last deliver^ -thereof being on or about Januáry 15, 1927, and the amount unpaid and due petitioner being $6,711.97 and that claims for liens were duly filed on March 9, 1927, in the office of the circuit court of Du-Page county. The allegation with reference to Grounds, Pray, trustee, Whaples, trustee, Grey, trustee, Bohlander, Hodges and unknown owners was that they claimed some interest in the premises, but whatever interests they had accrued since the lien of petitioner and was subject thereto. Hancock, Grounds, Pray and unknown owners defaulted, answers were .filed by the other defendants and the cause referred to the master, who found that Hancock was a contractor and had a contract with John S., Henry C. and Howard Phipps as trustees, to erect dwellings upon the premises in question; that appellant furnished Hancock the materials therefor and that the last material was furnished on February 15, 1927, and that appellant became vested with a materialman’s lien upon the premises as a subcontractor for the respective amounts found due.appellant. The master further found as a proposition of law that a suit at law could only be maintained by a subcontractor against the owner and contractor jointly and that the joinder by appellant of parties other than the contractor and owner was unauthorized; that by sustaining a demurrer to the original declarations the court in effect held that no cause of action was alleged in the original declarations and that the amended declarations were filed more than four months and more than two years after the last delivery of materials by appellant and suit was therefore not brought within the limit of time in which subcontractors may institute suit; that appellant’s petition for a lien cannot be sustained because it was filed more than two years after the delivery of the last materials and each of said causes ceased to be Us pendens six months after May 7, and May 10,1927, respectively, because of the failure of appellant to give defendants •notice within six months after the several causes were instituted. The master recommended a dismissal of the petition and the chancellor, after overruling exceptions to the master’s report, rendered a decree dismissing the petition for want of equity and from that decree appellant has prosecuted this appeal.

Appellees’ counsel insist that appellant was a contractor and not a subcontractor, and therefore regardless of other questions presented by the record, the decree should be affirmed. The master found that appellant was a subcontractor and the evidence in this record which sustains his finding is that in July, 1926, the premises involved in this proceeding were owned by John S., Henry O. and Howard Phipps, as trustees. On July 26,1926, the premises were conveyed by a deed of that date recorded August 31, 1926, to George M. Grounds, who by a conveyance dated October 12, 1926, recorded on November 10, 1926, conveyed them to Erwin M. Pray, trustee, who continued to be the owner of record until after the last material was delivered by appellant. While Grounds was the owner thereof, he incumbered them by executing a senior trust deed to Newton F. Grey, trustee, and a junior trust deed to Theodore Whaples, trustee. On April 1,1926, John S., Henry O. and Howard Phipps, as trustees, the then owners of the record title to these premises, entered into contracts of sale with Raymond G. Hancock for these premises. These contracts were never recorded, but were assigned to Grounds, who' in pursuance thereof received a deed to the premises from the Phipps trustees on July 26, 1926. Ralph G. Herring is the president and treasurer of appellant and he testified that between July 10 and 15, 1926, he had a conversation with Hancock in which Hancock told him that he was engaged in the building business and had a contract to erect a great many houses in Clarendon Hills and that he desired to purchase materials therefor from appellant; that Herring then inquired how he was going to take care of his obligations and Hancock replied that the money would be furnished .by the Phipps estate. Herring further testified that he knew the Phippses had owned the property for years. While it does not seem consistent that the Phipps trustees would enter into a contract with Hancock to build houses on these lots which they had previously contracted to sell to Hancock, still these agreements for deeds were not of record and appellant had no knowledge thereof. From this evidence we are unable to say that the conclusion of the master that appellant was a subcontractor was not justified. When Hancock made his contract with appellant, the legal title was in the Phippses as trustees, and appellant was advised by Hancock that he was a building contractor, that the houses were to be erected upon premises which appellant knew belonged to the Phipps trust and appellant was -advised that the record owners would furnish the money with which to pay for the materials.

Appellant insists that section 28 of the Liens Act, Cahill’s St. ch. 82, 28, authorized the joining of “Unknown Owners” and other parties interested and that there was no improper joinder of parties in the several actions at law which it instituted on May 7 and 10, 1927, and cites Graham v. O’Connor, 350 Ill. 36, as so holding. The Graham ease was a proceeding to quiet title and there is nothing said in that case which sustains this contention of appellant. On page 344, sec. 139, Love on Mechanics’ Liens, it is said: “It is clear from the reading of section 28 that only the owner and original contractor may be made parties defendant in this form of section; thus it is erroneous to join the trustee in bankruptcy of the original contractor or the trustee in a deed of trust in respect to the property.” And in Howell v. Anderson, 170 Ill. App. 14, in discussing an action at law brought under section 28, the court says: “It seems quite cléar to us.-that the statute contemplates that only ownerk and principal contractors shall be made defendants in suits at law by subcontractors, under the section' of the statute referred to. . . . The appellee, John Lems Cochran, was made defendant in his individual capacity and entered his appearance, at the same time filing an affidavit of merits in which it was recited that his only interest in the property was that of trustee under a deed of trust. His contention in that regard was sustained by the stipulation of facts heretofore referred to. It is clear that no judgment could properly have been entered against him in this proceeding. The defendant, Bryan Lathrop, was not served with process, but the suit was not dismissed as to him. Nor was it dismissed as to any other of the defendants. In Harty Bros. v. Polakow, supra, it was held, as heretofore stated, that an action such as this could be maintained against the owner, on the ground that there is on the part of an owner an implied promise to pay. It has been many times held that in actions on contract, express or implied, wherein several parties are made defendants, recovery must be against all or none. (Citing cases.) It is also to be noted that section 28 of the lien law above referred to requires that the judgment be a joint one.

“Under any view of the evidence in this case, recovery, if any, could be had only against Anderson as owner and the Biggs Company as principal contractor. Plaintiff did not see fit to dismiss the case as against the other defendants, who, as we believe, were improperly joined. O’Brien v. Gooding, 194 Ill. 466, 474. There was therefore, in our opinion, nothing for the court to do at the close of the case but to enter judgment against the plaintiff for costs, as was done.”

Under these authorities Grey, as trustee, under the senior incumbrance, Whaples, as trustee under the junior incumbrance, and unknown owners were not proper parties to the original actions at law. The amended declarations likewise improperly joined Grey and Whaples as defendants, and while no order of dismissal as to unknown owners was entered, they were not mentioned in the amended declarations. With the pleadings in this condition, any judgment that would have been entered could not have been sustained, and it was not until the causes were transferred to the chancery docket and the petition filed on December 10, 1930,-that Grey, Whaples and the Phippses were properly in the case. In Hacken v. Isenberg, 288 Ill. 589, it was held that where a new party is introduced into a suit by amendment, the suit is brought, as to such party, from the date of the amendment.

In our opinion no cause of action was stated in either the original or amended declarations and-the running of the period of limitation was not arrested until the filing of appellant’s petition after the consolidated cause had been transferred to the chancery docket (North Side Sash & Door Co. v. Hecht, 295 Ill. 515), and this was after the expiration of the time provided by the Liens Act, Cahill’s St. ch. 82, ¶ 28, and the decree dismissing the bill was therefore properly rendered.

Decree affirmed.


author: Mr. Justice Huffman

text:
    Otto Scharlau et al., Appellants, v. Lombard State Bank et al. Grace E. Brandt, Appellee.
    Gen. No. 8,844.

      Opinion filed January 10, 1935.
    Rehearing denied February 5, 1935.
    Herbert A. Grotefeld, of Downers Grove, and Gordon Moffett, of Lombard, for appellants; Eva E. Pollack, of Downers Grove, of counsel.
    Frederick O. Harbour, of Chicago, for appellee.
   Mr. Justice Huffman

delivered the opinion of the court.

This was a suit by appellants against certain defendants to enforce stockholder’s liability against them as stockholders of the Lombard State Bank. Appellee, Grace E. Brandt, was a resident of the State of California, and had been for approximately 10 years prior to the bringing of this suit. It appears that Mr. Michael Kross, an attorney of DuPage county, and a friend of appellee’s family for many years, was also ■a defendant to said bill; and that he filed a general appearance for a large number of defendants, including himself and appellee; that subsequently he filed a general demurrer to the bill on behalf of such defendants, which was overruled; and following this, filed a short answer to the bill on behalf of such defendants.

Appellee, upon learning of the above, entered a special appearance by her attorney herein, Mr. Harbour, and made motion to quash the general appearances that had theretofore been entered in said cause upon her behalf, and to strike from the files all pleadings in said cause filed in her behalf by Mr. Kross. Motion was supported by affidavits to the effect that appellee did not employ or direct Mr. Kross to appear for her as attorney or to enter her appearance in said cause and that she did not authorize any person to make such arrangements for her. We do not find any controversy to exist over this question. It appears that it was the result of a misunderstanding which arose from a conversation had between Ida' E. Ullmann, a sister of appellee, and Mr. Schumacher, president of the Elmhurst State Bank, regarding their respective liabilities as stockholders in the Lombard State Bank, and in agreeing that Mr. Kross should represent them along with certain other defendants.

There appears to be no question but that the filing of appearance together with the pleadings by Mr. Kross on behalf of appellee was the result of inadvertence and misunderstanding; and that the same was done without any knowledge or authorization upon the part of appellee. There is no criticism due Mr. Kross in the matter. He appeared for many defendants in the action, and by a condition of unfortunate circumstances and misunderstanding, included the name of appellee among such list of defendants. This is not an unexpected situation in cases such as this one where there are many defendants with one attorney representing a large portion thereof and no doubt receiving suggestive directions from persons who are not authorized to make the same.

An attorney must be actually employed for the purpose before he can represent a party litigant in court. The relation of client and attorney must subsist between them. That relation cannot be created by the attorney alone, nor by the attorney and a third party who has no authority to act. Bell v. Farwell, 189 Ill. 414, 419; Harshey v. Blackmarr, 20 Iowa 161, 89 Am. Dec. 520.

It is the duty of a plaintiff to obtain due legal service upon his adversaries in the manner provided by law, and he cannot be relieved in this respect by the act of a person unauthorized by the defendant. Appellee was not amenable to the jurisdiction of the court and did no act to authorize the entry of her appearance. A defendant should not be bound by the unauthorized act of a stranger. To permit this would be to bind such • litigant by the judgment of the court without his having had his day in court. Appellee is in nowise bound by the proceedings taken against her by virtue of her unauthorized appearance. There is no other principle which can afford appellee adequate protection in this case, than to hold that such unauthorized appearance shall be held and considered a nullity.

The order of the circuit court of DuPage county in quashing the appearances filed in this cause by Michael Kross on behalf of said appellee and striking from the files the joint and several answers of appellee, was correct and is affirmed.

Order affirmed.